Superior Protection, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 2004

341 N.L.R.B. 267 (N.L.R.B. 2004)

SUPERIOR PROTECTION INC. 267
Superior Protection Inc. and United Government Se-
curity Officers of America–Local 229. Case 16–
CA–23210
February 25, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on November 5, 2003, the
General Counsel issued the complaint on November 19,
2003, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain and to furnish information following the Un-
ion’s certification in Case 16–RC–10361. (Official no-
tice is taken of the “record” in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB
343 (1982).) The Respondent filed an answer, and a first
amended answer, admitting in part and denying in part
the allegations in the complaint.
On January 5, 2004, the General Counsel filed a Mo-
tion for Summary Judgment. On January 12, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. On February 2, the Respondent filed a re-
sponse, and on February 10, the General Counsel filed a
reply thereto.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain and to
furnish information, but contests the validity of the certi-
fication based on its contentions in the representation
proceeding that: (1) the petitioned-for unit covering all of
its security officers assigned to work at General Services
Administration (GSA) contract facilities in three Texas
counties is inappropriate, and the unit should be limited
to security officers assigned to GSA contract facilities in
Harris County (Houston and Pasadena); and (2) em-
ployee Kelvin Trotter is not an eligible voter because he
was discharged prior to the election. In addition, the
Respondent contends that the Regional Director improp-
erly directed a mail ballot election, and that the Region
failed to send mail ballots to eligible voters and to count
mail ballots cast by eligible voters. Finally, the Respon-
dent asserts that, in May 2002, after the representation
case was litigated, it entered into a separate contract with
GSA to provide guard services at eight additional facili-
ties located within the geographic scope of the certified
unit, and that the employees at these facilities would ef-
fectively be accreted to the unit pursuant to the Board’s
bargaining order in this case. The Respondent asserts
that this raises a question regarding the appropriateness
of the unit because the employees at these additional
facilities, who were employed by the previous contractor,
outnumber the unit employees at the facilities existing at
the time of the election, 42 to 29, and it is well-
established Board policy that a larger unit may not be
accreted into a smaller unit without an election.
We find that the Respondent has not raised any repre-
sentation issue warranting a hearing in this proceeding.
The Respondent’s contentions that the three-county unit
is inappropriate and that Trotter is not an eligible voter
were fully litigated and addressed by the Board in the
preelection proceeding and the consolidated unfair labor
practice/challenged ballot proceeding, respectively.1 The
Respondent does not offer to adduce at a hearing any
newly discovered and previously unavailable evidence,
nor does it allege any special circumstances that would
require us to reexamine the Board’s findings on those
issues.
With respect to Respondent’s contention that the Re-
gional Director improperly directed a mail-ballot elec-
tion, the Respondent never requested the Board in the
representation proceeding to review the Regional Direc-
tor’s decision to conduct the election by mail. Although
the Respondent mentioned in its request for review of the
Regional Director’s Decision and Direction of Election
that it opposed the decision to hold a mail ballot election,
it did so only in support of its contention that the peti-
tioned-for three-county unit is inappropriate; that is, the
Respondent claimed that the Regional Director’s analysis
on the mail ballot issue supported the Respondent’s posi-
tion on the scope-of-unit issue. The Respondent did not
request the Board to overturn the Regional Director’s
direction of a mail ballot election. The Respondent,
therefore, is precluded under Section 102.67(f) of the
Board’s Rules from raising the issue in this proceeding.
See Ritz-Carlton Hotel Co., 321 NLRB 659 fn. 1 (1996),
enfd. 123 F.3d 760 (3d Cir. 1997).
For similar reasons, the Respondent is also precluded
from raising an issue in this proceeding about the manner

1 By unpublished Order dated October 16, 2001, the Board (Chair-
man Hurtgen and Members Liebman and Walsh) denied the Respon-
dent’s request for review of the Regional Director’s Decision and Di-
rection of Election, which found that the petitioned-for unit is appropri-
ate. Thereafter, in a published decision dated July 31, 2003 (339
NLRB 954 (2003)), the Board (Members Schaumber, Walsh, and
Acosta) adopted the administrative law judge’s decision in the consoli-
dated unfair labor practice/challenged ballot proceeding finding, inter
alia, that the Respondent’s discharge of Trotter was unlawful and that
his ballot should therefore be opened and counted.
341 NLRB No. 35
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 268
in which the Region conducted the mail ballot election.
Although the Respondent raised this issue in the consoli-
dated unfair labor practice/challenged ballot proceeding,
it failed to do so in timely filed objections as required by
Section 102.69 of the Board’s Rules. The administrative
law judge, therefore, refused to allow the Respondent to
litigate the issue, since it was not relevant to Trotter’s
eligibility, the only issue that the Respondent did timely
raise. See 339 NLRB 954 fn. 2 (2003). The Board af-
firmed the judge’s ruling and the Respondent does not
offer to produce any newly discovered and previously
unavailable evidence or allege that there are special cir-
cumstances that would require us to reconsider that rul-
ing in this proceeding. See Sundor Brands, Inc., 325
NLRB 499 (1998); Bishop Mugavero Center for Geriat-
ric Care, 323 NLRB 642 (1997) (employer’s failure to
file timely objections to the conduct of the election pre-
cludes it from raising the issue in the subsequent refusal-
to-bargain proceeding absent newly discovered and pre-
viously unavailable evidence).
Finally, we also find that no issue warranting a hearing
is raised by the Respondent’s contention that the certified
unit is no longer appropriate because the employees at
the eight additional GSA facilities it now services within
the geographic scope of the unit would necessarily be
accreted to the smaller group of employees who work at
the GSA facilities it serviced at the time of the election.
As an initial matter, there is no indication that the Union
is seeking to accrete the employees at the additional fa-
cilities into the unit. On the contrary, as the Employer
acknowledges, the Union filed a petition on January 13,
2003 (Case 16–RC–10480), seeking to represent the em-
ployees at those facilities in a separate unit.2
Further, contrary to the Respondent’s contention, the
employees at the additional facilities would not necessar-
ily be accreted into the unit pursuant to the Board’s bar-
gaining order. Although the unit description on its face
includes all security officers assigned to GSA contract
facilities located in the three-county area, “the Board
does not automatically accrete employees at a new [facil-
ity] solely because the unit description includes all the
employer’s [facilities], present and future, in a geo-
graphic area.” Coca-Cola Bottling Co. of Wisconsin, 310
NLRB 844 (1993). As the Respondent itself argues, ac-
cretion would be inappropriate if the employees at the
additional facilities numerically overshadow the employ-
ees at the facilities that existed at the time of the election.
See, e.g., Gould, Inc., 263 NLRB 442, 445 (1982). Ac-
cretion would also be improper if, as the Union appears

2 The Region held the Union’s petition in abeyance pending the
Board’s resolution of the underlying representation case here.
to assert in its January 13, 2003 petition in Case 16–RC–
10480, the employees at the additional facilities would
constitute a separate appropriate unit. See, e.g., Ready
Mix USA, Inc., 340 NLRB No. 107, slip op. at 8–9
(2003); Passavant Retirement & Health Center, 313
NLRB 1216, 1218 (1994); and Houston Division, 219
NLRB 388 (1975). The Respondent does not address
this unit question.3
Finally, the Respondent does not contend that the two
groups of employees have been merged or consolidated,
thereby completely obscuring their separate identity. Cf.
Renaissance Center Partnership, 239 NLRB 1247
(1979) (Board processed employer’s RM petition, even
though it was filed during the certification year, where
the certified group of security personnel at the Renais-
sance Center had been consolidated and intermixed with
a larger, unrepresented group of security personnel at a
hotel within the same commercial development, the Un-
ion had filed a unit-clarification petition seeking to ac-
crete the larger group into the unit, and the evidence
showed that the groups were now indistinguishable and
that the only appropriate unit consisted of the overall
security force).
Accordingly, we find that the Respondent has not
raised any representation issue or special circumstances
that are properly litigable in this unfair labor practice
proceeding or that warrant reconsideration of the certifi-
cation. See Pittsburgh Plate Glass Co. v. NLRB, 313
U.S. 146, 162 (1941); Action Automotive, Inc., 284
NLRB 251, 255–256 (1987), enfd. 853 F.2d 433 (6th Cir.
1988), cert. denied 488 U.S. 1041 (1989).4
We also find that there are no genuine issues of mate-
rial fact warranting a hearing regarding the Union’s re-
quest for information. The complaint alleges, and the
Respondent’s answer admits, that the Union requested
the following information from the Respondent by letter
dated September 30, 2003:

1. A list of all posts and assignments in the unit and
their Federal jurisdiction (i.e. partial, proprietary, con-
current, or exclusive), and the number of productive
hours performed at each assignment.
3 These are issues that may properly be addressed in Case 16–RC–
10480 or some other proceeding specifically involving the representa-
tional rights of the additional employees, rather than in this test-of-
certification proceeding.
4 As indicated above, Member Schaumber did not participate in the
Board’s October 16, 2001 Order, and Member Liebman did not partici-
pate in the Board’s July 31, 2003 Decision and Order. However,
Members Liebman and Schaumber agree that the Respondent has not
raised any new matters or special circumstances warranting a hearing in
this proceeding or reconsideration of the decision and orders in the
representation proceeding.

SUPERIOR PROTECTION INC. 269
2. The current list of names, addresses, and phone num-
bers for all employees in Houston.

As indicated above, the Respondent also admits that it
refused to provide the foregoing information. Although
the Respondent denies that the requested information is
necessary for, and relevant to, the Union’s performance
of its duties as the exclusive collective-bargaining repre-
sentative of the unit employees, the Respondent does so
based solely on its contention that the Union was not
properly certified.
Moreover, it is well established that information con-
cerning unit employees’ names, addresses, phone num-
bers, work assignments, and hours is presumptively rele-
vant for purposes of collective bargaining and must be
furnished on request.5 Here, although the Union’s re-
quest for the names, addresses, and phone numbers of all
employees in Houston is not expressly limited to unit
employees in Houston, the context suggests that the Un-
ion is only seeking information concerning unit employ-
ees. In any event, to the extent the Union’s information
request could be construed as requesting nonunit infor-
mation, this would not excuse the Respondent’s blanket
refusal to comply with the request. It is well established
that an employer may not simply refuse to comply with
an ambiguous or overbroad information request, but must
request clarification or comply with the request to the
extent it encompasses necessary and relevant informa-
tion.6
Accordingly, we grant the Motion for Summary Judg-
ment and will order the Respondent to bargain with the
Union and to furnish the Union with the information it
requested relating to unit employees.7
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration with an office and place of business in Houston,
Texas, has been engaged in the business of providing
security services for Federal agencies.
During the 12-month period preceding issuance of the
complaint, the Respondent provided services valued in

5 See, e.g., Stanford Hospital & Clinics, 338 NLRB 1042 (2003);
MEMC Electronic Materials, Inc., 338 NLRB No. 142 (2003) (not
published in bound volume); American Logistics, Inc., 328 NLRB 443
(1999), enfd. 214 F.3d 935 (7th Cir. 2000).
6 See, e.g., Streicher Mobile Fueling, Inc., 340 NLRB No. 116, slip
op. at 2 (2003); Cheboygan Health Care Center, 338 NLRB 802, 803
fn. 2 (2003).
7 The Respondent’s request that the complaint be dismissed is there-
fore denied.
excess of $50,000 directly to customers located outside
the State of Texas.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the mail ballot election conducted October
15 through 29, 2001, the Union was certified on August
25, 2003,8 as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
unit:

INCLUDED: All permanent, full-time and regular part-
time security officers assigned to work at GSA contract
facilities in Harris, Montgomery and Galveston coun-
ties.
EXCLUDED: All office clerical employees, employees
on temporary assignment, professional employees,
managers and supervisors as defined by the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
About September 30, 2003, the Union, by letter, re-
quested the Respondent to bargain and to furnish neces-
sary and relevant information, and, since about the same
date, the Respondent has failed and refused to do so. We
find that the Respondent’s conduct constitutes an unlaw-
ful refusal to bargain in violation of Section 8(a)(5) and
(1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after September 30,
2003, to bargain with the Union as the exclusive collec-
tive-bargaining representative of employees in the ap-
propriate unit and to furnish the Union necessary and
relevant information, the Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement. We shall also order the Respon-
8 The complaint incorrectly states that the certification issued on
August 21, 2003.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270
dent to furnish the Union the information it requested
relating to unit employees.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Superior Protection Inc., Houston, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Government Secu-
rity Officers of America–Local 229, as the exclusive
bargaining representative of the employees in the bar-
gaining unit, and refusing to furnish the Union informa-
tion that is relevant and necessary to its role as the exclu-
sive bargaining representative of the unit employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:

INCLUDED: All permanent, full-time and regular part-
time security officers assigned to work at GSA contract
facilities in Harris, Montgomery and Galveston coun-
ties.
EXCLUDED: All office clerical employees, employees
on temporary assignment, professional employees,
managers and supervisors as defined by the Act.

(b) Furnish the Union the information it requested on
September 30, 2003, relating to unit employees.
(c) Within 14 days after service by the Region, post at
its facility in Houston, Texas, copies of the attached no-
tice marked “Appendix.”9 Copies of the notice, on forms

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 30, 2003.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain with United Govern-
ment Security Officers of America–Local 229, as the
exclusive bargaining representative of the employees in
the bargaining unit, and WE WILL NOT refuse to furnish the
Union information that is relevant and necessary to its
role as the exclusive bargaining representative of the unit
employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:

SUPERIOR PROTECTION INC. 271

INCLUDED: All permanent, full-time and regular part-
time security officers assigned to work at GSA contract
facilities in Harris, Montgomery and Galveston coun-
ties.
EXCLUDED: All office clerical employees, employees
on temporary assignment, professional employees,
managers and supervisors as defined by the Act.

WE WILL furnish the Union the information it requested
on September 30, 2003, relating to unit employees.

SUPERIOR PROTECTION INC.