Madison Detective Bureau, Inc.

National Labor Relations Board - Board DecisionsJun 18, 1975

218 N.L.R.B. 627 (N.L.R.B. 1975)

MADISON DETECTIVE BUREAU, INC. 627 Madison Detective Bureau, Inc. and Local No. 2, International Union of Police and Protection Employees, International Watchmen's Association. Case 2-CA-13578 June 18, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENIUNS, AND PENELLO Upon a charge filed on January 15., 1975, by Local No. 2, International Union of Police and Protection Employees, International Watchmen's Association, herein called the Union, and duly served on Madison Detective Bureau, hic., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint on February 14, 1975, 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 October 3, 1974, following a Board election in Case 2-RC- 16531 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;1 and that, commencing on or about January 2, 1975, 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, although the Union has requested and is requesting it to do so. On February 26, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and raising certain affirmative defenses. Respondent admits all factual allegations of the complaint including the Union's request to bargain and its refusal thereof, with the exception of paragraph 6, relating to the appropriate unit, which it denies. On March 19, 1975, counsel for the General Counsel filed directly with the Board a motion for summary judgment, asserting that Respondent, by its 1 Official notice is taken of the record in the representation proceeding, Case 2-RC-16531, as the term " record" is defined in Secs. 102.68 and 102.69(g) of the Board 's Rules and Regulations, Series 8, as amended. See LTV Electrosystenu, Inc., 166 NLRB 938 (1967), enfd. 388 F .2d 683 (C.A. 4, 1968); Goldn Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1957); Follett Corp.; 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 2 On July 17, 1974, the Board denied Respondent 's request for review of 218 NLRB No. 107 answer, was attempting to relitigate issues raised and litigated in the underlying representation proceeding. Accordingly, inasmuch as there are no issues requiring a hearing, the General Counsel requests judgment and the issuance of a Decision and Order. On March 31, 1975, Respondent filed a response to counsel for the General Counsel's motion. Subse- quently, on April 1, 1975, 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. On April 14, 1975, counsel for the General Counsel filed a brief in support of his motion. 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 Although its answer admits most of the factual allegations of the complaint, Respondent asserts, by denial and affirmatively, that the unit is inappropri- ate in that it contains guards acting as managerial and/or supervisory agents of its clients. It further asserts that a majority of a unit appropriate for collective bargaining never selected the Union, and that Respondent is not engaged in commerce within the meaning of the Act. Respondent also contends that it was denied due process of law by the failure to hold a hearing on its objections to the election, a contention repeated in its response to the Notice To Show Cause, in which it relies on Henderson Trumbull Supply Corporation v. N.LRB., 501 F.2d 1224 (C.A. 2, 1974). Review of the representation case record indicates that, with regard to the appropriateness of the unit, the Union's majority status, and Respondent's engaging in commerce, these contentions were raised and litigated in that proceeding.2 Respondent, by these assertions, is attempting to relitigate the same issues which it raised and litigated in the representa- tion proceeding, Case 2-RC-16531. With regard to its assertion that a hearing is required on its objections to the election to satisfy the mandates of due process, and its reliance on Henderson Trumbull Supply Corp., we note that the the Regional Director's Decision and Direction of Election in which it argued, inter alia, that the unit was inappropriate and that it was not engaged in commerce within the meaning of the Act. Following the conduct of a mail ballot election resulting in a vote of 78 in favor of the Union, 18 against, with 20 challenged ballots, Respondent filed timely objections to the election . On October 3, 1974, the Acting Regional Director issued his Supplemental Decision, finding no ment in Respondent 's objections, and certified the Union. On November 13, 1974, the Board (Member Penello concurring) denied Respondent's request for review thereof. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessity for a hearing, including the application of Henderson to the issue, was raised before the Board in Respondent's request for review of the Acting Regional Director's Supplemental Decision, and no hearing was ordered by the Board. Moreover, it is well established that the parties in a representation proceeding do not have an absolute right to a hearing. It is only when the moving party presents a prima facie showing of "substantial and material issues" which would warrant setting aside the election that he is entitled to an evidentiary hearing.3 Absent arbitrary action, it is clear that this qualified right to a hearing satisfies all statutory and constitu- tional requirements.4 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.5 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent 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. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the motion for summary judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a New York corporation with an office and place of business at 370 Seventh Avenue, New York, New York, where it is, and has been at all times material herein, engaged in the business of providing guard services to banks, public utilities, and retail stores. During the past year, a representa- tive period of its operations generally, Respondent derived gross revenues valued in excess of $50,000 from, inter alia, Consolidated Edison Co. of New York, New York Bank for Savings, Bank Leumi, Robert Hall Clothes, Guggenheim Museum, and Sloane's Supermarket , each of which is directly engaged in commerce. During the same period, Respondent performed services for a New Jersey company valued at about $10,000. 3 N.L.R.B. V. Moline Manufacturing Co., 500 F.2d 914 (C A. 8, 1974). 4 Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc.] v. N.LRB, 424 F.2d 818 (C.A.D.C, 1970). We find, on the basis of the foregoing, 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, and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED Local No. 2, International Union of Police and Protection Employees, International Watchmen's Association, 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 -bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time guards em- ployed by the Employer out of its New York, New York office, excluding sergeants, lieutenants, captains, roving supervisors, all other employees, office clerical employees and supervisors as defined in the Act. 2. The certification On August 26, 1974, a majority of the employees of Respondent in said unit, in a secret mail ballot election conducted under the supervision of the Regional Director for Region 2, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on October 3, 1974, and the Union 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 Commencing on or about December 25, 1974, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about January 2, 1975, and continu- ing at all times thereafter to date, the Respondent has 5 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c). MADISON DETECTIVE BUREAU, INC. 629 refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we fmd that the Respondent has, since January 2, 1975, 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 engaging 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. 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 period of certifica- tion as beginning on the date Respondent com- mences 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Madison Detective Bureau , Inc., is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 2, International Union of Police and Protection Employees, International Watchmen's Association, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time guards employed by the Employer out of its New York, New York office, excluding sergeants, lieutenants, cap- tains, roving supervisors, all other employees, office clerical employees 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. Since October 3, 1974, 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 2, 1975, 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has 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 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, Madison Detective Bureau, Inc., New York, New York, 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 Local No. 2, Interna- tional Union of Police and Protection Employees, International Watchmen's Association, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time guards em- ployed by the Employer out of its New York, New York office, excluding sergeants, lieutenants, captains, roving supervisors, all other employees, 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office clerical employees and supervisors as APPENDIX defined in 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 rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its New York, New York, location copies of the attached notice marked "Appendix.' 16 Copies of said notice, on forms provided by the Regional Director for Region 2, 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 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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 " 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 Local No. 2, International Union of Police and Protec- tion Employees, International Watchmen's Asso- ciation, 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 rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time guards employed by the Employer out of its New York, New York office, excluding sergeants, lieutenants, captains, roving supervisors, all other employees, office clerical employees and supervisors as defined in the Act. MADISON DETECTIVE BUREAU, INC.