The Wackenhut Corp.

National Labor Relations Board - Board Decisions

Nov 23, 1971

194 N.L.R.B. 302 (N.L.R.B. 1971)

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Wackenhut Corporation and International Union,
United - Plant Guard Workers, of America and its
affiliated Local No. 110. Case 9-CA-6321
November 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge and first amended charge filed on
June 14, 1971, and September 29, 1971, respectively,
by International Union, United Plant Guard Workers
of America and its affiliated Local No. 110, herein
called the Union, and duly served on The Wackenhut
Corporation, herein called the Respondent, the
Acting General Counsel of the National Labor
Relations Board, by the Acting Regional Director for
Region 9, issued a complaint against the Respondent
on June 29, 1971, and on October 5, 1971, the General
Counsel and Regional Director issued an order
amending complaint, wherein the caption referring to
"International Union, United Plant Guard Workers
of America (UPGWA)" as charging party therein was
changed to read "International Union, United Plant
Guard Workers of America and its affiliated Local
No. 110," 1 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 a Trial
Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on or about
December 24, 1970, following a Board election in
consolidated Cases 9-RC-8373 and 9-RC-8397, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 2 and that, commencing
on or about May 19, 1971, orally, and on or about
1 On October 7, 1971, the General Counsel also filed with the Board a
Motion, to Amend Motion for Summary Judgment moving that the caption
in its Motion for Summary Judgment filed on July 26, 1971, and the
supporting memorandum filed therewith , referring to "International
Union, United Plant Guard Workers of America (UPGWA)" be changed
to read "International Union , United Plant Guard Workers of America
and its affiliated Local No. 110." On October 12, 1971, the Respondent, in
substance , requested review of the Regional Director's actions on the
ground that the amendments seriously prejudice Respondent's case, and
seek to materially change the identity of the Charging Party and come after
the case has been transferred to the Board on a Motion for Summary
Judgment The Respondent also contends that the October 5, 1971, order
amending complaint was issued without prior notice to the Respondent.
On October 20, 1971 , the General Counsel filed with the Board a response
in opposition to the Respondent 's request for review We find no meet to
these contentions . The record shows that on December 24, 1970, the
"International Union, United Plant Guard Workers of America and its
affiliated Local No . 110" was certified as the employees ' representative for
May 28, 1971, in writing, and at all times thereafter,
Respondent has refused, and continues 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
July 8, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. The Respondent admits,
inter alia, that an election was conducted by the Board
in an appropriate unit of the Respondent's employees
in consolidated Cases 9-RC-8373 and 9-RC-8397;
that the Union requested the Respondent to bargain
collectively with it as the exclusive representative of
these employees; and that the Respondent both orally
and in writing refused , and continues to refuse, to
bargain collectively with the Union.
On July 26, 1971, counsel for the Acting General
Counsel filed directly with the Board a Motion for
Summary Judgment (caption thereon was amended
on October 7, 1971, see supra, fn. 1). On August 13,
1971, the Union filed a Charging Party's Statement in
Support of Motion for Summary Judgment, submit-
ting, in effect , that the Respondent, in its answer, is
attempting to relitigate matters which have been
previously litigated and decided in a representation
proceeding, Cases 9-RC-8373 and 9-RC-8397. Sub-
sequently, on August 2, 1971, the Board issued an
order transferring the proceeding to the Board and a
Notice To Show Cause why the Acting General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a Response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
Upon the entire record in this proceeding, the Board
makes the following:
the purposes of collective bargaining . The record further shows that at the
hearing held on January 14, 1970, the correct name of the Petitioner in
Case 9-RC-8397 was amended to read "International Union, United Plant
Guard Workers of America and its affiliated Local No 110" Accordingly,
we find that the amended motions correcting a technical deficiency in the
pleadings have not prejudiced the Respondent 's case. Moreover, the fact
that the amended complaint was issued without prior notice to the
Respondent is immaterial and irrelevant to the propriety of the pleadings,
its issuance in these circumstances clearly authorized under Section 102 17
of the Board's Rules and Regulations.
2 Official notice is taken of the record in the representation proceeding,
consolidated Cases 9-RC-8373 and 9-RC-8397, as the term "record" is
defined in Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations,
Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd.
388 F .2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151;
Intertype Co. v. Penello, 269 F.Supp . 573 (D.C. Va., 1967); Follett Corp, 164
NLRB 378, enfd. 397 F 2d 91 (C A. 7, 1968); Sec. 9(d) of the NLRA.
194 NLRB No. 45
THE WACKENHUT CORP.
Ruling on the Motion for Summary Judgment
In its Response to Notice To Show Cause, as in its
answer to the complaint, the Respondent alleges that,
notwithstanding the Board's certification, special
circumstances exist which =make , any contemplated
order or unfair labor practice finding inappropriate
and inequitable. Upon our review of the record,
including the records in consolidated Cases
9-RC-8373 and 9-RC-8397, we find no merit to this
allegation.
Pursuant to a Decision and Direction of Election by
the Regional Director in these cases an election was
conducted on March 12, 1970. The tally of ballots
reflected that none of the choices on the ballot had
received a majority of the valid votes cast. No
objections to the election were filed. Subsequently, a
runoff election was conducted by mail. The ballots
were counted on April 21, 1970, which disclosed that
of the valid votes cast, 22 were for the Union, 21
ballots were cast against the Union, and 3 ballots,
determinative of the results of the election, were
challenged. On April 28, 1970, the Respondent filed
timely objections to conduct of election and conduct
affecting the results of the election. On September 11,
1970, the Regional Director issued his Supplemental
Decision, Order Directing Hearing, and Notice of
Hearing in which he overruled the Respondent's
objections in their entirety, including the Respon-
dent's allegation that its employee complement had
substantially changed, and directed that a hearing be
held to resolve the issues raised by the challenged
ballots. Subsequently, on October 2, 1970, the
Respondent filed a request for review of the Regional
Director's Supplemental Decision, which was denied
by the Board on November 12,1970.
On December 3, 1970, a hearing was held and
pursuant to an agreement of the parties made at the
hearing, and subseq ently approved by the Regional
Director, the three challenged ballots were opened
and counted. A revised tally of ballots, issued on
December 18, 1970, showed that of the valid votes
cast, 24 were for the Union, and 22 ballots were cast
against the Union. Accordingly, on December 24,
1970, the Union was certified by the Regional
Director as the exclusive collective-bargaining repre-
sentative in the unit herein found appropriate.
With respect to the Respondent's contention that
special circumstances exist which make any contem-
plated order or an unfair labor practice finding
inappropriate and inequitable, the Respondent sub-
mits that its employee complement has substantially
changed since the April 1970 election, and that a
hearing should be ordered to take evidence concern-
303
ing the special circumstances. We find no merit to this
contention. As reflected above, the Regional Director
overruled the Respondent's objections to the election
in their entirety, including the change of employee
complement allegation, which the Board considered
and decided in its review wof the Respondent's
exceptions to the Regional Director's Supplemental
Decision, Order Directing Hearing, and Notice of
Hearing.
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.3
All issues raised by the Respondent in this proceed-
ing 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
any such special circumstances 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 pro-
ceeding. 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
The Respondent, a Florida corporation with its
principal place of business located at Coral Gables,
Florida, is engaged in the business of providing
protection service and security guard services for
various employers throughout the United States. The
Respondent's Louisville, Kentucky, area office is the
subject of this proceeding. During the past 12 months,
which is a representative period, the Respondent, in
the course and conduct of its nonretail business
operations, performed services valued in excess of
$50,000 for customers located ,outside the State of
Florida.
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.
3 See Pittsburgh Plate Glass Co. v. N L RB., 313 U S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102 67(f) and 102.69(c).
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Plant Guard Workers
of America, and its affiliated Local No. 110, 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 consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All security guards of the Employer in its
Louisville, Kentucky area operations, but exclud-
ing all office clerical employees, professional
employees, and supervisors as defined in the Act,
and all other employees.
2. The certification
On April 21, 1970, a majority of the employees of
Respondent in said unit, in a runoff election conduct-
ed by mail under the supervision of the Regional
Director for Region 9, 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 December 24, 1970, 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 May 19,197 1, the Union
has orally requested the Respondent to bargain
collectively with it as the exclusive collective-bargain-
ing representative of all the employees in the above-
described unit. Commencing on or about May 19,
1971, orally, and on or about May 28, in writing,
and continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclusive
representative for collective bargaining of all employ-
ees in said unit.
Accordingly, we find that the Respondent has, since
May 19, 1971, 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, 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 activities of the Respondent set forth in section
III, above, occurring in connection with its operations
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 com-
merce and the free flow of commerce.
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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed 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).
The Board, upon, the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. The Wackenhut Corporation is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, United Plant Guard
Workers of America, and its affiliated Local No. 110,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All security guards of the Employer in its
Louisville, Kentucky, area operations, but excluding
all office clerical employees, professional employees
and supervisors as defined in the Act and all other
employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since December 24, 1970, 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-
THE WACKENHUT CORP. 305
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about May 19, 1971, orally,
and on or about May 28, 1971, in writing, 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 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, The
Wackenhut Corporation, its officers, agents, succes-
sors, 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, United
Plant Guard Workers of America, and its affiliated
Local No. 110, as the exclusive bargaining representa-
tive of its employees in the following appropriate unit:
All security guards of the Employer in its
Louisville, Kentucky area operations, but exclud-
ing all office clerical employees, professional
employees and supervisors as defined in the Act
and all other employees.
(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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Louisville, Kentucky, area office
copies of the attached notice marked "Appendix.' 14
Copies of said notice, on forms provided by the
Regional Director for Region 9, 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 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that the Board's 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 be changed to 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 Interna-
tional Union, United Plant Guard Workers of
America, and its affiliated Local No. 110, 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 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 under-
standing in a signed agreement. The bargaining
unit is:
All security guards of the Employer in its
Louisville, Kentucky area operations, but
excluding all office clerical employees, pro-
fessional employees and supervisors as de-
fined in the Act.
THE WACKENHUT
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive with its provisions may be directed to the Board's
days from the date of posting and must not be altered, Office, Federal Office Building, Room 2407, 550
defaced, or covered by any other material. Main Street, Cincinnati, Ohio 45202, Telephone
Any questions concerning this notice or compliance 513-684-3686.