FJC Security Services Inc.

National Labor Relations Board - Board Decisions

May 21, 2014

360 N.L.R.B. 929 (N.L.R.B. 2014)

FJC SECURITY SERVICES 929
360 NLRB No. 115
FJC Security Services Inc. and United Government
Security Officers of America International Un-
ion and Its Local 350, Petitioner and Interna-
tional Guards Union of America, (IGUA) Local
137, Intervenor. Case 10–RC–115744
May 21, 2014
ORDER DENYING REVIEW
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND SCHIFFER
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Employer’s Request for Review of the Regional
Director’s Decision and Direction of Election dated De-
cember 11, 2013, is denied as it raises no substantial is-
sues warranting review.1
In denying review, we do not rely on the Regional Di-
rector’s finding that UGL-UNICCO Service Co., 357
NLRB 801 (2011), and Lee Lumber & Building Material
Corp., 334 NLRB 399 (2001), are inapplicable because
the Employer and Intervenor reached an agreement prior
to the filing of the petition. Instead, for the reasons stat-
ed by the Regional Director, we conclude that under
UGL-UNICCO and Lee Lumber, there was no successor
bar at the time the petition was filed because a “reasona-
ble period for bargaining” that followed the Employer’s
commencement of negotiations with the Intervenor had
elapsed. See UGL-UNICCO, supra, slip op. at 808–809.
Although the parties here disagree on the proper appli-
cation of the successor bar to the facts of this case, no
party has argued that the Board should modify or over-
rule UGL-UNICCO. Contrary to our concurring col-
league—who would reject the successor bar and return to
the rule of MV Transportation, 337 NLRB 770 (2002)—
we do not believe that UGL-UNICCO is “inappropriate,”
“contrary to the Supreme Court’s decision in Burns,”2 or
“inconsistent with the Act.” Nor do we see any need, on
this occasion, to address his criticisms of either the suc-
cessor bar generally or the details of its application. To
do so would simply further delay the tally of ballots in
this case, where we all agree the Regional Director
properly directed an election.
MEMBER MISCIMARRA, concurring.
In UGL-UNICCO Service Co., 357 NLRB 801 (2011),
the Board overruled MV Transportation, 337 NLRB 770
(2002), and reinstated the “successor bar.” Under that
doctrine, when a business changes hands, and if the new
employer is a “successor” under NLRB v. Burns Security

1 The Regional Director’s Decision and Direction of Election is at-
tached as an appendix.
2 NLRB v. Burns Security Services, 406 U.S. 272 (1972).
Services, 406 U.S. 272 (1972), the incumbent union is
granted an insulated period—a “reasonable period for
bargaining”—during which its majority status may not
be challenged. Thus, if a representation petition is filed
during that insulated period—whether by employees, the
successor employer, or a rival union seeking to oust the
incumbent—the petition will be dismissed.
It warrants emphasis that one of the Board’s primary
responsibilities under the Act is to conduct elections so
employees may decide for themselves whether and by
whom they wish to have union representation. A “bar”
constitutes an exception where the Board will refuse to
conduct an election notwithstanding evidence that a sub-
stantial number of employees (at least 30 percent) have
indicated that they wish to make a different decision
about union representation.1
In the present case, the employees already are repre-
sented by one union (the Intervenor), and a representa-
tion petition was filed by a different union (the Petition-
er). Normally, the Board would process the petition, and
a Board-conducted election would determine which un-
ion is supported by a majority of employees.2 However,
the Employer maintains that the petition must be dis-
missed based on its argument that, under the “successor
bar” doctrine reestablished in UGL-UNICCO, supra, a
“reasonable period for bargaining” had not yet elapsed.
My colleagues reject this argument, finding that the Re-
gional Director properly directed an election because the
“reasonable period for bargaining” under UGL-UNICCO
had elapsed.
I agree with the result my colleagues reach, but not
with their rationale. I would adhere to the standard es-
tablished in MV Transportation, supra, where the Board
held that “an incumbent union in a successorship situa-
tion is entitled to—and only to—a rebuttable presump-
tion of continuing majority status, which will not serve as
a bar” whenever a rival union petition is filed. 337
NLRB at 770. Based on MV Transportation, and for
reasons stated by former Member Hayes in his UGL-
UNICCO dissent, I would find that the newly filed peti-
tion warrants an election, without any evaluation of
whether a “reasonable period for bargaining” had
elapsed.
I believe the successor-bar rules adopted in UGL-
UNICCO are inappropriate and inconsistent with the Act
in several respects.

1 Under the Board’s Rules, a representation petition will be pro-
cessed only if the petitioner provides written signatures from at least 30
percent of unit employees supporting the petition.
2 Consistent with the Board’s practice, the ballot would also give
employees the choice not to be represented by any union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD930
As an initial matter, the Board in UGL-UNICCO de-
scribed the maximum successor-bar period by reference
to the 1-year “certification bar” that protects newly certi-
fied unions that prevail in an NLRB-conducted election.
Thus, the Board in UGL-UNICCO pointed out that “1
year is the length of the insulated period for newly-
certified unions.” 357 NLRB 801 at 809. However, as
described in UGL-UNICCO, the successor bar would not
start running when the successor is first obligated to rec-
ognize and bargain with the union. Rather, the running
of the successor bar would commence on the date of the
first bargaining session. Id.3 Therefore, UGL-UNICCO
provides that the successor-bar period in many cases
would last more than a year after the successor employer
must recognize the incumbent union. It is anomalous to
impose a longer bar in successorship situations than
would apply to cases involving a certified union follow-
ing an NLRB-conducted election.4
More generally, UGL-UNICCO varies the length of
the bar—in particular, the “reasonable period for bar-
gaining”—depending on whether the successor employer
exercised its lawful right under Burns to establish differ-
ent initial terms and conditions of employment. Burns,
406 U.S. at 294–295. According to UGL-UNICCO, if

3 Although UGL-UNICCO contains language indicating that the
successor bar begins running on the date of the first bargaining session,
357 NLRB 801 at 809, it appears that the Board would rely on the bar
(and thereby decline to process rival union or decertification petitions)
as soon as the successor became obligated to recognize and bargain
with the union. In this respect, the successor bar under UGL-UNICCO
would presumably bar representation petitions even before it started to
run. It appears that the recognition bar would likewise be given effect
immediately upon recognition, even though it would not start running
until the first bargaining session. See Lamons Gasket Co., 357 NLRB
739, 748 (2011). In my view, such incongruities do not have support in
the Act. If there is a “successor bar,” it should begin running when an
entity becomes a successor, and if there is a “recognition bar,” it should
begin running when an entity extends recognition.
4 A newly certified union faces a three-fold challenge: to establish a
new bargaining relationship with the employer, to attain familiarity
with the business, and to develop a new relationship with employees in
the bargaining unit. An incumbent union in the successor context has
only the first challenge because, under Burns, the union representing
any successor employer has already represented a majority of the suc-
cessor’s employees (when they were employed by the predecessor), and
the successor’s obligation to recognize the union is dependent on sub-
stantial continuity in the business (with which the union, therefore, is
already familiar). Burns, 406 U.S. at 280–281. Although successor-
ship situations can involve uncertainty and an “unsettling transition
period,” it is significant that the Supreme Court has held these consid-
erations only warrant a “rebuttable presumption of majority status . . .
despite the change in employers.” Fall River Dyeing Corp. v. NLRB,
482 U.S. 27, 41 (1987) (emphasis added); cf. Burns, 406 U.S. at 279 fn.
3 (indicating that the certification bar’s “almost conclusive presump-
tion” of majority support continues for a reasonable period, “usually a
year,” after which “there is a rebuttable presumption of majority repre-
sentation”).
the successor adopts the predecessor’s terms and condi-
tions, the length of the “reasonable period for bargain-
ing” will be 6 months after the first bargaining session.
If the successor lawfully established different initial em-
ployment terms, the “reasonable period for bargaining”
will be longer—between 6 months and a year after the
first bargaining session—and the determination of
whether a reasonable period for bargaining has or has not
elapsed will depend on how the Board applies the multi-
ple factors set forth in Lee Lumber & Building Material
Corp., 334 NLRB 399 (2001). For several reasons, this
framework is contrary to the Supreme Court’s decision in
Burns and inconsistent with the Act.
First, consistent with the treatment of some other peti-
tion bars,5 if the Board applies a successor bar, I believe
it would be preferable for the bar to exist for a specified
time period like 6 months (rather than a “reasonable pe-
riod for bargaining”) so that everyone could clearly un-
derstand whether and when the Board would process any
petition.6
Second, when a successor has lawfully recognized the
predecessor’s union, Lee Lumber should not be the basis
for determining the duration of the insulated period (in-
deed, there should be no insulated period). In Lee Lum-
ber, the Board was dealing with an employer that had
unlawfully withdrawn recognition from the union and
unlawfully changed employees’ terms and conditions of
employment. To remedy these unfair labor practices, the
Board ordered the employer, among other things, to bar-
gain with the union. When setting the duration of a rea-
sonable period for that bargaining, during which the un-
ion’s majority status cannot be challenged, the Board

5 Under Sec. 9(c)(3), 29 U.S.C. § 159(c)(3), an “election bar” exists
for a 12-month period following a valid election. As noted in the text,
the Board has applied a “certification bar” for a 1-year period after a
union is certified following a Board-conducted election. See Brooks v.
NLRB, 348 U.S. 96, 103 (1954) (approving the Board’s certification-
year policy). A “contract bar” generally exists after the execution of a
collective-bargaining agreement for up to 3 years, General Cable
Corp., 139 NLRB 1123 (1962), during which a petition may be pro-
cessed only if filed between 60 and 90 days prior to the agreement’s
expiration or 3 years, whichever is later, Leonard Wholesale Meats,
136 NLRB 1000 (1962). However, the Board with the approval of the
Supreme Court has applied “reasonable period” bars in cases involving
voluntary recognition and bargaining orders. See, e.g., Franks Bros.
Co. v. NLRB, 321 U.S. 702, 705–706 (1944); NLRB v. Gissel Packing
Co., 395 U.S. 575, 613 (1969).
6 Cf. Appalachian Shale Products Co., 121 NLRB 1160 (1958) (set-
ting forth rules for determining the adequacy of a contract to bar an
election, and endorsing “objectivity based on known standards”);
Deluxe Metal Furniture Co., 121 NLRB 995 (1958) (setting forth rules
pertaining to timeliness so that “unions and employees will now know
precisely when they may be expected to file a petition in order to obtain
an election”); Vickers, Inc., 124 NLRB 1051, 1052 (1959) (“[T]he
Board is convinced of the desirability of establishing specific periods
for the timely filing of petitions.”) (emphasis in original).
FJC SECURITY SERVICES 931
explained that “when such unfair labor practices have
been committed, the lingering effects of the unlawful
conduct must be effectively eliminated before employees
can exercise free choice.” Lee Lumber, 334 NLRB at
401 (emphasis in original). The situation in Lee Lumber
is widely different from the situation in which a succes-
sor employer lawfully recognized the union without any
unfair labor practices. When a successor employer has
recognized the union and otherwise satisfied its bargain-
ing obligations, its employees should have the opportuni-
ty to exercise their own free choice without delay in a
Board-conducted election if there is a valid petition,
which is consistent with the rebuttable presumption of
majority support recognized by the Supreme Court in
Fall River Dyeing, supra. In any event, it is incongruous
to fix the duration of the period during which employees
are denied the right to participate in an election based on
a case—Lee Lumber—where the employer refused to
satisfy its bargaining obligations under the Act.
Third, it is objectionable to impose a longer insulated
period when a successor has exercised its right under
Burns to establish different initial terms and conditions
of employment. By doing so, the Board in UGL-
UNICCO undercuts a fundamental holding of the Su-
preme Court’s decision in Burns, where the Court con-
cluded that a successor employer “is ordinarily free to set
initial terms on which it will hire the employees of a pre-
decessor.” 406 U.S. at 294. The Supreme Court in
Burns relied on policy considerations that are potentially
important to employers, employees, and unions, which
the Board cannot disregard or effectively overrule. In the
Court’s words:
[H]olding . . . the new employer bound to the substan-
tive terms of an old collective-bargaining contract may
result in serious inequities. A potential employer may
be willing to take over a moribund business only if he
can make changes in corporate structure, composition
of the labor force, work location, task assignment, and
nature of supervision. Saddling such an employer with
the terms and conditions of employment contained in
the old collective-bargaining agreement may make
these changes impossible and may discourage and in-
hibit the transfer of capital.
406 U.S. at 287–288 (emphasis added).
As a matter of law, the Board lacks authority to dimin-
ish the Court’s holding in Burns establishing that, even
where a successor employer must recognize and bargain
with the precedessor’s union, the successor may lawfully
establish different initial employment terms, and it is not
bound by the predecessor’s collective-bargaining agree-
ment. And as a matter of policy, if a successor employer
lawfully exercises these rights—for reasons that may
advance the interests of the employer, employees, and
the union—the Board should not penalize employees by
depriving them, for a longer period, of their right to de-
cide in an election whether and by whom they wish to be
represented.
In short, when a successor employer is required to rec-
ognize and bargain with a predecessor’s union, the union
should be afforded the rebuttable presumption of em-
ployee support that the Supreme Court upheld in Burns
and Fall River Dyeing. However, if the Board applies a
successor bar that involves an irrebuttable presumption
for some period of time, (i) the bar should exist for a
definite period so that employees, unions, and employers
clearly understand whether and when a petition may be
processed; (ii) the length of the bar should not depend on
the multifactor analysis set forth in Lee Lumber; (iii) the
period should commence running when the successor is
first required to recognize and bargain with the union
rather than when the parties have their first bargaining
session, because a successor bar may otherwise be longer
than the 1-year bar applicable to a newly certified union
following a Board-conducted election; and (iv) the exer-
cise of the successor’s right to establish different initial
employment terms should not be a basis for making the
bar period longer than 6 months.
In successorship situations, a rebuttable presumption
of employee support or a shorter-duration successor bar
does not automatically defeat the union’s representative
status. If the posttransaction employer is a legal succes-
sor, it is required to recognize the union, to engage in
good-faith bargaining, and to refrain from any other un-
fair labor practices. The processing of any employee or
rival union petition will only occur if the petition, at a
minimum, is supported by 30 percent of the unit employ-
ees. If the Board processes a petition and conducts an
election, employees may vote to continue their represen-
tation by the incumbent union. However, this outcome,
with only the most limited exceptions, should depend on
what a majority of employees choose rather than being
determined by the Board based on bar doctrines that pre-
clude Board-conducted elections for an indefinite period
of time. For these reasons, I concur.
APPENDIX
DECISION AND DIRECTION OF ELECTION
The Employer, FJC Security Services, Inc., is a New York
corporation with a principle office in New York, New York,
which provides security guard services under contract with the
Federal Protective Service in Nashville, Tennessee and sur-
rounding areas. Pursuant to a petition filed by the Petitioner on
October 28, 2013, and amended on October 31, 2013, a hearing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD932
was held on December 3, 2013,1 to resolve issues raised by the
petition. The Petitioner and a representative for the Employer
appeared at the hearing. No representative of the Intervenor
attended the hearing, although the record indicates the Interve-
nor was timely served with a copy of the petition and Notice of
Representation Hearing. All parties filed post hearing briefs
which have been duly considered.
As discussed more fully below, during the hearing issues
were raised as to whether there were successorship and/or con-
tract bars to the processing of the Petition in this matter. Hav-
ing duly considered the matter, I have concluded there is no
successorship bar and no contract bar prohibiting the pro-
cessing of the Petition. Accordingly, I will direct an election.
PROCEDURAL HISTORY
In its original Petition, the Petitioner indicated it was seeking
a unit of all full and part time employees employed by the Em-
ployer performing security services in Nashville, Jackson, and
Memphis, Tennessee, excluding all clerical employees, profes-
sional employees and supervisors as defined in the Act. Upon
learning the Employer no longer provided services in Jackson
and Memphis, on October 31, the Petitioner amended its Peti-
tion to seek an election in a unit of all full-time and shared-time
court security officers and lead security officers employed by
the Employer under contract with the United States Marshals
Service in Nashville, Tennessee at 801 Broadway, and 701
Broadway, and Ninth Ave, Nashville, Tennessee Ave. all of
which are part of the Middle District of Tennessee judicial
district excluding all other employees, office clerical employees
professional employees confidential employees and supervisors
as defined in the Act.
Prior to the hearing, the Petitioner and the Intervenor agreed
to enter into a Stipulated Election Agreement for an election to
be conducted by mail ballot in a unit which included all securi-
ty officers including all protective security officers and lead
security officers (sergeants) assigned under contract with the
Federal Protective Services (Contract HSHQE4-12-D-00004
and any successor contracts) in Nashville, Tennessee, and the
surrounding areas excluding all office clerical employees, pro-
fessional employees, and supervisors as defined in the Act.
However, the Employer refused to enter into the agreement.
At the hearing on December 3, the Petitioner formally
amended its Petition to seek a unit of all protective security
officers and lead security officers (sergeants) employed by the
Employer assigned under the contract HSHQE4-12-D-0004 and
any successor contracts in Nashville, Tennessee, and surround-
ing areas excluding all office clerical employees, professional
employees, and supervisors as defined in the Act.
During the hearing, the Employer maintained that the Peti-
tion should be dismissed both because it had recognized the
Intervenor as the representative of the employees being sought
(successor bar) and had entered into collective-bargaining
agreements which barred processing of the Petition (contract
bar). In its posthearing brief, counsel for the Employer advises

1 Processing of the case was blocked from November 5, 2013, be-
cause of a charge filed in Case 10–CA–116337 by the Intervenor, until
November 18, 2013, when the charge was withdrawn.
the Employer is no longer contending there is a contract bar but
continues to assert there is a successor bar.
Notwithstanding its willingness prior to the hearing to enter
into an election agreement, in its posthearing brief the Interve-
nor now asserts the existence of a contract bar. Specifically, in
its brief, the Intervenor states, “We originally opposed the other
union where they amended their petition to represent a site and
local other than the IGUA at the same address and building in
Nashville, Tennessee. Excluding any outpost under the same
contract.”
The Petitioner maintains the period of time for a successor
bar has passed and that any contracts the Employer and the
Intevenor may have entered into could not serve as a bar as
they were executed long after the Petition was filed.
FACTS
The Employer was awarded contract HSHQE4-12-D-0004
by Federal Protective Services to provide security to services,
effective December 1, 2012, for several government agencies
including but not limited to the Social Security Administration
and the Internal Revenue Service in Nashville, Tennessee, and
surrounding areas (described as middle Tennessee).2 Upon
obtaining the contract, the Employer hired approximately 95
percent the employees formerly employed by Security Consult-
ants Group, Inc/Paragon (hereafter called the Predecessor) and
recognized the Intervenor as the representative of those em-
ployees. However, the Employer did not adopt the contract
between the Intervenor and the Predecessor.3
Following recognition of the Intervenor, the Employer and
the Intervenor held negotiation sessions on January 4 and Au-
gust 15 lasting 2 or 3 hours each.4 During the hearing, an em-
ployer witness testified that following the conclusion of the last
meeting, there were no outstanding issues and that the Employ-
er thereafter was simply waiting for the Intervenor to sign the
contract. On the other hand, an employee witness, who was
part of the Intervenor’s negotiating meeting, testified no final
agreement on a contract was reached during those sessions. He
further testified that after the August meeting, the Intervenor
expected the Employer to submit revisions to proposals made
during the meeting. However, he did not hear anything further
until sometime in October when he was forwarded an email
from the President of the Intervenor notifying the Intervenor
that a contract had been reached and directing the Intervenor to
sign it. It is not clear as to the origination of that instruction.5
Upon receipt of this information, representatives and members

2 Besides Nashville, the cities of Gallatin, Madison, Lawrenceburg,
and Cookeville were named during the hearing. However, it is not
clear if all the locations were specifically named. The locations are
apparently specified in contract HSHQE4-12-D-0004 with the Federal
Protective Service. However, neither it nor the specific locations for
security services by the Employer were entered into the record.
3 There was no evidence presented to show the Employer changed
any wages, hours or working conditions of the employees when it be-
gan providing services on December 1, 2012.
4 A meeting scheduled for July 2013 was canceled by the Interve-
nor.
5 Neither the email nor a copy of the purported agreement was in-
troduced in the record.
FJC SECURITY SERVICES 933
of the Intervenor balked at signing the agreement and sought
out the Petitioner for representation.6
During the hearing, the Employer representative presented,
not one but two contracts between the Employer and the Inter-
venor7 which he asserted were signed on November 6, 2013,
and became effective on December 1, 2013. Both contracts
appear identical except for the unit description. One of the
contracts (for purposes here Contract A) was for a unit of all
protective security officers at 801 Broadway, and 701 Broad-
way, and Ninth Ave, Nashville, Tennessee, excluding irregular
part time personnel, office clerical employees, professional
employees and supervisors as defined in the Act. This unit
would consist of 10 to 12 security officers. The other (for pur-
poses here called Contract B) was for a unit of all protective
security officers in Nashville and surrounding areas (other than
the 801 Broadway, and 701 Broadway, and Ninth Ave. loca-
tions) excluding irregular part-time personnel, office clerical
employees, professional employees and supervisors as defined
in the Act. The unit in Contract B would consist of 15 to 20
security officers. The witness did not provide any notes or
other documents as to any of the substance of the negotiations
or other testimony regarding the substance of the parties’ dis-
cussions between negotiating sessions etc. The witness also did
not present any evidence as to what had happened to the
agreement he indicated had been reached back in August and/or
as to when and why the unit was split from one into two and
placed in separate contracts.8
The employee witness testified that all employees of the
Employer working under contract HSHQE4-12-D-0004, re-
gardless of location, ultimately report to Lieutenant David
Cunningham, that scheduling is completed centrally for all
locations, that employees bid for posts by seniority and may
work or be assigned at any of the locations serviced by the
employer, that all employees call into a central time recording
system, that if someone is needed in an outpost one of the new-
er employees from Nashville will be assigned to cover the post
and that all have the same wages and benefits irrespective as to
whether they work in Nashville or in outpost locations.
THE ISSUES
The parties are in apparent agreement that if an election is di-
rected any bargaining unit determined should include all full-
time and regular part-time protective security officers, includ-
ing sergeants, employed by the Employer at those locations in

6 The witness testified that the Intervenor was subsequently put into
receivership by the International.
7 The cover pages indicate the contracts are between the Employer
and the International Guards Union of America (IGUA), which is the
International. However, the recognition clauses state the recognized
union is the International Guards Union of America (IGUA) Local 137,
which is the Intervenor. There was no evidence presented as to wheth-
er Local 137 is a separate legal entity which can serve independently as
a bargaining representative or is simply a local designated by the Inter-
national to service an Employer for which the International is the legal
representative.
8 The employee witness testified he had been present during all the
negotiation sessions and that there had been no discussion during the
meetings regarding splitting the unit.
Nashville and surrounding areas specified in its contract
HSHQE4-12-D-0004 with the Federal Protective Services,
excluding irregular part-time personnel, office clerical employ-
ees, professional employees and supervisors as defined in the
Act.9
However, the Employer contends the Petition should be dis-
missed because of a successor bar while the Intervenor con-
tends there is a contract bar.
With respect to the successor bar issue, in UGL-UNICCO
Service Co., 357 NLRB 801, (2011), the National Labor Rela-
tions Board determined that in cases where a successor em-
ployer has expressly adopted existing terms and conditions of
employment as the starting point for bargaining, without mak-
ing unilateral changes, challenges to a union’s majority could
not be made until a reasonable period had elapsed for bargain-
ing. In such cases, the Board defined a “reasonable period of
bargaining” as 6 months, measured from the date of the first
bargaining meeting between the union and the successor em-
ployer.
The Board further determined that in situations where the
successor employer recognized the union, but unilaterally an-
nounced and establishes initial terms and conditions of em-
ployment before proceeding to bargain, the “reasonable period
of bargaining” would be a minimum of 6 months and a maxi-
mum of 1 year, measured from the date of the first bargaining
meeting between the union and the employer. In determining
the length of the reasonable period, the Board directed that the
multifactor analysis of Lee Lumber & Building Material Corp.,
334 NLRB 399 (2001), should be applied, noting that 6 months
represents the approximate time required to reach a renewal
agreement while 1 year is the length of the insulated period for
newly-certified unions.
The factors set forth in Lee Lumber, supra, tending to estab-
lish that a reasonable period of time for bargaining has elapsed
are: negotiations for a renewal, as opposed to an initial contract,
the absence of unusually complex issues or bargaining process-
es, the passage of a relatively long period of time after the 6-
month insulated period, a relatively large number of bargaining
sessions, the parties’ failure to come close to reaching agree-
ment, and the existence of impasse. The factors tending to es-
tablish that a reasonable time for bargaining has not elapsed:
are negotiations for an initial contract, the use of complex bar-
gaining processes, the existence of complex issues to be negoti-
ated, relatively little passage of time beyond the 6-month peri-
od, relatively few negotiating sessions, the absence of impasse,
and a strong likelihood that a contract can be reached in the
near future. The factors must be considered together, and none
is dispositive individually or necessarily entitled to special
weight. In every case, the issue is whether the union has had
enough time to prove its mettle in negotiations, so that when

9 The Petitioner and the Employer agreed during the hearing and the
record supports that Lieutenant David Cunningham and Contract Man-
ager Robert Chase are supervisors within the meaning of Sec. 2(11) of
the Act. During the hearing, they also agreed and the record supports
that Sergeants Doug Stone, Louis Crawley, and Richard Burgess are
unit employees without supervisory authority.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD934
its representative status is questioned, the employees can
make an informed choice.
The Employer argues that because this was a first contract
the reasonable time for bargaining in this case per UGL-
UNICCO, id., is 1 year rather than 6 months. It further argues
that even if the initial presumptive period for bargaining was 6
months, a full year should be given because the issues being
negotiated between the Employer and Intervenor were com-
plex. With respect to this latter argument, no evidence of any
complex negotiations or issues was presented during the hear-
ing either for the time actually spent in the two short negotia-
tion sessions held over 7 months apart or for any time between
such meetings or thereafter prior to the filing of the Petition in
this matter. Rather, it is suggested I draw that conclusion simp-
ly by comparing the differences between the Predecessor’s
contract and the resulting contracts signed on November 6,
2013. Although the contracts do contain differences, many
simply involve wording or rearranging of articles. While others
might be more substantial, I cannot simply presume the Inter-
venor and the Employer had significant disagreements on any
proposals during negotiations. It was incumbent on the Em-
ployer to present evidence of such during the hearing and it did
not do so.
With respect to the former argument, as noted above, there
was no evidence presented that the Employer substantially
changed any wages or other terms of conditions of employment
upon beginning operations on December 1, 2012. The first
negotiation session was held on January 4, 2013, lasting 2 or 3
hours in length. Thereafter, the parties did not meet again until
more than 7 months later on August 14, 2013, for a meeting
again lasting just 2 or 3 hours. The Employer’s witness testi-
fied there were no outstanding issues at the conclusion of the
last negotiation session and the Employer was just waiting for
the Intervenor to get back with a signed contract. Thereafter, in
early October 2013 the Intervenor was directed to sign a con-
tract. Thus an agreement appears to have been reached. How-
ever, it was not signed by the parties. On October 28, 2013,
almost 10 months from the time of the commencement of nego-
tiations, the original petition was filed. It was not until No-
vember 6, 2013, the Employer and Intervenor actually signed
any collective-bargaining agreements, i.e., those splitting the
unit into parts.10
Both Lee Lumber and UGL-UNICCO, supra, were intended
to give labor organizations in a reasonable time for bargaining
to prove their mettle in negotiations to the employees they rep-
resent without their majority being challenged. Inasmuch as
both the Employer and the Intervenor both assert an agreement
was, in fact, reached prior to the petition being filed I do not
believe that Lee Lumber and UGL-UNICCO, supra, apply in

10 As noted, there was no discussion regarding the reasons for split-
ting the unit, when the parties began discussing it or when they agreed
to it. It is noteworthy that the unit in Contract A coincides roughly with
what the Employer and Intervenor’s positions are as to what unit was
being sought by the Petitioner in its amended October 31 petition (ex-
cluding the reference to the officers being sought as part of the Middle
District of Tennessee judicial district) while the unit in Contract B
contains all the other employees employed by the Employer pursuant to
its contract HSHQE4-12-D-0004 with the Federal Protective Service.
this case as no additional time for bargaining is necessary. The
Intervenor has demonstrated its mettle with the employees and
those employees are in a position to make an informed choice
as to their choice of representative.11
Under these circumstances, I find that a successor bar does
not apply in this matter and that the employees in the unit
should be given an opportunity to express their choice of repre-
sentative through a secret ballot election absent a contract bar.
With respect to the contract bar issue, the Board has long
held that, for contract-bar purposes, an agreement must meet
certain formal and substantive requirements, including the re-
quirement that the document proposed as a bar be signed by
both parties prior to the filing of the petition that it would bar.
Appalachian Shale Products Co., 121 NLRB 1160 at 1161
(1958). The Board has also long held that the party, asserting
that a contract operates as a bar bears the burden of proving that
the contract was signed by both parties before a petition was
filed. Roosevelt Memorial Park, Inc., 187 NLRB 517 (1970).
See also Bo-Low Lamp Corp., 111 NLRB 505 (1955), and Ap-
palachian Shale, supra at 1160. Finally, the Board has held
that where the evidence presented in support of a contract bar is
vague, uncertain or inconsistent, a contract bar will not be
found. Road & Rail Services, 344 NLRB 388 (2005).
In the instant case, there were clearly no signed contracts
prior to November 6, 2013. Thus, there is no bar to the filing
of the Petition on October 28 or to the October 31 amendment.
The question remains, however, as to whether one or both of
the contracts signed on November 6, 2013, may serve as a bar
to the amendment of the petition at the hearing on December 3,
2013.
The Board has held that after a contract is properly executed
after the filing of a petition but prior to an amendment of the
petition, a contract bar may apply if the amendment so substan-
tially departs from the original petition as to constitute a new
petition. See Centennial Development Co., 218 NLRB 1284
(1975).
In the instant case, the October 31 amended petition sought
all court security officers and lead security officers employed
by the Employer under contract with the United States Mar-
shals Service in Nashville, Tennessee, at 801 Broadway and 9th
Ave. all of which are part of the Middle District of Tennessee
judicial district.12 The amendment at the December 3, 2013
hearing clarified that the Petitioner was seeking to represent all
security officers in Nashville and the surrounding areas in Mid-
dle Tennessee. The Employer’s witness at the hearing testified
there are 10–12 security officers in Nashville and 15–20 securi-

11 Even assuming for the sake of argument that the principles of Lee
Lumber and UGL-UNICCO, supra, apply, the totality of the evidence
presented demonstrates that neither the Employer nor the Intervenor
had any sense of urgency in reaching an agreement following the com-
mencement of negotiations, meet infrequently and for short periods of
time. In the absence of any evidence of complex issues keeping the
parties from reaching an agreement, I would find the 10-month period
they had for bargaining in this case prior to the Petition being filed was
a reasonable period of time for bargaining.
12 As indicated above, this amendment was made to account for the
fact that the Jackson and Memphis locations in the original petition
were no longer a part of the area to be serviced by the Employer.
FJC SECURITY SERVICES 935
ty officers in the areas surrounding Nashville. The October 31
amended petition indicates approximately 30 unit employees.
Thus, while the unit description may have been inartfully
worded, the size of the unit indicated and the inclusion of the
wording “all part of the Middle District of Tennessee judicial
district” makes it clear that in the October 31 amended Petition
the Petitioner was seeking more than just the 10–12 security
officers working solely within Nashville.
As the record demonstrates, all the security officers working
pursuant contract HSHQE4-12-D-0004 for the Employer re-
gardless of location perform the same type of work, share simi-
lar working conditions, wages, benefits, commonly bid for
posts, and work both within and outside of Nashville as needed,
and that all ultimately are supervised by Lieutenant Cunning-
ham. Thus, they appear to have a strong community of interest
with each other.
In short, I find that the amendment was not so substantial as
to constitute a new petition, and that the contracts signed on
November 6, 2013, would not have barred the amendment to
the petition at the hearing on December 3, 2013.
In conclusion, I find there is neither a successor nor contract
bar to the processing of the Petition.
CONCLUSIONS AND FINDINGS
Based upon the entire record in this matter and in accordance
with the discussion above, I conclude and find as follows:
1. The hearing officer’s rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
2. The Employer is engaged in commerce within the mean-
ing of the Act and it will effectuate the purposes of the Act to
assert jurisdiction in this case.
3. The Petitioner and the Intervenor are labor organizations
within the meaning of Section 2(5) of the Act and claims to
represent certain employees of the Employer.
4. A question affecting commerce exists concerning the rep-
resentation of certain employees of the Employer within the
meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.
5. The following employees of the Employer constitute a
unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:
All full time and regular part time protective security officers,
including sergeants, employed by the Employer at locations in
Nashville and surrounding areas (as specified in its contract
HSHQE4-12-D-0004 with the Federal Protective Services
and in any successor contracts for locations in Nashville and
surrounding areas), excluding irregular part time personnel,
office clerical employees, professional employees and super-
visors as defined in the Act.
DIRECTION OF ELECTION
Inasmuch as the employees are scattered throughout Nash-
ville and surrounding areas in Tennessee and do not report to a
locations of work under the control of the Employer, a manual
election is not feasible in this matter. Accordingly, the Nation-
al Labor Relations Board will conduct a secret-ballot election
by mail among the employees in the unit found appropriate
above. The employees will vote whether or not they wish to be
represented for purposes of collective bargaining by the United
Government Security Officers of America International Union
and its Local 350, Neither, or the International Guards Union of
America. The date, time, and place of the mail-ballot election
will be specified in the Notice of Election that will issue subse-
quent to this Decision.
A. Voting Eligibility
Eligible to vote in the election are those in the unit who are
employed during the payroll period ending immediately before
the date of this Decision, including employees who did not
work during that period because they were ill, on vacation, or
temporarily laid off. Employees engaged in any economic
strike, who have retained their status as strikers and who have
not been permanently replaced are also eligible to vote. In
addition, in an economic strike which commenced less than 12
months before the election date, employees engaged in such
strike who have retained their status as strikers but who have
been permanently replaced, as well as their replacements are
eligible to vote. Unit employees in the military services of the
United States may vote if they appear in person at the polls.
Ineligible to vote are (1) employees who have quit or been
discharged for cause since the designated payroll period; (2)
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 (3) employees who are engaged in
an economic strike that began more than 12 months before the
election date and who have been permanently replaced.
B. Employer to Submit List of Eligible Voters
To ensure that all eligible voters may 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, which may be used to communicate
with them. Excelsior Underwear, Inc., 156 NLRB 1236 (1966);
NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accord-
ingly it is hereby directed that within seven (7) days of the date
of this Decision, the Employer must submit to the Regional
Office an election eligibility list, containing the full names and
addresses of all the eligible voters. North Macon Health Care
Facility, 315 NLRB 359, 361 (1994). This list must be of suf-
ficiently large type to be clearly legible. To speed both prelim-
inary checking and the voting process, the names on the list
should be alphabetized. This list may initially be used by me to
assist in determining an adequate showing of interest. I shall,
in turn, make the list available to all parties to the election, only
after I shall have determined that an adequate showing of inter-
est among the employees in the unit found appropriate has been
established.
To be timely filed, the list must be received in the National
Labor Relations Board Nashville Resident Office, 810 Broad-
way, Suite 302, on or before December 18, 2013. No exten-
sion of time to file this list will be granted except in extraordi-
nary circumstances, nor will the filing of a request for review
affect the requirement to file this list. Failure to comply with
this requirement will be grounds for setting aside the election
whenever proper objections are filed. The list may be submit-
ted to the Regional Office by electronic filing through the
Agency website, www.nlrb.gov, by mail, by hand or courier
delivery, or by facsimile transmission at (404) 331–2858. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD936
burden of establishing the timely filing and receipt of the list
will continue to be placed on the sending party. To file the
eligibility list electronically, go to the Agency’s website at
www.nlrb.gov, select File Case Documents, enter the NLRB
Case Number, and follow the detailed instructions. The burden
of establishing the timely filing and receipt of the list will con-
tinue to be placed on the sending party.
C. Notice Posting Obligations
According to Section 103.20 of the Board’s Rules and Regu-
lations, the Employer must post the Notices to Election provid-
ed by the Board in areas conspicuous to potential voters for at
least 3 full working days prior to 12:01 a.m. of the day of the
election. In elections involving mail ballots, the election shall
be deemed to have commenced the day the ballots are deposit-
ed by the Regional Office in the mail. In all cases, the notices
shall remain posted until the end of the election. The term
“working day” shall mean the entire 24-hour period excluding
Saturday, Sundays, and holidays. Failure to follow the posting
requirement may result in additional litigation if proper objec-
tions to the election are filed. Section 103.20(c) requires an
employer to notify the Board at least 5 full working days prior
to 12:01 a.m. of the day of the election if it has not received
copies of the election notice. Club Demonstration Services,
317 NLRB 349 (1995). Failure to do so estops employers from
filing objections based on nonposting of the election notice.
RIGHT TO REQUEST REVIEW
Under the provisions of Section 102.67 of the Board’s Rules
and Regulations, a request for review of this Decision may be
filed with the National Labor Relations Board, addressed to the
Executive Secretary, 1099 14th Street, NW, Washington, DC
20570-0001. This request must be received by the Board in
Washington by 5:00 P.M., (EDT) on December 26, 2013. The
request may be filed electronically through E-Gov on the
Board’s web site, www.nlrb.gov,13 but may not be filed by
facsimile.
Dated at Atlanta, Georgia, on this 11th day of December
2013.

13 To file the request for review electronically, go to www.nlrb.gov
and select the E-Gov tab. Then click on the E-Filing link on the menu
and follow the detailed instructions. Guidance for E-filing is contained
in the attachment supplied with the Regional Office’s initial corre-
spondence on this matter and is also located under “E-Gov” on the
Board’s website, www.nlrb.gov.