International Protective Services, 701 (2003)
International Protective Services, Inc. and United Government Security Officers of America, Local46. Cases 19-CA-26325, 19-CA-26373, and 19- CA-26473 July 15, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH These consolidated cases arise in the context of a strike by security guards providing protection for United States Government buildings in Alaska. The main issue presented by the General Counsel's exceptions is whether the strike constituted protected activity under the National Labor Relations Act (NLRA). We agree with the judge's finding that the strike was not protected by the NLRA, as discussed below. The judge additionally dismissed (with one exception) all of the allegations that the employer of the security guards, International Protective Services, Inc. violated Section 8(a)(1), (3), and (5) of the NLRA prior to and after the strike.1 We agree with all of these findings by the judge for the reasons set forth in his decision, except for one: we reverse the judge's dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) of the NLRA by failing to furnish the Union with information relevant and necessary to its role as bargaining representative of the security guards. We address, in turn, the Union's strike and the request for information.2 Factual Background 1. Security requirements at the Alaska Federal buildings The factual background is fully set forth in the judge's decision and is summarized here. The Respondent, International Protective Services, Inc., provided security guard services for United States Government buildings in Anchorage, Alaska, pursuant to a contract with the General Services Administration (GSA). These buildings house the Federal courts, and offices for the Federal Bureau of Investigation, U.S. Attorney, Environmental Pro 1 No exceptions were filed to the judge's finding that the Respondent violated Sec. 8(a)(3) by delaying the rehire of employee Phillip Relich. 2 On Sept. 12, 2000, Administrative Law Judge Gerald A. Wacknov issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified herein, and to adopt the recommended Order as modified and set forth in full below. tection Agency, Internal Revenue Service, and other Federal agencies. Several of these Federal agencies housed in the Alaska Federal buildings were the targets of security threats from time to time. Heightened security measures had been instituted at the Alaska Federal buildings and Federal buildings nationwide following the bombing of the Federal building in Oklahoma City, Oklahoma. The Respondent's security guards were stationed at the entrances to certain of the Alaska Federal buildings. The guards carried firearms and were required to be licensed to do so. The judge found that the Respondent's contract with GSA mandated further "stringent" requirements for the qualification and hiring of the security guards, including, inter alia, prior "arrest authority" from law enforcement experience, and first aid certification. The guards additionally received training in the operation of an X-ray machine and magnetometer, which devices had been installed as part of the increased security measures introduced after the Oklahoma City bombing. The guards were required to screen entrants to the Federal buildings, and their belongings, using these detection devices. The Federal Protective Service (FPS), the law enforcement and security adjunct to GSA, is responsible for overall Federal building security at the Alaska Federal buildings, and for investigating and ensuring that the Respondent satisfied its contractual obligations to provide security guards with the required qualifications. FPS also provided security officers at the Alaska Federal buildings. 2. The Union's strike The Union, United Government Security Officers of America, Local 46, was the collective-bargaining representative of the Respondent's security guards at the Alaska Federal buildings. During the latter half of 1998 and early 1999, the Respondent and the Union were unsuccessful in their attempt to negotiate a collective-bargaining agreement. On March 10, 1999,3 the Union informed GSA that a strike was "imminent within the next few weeks" and that the strike "will occur at the most opportune time" for the Union. On March 12, GSA initiated a conference call with representatives of the Union, Respondent, and FPS to discuss the safety of the Federal buildings in the event of a strike. GSA representatives inquired of the Union whether and when a strike would commence. The Union evaded answering directly, indicating only that there "may or may not be a strike." GSA representatives emphasized to the Union that its overriding concern was to protect lives and prop-3 All dates hereafter are in 1999. nied 465 U.S. 1065 (1984)]." Bethany Medical Center, 328 NLRB 1094 (1999). The right to strike is not without limitation, however. Both the Board and the courts recognize that the right to strike is not absolute, and Section 7 [of the NLRA] has been interpreted not to protect concerted activity that is unlawful, violent, in breach of contract, or otherwise indefensible. NLRB v. Washington Aluminum Co., 370 U.S. 9, 17 (1962). . . . The Board has held concerted activity indefensible where employees fail to take reasonable precautions to protect the employer's plant, equipment, or products from foreseeable imminent danger due to sudden cessation of work. Marshall Car Wheel & Foundry Co., 107 NLRB 314 (1953), enf. denied 218 F.2d 409 (5th Cir. 1955). erty at the Federal buildings in the event of a strike. The judge found that the Union nevertheless "thwarted" the GSA's effort to "ascertain any details regarding the threatened strike." On March 14, the Union conducted a strike vote authorizing Union President Charles Reed to conduct a strike "at an appropriate time suitable" to Reed. Reed testified that he was given authority to call a strike anytime over the next 2-month period. A strike threatened by Reed on March 23 was narrowly averted. Several security guards balked at striking at that time because of their security concerns. According to one guard, one of "the building[s] was very busy and there were fifty or more visiting military personnel in the building." On the morning of April 21, the Union faxed a letter to the Respondent setting forth certain contract demands, and stating that the Union "must receive a signed & notarized affirmative response from you by 1100 hours, 04- 21-99 Alaska time, to avoid the pending work stoppage." The Union commenced a strike at the Anchorage Federal buildings at approximately 12 noon on April 21.4 According to the uncontradicted testimony of Joseph Sturrup of FPS,5 "GSA and FPS personnel were concerned about the possibility of a strike, particularly during the months of March and April," because the anniversary of the Oklahoma City Federal Building bombing was approaching, and "there were several other ominous anniversaries of infamous individuals in March and April . . . [T]his is the time when the majority of bomb threats are received." Thus, security at the Alaska Federal buildings is tightened during the months of March and April, and security guards are reminded to be sensitive to the increased security risk. Discussion6 The strike was not protected by the NLRA The general rule under the NLRA is that employees have the right to strike for the purpose of mutual aid and protection. "The Act protects the right of employees to engage in concerted activities, including the right to strike without prior notice. NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963); Montefiore Hospital [& Medical Center v. NLRB, 621 F.2d 510 (2d Cir. 1980), cert. de 4 The Respondent's security guards at Federal buildings in Juneau and Fairbanks, Alaska, who were included in the bargaining unit represented by the Union, were not involved in the strike. 5 Sturrup, who worked for FPS as the onsite representative of the GSA contracting officer, was responsible for overseeing GSA's contract with the Respondent. 6 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. Bethany Medical Center, supra at 1094. Accordingly, under these well-established principles, the test of whether the strike by the security guards lost the protection of the NLRA is not whether the Union gave the Respondent adequate notice of its strike,7 because such notice is not required under the NLRA.8 Nor is the test whether the Union's strike resulted in actual injury. Rather, the test of whether the strike by the security guards here lost the protection of the NLRA is whether they failed to take reasonable precautions to protect the employer's operations from such imminent danger as foreseeably would result from their sudden cessation of work. Bethany Medical Center, supra; Vencare Ancillary Services, 334 NLRB 965, 971 (2001). The judge concluded that the Union's strike was not protected by the NLRA because it exposed the Federal buildings and their occupants to foreseeable danger. The judge based his conclusion on the Union's course of conduct beginning with its March 10 strike threat and culminating in its ultimate commencement of the strike on April 21. The judge found that the Union during this period evinced "total disregard" for the security of the Federal buildings by attempting "to capitalize on the element of surprise" and that the Union's April 21 strike was in fact "designed" to compromise the security of the...
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