N.L.R.B. v. Superior Protection, Inc.

• Decision Date: 16 February 2005
• Docket Number: No. 04-60407 Summary Calendar.,04-60407 Summary Calendar.
• Citation: 401 F.3d 282
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUPERIOR PROTECTION, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

401 F.3d 282

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUPERIOR PROTECTION, INC., Respondent.

No. 04-60407 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

February 16, 2005.

Aileen A. Armstrong, Deputy Associate Gen. Counsel, David Allen Seid, Meredith Lee Jason, N.L.R.B., Washington, DC, Curtis Wells, Regional Director, N.L.R.B., Fort Worth, TX, for N.L.R.B.

Michael Jay Kuper, Law Office of Michael J. Kuper, Houston, TX, for Superior Protection, Inc.

Petition for Enforcement of an Order of the National Labor Relations Board.

Before DAVIS, SMITH and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The National Labor Relations Board (the "Board") seeks enforcement of its order compelling respondent Superior Protection, Inc. ("Superior"), to bargain with United Government Security Officers of America, Local 229. Superior contends that enforcement should be denied on the sole ground that the collective bargaining unit certified by the Board improperly accreted (i.e., added) employees hired after the representation election into the certified bargaining unit without the benefit of an election, thus improperly assigning to the accreted employees the certified unit's choice of bargaining representative.

We disagree. The Board's bargaining unit determination did not automatically effect an accretion of newly-hired employees, and the union is not seeking to accrete those employees as a consequence of the unit determination. Accordingly, we grant the Board's application for enforcement.

I.

Superior provides security services to federal agencies pursuant to contracts with the General Services Administration ("GSA"). One of these contracts obligates Superior to provide security officers to certain federal facilities in three Texas counties — Harris, Montgomery, and Galveston.

In August 2001, the union filed a representation petition with the Board seeking certification as the collective-bargaining representative of security officers employed by Superior and "assigned to work in federally owned and leased property in Houston, Texas, including the immediate surrounding areas, under the Federal Government contract for security services through the Employer (contractor)." Superior opposed the petition, contending that, although all security employees assigned to work at GSA facilities in Harris County¹ should be included, those in adjacent counties (Montgomery and Galveston) should be excluded from the certified unit.

After a hearing, the Board's Regional Director issued a decision finding that all security officers "assigned to work at GSA contract facilities in Harris, Montgomery, and Galveston counties" constituted the appropriate collective bargaining unit.² The Regional Director directed that an election be held among the employees in the unit. Superior requested Board review of the decision to include security officers from Montgomery and Galveston Counties, but the Board denied the request, finding that Superior had failed to raise any substantial issue warranting review.

A mail ballot election among unit employees was conducted by the Regional Director in October 2001. The secret ballots asked unit employees to vote up or down on whether they wished to be represented for purposes of collective bargaining by the union. Of the 30 unit employees then believed eligible to vote, 20 cast ballots, of which 9 voted in favor of representation by the union; 9 voted against; and 2 ballots were challenged and not counted.

Superior and the union stipulated that one of the challenged ballots had indeed been cast by an ineligible voter. Thus, the single remaining challenged ballot, which had been cast by unit employee Kevin Trotter, was determinative. Superior maintained that Trotter was ineligible because he had been discharged before the election; the union countered by alleging that Superior had committed unfair labor practices by discharging Trotter for having testified at the representation hearing and for having engaged in union activity.

Superior and the union litigated the validity of Trotter's challenged ballot and the related unfair labor practices complaint in a consolidated proceeding before an administrative law judge ("ALJ"). In August 2002, the ALJ sustained the union's unfair labor practices complaint, finding Superior's proffered reasons for discharging Trotter to be "pure subterfuge, masking the true motive of retaliation for Trotter's testimony at the Board proceeding and his manifest support" for the union. Thereafter, in a published decision issued in July 2003, the Board adopted the ALJ's unfair labor practices finding and directed the Regional Director to open and count Trotter's ballot, issue a revised tally of ballots, and provide the appropriate certification. See Superior Protection Inc., 339 N.L.R.B. 118, 2003 WL 21802944 (2003).

Trotter's vote in favor of representation was added to a revised tally issued by the Regional Director, yielding a 10 to 9 vote in favor of union representation. On August 25, 2003, the Regional Director certified the union as the exclusive collective-bargaining representative of employees in the previously certified bargaining unit: "[a]ll permanent, full-time and regular part-time security officers assigned to work at GSA contract facilities in Harris, Montgomery and Galveston counties."

The union sought to bargain with Superior and requested information from Superior regarding unit employees. Superior refused to bargain and refused the union's request to provide information about unit employees.

In response, the union filed an unfair labor practices complaint with the Board charging Superior with refusing to bargain and failing to furnish requested information in contravention of § 8(a)(1) and (5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1), (5). The Board's General Counsel issued a complaint, and Superior filed an answer in which it admitted its refusal to bargain and to furnish requested information but challenged the union's certification as bargaining representative on grounds that (1) the certified bargaining unit inappropriately included employees in Montgomery and Galveston counties; and (2) Trotter was not an eligible voter, and thus the union had not received a majority of valid votes.

In January 2004, the Board issued a notice to show cause why summary judgment should not be granted in favor of the General Counsel. Superior responded by restating its initial challenges — the certified bargaining unit was inappropriate, and Trotter was not eligible to vote in the election — and by advancing a challenge to the Regional Director's decision to direct a mail ballot election and to the manner in which the election was conducted.

In addition, Superior averred for the first time that, even if the certified unit was appropriate as an original matter, it was no longer appropriate because (after the Regional Director's initial unit determination) Superior had entered into a second contract with GSA to provide security officers at eight additional federal facilities within the geographic scope of the certified unit. According to Superior, the employees at these additional federal facilities within the geographic scope of the certified unit would effectively be accreted to the existing unit without an election, in violation of Board policy.

In August 2004, the Board granted summary judgment in favor of the General Counsel, holding that Superior's admitted refusal to bargain and furnish requested information constituted unfair labor practices in violation of § 8(a)(1) and (5). See Superior Protection Inc., 341 N.L.R.B. 35, 2004 WL 378968 (2004). In so doing, the Board refused to reexamine Superior's arguments regarding the propriety of the three-county certified bargaining unit and Trotter's eligibility, reasoning that they had been fully litigated and addressed in the pre-election proceeding and the consolidated ballot challenge/unfair labor practices proceeding. The Board similarly rejected on procedural grounds Superior's challenge to the Regional Director's decision to conduct a mail ballot election and to the manner in which the election was conducted.

As for Superior's claim that the certified unit was no longer appropriate because the employees at the eight additional GSA facilities it now services within the geographic scope of the certified unit would necessarily (and improperly) be accreted to the smaller group of employees in the certified unit, the Board rejected this claim on three grounds. First, the Board noted that there was no indication that the Union was seeking to accrete these new employees to the existing unit; indeed, the Board pointed to a separate representation petition filed by the Union in January 2003 seeking to represent the new employees at the additional GSA facilities as a separate and distinct bargaining unit.³

Second, the Board reasoned that the new employees would not automatically be accreted to the existing unit as a consequence of the Board's unit determination, especially in light of Superior's contention that the new employees outnumber the existing unit employees and of the Union's apparent position (gauged from the separate representation petition filed by the Union) that the new employees constitute a separate appropriate bargaining unit. Third, the Board observed that Superior was not claiming that the two groups of employees (old and new) had merged in a manner that had obscured their separate identity. Consequently, the Board entered an order compelling Superior to bargain with and furnish information to the Union.

Superior filed a motion for reconsideration alleging that a "cursory inquiry" conducted by the company after the Board's decision revealed that the new employees at the additional GSA facilities had in fact merged or consolidated with the existing unit employees. The Board denied the motion, finding that Superior had not carried its burden...