The William J Burns International Detective Agency, Inc.

National Labor Relations Board - Board Decisions

May 7, 1970

182 N.L.R.B. 348 (N.L.R.B. 1970)

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The William J Burns International Detective Agency,
Inc and International Union , United Plant Guard
Workers of America and its Amalgamated Local Union
No 162 and American Federation of Guards, Local
I Case 31-CA-776
May 7, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING,
BROWN AND JENKINS
On June 4, 1968 Trial Examiner E Don Wilson
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision He also found that the
Respondent had not engaged in certain other unfair
labor practices Thereafter, the Respondent filed excep-
tions to the Decision and a supporting brief, and the
Charging Party (herein referred to as the Union) and
General Counsel filed briefs in support of the Trial
'Examiner's Decision
On January 31, 1969, the National Labor 1 Relations
Board, having determined that the instant case raised
issues of substantial importance in the administration
of the National Labor Relations Act, as amended,
ordered that this case be consolidated with three others'
for the purpose of oral argument before the Board
on March 12, 1969 The parties were given permission
to file further briefs Subsequently, on February 19
1969, the Board extended the date of the oral argument
to April 23, 1969
The Board also invited certain interested parties to
file briefs amici curiae and to participate in oral argument
Briefs were filed by The Chamber of Commerce of
the United States, American Federation of Labor and
Congress of Industrial Organizations, International
Union, United Automobile, Aerospace and Agricultural
Implement Workers, the International Brotherhood of
Teamsters Chauffeurs, Warehousemen & Helpers of
America, and the National Federatiqn of Independent
Unions The Chamber of Commerce of the United States,
the International Brotherhood of Teamsters, Chauffeurs
Warehousemen & Helpers of America, and the National
Federation of Independent Unions did not choose to
participate in the argument The National Association
of Manufacturers declined to either file a brief or partici
pate in the argument
The Board has reviewed the rulings of the Trial Exam
iner made at the earing and finds no prejudicial error
was committed The rulings are hereby affirmed The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, the oral arguments, Respond
ent's motions to reopen the record and the General
Counsel s and Charging Party s opposition thereto, and
the entire record in the case and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner
Briefly, the facts show that Wackenhut performed
plant protection services for Lockheed Aircraft Service
Company Ontario International Airport, Ontario, Cali
fornia On March 8 1967,2 the Union was certified
as exclusive bargaining representative for all of Wacken
hut's full time and regular part time plant protection
employees, On April 29, Wackenhut and the Union
entered into a collective-bargaining agreement effective
until April 28, 1970
Pursuant to its agreement with Wackenhut, Lockheed
let the service contract out for bids On May 15 at
a prebid conference attended by several general service
contractors including the Respondent, Burns, Lockheed
advised the prospective bidders that Wackenhut's guards
were represented by the Union which had a recent
Board certification, and that there was in existence
a labor contract between Wackenhut and the Union
covering these employees On May 31, Wackenhut was
informed by Lockheed that Respondent would perform
the guard services as of July 1
Prior to its July 1 takeover, Respondent interviewed
guards for employment who were at that time employed
by Wackenhut As more fully described by the Trial
Examiner, the Respondent assisted the American Federa
tion of Guards in the solicitation of employees Elmer
Reitzel, Thomas Ware, Charles Blankemeier, Harris
Camp, Stanley Ganiewski and Walter Drake On June
29, Respondent recognized the American Federation
of Guards as bargaining representative
On July 1, when Respondent officially began the guard
service duties theretofore performed by Wackenhut,
some 27 guards formerly working at, Lockheed in the
,imploy of Wackenhut began work as guard employees
of Respondent In addition, 15 employees of Respondent
were transferred from other jobs and began work at
Lockheed Thus in assuming guard functions at Lock
heed, a majority of Respondent's work force was made
up of ex Wackenhut employees and the nature of the
business remained the same
On July 12, the Union, by letter, made a demand
upon Respondent that it recognize the Union as bargain
ing representative and honor the Union's collective
bargaining agreement with Wackenhut By letter dated
July 24, the Respondent declined recognition Unfair
labor practice charges were then filed which resulted
in the issuance of the complaint in the instant proceeding
The Trial Examined concluded that Respondent violat
ed Section 8(a)(2) and (1) of the National Labor Relations
Act, as amended, by assisting the American Federation
of Guards in organizing employees and by recognizing
the American Federation of Guards when it did not
represent an uncoerced majority of Respondent's
employees In addition, the Trial Examiner found that
Respondent was a successor employer to Wackenhut
' Traielodge Corp et al 182 NLRB 52 Hackne% Iron & Steel
Co 182 NLRB Si and Kota Dit mon of Dara Corborat,on 182 NLRB 51 Hereinafter all dates refer to 1967 unless otherwise stated
182 NLRB No 50
WILLIAM J. BURNS
and that it violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union
as the bargaining representative of its employees. We
agree with these findings of the Trial Examiner.
We also agree with the Trial Examiner that Respondent
violated Section 8(a)(5) and (1) of the Act by refusing
to abide by the 1967 contract between Wackenhut and
the Union. However, in view of the significance of
the issue presented, we believe it is necessary to explicate
fully our reasons for doing so.
The Supreme Court's Decision in John Wiley & ,Sons
v. Livingston3 altered the perspective in which a'succes-
sor employer's obligations to honor the provisions of
a collective-bargaining agreement negotiated by his pred-
ecessor must be viewed. There, the predecessor employ-
er was absorbed by merger into a larger acquiring compa-
ny (Wiley). Some of the predecessor's employees were
represented by a union, and the collective-bargaining
contract, which did not contain' a successors clause,
was not scheduled to expire until over a year after
the merger took place. Pursuant to an arbitration clause
in the contract, the union brought suit to compel Wiley
to arbitrate its claim that certain contract rights had
survived the merger. The Court held that even though
the predecessor had disappeared as a result of the merg-
er, all rights of the employees covered by the preexisting
collective-bargaining agreement did not terminate. The
Court determined that under the circumstances presented
Wiley was bound to arbitrate its obligations under the
preexisting collective-bargaining agreement.
In reaching its conclusion, the Court specifically reject-
ed the contention that Wiley could not be required
to arbitrate under the preexisting collective-bargaining
agreement because it was not a party to that agreement
and had not consented to be bound by it The Court
stated at 376 U.S. 543, 550: .
While the principles of law governing ordinary con-
tracts would not bind to a contract an unconsenting
successor to a contracting party [footnote omitted],
a collective bargaining agreement is not an ordinary
contract' . . . [I]t,is a generalized code to govern
a myriad of cases which the draftsmen cannot
wholly anticipate . . . The collective agreement
covers the whole employment' relationship. It' calls
into being a new common law-the common law
of a particular industry or of a particular plant:'
[Citation omitted] Central to the peculiar status
and functions of a collective bargaining agreement
is the fact dictated both by circumstance . . and.
by the requirements of the National Labor Relations
Act, that it is not in any real sense the simple
product of a consensual relationship.
As the foregoing indicates, the Supreme Court refused
to rely upon common law contract doctrine in determin-
ing the nature of a purchasing employer's obligation
to arbitrate matters arising under a contract it had not
signed. Rather, the Court construed the contract in
the context of a national labor policy which accords
a central role to arbitration as "the substitute for industri-
' 376 U S 543
349
al strife" and as "part and parcel of collective bargaining
itself" and found the necessary contractual foundation
for the duty to arbitrate in the contract negotiated by
Wiley's predecessor:
Therefore, although the duty to arbitrate, as we
have said . . . must be founded on a contract,
the impressive policy considerations favoring arbi-
tration are not wholly overborne by the fact that
Wiley did not sign the contract being construed.
This case cannot readily be assimilated to the cate-
gory of those in which there is no contract whatever,
or none which is reasonably related to the party
sought to be obligated. There was a contract, and
Interscience, Wiley's predecessor, was party to
it. We thus, find Wiley's obligation to arbitrate
this dispute in the Interscience contract construed
in the context of a national labor policy. (376 U.S.
550). ,
The concept of substantial continuity in the employing
industry enunciated as a necessary condition for the
survival of the duty to arbitrate when the ownership
of a business changes hands is at the heart' of our
determination that a purchasing employer is a successor
employer within the meaning of the Act. In essence,
the finding of successorship involves a judgment that
the employing industry has remained essentially the
same despite the change in ownership.4 A normal conse-
quence of such finding is that the successor employer
is obligated to recognize and bargain with the union
duly selected by the employees-albeit prior to the)
change in ownership-as their collective-bargaining rep-
resentative. This consequence of successorship is rooted,
inter alia, in the fact that
[i]t is the employing industry that is sought to
be regulated and brought within the corrective and
remedial provisions of the Act in the interest of
industrial peace. . . .5
as well as in the fact that, having chosen a bargaining
representative,
[t]here is no reason to believe that the employees
will change their attitudes merely because the identi-
ty of their employer has changed."
Binding the successor employer to his predecessor's
bargaining obligation furthers the policy of protecting
the employees' exercise'of the right to engage in collec-
tive bargaining through representatives of their own
choosing. Requiring the successor employer to negotiate
proposed changes in existing terms and conditions of
employment with the employees' bargaining representa-
tive promotes stability in the employing enterprise's
labor relations and furthers the interests of industrial
peace. The obligation to bargain imposed on a successor
employer includes the negative injunction to refrain
from unilaterally changing wages and other benefits
established by a prior collective-bargaining agreement
even though that agreement has expired.' In this respect,
See, e g , Cruse Motors, Inc , 105 NLRB 242, 247
Kiddie KoverCo v N L R B., 105 F 2d 179, 188 (C A 6)
N L R B v Albert Armato, 199 F.2d 800, 803 (C A 7)
Harold W Hinson, d/bl a Hen House Market No 3. 175 NLRB
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the successor employer's obligations are the same as
those imposed upon employers generally during the peri-
od between collective-bargaining agreements."
The question before us thus narrows to whether the
national labor policy embodied in the Act requires the
successor employer to take over and honor a collective-
bargaining agreement negotiated on behalf of the employ-
ing enterprise by the predecessor. We hold that, absent
unusual circumstances, the Act imposes such an obliga-
tion.
The history of the collective bargaining process
demonstrates that its object has long been an agree-
ment between employer and employees as to wages,
hours and working conditions evidenced by a signed
contract or statement in•writing, which serves both
as recognition of the union with which the agree-
ment has been reached and as a permanent memorial
of its terms . . . [t]he signed agreement has been
regarded as the effective instrument of stabilizing
labor relations and preventing, through collective
bargaining , strikes and industrial strife. (Heinz Co.
v. N.L.R.B., 311 U.S. 514).
In enacting the 1947 amendments to the Act, Congress
added Section 8(d) in which it defined in some detail
the duty to bargain collectively, including within that
definition a specific ratification of the holding in the
Heinz case. I
Section 8(d) also defined the duty to bargain as mean-
ing that, "where there is in effect a collective-bargaining
contract covering employees in an industry affecting
commerce . . no party to such contract shall terminate
or modify such contract ," unless it serves prescribed
notices on the other party, and maintains its contract
in effect for 60 days therefrom, even though that period
may extend beyond the contract' s natural termination
or expiration date. Section 8(d) also. provides that a
party to a collective-bargaining agreement has the right
to refrain from . discussing modifications which are to
take effect prior to the period fixed by the contract
itself for reopening negotiations . Section 8(d) thus clearly
demonstrates Congress' recognition of the paramount
role in maintaining industrial peace played by parties'
adherence to existing collective-bargaining agreements.
The impressive policy considerations favoring the
maintenance and adherence to existing collective-bar-
gaining agreements are not wholly overborne by the
fact that Burns has not signed the contract here in
issue . Nor can a holding that Burns is obligated to
honor and adhere to the express terms of the contract
readily be equated with compelling Burns to agree to
a bargaining proposal or make a concession it is unwilling
to make.' Indisputably, there is a contract. That contract
covers the employees of the employing industry which
No 100, enfd , 428 F 2d 133 (C A 8, 1970) Overrate Transportation
Co , 157 NLRB 1153, enfd 375 F 2d 765 (C A 4), cert denied 389
US 838
" Bethlehem Steel Company (Shipbuilding Division) v N L R B 320
F2d615(CA 3)
" Sec 8(d) provides that performance of the mutual obligation to
bargain does not compel either party to agree to a proposal or require
the making of a concession
Burns took over; it was negotiated on behalf of the
employing enterprise by Wackenhut, Burns predecessor.
That contract is reasonably related to Burns through
its takeover of Wackenhut's Lockheed service functions
and its hiring of Wackenhut employees. We find, ther-
fore, that Burns is bound to that contract as if it were
a signatory thereto, and that its failure to maintain
the contract 'in effect is violative of Sections 8(d) and
8(a)(5) of the Act. "'
In the normal case, we perceive no real inequity
in requiring a "successor employer" to take over his
predecessor's collective-bargaining agreement, for he
stands in the shoes of his predecessor. He can make
whatever adjustments the acceptance of such obligation
may dictate in his negotiations concerning the takeover
of the business. Normally,'employees cannot make a
comparable adjustment. Their basic security is the collec-
tive-bargaining agreement negotiated on their behalf.
In the instant case this is certainly so. They work
in an industry in which the identity of their employer
is subject to annual bidding for the' right to perform'
the services they are engaged in furnishing. The contract
involved herein was negotiated for a term of 3 years,
but had been in existence for only 2 months at the
time of Burns' takeover. Burns had knowledge of the'
agreement when it bid for the Lockheed service contract.
It hired employees on whose behalf the agreement was
negotiated. Accordingly, in order to, fully protect the
employees' exercise of the right to bargain collectively
and to promote the maintenance of; stable bargaining
relationships and concommittantly industrial peace in
this industry, we conclude that Respondent Burns must
be held bound to its predecessor's contract.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby' adopts as its Order the Recommended
Order of the Trial Examiner, and orders that the
Respondent, The William J. Burns International Detec-
tive Agency, Inc., Ontario, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the
qualification described below."
MEMBER JENKINS , dissenting:
My partial dissent is as follows:
There is no requirement in the Act that a successor
employer be bound by the collective-bargaining agree-
ment in effect when the business is transferred. Whether
to require the successor to be bound is therefore a
matter of judgment or interpretation of the national
labor policy. In the absence of a clear statutory command
or binding judicial precedent, I would' not impose the
existing agreement on either the union or the employer.
"' C & S Industries, Inc , 158 NLRB 454, N L R B v Huttig Sash
& Door Co , 377 F 2d 964 (C A 8), enfg 154 NLRB 811 See also
Oilfield Maintenance Co , Inc , etc , 142 NLRB 1384
" Substitute "Judgment" for "Decree" wherever it occurs in fn
6 of the Trial Examiner's Recommended Order
WILLIAM J
Where the enterprise is marginal or faltering, the
new management may have to rearrange the terms and
conditions of employment if the business and the jobs
are to survive The union also may, as in the companion
case of Kota Division of Dura Corporation, 182 NLRB
No 51, want the opportunity to alter employment condi
tions in the light of the new economic circumstances
and relations brought into the situation by the new
employer In such cases, our goal should be to permit
the parties flexibility in working out their new arrange-
ments if either desires to do so, rather than to impose
the existing agreement when one side may be seriously
dissatisfied with it The new employer is not a party
to the agreement, and the union did not join in shaping
and executing it with his circumstances in mind Thus,
to impose the agreement on the new relation may in
many cases prove a source of friction and disruption,
rather than the stability for which my colleagues hope
Section 8(d) of the Act, in requiring "parties" to
adhere to their agreements and give notice of termination
well in advance, hardly supports the conclusion that
the successor is bound by the agreement, for that section
refers only to a "party" to the contract, the successor
is not a party, and the issue before us is whether
he should be treated as if he were a party
Unlike my colleagues, who rely principally on John
Wiley and Sons v Livingston to require that the existing
agreement must continue in effect beyond the transfer
of the business, I see little in that case to support
that conclusion The employees' rights at issue there
were of a very narrow range, such as seniority, vacation
pay, pension contributions, and severance pay, rights
which were fixed or already accrued by being, at least
in part, earned through past performance of work, or
"vested" as the Court referred to them The Court
held only that the arbitration clause in the old agreement
survived the merger as an available method of resolving
issues concerning these "vested" rights This hardly
amounts to a holding that the entire old agreement
must be imposed on the new employment relation
Indeed, the Court's approval of arbitration and its inher
ent flexibility and adjustment to unforeseen circum
stances might indicate that the old agreement should
not be so imposed
Accordingly, I would not hold that Burns is bound
by the agreement between its predecessor Wackenhut,
and Lockheed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E DON WILSON, Trial Examiner The original charge
was filed on July 24, 1967, by International Union,
United Plant Guard Workers of America and its Amalga-
mated Local Union, No 162, herein the Union, and
an amended charge was filed on August 1, 1967 Upon
the charge as amended, the General Counsel of the
National Labor Relations Board, herein the Board, issued
a complaint and notice of hearing dated October 25
1967, alleging that The William J Burns International
BURNS 351
Detective Agency, Inc , herein Respondent, had violated
Section 8(a)(1), (2), (3), and (5) of the National Labor
Relations Act, herein the Act
Pursuant to due notice, a hearing in this matter was
held before me in Los Angeles, California, on December
19 and 20, 1967 All parties but the party in interest
fully participated Briefs for the General Counsel,
Respondent, and Charging Party have been received
and considered
Upon the entire record' in the case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
At all material times, Respondent has been a New
York corporation with offices in various parts of the
United States, including an office at Los Angeles, Califor
nia, where it is engaged in providing protective, guard,
and detective services to business firms throughout the
United States
In the course and conduct of its business operations,
Respondent's Los Angeles office has an annual volume
of business in excess of $500,000, and annually performs
services valued in excess of $50,000 for firms outside
the State of California, and annually performs services
valued in excess of $50,000 for firms in the Los Angeles
area, each of which ships products valued in excess
of $50,000 directly outside the State of California
The Wackenhut Corporation, herein Wackenhut, is
a Florida corporation engaged in plant protection and
security services for firms located throughout the United
States In the course and conduct of its business opera
tions, Wackenhut has an annual gross volume of business
in excess of $500,000, and it annually performs services
valued in excess of $50,000 outside Florida
Respondent and Wackenhut, each, is and at all mate
rial times has been, an employer engaged in commerce
within the meaning of the Act
it THE LABOR ORGANIZATIONS
The Union and American Federation of Guards, Local
1, herein AFG, are labor organizations within the mean
ing of the Act
III THE UNFAIR LABOR PRACTICES
A The Issues
The issues include the following
(1) Is Respondent a successor to Wackenhut,
(2) Is a unit limited to employees of Respondent
at Lockheed appropriate,
(3) Has Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to bargain with the Union and
' The motion to correct the transcript is granted as is the motion
to admit Resp Exh 5 into evidence
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by refusing to give effect to a contract between Wacken-
hut and the Union;
(4) Has Respondent violated Section 8(a)(2) and (1)
of the Act by recognizing AFG as the bargaining repre-
sentative of Respondent ' s employees at Lockheed and
by requiring membership in or an application for member-
ship in AFG as a condition of employment at Lockheed;
(5) Did Respondent violate Section 8(a)(1) and (2)
of the Act by promising and giving an employee a
promotion and a raise because he assisted the AFG;
and
(6) Did Respondent violate Section 8(a)(2) and (1)
of the Act by assisting AFG in organizing Respondent's
employees and by recognizing AFG when AFG did
not represent an uncoerced majority of Respondent's
employees?
B. Respondent , Wackenhut and the Appropriate Unit
At least beginning February 28, 1967 ,2 Wackenhut
performed plant protection services for Lockheed Air-
craft Service Company, herein Lockheed , at Ontario
International Airport On this date , a majority of the
employees in the following unit selected the Union as
their bargaining representative in a Board election. The
unit is:
All full-time and regular part -time employees of
Wackenhut performing plant protection duties as
determined in Section 9(b)(3) of the Act at Lock-
heed , Ontario International Airport; excluding office
clerical employees , professional employees , super-
visors, and all other employees as defined in the
Act.
On March 8 , the Regional Director certified the Union
as the exclusive bargaining representative of the employ-
ees in the above unit.
On April 29, Wackenhut entered into a collective
bargaining contract with the Union to be effective until
April 28; 1970. It contained a legal union security provi-
sion.
As provided by the agreement between Lockheed
and Wackenhut, Lockheed let the service contract out
for bids. On May 15, Lockheed advised Respondent
that Wackenhut's guards were represented by the Union
which had a contract after Board certification. On May
31, Wackenhut was told by Lockheed that Respondent
would perform the guard services as of July 1. Wacken-
hut ceased performing the guard services and Respondent
began performing the guard services for Lockheed. On
July 1, Respondent 's employees included 27 guards for-
merly employed by Wackenhut and 15 transferred
employees of Respondent.
C. Respondent Assists the AFG
1. Reitzel
Elmer H . Reitzel was formerly an employee of Wack-
enhut . He was "Chairman of the Board " of the Wacken-
hut employees . About June 2, Major George Goddard,
a supervisor of Respondent , interviewed Reitzel and
gave him a job application . A few days later , Reitzel
spoke to Mr . New, Respondent ' s operations manager,
and a supervisor , about the job. New told Reitzel to
see Jack Foley , an organizer for the AFG. Foley was
seated from 15 to 30 feet away from New, in the
same room . Foley gave Reitzel an AFG authorization
card to sign and said employees had to belong to the
AFG to work for Respondent , but Reitzel did not then
sign it . Foley said Respondent couldn 't live with the
Union' s contract . Reitzel asked for a copy of the AFG
contract but did not get one . Foley told Reitzel that
as steward he would like to have him get the employees
to sign authorization cards for the AFG. Reitzel said
he'd talk to the employees . Reitzel left and then called
a representative of the Union in Detroit . Reitzel told
the representative Respondent and AFG wanted the
employees to sign authorization cards to keep their
jobs. The representative said it was all right if it meant
their jobs . Foley mailed pledge cards to Reitzel. About
2 days later , Foley came to Reitzel and spoke to him
about the cards. I have carefully studied Reitzel ' s testi-
mony and find it is confused as to dates . I am convinced
that Reitzel just did not remember when Goddard told
Reitzel Respondent was considering promoting him to
sergeant . Foley asked Reitzel if he had gotten the authori-
zation cards , which Foley had given him, signed . Reitzel
said he was working on them . In the latter part of
June , Goddard phoned Reitzel and asked him to bring
the signed pledge cards to Respondent ' s office . Reitzel
failed to do so. About 10 o'clock that evening , Captain
Kretzlow, a supervisor , came to Reitzel ' s home and
asked for the signed AFG cards and Reitzel explained
that he didn ' t have them with him. The next morning
at work , Goddard came to Reitzel and picked up the
AFG cards.3
When Respondent took over Wackenhut ' s operations,
Reitzel was promoted from guard to sergeant with a
raise from $1.75 to $ 1.95 an hour with no additional
obligations . There is insufficient probative evidence that
Reitzel was promised the promotion or was promoted
to sergeant in violation of Section 8(a)(1) or (2) of
the Act. Reitzel ' s recollection of when he was told
he would be promoted to sergeant is too confused to
permit a finding.
Respondent violated Section 8(a)(2) and ( 1) of the
Act by New' s direction to Reitzel to see Foley who
as part of the hiring procedure told Reitzel he had
to sign an AFG pledge card to work for Respondent
and asked him to get other employees to sign for the
AFG. Respondent similarly violated the Act by God-
dard ' s request of Reitzel that he bring the signed AFG
4 Hereinafter all dates refer to 1967 unless otherwise stated ' The record makes clear there were about 18
WILLIAM J. BURNS
cards to Respondent's office and by Kretzlow's asking
for the cards and by Goddard picking them up from
Reitzel at work
2. Thomas C. Ware
Ware was employed by Wackenhut as a guard. In
early June, he went to Respondent's office with a filled
out application for employment by,Respondent . He gave
his application to New. He told New he would like
to know about pay and about hospitalization and other
details. New directed him to Foley for answers. He
saw Foley in the same room. Foley gave him no answers.
Foley repeatedly pushed an AFG authorization card
in front of Ware and told him the Union was out
and that he had to sign the AFG card or not work
for Respondent. Ware said that "in California" he had
30 days to make up his mind.
I find Respondent violated Section 8(a)(2) and (1)
of the Act by New's assisting Foley in his solicitation
of Ware for the AFG.
3. Charles A. Blankemeier
On June 28 , Blankemeier received an application for
employment. The next day he returned the application
when he went to Respondent's office to pick up a
uniform. He saw Goddard and Kretzlow and asked
for his uniform. As he was preparing to leave with
his new uniform, Goddard- told him. he had to sign
an AFG authorization slip before he could have Respond-
ent's uniform . He signed the AFG slip with Foley's
name on it and left with the uniform.
I find Respondent violated Section •8(a)(2) and (1)'
of the Act by conditioning his receipt of Respondent's
uniform, necessary for work with Respondent, on his
signing an AFG authorization card. '
4. Harris K. Camp
About June 10, Camp went to' Respondent's office
for an application. He saw Goddard. Goddard told him
to go into the next room. Camp did so and found
Foley to be the only one there. Foley told him Respond-
ent now had the contract and if Camp wanted to work
for Respondent he would have to sign the AFG card.
Foley handed him a card and Camp said he would
think it over. He left and again saw Goddard who
gave him a work application. The next day Camp brought
this application back to Goddard. He was measured
for Respondent's uniform. A couple of weeks later,
on June 30, he went,in tb pick up his uniform and
on top of it was an AFG union slip that was supposed
to be signed by him. In -the -presence of Goddard,-
Kretzlow gave him the AFG 'slip to sign. He said it
had to be signed. It was in with the paperwork for
the clothing.
I find Respondent, through Goddard and Kretzlow,
assisted the AFG in signing up Camp in violation of
Section 8(a)(2) and (1) of the Act
5. Stanley L. Ganiewski
353
Ganiewski was a Wackenhut guard who went to
Respondent ' s office for employment about June 10. He
saw Goddard and asked where the applications were.
Goddard pointed to a room. Ganiewski went there and
found Foley there , alone. Foley told him he'd have
to join the AFG to work for Respondent. Foley spoke
at length about the AFG and its contract He asked
Ganiewski to sign an AFG authorization card. The latter
said he'd think about it and left.
I find Respondent, through Goddard, assisted the
AFG in its solicitation of Ganiewski through Foley,
in violation of Section 8(a)(2) and (1) of the Act.
6 Walter Drake
In the latter part of June, Drake went to Respondent's
office and talked to Goddard and some captain. The
captain brought to, him an authorization card of the
AFG and said he would have to sign it before he
could go to work. He said it was for "their union."
Drake said he had 30 days to sign the card. They
said he would have to sign it before he could go to
work. Later that day-, Goddard told him he had 30
days to sign but Respondent would like to have the
AFG authorization signed before he went to work. Drake
signed the card.
Respondent , through Goddard and the captain , assist-
ed the AFG in its organizing activities in connection
with Drake and thereby "violated Section - 8(a)(2) and
(1) of the Act.
C. Respondent is a Successor to Wackenhut and
Obligated to Bargain With the Union
When Respondent began its operations at Lockheed
during the certification year, and during the contract
term , it performed the same operations at Lockheed
as had Wackenhut. It had in its employ a majority
of Wackenhut's former employees. There has been a
substantial continuity of Wackenhut's business opera-
tions by Respondent. At least substantially the same
business facilities have been used. The working condi-
tions are substantially the same. The services provided
are substantially the same . Respondent ' s taking over
Wackenhut's operations at, Lockheed constituted no
change in the "employing industry forming the
appropriate bargaining unit for which -the Union had
been certified." Maintenance, Incorporated, 148 NLRB
1299. As in Maintenance , "-` Respondent commenced the
performance of substantially the identical operations
that had theretofore been performed by [Wackenhut],
servicing the same facilities for the same customers
in substantially the same manner and-at the same work
site, and utilizing for that purpose•a former [Wackenhut]
work force to perform the same functions and exercise
the same skills."
Respondent had the duty to honor its employees'
choice of a bargaining representative, the Union. This
was a public obligation not arising from private contract.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union "was entitled to statutory recognition at
the time Respondent took over " Maintenance, Incorpo-
rated, supra.
It is clear "that Respondent assumed the obligation
the Act imposes upon an employer to recognize and
deal with its employees' majority representative when
it selected as its work force the employees of the previous
employer to perform the same tasks at the same place
as they had in the past. These employees had already
expressed their choice of bargaining representative, and
continued to constitute an appropriate bargaining unit.
As the certification year had not yet expired at the
time the Union sought recognition and bargaining," the
presumption of the Union's continuing majority status
applied and was not then vulnerable to attack." Mainte-
nance, Incorporated, supra. Respondent was obligated
to recognize and bargain with the Union as the statutory
representative of its employees in an appropriate unit.
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to comply with the Union's July 12 demand
for bargaining. It has been found that Respondent knew,
when it bid for the Lockheed contract, that the Union
was the certified bargaining representative.
Respondent challenges the appropriateness of the bar-
gaining unit as applied to Wackenhut and as applied
to Respondent. While a broader unit might have been
appropriate, I find a unit of guards limited to a single
facility is an appropriate unit. Here the certification
was pursuant to a consent election agreement There
is no evidence that the Regional Director was arbitrary
or capricious A mere change of employers does not
destroy the certification
D. Respondent Violated Section 8(a)(2) and (1) By
Recognizing the AFG
As has heretofore been found , the AFG did not
represent an uncoerced majority of Respondent's
employees on or before July 1, when Respondent recog-
nized the AFG. Consequently, Respondent assisted AFG
in violation of Section 8 (a)(2) and (1) of the Act when
it recognized the AFG as bargaining representative.
E. Respondent Violated Section 8(a)(5) and (1) of the Act
By not Honoring and Assuming and Doing Business
Under the Contract Between the Union and Respondent's
Predecessor, Wackenhut
On April 29, the Union and Wackenhut entered into
a collective-bargaining agreement covering Wackenhut's
Lockheed employees, the contract to be effective until
1970.
While Wiley v. Livingston, 376 U.S. 543, dealt speci-
fically only with the obligation of a successor employer
to arbitrate under a contract with a union, the decision
made clear that the rights of employees under a collec-
tive-bargaining agreement are not automatically terminat-
ed by the fact that one employer succeeds to the rights
of another employer. The Court was concerned with
whether, as here, the business remains the same. The
Court recognized that employees do not ordinarily take
part in negotiations , leading to changes in corporate
ownership. The well being of employees is at best inci-
dental to the negotiations. The Court held, "The objec-
tives of national labor policy, reflected in established
principles of federal law, require that the rightful preroga-
tive of owners independently to rearrange their business-
es and even eliminate themselves as employers be bal-
anced by some protection to the employees from a
sudden change in the employment relationship." The
Court emphasized that a collective-bargaining agreement
is not an ordinary contract.
The Union persuasively argues that in an industry
of the nature here involved where the employer may
be changed from year to year, the union contract should
follow the unit rather than the employer. The employees
may select a union which obtain % a contract for their
benefit and find the employer changes. If the new employ-
er may ignore the contract, all negotiations for peaceful
contractual relations come to naught. Here, if Respond-
ent does not assume and honor the contract, economic
stability is destroyed. To leave Respondent free to bar-
gain from scratch and ignore the common law of the
employing industry is to leave an industry such as this
to contracts of no substance or meaning.
The Wiley reasoning has been applied in a situation
very similar to the instant case. Wackenhut Corporation
v. International Union, United Plant Guard Workers
of America, 332 F.2d 954 (C.A. 9). There the court
found that where, as here, there is a "substantial similari-
ty of operation and continuity of identity of the business
enterprise before and after the change in ownership,"
the successor employer is bound by the entire contract
of the predecessor.
I find that Respondent , by refusing to honor the
contract between Wackenhut and the Union, refused
to bargain in violation of Section 8(a)(5) and (1) of
the Act since on or about July 24
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of Respondent set forth in section III,
above, have a close, intimate, and substantial relation
to trade, traffic and commerce among the several States,
leading to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCLUSIONS OF LAW
Upon the foregoing findings of fact and the entire
record in the case, I make, the following conclusions
of law:
1. Respondent and Wackenhut are employers engaged
in commerce within the meaning of the Act.
2. AFG and the Union are labor organizations within
the meaning of the Act.
' July 12 1 Cf Michaud Bus Lnec, Inc , 171 NLRB No 21
WILLIAM J. BURNS
3. All full-time and regular part-time employees of
Respondent performing plant protection duties as deter-
mined in Section 9(b)(3) of the Act at Lockheed, Ontario
International Airport; excluding office clerical employ-
ees, professional employees, supervisors, and all other
employees 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. By failing and refusing on July 24, and thereafter,
to recognize and bargain with the Union as the exclusive
bargaining representative of Respondent's employees
in the above-described appropriate unit and by failing
to honor and adopt and enforce the existing contract
between Wackenhut and the Union, Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
5. By assisting AFG in obtaining representation among
its employees and by recognizing AFG as the exclusive
bargaining representative of its employees at a time
when AFG did not represent an uncoerced majority
of Respondent's employees, Respondent engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) and (2) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1), (2), and
(5) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I shall recommend that Respondent be ordered to
withdraw and withhold recognition from AFG unless
and until that union is certified, in order to enable
its employees to exercise their statutory rights free
from the unfair labor practices engaged in by Respond-
ent.
It has been found that Union is the certified bargaining
representative of Respondent's employees in an
appropriate unit and requested recognition and bargain-
ing, the same being unlawfully refused, I shall recom-
mend that Respondent bargain, upon request, with the
Union and, if any understanding is reached, embody
such understanding in a signed agreement. It has further
been found that there is in existence a contract between
Respondent, as successor to Wackenhut, and the Union.
I shall recommend that Respondent honor, adopt, and
enforce that contract. I shall also recommend that
Respondent give retroactive effect to all the clauses
of the contract and make employees whole, with 6
percent interest, for any losses suffered by reason of
Respondent's refusal to adopt, honor, and enforce the
agreement.
RECOMMENDED ORDER
355
Upon the foregoing findings of fact and conclusions
of law, and upon the entire record herein, it is recom-
mended that Respondent, its agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively, upon request,
with the Union as the exclusive bargaining representative
of its employees in the above-described unit.
(b) Refusing to adopt, honor, and enforce its contract
with the Union, as successor of Wackenhut.
(c) Assisting or recognizing AFG as the representative
of its employees for the purposes of collective bargain-
ing, unless and until said labor organization shall have
been certified as the exclusive bargaining representative
of said employees in an appropriate unit.
(d) Interfering with representation of its employees
through labor organizations of their own choosing.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights to join or assist the Union or otherwise
engage in activities protected by the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from AFG
until or unless it is certified as bargaining representative
of Respondent's employees in an appropriate unit.
(b) Bargain collectively, upon request, with the Union
and, if any understanding is reached, embody such
understanding in a signed agreement.
(c) Honor, adopt, and enforce the contract between
Respondent, as successor to Wackenhut, and the Union
and give retroactive effect to all the clauses of said
contract and, with interest of 6 percent, make whole
its employees for any losses suffered by reason of
Respondent's refusal to honor, adopt, and enforce said
contract.
(d) Post at its Lockheed, Ontario, California, opera-
tions copies of the notice attached hereto as "Appen-
dix."" Copies of said notice, to be furnished by the
Regional Director for Region 31, shall after being signed
by Respondent's authorized representative, be posted
by it immediately upon receipt thereof and be maintained
by it for a period of 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
to insure that such notices are not altered, defaced,
or covered by any other material.
(e) Notify said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.'
In the event that this Recommended Order be adopted by the
Board, the words "A Decision and Order" shall be substituted for
the words "The Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order be enforced by
a decree of a United States Court of Appeals, the words "A Decree
of the United States Court of Appeals, Enforcing an Order" shall
be substituted for the words "A Decision and Order "
In the event that this Recommended Order be adopted by the
Board, this provision shall be modified to read "Notify the said Regional
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director in writing within 10 days from the date of this Order what
steps the Respondent has taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to The Recommended Order of a Trial Exam-
iner of The National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act (As amended)
We hereby notify our employees that
WE WILL NOT refuse to bargain collectively,
upon request, with International Union, United
Plant Guard Workers of America and its Amalga-
mated Local Union No 162 as the exclusive bar-
gaining representative of our employees in the fol-
lowing appropriate unit
All our full-time and regular part-time employ-
ees performing plant protection duties as deter-
mined by Section 9(b)(3) of the National Labor
Relations Act, at Lockheed, Ontario Interna-
tional Airport, excluding office clerical employ-
ees, supervisors, and all other employees as
defined in the Act
WE WILL NOT refuse to adopt, honor, and enforce
our contract, as successor of Wackenhut, with the
above-named Union and covering the above-
described unit
WE WILL NOT assist or recognize American Fed-
eration of Guards, Local 1, as the representative
of our employees for the purposes of collective
bargaining, unless and until it shall have been cer-
tified as the exclusive bargaining representative of
our employees in the above unit
WE WILL NOT interfere with representation of
our employees through labor organizations of their
own choosing
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to join or assist
the United Plant Guard Workers or otherwise
engage in activities protected by the Act
WE WILL withdraw and withhold recognition
from American Federation of Guards until or unless
it is certified as bargaining representative of our
employees in an appropriate unit
WE WILL bargain, upon request, with United
Plant Guard Workers and, if any understanding
is reached, embody such understanding in a signed
agreement
WE WILL, as successor to Wackenhut, honor,
adopt, and enforce our collective-bargaining con-
tract with United Plant Guard Workers and give
retroactive effect to all clauses of said contract
and, with interest at 6 percent, make whole our
employees for any losses suffered by reason of
our refusal to honor, adopt, and enforce said con-
tract
Dated By
THE WILLIAM J BURNS
INTERNATIONAL
DETECTIVE AGENCY, INC
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 10th Floor,
Bartlett Building , 215 West Seventh Street , Los Angeles,
California 90014, Telephone 688-5850