Wackenhut Corp.

National Labor Relations Board - Board Decisions

Aug 1, 1980

250 N.L.R.B. 1293 (N.L.R.B. 1980)

THE WACKENHUT CORPORATION
The Wackenhut Corporation and Sindicato Puertori-
queno de Guardias de Seguridad. Case 24-CA-
4295
August 1, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on March 25, 1980, by Sin-
dicato Puertoriqueno de Guardias de Seguridad,
herein called the Union, and duly served on Wack-
enhut Corporation, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 24,
issued a complaint and notice of hearing on April
11, 1980, against Respondent, alleging that Re-
spondent 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 pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on February 15,
1980, following a Board election in Case 24-RC-
6004, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about March 21, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On April 25, 1980, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On May 30, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 5, 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 Summary Judg-
ment should not be granted. Respondent thereafter
filed a response to the Notice To Show Cause.
' Official notice is taken of the record in the representation proceed-
ing, Case 24-RC-6004, as the term "record" is defined in Secs. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosysrems, Inc.. 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Ca v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
250 NLRB No. 162
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 answer to the complaint and its opposition
to the Motion for Summary Judgment, Respondent
admits that it has refused to bargain with the
Union, but denies that the complaint raises no real
issue which has not been litigated in the underlying
representation case. It also denies that its acts have
a "close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States . . . and the Commonwealth of Puerto Rico
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce." Respondent offered no support for these
details.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, 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, The Wackenhut Corporation, is,
and has been at all times material herein, a Florida
corporation engaged in providing security guard
and related services. During a representative 12-
month period, Respondent provided services
valued in excess of $50,000 to other enterprises
within the Commonwealth of Puerto Rico, includ-
ing Eastern Airlines and Travenol Laboratories,
' See Pittsburgh Plate Glass Co. v. N.LR.B., 313 US 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(f) and 102 69(c).
1293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enterprises directly engaged in interstate com-
merce.
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 L ABOR ORGANIZATION INVOLVED
Sindicato Puertoriqueno de Guardias de Seguri-
dad 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 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 guards, and
plant protection employees employed by Re-
spondent in the Commonwealth of Puerto
Rico; but excluding all non-guard employees,
professional employees, confidential employees
and supervisors as defined by the Act.
2. The certification
On November 27 and 28, 1978, a majority of the
employees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 24, designated
the Union as their representative 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 February 15, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 10, 1980, 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 March 21, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
March 21, 1980, 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-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes 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.
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. The Wackenhut Corporation is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Sindicato Puertoriqueno de Guardias de Se-
guridad is a labor organization within the meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time guards, and
plant protection employees employed by Respond-
ent in the Commonwealth of Puerto Rico; but ex-
1294
THE WACKENHUT CORPORATION
cluding all non-guard employees, professional em-
ployees, confidential employees and supervisors as
defined by the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since February 15, 1980, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about March 21, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive 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,
The Wackenhut Corporation, Hato Rey, Puerto
Rico, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Sindicato Puertori-
queno de Guardias de Seguridad as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time guards, and
plant protection employees employed by Re-
spondent in the Commonwealth of Puerto
Rico; but excluding all non-guard employees,
professional employees, confidential employees
and supervisors as defined by the Act.
(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.
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 Hato Rey, Puerto Rico, facility
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 24, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 24,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
a In Ihe ecent that this Order is enforced by a Judgment of a United
Slates Court of Appeals, the v:ords in the notice reading "Posted by
Order of the National L.ahor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United State, Court of Appeal, FEnforcing an
Order of the Naional l ahbor Relations Board
APPENDIX
NoTriCE 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 Sindicato Puertoriqueno de Guardias de
Seguridad 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 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
1295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time guards,
and plant protection employees employed
by us in the Commonwealth of Puerto Rico;
but excluding all non-guard employees, pro-
fessional employees, confidential employees
and supervisors as defined by the Act.
THE WACKENHUT CORPORATION
1296