LEOSU-CA WINS Again as the NLRB Issues a DECISION DISPOSING OF OBJECTIONS in Paragon CA Election
UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD
SERVICE OF DECISION DISPOSING OF OBJECTIONS
Case Name: Paragon Systems, Inc. Case Number: 21-RC-265739 In accordance with the National Labor Relations Board Rules and Regulations, as amended, you are hereby served with a copy of Decision Disposing of Objections in this matter. You can view the document by clicking the attached pdf file. You may wish to print or save the document and this email for your records. You will receive a copy of this document by U.S. mail.
DECISION DISPOSING OF OBJECTIONS
For the reasons set forth below, the Intervenor’s objections are overruled in their entirety and a certification of representative should issue.
Based on a representation petition filed on September 4, 2020, and pursuant to a Stipulated Election Agreement approved on October 7, a mail ballot election was conducted beginning on September 24. The mail ballot election was conducted to determine whether a unit of employees of Paragon Systems, Inc. (Employer) wished to be represented for purposes of
collective bargaining by Law Enforcement Officers Security Unions LEOSU-CA, LEOS-PBA (Petitioner), International Union, ************* and its affiliated Local 52 (Intervenor), or neither labor organization. The voting unit consists of:
Included: All full-time and regular part-time armed and unarmed security officers and lead security officers (Sergeants) performing guard duties as defined by Section 9(b)(3) of the National Labor Relations Act, as amended, employed by the Employer in the counties of San Diego, San Bernardino, Riverside, and Imperial, California, pursuant to a contract between the Employer and the United States Department of Homeland Security/Federal Protective Services (“DHS/FPS”), Contract No. HSHQW9-13-D-00004 or its successor(s).
Excluded: All other employees, temporary employees, irregular part-time employees, office clerical employees, confidential employees, professional employees, managerial employees, and supervisors as defined in the Act.
All ballots were commingled and counted on November 10. The tally of ballots prepared following the conclusion of the ballot count showed that of the approximately 257 eligible voters, 84 votes were cast for the Petitioner, 2 votes were cast for the Intervenor, and 3 votes were cast against the participating labor organizations. There were 9 void ballots and no
On November 18, the Intervenor timely filed 6 objections to conduct affecting the results of the election as well as a supporting offer of proof.
Objection No. 1
The Employer’s voter list fails to provide job classifications other than ‘Officer.’
Objection No. 2
The Employer’s voter list failed to include meaningful descriptions of work shifts and work locations for a significant number of employees.
Objection No. 3
The Employer’s voter list included supervisors who were not eligible to vote in the election. Because they are substantially related, Objection Nos. 1, 2 and 3 will be considered together.
In its offer of proof submitted in support of its objections, the Intervenor contends that the job classifications provided by the Employer on the voter list were insufficient. As detailed above, the stipulated unit consists of “All full-time and regular part-time armed and unarmed security officers and lead security officers (Sergeants) performing guard duties....” The Employer provided the voter list in two parts, one list with 214 voters (the San Diego list) and one with 43 voters (the Riverside list). The Riverside list has a column for job classification and identifies each employee as “5801-Fed Security Officer.” The San Diego list does not have a separate column for job classifications and instead, at the top of the column for the employees’ last names, states “Officers – Full Time.” In addition, some of the employees on the San Diego list are identified as part-time by the marking “(Part time)” after their last names. No employees are specifically identified as lead security officers on either list, but there are two identified on the San Diego list as “SGT” (apparently sergeants) in the “Exh.” column of that list.
With respect to Objection No. 2, the Intervenor contends that many of the employees’ work shifts and locations are misidentified on the voter list. In this regard, while the San Diego list appropriately identifies work shifts for most employees by specifically stating the hours and days, about 70 employees’ shifts are identified as “OPS,” “LT,” or some other abbreviation that does not appear to identify a shift. The same is true for the work locations provided on the San Diego list.
As for Objection No. 3, the Intervenor further contends that the San Diego list was inaccurate because it includes a number of voters designated as “CPT,” “LT,” and “PM,” which the Intervenor asserts are the supervisory positions of Captain, Lieutenant, and Program Manager. There are about 7 individuals on the San Diego list with these designations. The Intervenor also asserts in its offer of proof that the inclusion of these individuals on the list may have been designed so the Employer (through its alleged supervisors on the list) would receive any campaign materials sent to eligible voters.
The Intervenor contends that the voter list deficiencies violate the Board’s Rules and Regulations, Section 102.67(l), regarding the proper format and service of the voter list, and that under that section, a rerun remedy “shall” apply whenever proper and timely objections are filed. The Intervenor also cites URS Federal Services, Inc., 365 NLRB No. 1 (2016), in support of its
contention that a rerun election is the appropriate remedy in circumstances where a party does not comply with the voter list requirements.
A hearing on objections is held only when there are substantial and material issues of fact. Care Enterprises, Inc., 306 NLRB 491, 491 fn. 2 (1992). The burden is on the objecting party to provide evidence that the election should be set aside. Daylight Grocery Co. v. NLRB, 678 F.2d 905, 909 (11th Cir. 1982); Lamar Advertising of Janesville, 340 NLRB 979 (2003); and Consumers Energy Co., 337 NLRB 752 (2002). The evidence must establish a prima facie case in support of its objections. See Park Chevrolet-Geo, Inc., 308 NLRB 1010, 1010 fn. 1 (1992).
It is well settled that “[r]epresentation elections are not lightly set aside. There is a strong presumption that ballots cast under specific NLRB procedural safeguards reflect the true desires of the employees.” Lockheed Martin Skunk Works, 331 NLRB 852, 854 (2000), quoting NLRB v. Hood Furniture Co., 941 F.2d 325, 328 (5th Cir. 1991) (internal citations omitted). Therefore, “the burden of proof on parties seeking to have a Board-supervised election set aside is a heavy one.” Delta Brands, Inc., 344 NLRB 252, 253 (2005), citing Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir. 1989). To prevail in cases where there is an objection to the conduct of the election, the objecting party must establish facts raising a “reasonable doubt as to the fairness and validity of the election.” Patient Care of Pennsylvania, 360 NLRB No. 76 (2014), citing Polymers, Inc., 174 NLRB 282, 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396 U.S. 1010 (1970). In determining whether to set aside an election, the Board applies an objective test. The test is whether the conduct of a party has “the tendency to interfere with employees’ freedom of choice.” Cambridge Tool & Mfg. Co., Inc., 316 NLRB 716, 716 (1995).
As the Board stated in Transportation Unlimited, 312 NLRB 1162, 1162 (1993), “it requires more than mere speculative harm to overturn an election.” See also J.C. Brock Corp., 318 NLRB 403, 404 (1995). The objecting party has the sole burden of providing evidence in support of its objections. NLRB Casehandling Manual (Part Two), Section 11392.9. With respect to offers of proof, the Board has found that an objecting party “may satisfy its burden by specifically identifying witnesses who would provide direct rather than hearsay testimony to support its objections, specifying which witnesses would address which objections.” Transcare New York, Inc., 355 NRLB 326, 326 (2010); Heartland of Martinsburg, 313 NLRB 655 (1994); Holladay Corp., 266 NLRB 621 (1983); NLRB Casehandling Manual (Part Two), Section 11392.6. The objecting party also may satisfy this burden by providing specific affidavit testimony and other specific evidence in support of its objections. In re City Wide Insulation of Madison, 338 NLRB 793, 794–95 (2003); cf. River Walk Manor, Inc., 269 NLRB 831 (1984).
More specifically with respect to the Intervenor’s objections concerning the voter list, in deciding whether an employer’s submission of a voter list that is inaccurate or incomplete requires setting aside an election, the Board has emphasized that the rule is not to be “mechanically applied.” Telonic Instruments, 173 NLRB 588, 589 (1969); General Time Corp., 195 NLRB 343, 344 (1972); Program Aids Co., 163 NLRB 145, 146 (1967); Thrifty Auto Parts, 295 NLRB 1118 (1989). Balancing against the need to encourage conscientious efforts to comply, the Board accordingly considers whether, under the circumstances of a particular case, the employer has “substantially complied” with the requirements. Gamble Robinson Co., 180 NLRB 532 (1970); Sonfarrel, Inc., 188 NLRB 969 (1971).
Here, it appears that the Employer has substantially complied with the voter list requirements. In this regard, while there may have been inaccuracies in some of the information provided, the list was timely served and in the proper format, i.e., the lists included the voters’ full names and contact information, including home addresses, available personal email addresses, and available home and personal cellular telephone numbers, and designations for the voters’ work locations, shifts, and job classifications.
Further, to the extent the Intervenor relies on URS Federal Services, Inc., 365 NLRB No. 1 (2016), in support of its contention that the election should be set aside, that case concerned the employer’s failure to serve the voter list on the petitioner and not alleged inaccuracies in the list provided. As such, that case does not support the Intervenor’s arguments here. It is also noted
that the Intervenor is the incumbent union and has been the exclusive collective-bargaining representative of the unit employees. It does not appear that any party raised any of these issues with the voter list prior to the election, and any issues with alleged supervisors could similarly have been raised in advance or through the challenge procedure. As detailed above, there were
no challenged ballots in this election.
Moreover, even assuming that the alleged voter list inaccuracies could be sufficient grounds to set aside the election, these objections do not warrant setting aside the election under the Showell Poultry exception. In this regard, in Showell Poultry, 105 NLRB 580 (1953), the Board found that in elections involving two or more unions, even if an employer has been shown to engage in misconduct, the Board will not set aside the election if one of the unions has won the election decisively and the employer’s conduct equally affected both unions. See also Mercy Hospital Mercy Southwest Hospital, 338 NLRB 545, 546 fn. 6 (“...In the absence of evidence that the employer’s misconduct disparately impacted the competing unions, the Board will
presume that the objectionable conduct had equal effect on both unions, and the prevailing union will be certified.”)
Here, the Petitioner won the election decisively, by a margin of 84-2 over the Intervenor, and the alleged inaccuracies in the voter list equally impacted both unions. Moreover, it could be argued that the Intervenor, as the incumbent union, was less affected by the discrepancies as it was likely familiar with the unit, employees’ job classifications, and their work locations.
Accordingly, the Intervenor’ offer of proof with respect to Objection Nos. 1, 2 and 3 fails to establish substantial and material issues warranting a hearing, and Objection Nos. 1, 2 and 3 are overruled.
Objection No. 4
During the critical period, the Employer illegally refused to bargain with the ***** due to the pending Petition for election.
Objection No. 5
During the critical period, the Employer improperly delayed bargaining with the *****.
Because they are substantially related, Objection Nos. 4 and 5 will be considered together.
As noted above, the Intervenor is the incumbent union and has been the exclusive collective-bargaining representative of the unit employees. In its offer of proof, the Intervenor contends that on October 26, it sent an Employer representative a proposal regarding a potential wage and benefits reopener. The Employer representative responded in a November 2 email advising that she was unable to engage in negotiations at the time because of the pending election and stating that they would need to wait and see. On November 3, the Employer president sent the Intervenor an email advising that the other Employer representative had misspoken, and that while that particular representative was not available, the president or another Employer representative were available that week. The Intervenor states that representatives from the Employer and the Intervenor discussed the matter on November 4, and that an Employer representative advised the Intervenor that she would get back to them on November 5. However, the Employer did not actually respond to the Intervenor on this matter until November 11, one day following the November 10 tally of ballots in this case.
The Intervenor contends that the Employer’s initial refusal to bargain and its subsequent delay in bargaining was unlawful. The Intervenor further states that the refusal to bargain was communicated to its executive board, and “presumably beyond,” but provides no specific information in its offer of proof as to any dissemination of the alleged conduct to unit employees.
Objection Nos. 4 and 5 allege that the Employer unlawfully refused to bargain and delayed bargaining with the Intervenor. The conduct alleged by these objections is conduct that that would require the finding of a Section 8(a)(5) violation of the Act. However, no such charge has been filed nor any such violation been found, and it is well settled that the Board will not
inquire into an objection when the gravamen of the allegation is a Section 8(a)(3) or (5) violation. In this regard, the Board has found that making such a finding in a representation case “would conflict with the statutory scheme which vests the General Counsel with final authority as to the issuance of complaints based upon unfair labor practice charges and the prosecution
thereof.” Texas Meat Packers, 130 NLRB 279 (1961); McLean Roofing Co., 276 NLRB 830,fn.1 (1985); Virginia Concrete Corp., 338 NLRB 1182, 1185-86 (2003) (applying this same rationale to cases in which the gravamen of the allegation is a Section 8(a)(5) violation).
The gravamen of the allegations in Objection Nos. 4 and 5 are Section 8(a)(5) violations, but there has been no charge allegation nor any finding that the Employer violated Section 8(a)(5) by the conduct alleged on these objections. As such, no further inquiry into these objections is warranted.
Accordingly, the Intervenor’ offer of proof with respect to Objection Nos. 4 and 5 fails to establish substantial and material issues warranting a hearing, and Objection Nos. 4 and 5 are overruled.
Objection No. 6
Through these and other acts, the Employer engaged in objectionable conduct potentially affecting the outcome of the election.
This objection does not allege any specific conduct. In its offer of proof, the Intervenor merely states that if and as it obtains additional evidence of objectionable conduct, it will provide it to the Region.
It is well established that objections which are non-specific, for example, which allege “by these and other acts,” are insufficient, should not be treated, and should be dismissed on their face. NLRB Casehandling Manual (Part Two), Section 11392.5. Objection No. 6 is non-specific and insufficient to warrant further proceedings.
Accordingly, Objection No. 6 is overruled.
For the reasons described above, the evidence described in the offer of proof is not sufficient to warrant a hearing in this matter. Therefore, pursuant to Section 102.69(c)(1)(i) of the Board’s Rules and Regulations, the Intervenor’s objections to the election are overruled in their entirety and a certification of representative should issue.