Myers Investigative & Security Services

National Labor Relations Board - Board DecisionsSep 23, 2004

342 N.L.R.B. 123 (N.L.R.B. 2004)

342 NLRB No. 123 Myers Investigative and Security Services, Inc. and Industrial, Technical and Professional Employ- ees Union. Case 5–CA–31808 September 23, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS WALSH AND MEISBURG The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union on March 16, 2004, the General Counsel issued the complaint on June 23, 2004, against Myers Investiga- tive and Security Services, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the Act. The Respondent failed to file an answer. On August 25, 2004, the General Counsel filed a Mo- tion for Default Judgment with the Board. On August 26, 2004, the Board issued an order transferring the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that unless an answer was filed by July 7, 2004, all the allegations in the complaint would be considered admit- ted. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated July 13, 2004, notified the Respondent that unless an answer was received by July 27, 2004, a motion for default judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with a main office in Dunn, North Carolina, and an office and place of business in Alexandria, Virginia, the only location involved herein, has been engaged in the busi- ness of providing security services. During the 12-month period preceding issuance of the complaint, a representative period, the Respondent, in conducting its business operations described above, per- formed services valued in excess of $50,000 in states other than the State of North Carolina. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Industrial, Technical and Professional Employees Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, William Fred Myers has been the Respondent’s president and/or chief executive officer, and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collec- tive bargaining, within the meaning of Section 9(b)(3) of the Act: All full time and regular part time nonsupervisory em- ployees of Respondent; but excluding all managerial employees and supervisory employees as defined by the Act. Since in or around April 2001, the Union has been des- ignated as the exclusive collective-bargaining representa- tive of the unit, and since then the Union has been recog- nized as the representative by the Respondent. This rec- ognition has been embodied in successive collective- bargaining agreements, the most recent of which is effec- tive from April 4, 2003, to April 3, 2006. At all material times, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining agent of the unit. Since on or about January 27, 2004, the Respondent has refused to bargain in good faith with the Union as the exclusive collective-bargaining representative of the unit.1 Since on or about January 27, 2004, the Union, by memorandum sent to William Fred Myers, has requested that the Respondent furnish the Union with written documents received by the Respondent from a “Govern- ment official” who requested the removal of employee Walter Thomas from a site identified as The Hoffman Building “because of safety/medical reasons.” The information requested by the Union is necessary for, and relevant to, the Union’s performance of its duties 1 This conduct is not alleged as a violation of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 as the exclusive collective-bargaining representative of the unit. Since on or about January 27, 2004, the Respondent has failed to furnish the Union with the information de- scribed above in a timely manner, or has refused to dis- close to the Union that no such information exists. CONCLUSION OF LAW By refusing to furnish the Union with the information requested in its January 27, 2004 memorandum, the Re- spondent has failed and refused to bargain collectively and in good faith with the exclusive collective- bargaining representative of its unit employees, and has thereby engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.2 REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with information that is relevant and necessary to its role as the exclusive bargaining representative of the unit em- ployees, we shall order the Respondent to furnish the Union with the information it requested in its memoran- dum of January 27, 2004. ORDER The National Labor Relations Board orders that the Respondent, Myers Investigative and Security Services, Inc., Alexandria, Virginia, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to furnish Industrial, Technical and Professional Employees Union with information necessary for and relevant to the performance of its du- ties as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full time and regular part time nonsupervisory em- ployees of Respondent; but excluding all managerial employees and supervisory employees as defined by the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2 Our conclusion of law is in conformity with par. 12 of the com- plaint, which alleges that the Respondent has violated Sec. 8(a)(5) and (1) only by its refusal, since January 27, 2004, to furnish the Union with the requested information. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish the Union with the information it requested by memorandum dated January 27, 2004. (b) Within 14 days after service by the Region, post at its facility in Alexandria, Virginia, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 27, 2004. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to furnish Industrial, Technical and Professional Employees Union with in- formation necessary for and relevant to the performance 3 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” MYERS INVESTIGATIVE SECURITY SERVICEs 3 of its duties as the exclusive collective-bargaining repre- sentative of the employees in the following appropriate unit: All of our full time and regular part time nonsupervi- sory employees; but excluding all managerial employ- ees and supervisory employees as defined by the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL furnish the Union with the information it re- quested by memorandum dated January 27, 2004. MYERS INVESTIGATIVE AND SECURITY SER- VICES, INC.