Wackenhut Corp., 850 (2005)

Extract

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Wackenhut Corp., 850 (2005)

The Wackenhut Corporation and International Union Security, Police and Fire Professionals of America (SPFPA).  Cases 12–CA–23294, 12–CA–23295, and 12–CA–23407

August 27, 2005

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On September 7, 2004, Administrative Law Judge Michael A. Marcionese issued the attached decision.  The Respondent, the Charging Party, and the General Counsel filed exceptions and briefs in support of their exceptions.  The Respondent and the General Counsel filed answering briefs, and the General Counsel filed a reply brief to the Respondent’s answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judgeÂ’s rulings, findings,1 and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended order as modified below.

Introduction

The fundamental issue presented is whether the Respondent’s unilateral elimination of bargaining unit positions and transfer of bargaining unit work outside the unit were lawful because they were allegedly mandated by the contract bid specifications of a third party.  In deciding this issue, we draw a distinction between the Respondent’s subjective interpretation of the specifications and what the specifications, on their face, actually required.  Because we find that the specifications did not require the Respondent to take the actions at issue, we find that the Respondent cannot rely on them as a defense for its actions.

Factual Background

The relevant facts, as set forth more fully in the judgeÂ’s decision, are as follows.

The Respondent, The Wackenhut Corporation, provides guard and security services to clients nationwide, including nuclear powerplants.  The facility at issue in this case is a nuclear power plant operated by Florida Power & Light (FPL) at Turkey Point in Miami-Dade County, Florida.

FPL owns several thousand acres at Turkey Point, referred to as the owner-controlled area (OCA).  Within the OCA is a protected area (PA), secured by a fence and intrusion detection devices.  These devices are monitored and controlled from the Central Alarm Station (CAS) and the Secondary Alarm Station (SAS), both of which are housed in a hardened building within a “vital area” that also contains the reactor itself.

The Respondent has held two consecutive contracts with FPL to provide security services at Turkey Point.  The first contract, with extensions, ran from 1998 to August 31, 2003.  The second contract began on September 1, 2003.  The events at issue in the instant case center on changes implemented by the Respondent at the beginning of the second contract.

A.  Conditions Under the Initial FPL Contract

Prior to September 1, 2003,2 the Respondent employed four categories of employees at Turkey Point:  captains, lieutenants, sergeants, and security officers.  In  July 1999, following a Board-conducted election, the Union was certified as the representative of the Respondent’s security officers at Turkey Point.  The category “security officer” included CAS/SAS operators, unarmed security officers (also referred to as watchmen), and part-time security officers.  Before the election, the parties had stipulated that the Respondent did not oppose the inclusion of the CAS/SAS operators in the bargaining unit.

In November 2002, the Union filed a representation petition seeking to represent the sergeants at Turkey Point.  The Respondent opposed the petition, asserting that the sergeants were statutory supervisors.  Following a hearing, the Regional Director issued a decision and direction of election, finding that the Respondent’s sergeants were not supervisors under the Act.  The Respondent requested review of the Regional Director’s decision and, on February 12, the Board issued an order denying the request on the basis that the Respondent had not raised any substantive issues warranting review.3

During the preelection period, the Respondent explicitly and repeatedly expressed its view that the duties performed by the sergeants were supervisory in nature and that such duties were incompatible with union representation.  The Respondent communicated this position to the sergeants through written memos and at meetings.  Following a mail-ballot election, the Union was certified on March 4 as the representative of Respondent’s sergeants at Turkey Point.

At the time of the certification, the collective-bargaining agreement covering the security officers was due to expire on April 3.  The parties began their negotiations involving this unit on March 4 and 5, and met again on April 15 and 16.  At these meetings, the Union repeatedly sought to include the sergeants in the existing security officer bargaining unit.  The Respondent...

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