FJC Security Services, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 2011

16-RC-010932 (N.L.R.B. Apr. 22, 2011)

NOT INCLUDED BPH
IN BOUND VOLUMES Fort Worth, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FJC SECURITY SERVICES, INC.
Employer
and Case 16-RC-10932
FEDERAL CONTRACT GUARDS
OF AMERICA (FCGOA)
Petitioner
and
UNITED GOVERNMENT AND SECURITY
OFFICERS OF AMERICA (UGSOA)
Intervenor
DECISION AND DIRECTION OF SECOND ELECTION
On January 7, 2011, the National Labor Relations Board issued a Decision and Direction
in this case, adopting the hearing officer’s recommendation to overrule challenges to the ballots
of eight voters and directing the Regional Director to open and count the ballots of those voters
and prepare a revised tally.1 The January 18, 2011 revised tally of ballots shows 24 for the
Petitioner, 18 for the Intervenor, and 1 against union representation.
The Board, by a three-Member panel, has considered objections to the election and has
reviewed the record in light of the Intervenor’s remaining exception and the briefs. In the
exception, the Intervenor asserts that five additional eligible voters were omitted from the

1 The mail ballot election was held between May 12 and 26, 2010, pursuant to a Decision and
Direction of Election.
2
Excelsior list and therefore were disenfranchised from the mail-ballot election. In the unique
circumstances of this case, we find merit to the exception.2 Therefore, we find that neither the
Petitioner nor the Intervenor has conclusively prevailed in the election, and that a second election
is necessary.3
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 are 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 their replacements. Jeld-Wen of Everett, Inc.,
285 NLRB 118 (1987). 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

2 The hearing officer found one of these employees, Hector De La Rosa, eligible to vote but
found that the record was not clear as to whether the other four individuals, Gumercindo Perez,
Hector Muniz, David Castaneda, and Margarito Garci, were employed on the date of the
election. We find that the record establishes that they were employed on that date and that they
were eligible to vote in the election.
3 After the revised tally showed that the Petitioner received more votes than the Intervenor, the
Petitioner filed a request with the Board to withdraw its objections, which it had previously
characterized as conditional on the final tally. Apparently believing that it had won the election,
the Petitioner further requested that the Board issue a certification. However, we find that the
revised tally is inconclusive because of the Employer’s disenfranchisement of the five
employees. Under these unusual circumstances, and in view of the involvement of two unions in
this election, we deny the Petitioner’s request and direct a second election. See Cook Family
Foods, 317 NLRB 1137, 1137 fn.3 (1995).
Member Becker would grant the Petitioner's request to withdraw its objections and would
certify the results of the election, including certifying the Petitioner as the representative of the
employees. Therefore, he respectfully dissents.
3
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 Federal Contract Guards of America, by United
Government and Security Officers of America, or by neither.
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 this requirement shall be grounds for setting aside the election if proper
objections are filed.
Dated, Washington, D.C., April 22, 2011.
___________________________________
Craig Becker, Member
___________________________________
Mark Gaston Pearce, Member
___________________________________
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD