Pinkerton's Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1981

258 N.L.R.B. 128 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pinkerton's Inc. and International Union, United
Plant Guard Workers of America (UPGWA).
Case 39-CA-573
September 22, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on March 13, 1981, by Inter-
national Union, United Plant Guard Workers of
America (UPGWA), herein called the Union, and
duly served on Pinkerton's Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Officer-in-Charge
for Subregion 39, issued a complaint and notice of
hearing and an amended complaint and notice of
hearing on April 15 and May 8, 1981, respectively,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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 complaints and notices of
hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaints allege in substance that on February 20,
1981, following a Board election in Case 39-RC-
139, 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 3, 1981, 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. Subsequently, Respondent
filed answers to the complaint and amended com-
plaint admitting in part, and denying in part, the al-
legations in the complaints and requesting that the
complaints be dismissed.2
On June 15, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
' Official notice is taken of the record in the representation proceed-
ing, Case 39-RC-139, 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 Electrosystems, 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 Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
2 We find it unnecessary to rule on counsel for General Counsel's
motion to strike the affidavit of Respondent's assistant regional manager,
which was attached to Respondent's answer, inasmuch as the information
sought to be introduced through this affidavit would not affect the results
herein and in any event was previously considered by the Board in deny-
ing Respondent's request for review in the underlying representation
case.
258 NLRB No. 26
mary Judgment. Subsequently, on June 19, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed a brief in opposition to the General
Counsel's Motion for Summary Judgment. 3
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 brief in oppo-
sition to the Motion for Summary Judgment, Re-
spondent admits the request and refusal to bargain
but contests the validity of the Board's certification
in the underlying representation proceeding. Re-
spondent contends that the Board's unit determina-
tion is factually and legally erroneous and as such
constitutes a "special circumstance" requiring that
we reexamine that determination and find the unit
sought below inappropriate.
Review of the record, including the record in
Case 39-RC-139, shows that on January 8, 1981,
after a hearing in which Respondent participated,
the Regional Director for Region 1 issued a Deci-
sion and Direction of Election in which he found
appropriate the Union's requested unit of Respond-
ent's guards/inspectors at the Knolls Atomic
Power Laboratory, Windsor, Connecticut. 4 There-
after, Respondent filed a request for review of this
decision, contending that the Regional Director's
unit determination was contrary to Board prece-
dent and that the appropriate unit must include all
guards employed by Respondent at its Hartford
branch office. By telegram dated February 4, 1981,
the Board denied the Respondent's request for
review. The Union won the February 12, 1981,
election and, on February 20, 1981, the Regional
Director issued a Certification of Representative. 5
3 Respondent's brief is accompanied by its own Motion for Summary
Judgment, requesting that the complaints herein and the petition in the
underlying representation case be dismissed. The Charging Party and
counsel for General Counsel both filed briefs in opposition to Respond-
ent's motion. In its motion, Respondent advances the same arguments
upon which it relies to oppose the General Counsel's Motion for Sum-
mary Judgment. Since we are granting the General Counsel's motion, it
follows that Respondent's motion has no merit, and it is hereby denied.
4 On January 14, 1981. the Regional Director issued an erratum to this
Decision, in which he added a word to the text and supplied a case cita-
tion.
5 On February 26 and April 24, 1981, respectively, the Regional Direc-
tor issued a Corrected Certification and an erratum to the Corrected Cer-
tification.
128
PINKERTON'S INC.
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. 6
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. 7
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, a Delaware corporation with an
office and place of business in Hartford, Connecti-
cut, is engaged in the business of providing security
guard services for various other enterprises, includ-
ing the General Electric Company at the latter's
Knolls Atomic Power Laboratory in Windsor,
Connecticut. During the calendar year ending De-
cember 31, 1980, Respondent, in the course and
conduct of its operations, provided services valued
in excess of $50,000 for other enterprises within the
State of Connecticut, which enterprises are directly
engaged in interstate commerce. At all material
times, the General Electric Company has main-
tained an office and place of business at the Wind-
sor facility, where it is engaged in providing train-
ing services in the use of submarines for the United
States Department of Energy. The operations of
the Respondent with respect to the General Elec-
tric Company have a substantial impact on the na-
tional defense of the United States.
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.
6 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
7 Respondent's contention that there are "special circumstances" is
based solely on its claim that the unit determination in the underlying
representation case was erroneous. It offers no new evidence which
would require us to reexamine that determination
1I. THE LABOR ORGANIZATION INVOLVED
International Union, United Plant Guard Work-
ers of America (UPGWA), is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
i. 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/inspectors, including sergeants, em-
ployed by the Employer at the Knolls Atomic
Power Laboratory, Windsor, Connecticut, but
excluding the captain and all other supervisors
as defined in the Act.
2. The certification
On February 12, 1981, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 1, 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 20, 1981, 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 February 21, 1981, 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 3, 1981, 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 3, 1981, 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.
129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 I, 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. Pinkerton's Inc. 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 (UPGWA), is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time
guards/inspectors, including sergeants, employed
by the Employer at the Knolls Atomic Power Lab-
oratory, Windsor, Connecticut, but excluding the
captain and all other supervisors as defined by the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since February 20, 1981, 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 3, 1981, 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 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,
Pinkerton's Inc., Hartford, Connecticut, 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 International
Union, United Plant Guard Workers of America
(UPGWA), as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time
guards/inspectors, including sergeants, em-
ployed by the Employer at the Knolls Atomic
Power Laboratory, Windsor, Connecticut, but
excluding the captain and all other supervisors
as defined in 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
130
PINKERTON'S INC.
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Windsor, Connecticut, facility
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the Of-
ficer-in-Charge for Subregion 39, 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 Officer-in-Charge for Subregion
39, in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
8 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTIC To EMPI.OYE-ES
POS'Ii) BY ORI)DR OF THE
NATIONAl. LABOR RI:..ATIONS BOARD
An Agency of the United States Government
WE Wll.I. NOT refuse 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 (UPGWA), as the exclu-
sive representative of the employees in the
bargaining unit described below.
WE WII.L 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
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time
guards/inspectors, including sergeants, em-
ployed by the Employer at the Knolls
Atomic Power Laboratory, Windsor, Con-
necticut, but excluding the captain and all
other supervisors as defined in the Act.
PINKERTON'S INC.
1.1