Wackenhut Corp.

National Labor Relations Board - Board Decisions

Jul 10, 1998

325 N.L.R.B. 1081 (N.L.R.B. 1998)

1081
325 NLRB No. 201
WACKENHUT CORP.
1 In its answer, the Respondent, for the first time, denies the labor
organization status of the Union. The Respondent did not challenge
the Union’s labor organization status in the underlying representation
case, and it has offered no facts herein which would put that status
in question.
2 The Respondent contends in its response to the Notice to Show
Cause that it has new evidence of the Union’s improper affiliation
with the Carpenters Union, i.e., Carpenters’ business agent Mel
Sakata’s support of the Union’s picketing, which occurred after the
Board’s denial of the Respondent’s request for review of the Re-
gional Director’s Supplemental Decision and Certification of Rep-
resentative. We find that this alleged evidence is irrelevant to the
issue raised by the Acting General Counsel’s motion, which is
whether the Respondent committed an unfair labor practice when it
refused to bargain with the Union after its certification. The prof-
fered evidence concerning Carpenters agent Sakata’s involvement in
union picketing and his treatment of a unit employee describes con-
duct allegedly occurring, so far as dates are specified, after the Re-
spondent’s May 4 refusal to bargain. To the extent that the Respond-
ent has new evidence that might demonstrate that, subsequent to the
Respondent’s refusal of the Union’s bargaining demand, the Union
was indirectly affiliated with the Carpenters, the appropriate proce-
dure is for the Respondent to file a petition to revoke the certifi-
cation. Coin Devices Corp., 325 NLRB No. 75 fn. 2 (Mar. 23,
1998); NLRB Casehandling Manual, Representation Proceedings,
Sec. 11478.3. We note, however, that the proffered evidence is not
inconsistent with the statement in the Union’s letter dated November
28, 1997, that Sakata was ‘‘no longer authorized to act as an agent
of [the Union]’’ but would ‘‘continue to serve only as an advisor.’’
In denying the Respondent’s Motion for Reconsideration of the
Board’s November 3, 1997 order denying its request for review, the
Board found that indication that Sakata was serving in an advisory
role insufficient to establish indirect affiliation with a nonguard
union within the meaning of Sec. 9(b)(3) of the Act. Thus, even ac-
cepting as true the allegations in the declaration of Doug Parker
(Exh. O to the Respondent’s response to the Notice to Show Cause),
we would find that evidence no basis for revoking the certification.
3 The Respondent asserts in its answer and its response to the No-
tice to Show Cause that the certified unit has ceased to exist because
the guards that it employs are no longer sworn. (The certified unit,
as described below, consists of the Respondent’s ‘‘armed and sworn
security officers’’ The Respondent admits that it continues to employ
armed guards.) That the Respondent’s guards may no longer be
sworn has no bearing on the continued appropriateness of the cer-
tified unit. In any event, this issue is not one that is appropriately
raised in this refusal-to-bargain unfair labor practice proceeding
where the Respondent is refusing to honor a Board certification. See
Southwestern Bell Telephone Co., 235 NLRB 963 fn. 2 (1978).
4 Member Hurtgen notes that he would have granted the Respond-
ent’s motion for reconsideration of the Board’s November 3, 1997
denial of the Respondent’s request for review of the Regional Direc-
tor’s Decision and Direction of Election, and that he dissented from
the Board’s May 6, 1998 denial of the Respondent’s request for re-
view of the Regional Director’s Supplemental Decision and Certifi-
cation of Representative. These votes by Member Hurtgen were
based on his concern that a nonguard union (the Carpenters Union
through agent Sakata) was playing so substantial a role in the affairs
of the Petitioner as to warrant a finding of indirect affiliation. In the
instant case, the Respondent offers evidence of continuing activity
by Sakata. In these circumstances, Member Hurtgen would not grant
the General Counsel’s motion for summary judgment. Unlike other
‘‘technical 8(a)(5)’’ cases, the Respondent has proffered new evi-
dence. Member Hurtgen would hear that new evidence and would
consider it together with the evidence adduced in the representation
case. He would do this before ordering the Respondent to bargain
with a guard union that may well be in continued affiliation with
a nonguard union.
The Wackenhut Corporation and Santa Clara
County Public Safety Officers’ Association.
Case 32–CA–16753
July 10, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
Pursuant to a charge filed on May 7, 1998, the Act-
ing General Counsel of the National Labor Relations
Board issued a complaint on May 14, 1998, alleging
that the Respondent has violated Section 8(a)(5) and
(1) of the National Labor Relations Act by refusing the
Union’s request to bargain following the Union’s cer-
tification in Case 32–RC–4348. (Official notice is
taken of the ‘‘record’’ in the representation proceeding
as defined in the Board’s Rules and Regulations, Secs.
102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed an answer admitting in
part and denying in part the allegations in the com-
plaint.
On June 5, 1998, the Acting General Counsel filed
a Motion for Summary Judgment. On June 8, 1998,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed a re-
sponse.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain, but attacks the validity of the certification on
the basis of its contention, raised and rejected in the
representation proceeding, that the Union, a union
which represents guards, cannot be certified for this
unit of guards under Section 9(b)(3) of the Act because
it is affiliated with a non-guard union, the Carpenters
Union.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding.1 The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding.2 We therefore find that the Respondent has
not raised any representation issue that is properly lit-
igable in this unfair labor practice proceeding.3 See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941). Accordingly, we grant the Motion for
Summary Judgment.4
On the entire record, the Board makes the following
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1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware
corporation, with various business locations in Santa
Clara County, California, has been engaged in provid-
ing security guard services. During the 12-month pe-
riod immediately preceding issuance of the complaint,
the Respondent, in conducting its business operations
described above, derived gross revenues in excess of
$500,000, and purchased and received at its various lo-
cations goods and services valued at more than $5000
which originated from points outside the State of Cali-
fornia. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held November 5, 1997, the
Union was certified on March 17, 1998, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full time and regular part time armed and
sworn security officers, including ‘‘leader offi-
cers,’’ employed by Respondent to service its
contract with the Santa Clara County Valley Tran-
sit Authority; excluding non-armed and non-sworn
security officers, all other employees, office cleri-
cal employees, and supervisors as defined in the
Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since on or about April 7, 1998, the Union has re-
quested the Respondent to bargain, and, since on or
about May 4, 1998, the Respondent has refused. We
find that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after May 4, 1998, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, The Wackenhut Corporation, Santa Clara
County, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Santa Clara County
Public Safety Officers’ Association, as the exclusive
bargaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full time and regular part time armed and
sworn security officers, including ‘‘leader offi-
cers,’’ employed by Respondent to service its
contract with the Santa Clara County Valley Tran-
sit Authority; excluding non-armed and non-sworn
security officers, all other employees, office cleri-
cal employees, and supervisors as defined in the
Act.
(b) Within 14 days after service by the Region, post
at its facilities in Santa Clara County, California, cop-
ies of the attached notice marked ‘‘Appendix.’’5 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 32 after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
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1083WACKENHUT CORP.
notices to employees are customarily posted. Reason-
able 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 pend-
ency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since May 4, 1998.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Santa Clara
County Public Safety Officers’ Association as the ex-
clusive representative of the employees in the bargain-
ing unit.
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, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full time and regular part time armed and
sworn security officers, including ‘‘leader offi-
cers,’’ employed by us to service our contract
with the Santa Clara County Valley Transit Au-
thority; excluding non-armed and non-sworn secu-
rity officers, all other employees, office clerical
employees, and supervisors as defined in the Act.
THE WACKENHUT CORPORATION
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