Madison Detective Bureau, Inc.

National Labor Relations Board - Board DecisionsJul 3, 1980

250 N.L.R.B. 398 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Madison Detective Bureau, Inc. and Federation of Special Police and Law Enforcement Officers. Case 2-CA-16782 July 3, 1980 DECISION AND ORDER By CtIAIRMAN FANNING( ANI) MItMBI:RS JI-NKINS ANI) TRUISI)AI. I. Upon a charge filed on September 27, 1979, by Federation of Special Police and Law Enforcement Officers, herein called the Union, and duly served on Madison Detective Bureau, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint on October 16, 1979, 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 and 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 July 26, 1979, following a Board election in Case 2-RC- 18261, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;l and that, commencing on or about July 27, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On October 19, 1979, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On March 4, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 7, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. ()ffitial notidce is taken i 11i IIceord i Ihl c rcpro. nilit n piotccd- ilg. Cawc 2 RC I12hl ,s2 Ihc termn "rcr rd" isr dcfliId ill Scc. 102 6)h and 102 6h(g) ,f Ih1c ilolird', RuilC, and Rcgulal.ons. Scrlic S. ai, Inll cdLI See L11 IEI 'llrosotVrm, J1it.. 166 NI RB '918 (1I1,7), clild 18 I 2d ,SI 141h CÂ£lr Il1h1): (,hldn ,.Ig H1iew rrig (,o, Ih7 NI RH 151 ( 19h7). cinfd 415 1: 2d 2h (5lh C ir I9lh): Inlrlr(rp (C I' Pn,1 l/, 2h,) F Supp 571 (I) C \Va 11,7). I lit (orp, 164 I NlRit 37 ( II67, cnild 197 1: 21 'I (71h Cir 19'g ) 5 1Sc Q(d) of Ihc NI.RA, al .atnicvduI Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 response to the Notice To Show Cause, Respondent contends that: (I) the certified unit is not a unit appropriate for purposes of collective bargaining, (2) the Union was improperly certified, (3) the Union has not requested in an appropriate manner and at an appropriate time that Respondent bargain with it, (4) no bargaining obligation arises until the certification of bargaining representative process is completed, and (5) the question as to whether the Union's request for bargaining prior to the end of the certification process was a continu- ing request is a question of fact to be resolved at a hearing. Our review of the facts in Case 2-RC-18261 dis- closes that, after a hearing, the Regional Director, in her May 4, 1979, Decision and Direction of Election, found that a unit consisting of all of Re- spondent's full-time and regular part-time security officers, including sergeants working at Con Edison facilities, but excluding all other employees, roving supervisors, captains, lieutenants, and ser- geants who work at other than Con Edison facili- ties, constitute a unit appropriate for collective-bar- gaining purposes. Respondent, on or about May 15, 1979, filed a timely request for review contending that the Regional Director improperly granted the status of Intervenor to the International Associ- ation of Security Officers (herein called the Associ- ation), that the Association did not possess a proper showing of interest, and that the Regional Director abused her discretion in extending the time for the Union herein to present the requisite showing of in- terest. By telegraphic communication dated June 5, 1979, the Board denied Respondent's request for review as raising no substantial issues warranting review. The election was conducted by mail ballot from May 31 to June 21, 1979. On June 22, 1979, the tally of ballots was issued showing that the Union had received a majority of the valid votes cast. On June 26, 1979, Respondent filed timely objections to the conduct of the election alleging: (1) that the Union, in the preelection campaign, made material and substantial misrepresentations of fact and law; (2) that the Regional Office failed to supply Re- spondent with a list of employees who apparently 250 NLRB No. 62 MADISON I) FTECTI\ ' BURFAU, INC were not on the Excelsior list, 2 but who had con- tacted the Regional Office with regard to voting in the election: (3) that the Association was improper- ly placed on the ballot; (4) that it was improper to conduct a mail ballot; (5) that the Regional Office failed to serve a copy of the Excelsior list on the Association, and (6) that there appeared to be irre- gularities in the marking of the ballots. On July 26, 1979, the Regional Director issued a Supplemental Decision and Certification of Representative over- ruling all of Respondent's objections and certifying the Union as the collective-bargaining representa- tive of Respondent's employees in the unit found appropriate. On or about August 6, 1979, Respond- ent filed a timely request for review of the Region- al Director's Supplemental Decision alleging that the Regional Director erred in overruling its objec- tions to the election. The Board, by telegraphic order dated November 7, 1979, denied the request for review on the ground that it raised no substan- tial issues warranting review. Immediately following the Regional Director's certification of the Union, the Union, by letters dated July 27 and September 20 and 26, 1979, re- quested that Respondent meet with it for purposes of negotiations. On September 24, 1979, Respond- ent notified the Union in writing that it declined to meet with the Union pending determination by the Board of its request for review. As noted, the Union filed the instant charge on September 27, 1979, and the complaint issued on October 16, 1979. Respondent's response to the Notice To Show Cause involves (1) the validity of the certification, and (2) other issues. With respect to the validity of the certification it is well settled that in the absence of newly discov- ered or previously unavailable evidence or special circumstances a respondent in a proceeding alleg- ing a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been liti- gated in a prior representation proceeding. 3 With respect to the other issues, in addition to questioning the Union's certification, Respondent contends that the Union's requests for bargaining were prematurely made and were inappropriately phrased. Respondent states that the Union did not- specify why it was proposing meetings with Re- spondent other than generally for the purposes of "negotiations," and that the requests were made during the pendency of Respondent's request for review before the Board. Respondent argues that until the Board rendered its decision on Respond- E. celir I t',,idirwar fti , Ih 15 NI Ri I h23 (Ithh) See Piomh ur'h Plate' (Tla~ (;,,. . I..R R.. 311 LI S 14h. Ih2 11941): Rules and Igulatitns oI the IhIard, Scas, 102 h7(0f) anid 102 hc)(c) ent's request for review there was no obligation on its part to bargain with the Union. In support of its position, Respondent cites the Board's decision in Howard Plating Industries, Inc., 230 NLRB 178 (1977). We find no merit in Respondent's position. This case is governed by Allstate Insurance Com- pany, 234 NLRB 193 (1978). In Allstate, like here, the refusal to bargain occurred at a time when an outstanding certification of representative existed. By contrast, no outstanding certification existed at the time of the refusal to bargain in tHoward Plat- ing. Thus, Respondent's reliance on Howard Plating is misplaced because Respondent overlooked the importance of an outstanding certification.4 Hence, we find that Respondent was obligated to bargain with the Union after July 26, 1979, upon request, and that its refusal to do so violated Section 8(a)(5) of the Act.5 Respondent's contention that the Union did not request bargaining "in an appropriate manner" also lacks merit. The Union clearly requested that Re- spondent meet with it as the certified collective- bargaining representative of Respondent's employ- ees. The Union suggested two different meeting dates, suggested options as to the location of the meeting, stated that it was its intention to submit proposals for a collective-bargaining agreement, and requested that Respondent have available for the Union certain information. Clearly, the Union made an appropriate request for bargaining. We note that Respondent expressed no concern that the Union might seek to bargain over improper or illegal conditions when it failed to respond to the Union's request of July 27, 1979, nor did it express any such concern when it wrote the Union on Sep- tember 24, 1979, advising the Union that it would not meet with the Union until its request for review had been finally determined. But even if Respondent had a genuine concern over what sub- jects the Union desired to bargain about, it needed only to meet with and receive the Union's propos- als and then "what the [union] . . . might propose, the Employer could dispose by saying nay to [im- proper proposals] and aye to working terms and conditions. " All issues raised by Respondent in this proceed- ing with respect to the certification were or could ' In .41/rtate. review of the outstanding certification w-as pending befiore the Board at the time of the refusal to bargain In Il/oward Platirig. the Hoard wa considering hether or not to issue the certification at the timne of the refusal to bargain See also Trio, Prdui,i C(orporation. 238 NLRH 13OtI ( 1978) In1 lighl of our colnclusion here. we Find it unnllleessar! to deternilce shcelhter the UnLllliO ' rCquest 1to hbargalin on Jt ) 7, 197 ) , tIllstiluted ii COItIItllnuiig rTquest Ito h;lrg.Lin1 ` 5S/hn,rhcr I-otrd I l I / i . 175 NI RH 5I1 15 f(Ilt'9)l, cnfil 424 : l2d 1315 (7th COr I'7(11 39c I)E1CISI()NS ()0 NATIONAL LABOR REI.A I IONS BO()ARD have been litigated in the prior representation pro- ceeding. and 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 re- quire the Board to reexamine the decision made in the representation proceeding. In addition, the "other issues" raised by Respondent do not present any issues of fact necessitating a hearing, nor do they present any defense to Respondent's refusal to meet and bargain with the Union. Having found that Respondent has not raised any issue which is properly litigable in this unfair labor practice pro- ceeding or which presents a defense to its refusal to meet and bargain with the Union, we 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 RESPONDENT Respondent, in its response to the Notice To Show Cause, also now denies that its "business en- terprise, or that a class of activities which compre- hends it, has a close and substantial relationship to and affects the free flow of commerce among the states or meets the Board's jurisdictional stand- ards." Based on the evidence before her, the Regional Director found that Respondent is a New York corporation with its office at 370 Seventh Avenue, New York, New York; that it is engaged in the business of providing guard services to banks, public utilities, and retail stores, among other cli- ents; that in the past year Respondent received rev- enues in excess of $50,000 from each of several companies, each of whom meets a Board jurisdic- tional standard exclusive of indirect outflow or in- direct inflow; and that Respondent provided $10,000 worth of services for a client located in New Jersey. Based on these facts and a stipulation of the parties, the Regional Director found that Respondent was engaged in commerce within the meaning of the Act. Respondent does not now sug- gest or offer any evidence that would dispute the facts as found by the Regional Director. We find, on the basis of the foregoing, that Re- spondent 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 I.ABOR ORGANIZA'IION INVOIVED Federation of Special Police and Law Enforce- ment Officers is a labor organization within the meaning of Section 2(5) of the Act. I1I. THE UNFAIR l ABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time security of- ficers, employed by Respondent, including ser- geants working at Con Edison facilities, but excluding all other employees, roving supervi- sors, captains, lieutenants, and sergeants who work at other than Con Edison locations. 2. The certification During the period May 31, 1979, through June 21, 1979, a majority of the employees of Respond- ent in said unit, in a secret-ballot election conduct- ed under the supervision of the Regional Director for Region 2, designated the Union as their repre- sentative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on July 26, 1979, 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 July 27, 1979, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about July 27, 1979, and continuing at all times thereafter to date, Respondent has re- fused, 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 find that Respondent has, since July 27, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- 4(0 MADISON DETECTIVE BUREAU, INC tices within the meaning of Section 8(a)(5) and (1) of the Act. Iv. THE EFFECT OF THE UNFAIR l ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor di.putes burdening and ob- structing 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. Because Respondent's employees work varying schedules at various locations in and around New York City, and apparently do not reg- ularly report to Respondent's headquarters, we shall also order Respondent, in addition to posting the notice to employees at its headquarters, to mail copies of the notice to employees to each of its em- ployees at their home addresses. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 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. Federation of Special Police and Law En- forcement Officers is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time security of- ficers employed by Respondent, including ser- geants working at Con Edison facilities, but exclud- ing all other employees, roving supervisors, cap- tains, lieutenants, and sergeants who work at other than Con Edison locations, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since July 26, 1979, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 27, 1979, 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 prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 Re- lations Board hereby orders that the Respondent, Madison Detective Bureau, Inc., New York, New York, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Federation of Spe- cial Police and Law Enforcement Officers as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time security of- ficers, employed by Respondent, including ser- geants working at Con Edison facilities, but excluding all other employees, roving supervi- sors, captains, lieutenants, and sergeants who work at other than Con Edison locations. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 4( I DIDEC'ISIONS ()F NATI(ONA, IABI()R REIATIO()NS O()ARD 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 under- standing in a signed agreement. (b) Post at its offices in New York, New York, and mail to each of the employees in the unit found appropriate herein copies of the attached notice marked "Appendix." 7 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 im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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 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. 7 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NoTici- To EMPIOYES POSTED BY ORDI.R OF IHI NATIONAL LABOR RELATIONS BOARI An Agency of the United States Government WE WIIL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Federation of Special Police and Law Enforcement Officers as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WitlL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time security officers, employed by us, including sergeants working at Con Edison facilities, but exclud- ing all other employees, roving supervisors, captains, lieutenants, and sergeants who work at other than Con Edison locations. MADISON DETECTIVE BUREAU, INC. 402