McNeil Security Services

National Labor Relations Board - Unpublished Board Decisions

Jun 17, 2010

03-RC-011751 (N.L.R.B. Jun. 17, 2010)

NOT INCLUDED IN LSP
BOUND VOLUMES Rochester, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MCNEIL SECURITY, INC./INVIZION
Employer
and Case 03-RC-11751
UNITED FEDERATION OF SPECIAL POLICE
AND SECURITY OFFICERS, INC.
Petitioner
and
INTERNATIONAL UNION, SECURITY, POLICE
AND FIRE PROFESSIONALS OF AMERICA (SPFPA)
Intervenor
DECISION AND DIRECTION OF SECOND ELECTION
The National Labor Relations Board, by a three-member panel, has
considered objections to an election held May 24, 2007, and the hearing officer’s
report recommending disposition of them. The election was conducted pursuant
to a Stipulated Election Agreement. The tally of ballots shows 15 for the
Petitioner, 57 for the Intervenor, and 74 against both labor organizations, with 1
challenged ballot, an insufficient number to affect the results of the election.1

1 Although the Intervenor also challenged 12 ballots cast by the lead
transportation security officers, the parties agreed not to count those ballots.
2
The Board has reviewed the record in light of the exceptions and briefs,
has adopted the hearing officer’s findings and recommendations,2 and finds that
the election should be set aside and a new election held.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among the employees in
the unit found appropriate, whenever the Regional Director deems appropriate.
The Regional Director shall direct and supervise the election, subject to the
Board’s Rules and Regulations. Eligible to vote are those employed during the
payroll period ending immediately before the date of the Notice of Second
Election, including employees who did not work during the period because they
were ill, on vacation, or temporarily laid off. Also eligible are employees engaged
in an economic strike that began less than 12 months before the date of the first
election and who retained their employee status during the eligibility period and

2 We adopt the hearing officer’s finding that the Employer’s officials
engaged in objectionable conduct by following Union agent Maritas on several
occasions prior to and during the election in public areas of the Rochester airport
where the Employer had no property interest or security responsibility on behalf
of its airport client. Even assuming, arguendo, that the Employer could lawfully
preclude Maritas from talking to on-duty bargaining unit security officers in
passenger access and baggage screening areas where it did have security
duties, we agree with the hearing officer that closely following a known union
agent in other public areas where he posed no security risk was “out of the
ordinary” conduct, not justified by any security concerns or regular operational
procedures. Unit employees observed this activity, which would reasonably tend
to interfere with their Sec. 7 rights to communicate with Maritas.
Given the closeness of the election, the repeated following of Maritas,
standing alone, warrants setting aside the election results. In light of this
conclusion, we find it unnecessary to pass on the hearing officer’s
recommendation to sustain the Intervenor’s objections alleging that the Employer
ordered Maritas to leave public areas in which he had a right to be present
(Objection 2); photographed employees while they were talking to Maritas
(Objection 3); and ordered the Intervenor’s employee election observer to
remove a Union sticker from her uniform (Objection 14).
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their replacements. Those in the military services may vote if they appear in
person at the polls. Ineligible to vote are employees who have quit or been
discharged for cause since the payroll period, striking employees who have been
discharged for cause since the strike began and who have not been rehired or
reinstated before the election date, and employees engaged in an economic
strike that began more than 12 months before the date of the first election and
who have been permanently replaced. Those eligible shall vote whether they
desire to be represented for collective bargaining by United Federation of Special
Police and Security Officers, Inc., or by International Union, Security, Police and
Fire Professionals of America, or by neither union.
To ensure that all eligible voters have the opportunity to be informed of the
issues in the exercise of their statutory right to vote, all parties to the election
should have access to a list of voters and their addresses that may be used to
communicate with them. Excelsior Underwear, 156 NLRB 1236 (1966); NLRB v.
Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is directed that an
eligibility list containing the full names and addresses of all the eligible voters
must be filed by the Employer with the Regional Director within 7 days from the
date of the Notice of Second Election. North Macon Health Care Facility, 315
NLRB 359 (1994). The Regional Director shall make the list available to all
parties to the election. No extension of time to file the list shall be granted by the
Regional Director except in extraordinary circumstances. Failure to comply with
4
this requirement shall be grounds for setting aside the election if proper
objections are filed.
Dated, Washington, D.C., June 17, 2010.
___________________________________
Wilma B. Liebman, Chairman
___________________________________
Peter C. Schaumber, Member
___________________________________
Mark Gaston Pearce, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD