Detective Intelligence Service, Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 6, 1970181 N.L.R.B. 29 (N.L.R.B. 1970) Copy Citation 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. Copy with citationCopy as parenthetical citation