Detective Intelligence Service, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1970

181 N.L.R.B. 29 (N.L.R.B. 1970)

DETECTIVE INTELLIGENCE SERVICE, INC. 29
Detective Intelligence Service , Inc. and International
Union of Guards and Watchmen. Case
20-CA-5729
February 6, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Upon a charge filed by International Union of
Guards and Watchmen, the General Counsel for the
National Labor Relations Board, by the Acting
Regional Director for Region 20, issued a complaint
dated September 18, 1969, against Detective
Intelligence Service, Inc., herein called Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices within the
meaning of Sections 8(a)(5) and (1) and 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of
hearing were duly served upon Respondent and the
Union.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on or about
August 28, 1968, the Union was duly certified by
the Board as the exclusive bargaining representative
of Respondent's employees in a stipulated unit,
subsequently clarified by order of the Board, and
that, since on or about June 30, 1969, Respondent
refused to bargain with the Union as such exclusive
bargaining representative, although the Union has
requested it to do so. On September 24, 1969,
Respondent filed its answer, denying in part the
allegations of the complaint.
On or about November 20, 1969, the General
Counsel filed with the Board a Motion for
Summary Judgment, requesting, in view of the
failure in Respondent's answer to deny certain
allegations in the complaint and the Board's findings
in the representation and unit-clarification cases'
that the allegations of the complaint be found to be
true and that the Board make findings of fact and
conclusions of law in conformity with the allegations
of the complaint. On November 25, 1969, the Board
issued an order transferring proceeding to the Board
and a notice to show cause. On November 28, 1969,
Respondent filed points and authorities opposing
motion for summary judgment.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
Upon the entire record in this case, the Board
makes the following:
'Cases 20-RC-8244 , unreported , and 24UC-25, Board 's Decision and
Order Granting Petition to Clarify Certification reported at 177 NLRB
No. 115
Ruling on the Motion for Summary Judgment
On July 9, 1968, the Union filed a petition for an
election. On July 22, 1968, the Regional Director
for Region 20 approved a stipulation for
certification upon consent election in Case
20-RC-8244, providing for an election in the
following unit:
All security officer employees of the Employer
working out of its Oakland, California, location
including regular part-time employees, excluding
office clerical employees, salesmen, part-time
employees who have not worked in the calendar
quarter ended June 30, 1968, and supervisors as
defined in the Act.
In an election by secret mail ballot ending on
August 20, 1968, a majority of the employees in the
unit designated the Union as their representative for
the purposes of collective bargaining. On August 28,
1968, the Acting Regional Director for Region 20,
on behalf of the Board, certified the Union as the
representative of the employees in the unit.
On February 7, 1969, the Union filed a petition
with the Board in Case 20-UC-25 requesting that
the unit set forth in the Certification of
Representative be clarified. On June 26, 1969, and
August 12, 1969, respectively, the Board issued a
Decision and Order Granting Petition to Clarify
Certification and an Order Correcting Decision and
Order, finding, contrary to Respondent's contention,
that the parties had inadvertently included in the
unit description the formula for determining
eligibility to vote in the election. The Board
therefore found the appropriate unit to be:
All security officer employees of the Employer
working out of its Oakland, California, location
including regular part-time employees excluding
office clerical employees, salesmen, and
supervisors as defined in the Act.'
On June 26, 1969, the Union requested
Respondent to bargain collectively with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment for the
employees in the unit found appropriate by the
Board. Respondent has failed to do so. In its answer
to the complaint in this proceeding Respondent
again contends that the original unit description is
unambiguous, was not the result of inadvertent error
and that the Board has no power to modify a
bargaining unit stipulated to by the Employer and
Union and approved by the Regional Director.
In the absence of newly discovered or previously
unavailable evidence, a respondent is not entitled to
relitigate in an unfair labor practice proceeding
issues which were or could have been raised in a
related representation proceeding. The issues which
Respondent seeks to have the Board reexamine in
the instant proceeding are identical to those which
'177 NLRB No. 115, supra
181 NLRB No. 9
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board considered and disposed of in the
representation proceeding. There is no allegation
that special circumstances exist that require the
Board to reexamine the determination which it
made in the representation proceeding. Inasmuch as
Respondent has already fully litigated these issues in
the representation case, we find that it has not here
raised any issue which is properly triable in this
unfair labor practice proceeding.
All material issues thus having been either decided
by the Board or admitted in the answer to the
complaint, there are no matters requiring a hearing
before a Trial Examiner. Accordingly, the General
Counsel's motion for summary judgment is granted.
On the basis of the record before it, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
On or about August 1, 1969, Respondent,
formerly known and operating as Norman J.
Provost, d/b/a Detective Intelligence Service,
incorporated its business pursuant to statute of the
State of California, and from and after that date
has been known as Detective Intelligence Service,
Inc. At all times material herein Respondent has
had a place of business in Oakland, California, and
has been engaged in the business of providing guard
security services. During the past year, Respondent,
in the course and conduct of its business operation,
provided guard security services in excess of $50,000
to firms each of which, in turn, purchased and
received at their location within the State of
California goods and services in excess of $50,000
directly from suppliers located outside the State of
California.
Respondent does not deny, and we find, that
Respondent is, and has, been at all times material
herein, an Employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Guards and Watchmen is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein the following
employees have constituted and now constitute a
unit appropriate for collective bargaining within the
meaning of the Act:
All security officer employees of the Employer
working out of its Oakland, California, location
including regular part-time employees, excluding
office clerical employees, salesmen, and
supervisors as defined in the Act.
2. The certification
In an election by secret mail ballot ending on
August 28, 1968, conducted under the supervision of
the Regional Director for Region 20, a majority of
the employees of Respondent in said unit designated
the Union as their representative for the purpose of
collective bargaining with Respondent, and on
August 28, 1968, the Board certified the Union as
the collective-bargaining representative of the
employees in said unit, and the Union continues to
be such representative.
B. The Request To Bargain and Respondent's
Refusal
On or about June 26, 1969, the Union requested
and is continuing to request Respondent to bargain
collectively with it as the exclusive
collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about June 30, 1969, Respondent did refuse,
and continues to refuse, to bargain collectively with
the Union as exclusive collective-bargaining
representative of the employees in said unit.
Accordingly, as we have found that the Union
was duly certified by the Board as the
collective-bargaining representative of the employees
of Respondent in the appropriate unit described
above and at all times since August 28, 1968, has
been and now is the exclusive bargaining
representative of the employees in the appropriate
unit; and as Respondent has since June 30, 1969,
refused to bargain collectively with the Union as
such representative; we further find that by such
refusal Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above , have a close , intimate,
and substantial relation to trade, traffic, and
commerce among the several states and tend to lead
to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom, and, upon request,
bargain collectively with the Union as the exclusive
DETECTIVE INTELLIGENCE SERVICE, INC. 31
representative of all employees in the appropriate
unit and, if an understanding is reached, embody
such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of
their selected bargaining agent for the period
provided by law, we shall construe the initial year of
certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the recognized bargaining
representative in the appropriate unit. See: Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S.
817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
CONCLUSIONS OF LAW
1. Detective Intelligence Service, Inc., is an
Employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Union of Guards and Watchmen
is a labor organization within the meaning of
Section 2(5) of the Act.
3. All security officer employees of the Employer
working out of its Oakland, California location
including regular part-time employees, excluding
office clerical employees, salesmen, and supervisors
as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. On August 28, 1968, and at all times
thereafter, the above-named labor organization has
been and is the certified and exclusive representative
of all employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about June 30, 1969, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Detective Intelligence Service, Inc., Oakland,
California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment, with International Union
of Guards and Watchmen, as the exclusive and duly
certified bargaining representative of its employees
in the following appropriate unit:
All security officer employees of the Employer
working out of its Oakland, California, location
including regular part-time employees, excluding
office clerical employees, salesmen, and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in -the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an
understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its Oakland, California, location
copies of the attached notice marked "Append ix. 113
Copies of said notice, on forms provided by the
Regional Director for Region 20, shall, after being
duly signed by Respondent's representative, be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify said Regional Director for Region 20,
in writing, within 10 days from the date of this
Decision and Order, what steps have been taken to
comply herein.
'In the event this Order is enforced by a judgment of the United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing and Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
International Union of Guards and Watchmen as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request , bargain with the
above-named Union as the exclusive representative of
all employees in the bargaining unit described below
with respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an
understanding is reached , embody such understanding
in a signed agreement
The bargaining unit is:
All security officer employees of the Employer
working out of its Oakland , California, location
including regular part -time employees excluding office
clerical employees , salesmen , and supervisors as
defined in the Act.
Dated By
DETECTIVE INTELLIGENCE
SERVICE, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Regional Office , 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047 , San Francisco , California 94102,
Telephone 415-556-3197.