Globe Security Services

National Labor Relations Board - Board Decisions

May 5, 1977

229 N.L.R.B. 460 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Globe Security Services, Inc. and International Union
of Security Officers, Local No. 1. Case 4-CA-7783
May 5, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Upon a charge filed on December 31, 1975, by
International Union of Security Officers, Local No.
1, herein called the Union, and duly served on Globe
Security Services, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 4, issued
a complaint and notice of hearing on February 26,
1976, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 5,
1975, following a Board election in Case 4-RC-
11330, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; ' and that,
commencing on or about January 31, 1976, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
concerning the effects on unit employees of Respon-
dent's termination of its contract with the Pennsylva-
nia Liquor Control Board.2
On October 1, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 13,
1976, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause, entitled "Statement in Opposition to Motion
' Official notice is taken of the record in the representation proceeding,
Case 4-RC-11330, as the term "record" is defined in Secs. 102.68 and
102.6
9
(g) of the Board's Rules and Regulations, Series 8, as amended, see
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Iniertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967);
Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 There is no allegation regarding a refusal to bargain over the decision
to terminate the contract.
3 In its response the Respondent states that the Commonwealth of
Pennsylvania awarded its Liquor Control Board contract to another firm
which took over operations on February 2, 1976.
229 NLRB No. 75
for Summary Judgment and Issuance of Board
Decision and Order."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
notice to show cause, Respondent basically (1)
denies the validity of the certification based on its
contention that the unit is inappropriate; (2) asserts
that the facts concerning the termination of its
contract with the Pennsylvania Liquor Control
Board 3 and subsequent transfer of unit employees
constitute new evidence on unit appropriateness
which requires a hearing; (3) argues that these
proceedings, as well as the previous Decision and
Order 4 against it, are mooted by the termination of
the contract; and (4) contends that, if it is obligated
to bargain with the Union, that duty was fulfilled by
its letter in reply to the Union's request for meeting
to discuss the contract termination because such a
meeting would have served no basic purpose. The
General Counsel contends that the unit issues have
been previously considered and decided in the
underlying representation case and, as was found in
the previous Decision and Order, may not be
relitigated. We agree.
In the Decision and Order issued on November 11,
1975, the Board ordered Respondent to bargain with
the Union after review of the same representation
case contention as to the invalidity of the certifica-
tion now raised again by Respondent in these
proceedings. On February 7, 1977, the United States
Court of Appeals for the Third Circuit dismissed as
moot the Board's petition for enforcement of that
Order without deciding the propriety of the bargain-
ing unit.5 As we found in our Decision and Order, we
now find again that Respondent is attempting to
raise and relitigate unit determination issues already
litigated and determined in the underlying represen-
4 221 NLRB 596(1975) (Case 4CA 7326).
5 N.LR.B. v. Globe Security Services, Inc., 548 F.2d 1115 (C.A. 3, 1977).
The court found that the Board's petition for enforcement of its bargaining
order was moot because Respondent had stopped providing guards for the
Liquor Control Board as of January I, 1976, and therefore the certified unit
no longer existed. This mootness finding was based on the erroneous
conclusion that there was no successor against whom the Board's Order
could operate since the Respondent had not transferred its business to any
successor or assign. But see The William J. Burns International Detective
Agency, Inc., v. N.LRB., 406 U.S. 272 (1972), affg. 182 NLRB 348 (1970).
The court also found that, despite the pendency of the instant proceedings
in which the same unit issues are raised, such issues were not ripe for review.
460
GLOBE SECURITY SERVICES, INC.
tation proceeding, Case 4-RC-11330, and this it may
not do.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.6
Except as follows, all issues raised by Respondent
in this proceeding were or could have been litigated
in the prior representation proceeding, and Respon-
dent does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.7
We therefore find that Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
Contrary to Respondent, the termination of its
contract with the Liq. or Control Board does not
moot these proceedings since it is well established
that an employer is obliged to bargain concerning the
effects of the contract termination on unit employees
whether the termination is partial s or total.9 Respon-
dent's letter, refusing the Union's request for a
meeting on the grounds that any meeting would have
been futile since the letter set forth the most
Respondent would have offered to do, does not
satisfy Respondent's duty to bargain over the effects
of the termination because Section 8(d) of the Act
expressly requires parties to meet and confer.10 We
shall, accordingly, grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a Delaware corporation and is engaged in the
business of providing security services to business
6 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
7 In this proceeding Respondent contends that the facts concerning the
termination of its contract with the Liquor Control Board and the
subsequent transfer of unit employees of jobs with another security guard
employer and to other jobs with Respondent constitute new evidence on
unit appropriateness which requires a hearing. We do not agree. Posttermi-
nation placement of employees does not impugn a prior determination of
unit appropriateness, especially where, as here, the issue of employee
interchange was litigated in the underlying representation case. According-
ly, no hearing is warranted.
a P. B. Mutrie Motor Transportation, Inc., 226 NLRB 1325 (1976): Metro
Transportation Services Company. Inc.; Texas Western Transportation
Company: and Jim Beavers, Individually, d/boa Jim Beavers Company, 218
NLRB 534 (1975), Royal Typewriter Company, a Division of Litton Business
Systems, Inc., a Subsidiary of Litton Indurstries, Inc.. 209 NLRB 1006 (1974);
firms and institutions located throughout the United
States. During the past year, Respondent provided
services in excess of $50,000 directly to persons and
firms located outside the State of Delaware.
We find, on the basis of the foregoing, the
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, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Security Officers, Local No.
1, 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
The following employees of the Respondent
constitute a unit appropriate for collective bargaining
purposes within the meaning of Section 9(b) of the
Act:
All guards employed by Respondent at the
Pennsylvania Liquor Control Board's State Stores
located in Philadelphia, Pennsylvania, but exclud-
ing all other employees, guards employed at other
locations, and supervisors within the meaning of
the Act.
2. The certification
On February 25, 1975, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 4, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 5, 1975, and the Union
Regal Aluminum, Inc., 190 NLRB 468 (1971); Morrison Cafeterias Consoli-
date4 Inc., and Morrison Cafeteria Company of Little Rock, Inc., 177 NLRB
591 (1969); Transmarine Navigation Corporation, 170 NLRB 389 (1968):
Draper), Manufacturing Co., Inc., and American White Goods Compony, 170
NLRB 1706 (1968); McGregor Printing Corporation. 163 NLRB 938 (1967);
Ozark Trailers, Incorporated 161 NLRB 561 (1966); Royal Plating and
Polishing Co., Inc., 160 NLRB 990(1966).
9 Stanley Oil Company, Inc., 213 NLRB 219 (1974); Automation Instirute
of Los Angeles, Inc., d/b/a West Coast Schools, 208 NLRB 725 (1974): All
State Factors, Secured Party in Possession of North Park Meat Company, 205
NLRB 1122 (1973); Interstate Tool Co., Inc., 177 NLRB 686 (1969).
o1 Sec. 8(d) of the National Labor Relations Act, as amended, provides
that "to bargain collectively is the performance of the mutual obligation of
the employer and the representative of the employees to meet at reasonable
times and confer in good faith with respect to wages, hours, and other terms
and conditions of employment .... "
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Prior to January 30, 1976, the Union requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit concern-
ing the effects on unit employees of Respondent's
termination of its contract with the Pennsylvania
Liquor Control Board.I ' Commencing on or about
January 31, 1976, and continuing at all times
thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit concerning
the effects on unit employees of the contract
termination.
Accordingly, we find that Respondent has, since
January 31, 1976, and at all times thereafter, refused
to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent 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 activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship 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 com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is 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 representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
As a result of Respondent's unlawful failure to
bargain about the effects of the termination of its
I" Although the complaint does not specifically allege a request to
bargain, Respondent's statement in opposition recited that Respondent
"had received a letter from the Union requesting a meeting to discuss the
termination of the contract on the guards at the Liquor stores" and that it
responded by letter dated January 30, 1976.
contract with the Pennsylvania Liquor Control
Board, displaced employees have been denied an
opportunity to bargain through their collective-bar-
gaining representative at a time when Respondent
was still in need of their services to fulfill its contract
with the Liquor Control Board, and a measure of
balanced bargaining power existed. Meaningful
bargaining cannot be assured until some measure of
economic strength is restored to the Union. A
bargaining order alone, therefore, cannot serve as an
adequate remedy for the unfair labor practices
committed.
Accordingly, we deem it necessary, in order to
effectuate the purposes of the Act, to require
Respondent to bargain with the Union concerning
the effects of the contract termination on its
employees, and we shall accompany our order with a
limited backpay requirement designed both to make
whole the employees for losses suffered as a result of
the violation and to recreate in some practicable
manner a situation in which the Union's bargaining
position is not entirely devoid of economic conse-
quences for Respondent. We shall do so in this case
by requiring Respondent to pay backpay to its
employees in a manner similar to that required in
Transmarine Navigation Corporation and its Subsid-
iary, International Terminals, Inc.,12 and Interstate
Tool Co., Inc. 3 Thus, Respondent shall pay employ-
ees backpay at the rate of their normal wages when
last in Respondent's employ under the Liquor
Control Board contract from 5 days after the date of
this Decision and Order until the occurrence of the
earliest of the following conditions: (1) the date
Respondent bargains to agreement with the Union
on those subjects pertaining to the effects of the
contract termination on its employees; (2) a bona
fide impasse in bargaining; (3) the failure of the
Union to request bargaining within 5 days of this
Decision, or to commence negotiations within 5 days
of Respondent's notice of its desire to bargain with
the Union; or (4) the subsequent failure of the Union
to bargain in good faith; but in no event shall the
sum paid to any of these employees exceed the
amount he would have earned as wages from the
date on which Respondent ceased providing security
services to the Pennsylvania Liquor Control Board to
the time he secured equivalent employment, or the
date on which Respondent shall have offered to
bargain, whichever occurs sooner; provided, how-
ever, that in no event shall this sum be less than these
employees would have earned for a 2-week period at
12 170 NLRB 389 (1968). Despite his dissent in Transmarine, Member
Jenkins notes that the remedy there has been accepted by the courts and the
Board and that some type of remedy for the misconduct is needed, and he is
therefore willing to join in the decision here.
13 177 NLRB 686(1969).
462
GLOBE SECURITY SERVICES, INC.
the rate of their normal wages when last in
Respondent's employ under the Liquor Control
Board contract. Of course, Respondent's backpay
obligation to any individual employee shall cease to
run should Respondent offer such employee rein-
statement to a substantially equivalent position at
any of its Philadelphia facilities without prejudice to
his seniority or other rights and privileges previously
enjoyed. 14 Backpay shall be based upon earnings
which the terminated employees would normally
have received during the applicable period, less any
net interim earnings, and shall be computed on a
quarterly basis in the manner set forth in F. W.
Woolworth Company,'5 together with interest at the
rate of 6 percent per annum as provided in Isis
Plumbing & Heating Co. 16
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. Globe Security Services, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of Security Officers, Local
No. i, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All guards employed by Respondent at the
Pennsylvania Liquor Control Board's State Stores
located in Philadelphia, Pennsylvania, but excluding
all other employees, guards employed at other
locations, and supervisors within the meaning of the
Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since March 5, 1975, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about January 31, 1976, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative concerning the effects on
unit employees of the contract termination, Respon-
dent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
14 The obligation to bargain about the effects of the contract termination
includes an obligation to discuss offering the terminated employees
employment at other facilities serviced by Respondent. Royal Type.riter
Compan}', 209 NLRB 1006, 1015, fn. 21 (1974).
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Globe Security Services, Inc., Philadelphia, Pennsyl-
vania, its officers, agents, successors and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Interna-
tional Union of Security Officers, Local No. 1,
concerning the effects of the termination of its
contract with the Pennsylvania Liquor Control
Board on employees in the following appropriate
unit:
All guards employed by Respondent at the
Pennsylvania Liquor Control Board's State Stores
located in Philadelphia, Pennsylvania, but exclud-
ing all other employees, guards employed at other
locations, and supervisors within the meaning of
the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in 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 the effects on employees of the termination
of its contract with the Pennsylvania Liquor Control
Board, and reduce to writing any agreement reached
as a result of such bargaining.
(b) Pay the terminated employees their normal
wages for the period set forth in the Remedy section
of this Decision and Order.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records, and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
i5 90 NLRB 289 (1950).
16 138NLRB716(1962).
463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Mail a copy of the attached notice marked
"Appendix" 17 to the International Union of Security
Officers, Local No. 1, and to all the employees who
were employed at the Pennsylvania Liquor Control
Board sites on the date Respondent terminated its
contract with the Pennsylvania Liquor Control
Board. Copies of said notice, on forms provided by
the Regional Director for Region 4, after being duly
signed by Respondent's representative, shall 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
t7 In the event that this Order is enforced by a Judgment of a 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 an 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Union of Security Officers, Local No. 1,
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 of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to the effects on
employees of the termination of its contract with
the Pennsylvania Liquor Control Board, and
reduce to writing any agreement reached as a
result of such bargaining. The bargaining unit is:
All guards employed by Respondent at the
Pennsylvania Liquor Control Board's State
Stores located in Philadelphia, Pennsylvania,
but excluding all other employees, guards
employed at other locations, and supervisors
within the meaning of the Act.
WE WILL pay the terminated employees their
normal wages for a period required by a Decision
and Order of the National Labor Relations
Board.
GLOBE SECURITY
SERVICES, INC.
464