Baker Industries, Inc.

National Labor Relations Board - Board Decisions

May 29, 1975

218 N.L.R.B. 68 (N.L.R.B. 1975)

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wells Fargo Alarm Services, a Division of Baker
Industries, Inc. and United Electrical, Radio &
Machine Workers of America (UE). Case 4-CA-
7175
May 29, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on December 20, 1974, by
United Electrical, Radio & Machine Workers, of
America (UE), herein called the Union, and duly
served on Wells Fargo Alarm Services, a Division of
Baker Industries, Inc., herein called the Respondent,
the Regional Director of the National Labor Rela-
tions Board for Region 4, issued a complaint and
notice of hearing on January 10, 1975, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair' labor practices
affecting commerce within the meaning of Section
8(a)(5) and (I) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the -charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September 30,
1974, following a Board election in Case 4-RC-
11066 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about November 13, 1974, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. Subsequently, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
The Respondent admits all of the factual allegations
of the complaint, except those paragraphs which
relate to the appropriateness of the unit and the
resulting certification in the underlying representa-
tion proceeding, Case 4-RC-11066.
i Official notice is taken of the record in the representation proceeding,
Case 4-RC-11066, 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 (C A. 4,
1968), Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va.1957),
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F 2d 91 (C.A 7,1966; Sec.
9(d) of the NLRA.
2 By its memorandum , the Respondent contends that due process would
be violated by utilization of the summary judgment procedure. We reject
Respondent 's contention. We are cited to no case in which a court has
refused enforcement of a Board order on the ground that the Board may not
218 NLRB No. 25
On February 21, 1975, counsel for the General
Counsel filed directly -with the Board a Motion for
Summary Judgment and memorandum in support
thereof, with exhibits attached, submitting, in effect,
that the Respondent's answer to the complaint raises
no issues which were not previously considered and
decided, and requesting . the Board to grant the
Motion for Summary Judgment. On March 4, 1975,
Respondent filed an answer to the General Counsel's
motion. Subsequently, on March 14, 1975, 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 Judgment should not
be granted. Respondent thereafter filed a memoran-
dum in opposition to the General Counsel's Motion
for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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
As reflected above, the Respondent's answer to the
complaint admits all of the factual allegations
therein, including its refusal to recognize and bargain
with the Union which had been the certified
bargaining representative of the employees described
in the complaint. In its answer to the complaint, as
well as in its answer to the General Counsel's Motion
for Summary Judgment and memorandum2 in
opposition thereto, the Respondent attacks' the
,appropriateness and scope of the unit as found by
the Acting Regional Director in his Decision and
Direction of Election in which he concluded that
servicemen and central office operators were not
guards and included such employees in the appropri-
ate unit. The Respondent did not file a request for
review.3 Respondent now asserts that such employ-
ees are guards and cannot be represented by the
Union because it admits to its membership employ-
ees other than guards. By this assertion , and more
specifically by its denials, in whole or in part, of the
allegations of the complaint and the arguments
propounded in the Respondent's answer to the
use summary judgment procedure . On the contrary, whenever the issue has
been raised , the courts have uniformly upheld the Board's authority to
utilize such procedure where there were no issues requiring an evidentiary
hearing. See Lyman Printing and Finishing Company, a Division of M.
Lowenstein & Sons, 183 NLRB 1048 (1970), and cases cited therem.
3 Sec. 102.67 of the Board's Rules and Regulations provides, inter ales,
that "The decision of the regional director shall be final" in the absence of a
timely request for review to the Board. Nevertheless, in ruling on this
motion, the Board has, as mdicated above, reviewed the record and, on the
basis of such review , we find no ground for disturbing the Acting Regional
Director's findings and conclusions.
WELLS FARGO ALARM SERVICES
General Counsel's Motion for Summary Judgment
and memorandum in opposition thereto, the Respon-
dent is attempting to relitigate the same issues which
it raised in the representation proceeding, Case 4-
RC-11066.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.4
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would, require the Board to reexamine
the decision made in the representation proceeding.
We therefore fmd that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and
existing by virtue of, the laws of the State of
Delaware, and is engaged in the business of provid-
ing protective services at its Philadelphia, Pennsyl-
vania, facility. During the past year, Respondent's
gross receipts from its services performed for custom-
ers exceeded $500,000. During the same period,
Respondent performed services having a value in
excess of $50,000 directly for customers located
outside the Commonwealth of Pennsylvania.
We fmd, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of
America (UE) is a labor organization within the
meaning of Section 2(5) of the Act.
4 See Pittsburgh Plate Glass Co. v. N.L RB, 313 U.S. 146, 162 (1941);
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
69
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees,
including servicemen, installers and central office
operators of Wells Fargo Alarm Services, a
Division of Baker Industries, Inc., Philadelphia,
Pennsylvania; but excluding salesmen, office
clerical employees and supervisors as defined in
the Act.
2. The certification
On September 20, 1974, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Acting Regional Director for Region 4, designated
the Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative of the employees in said unit on
September 30, 1974, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 16, 1974, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about November 13, 1974, and
continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that the Respondent has,
since November 13, 1974, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal,' Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
Rules and Regulations of the Board, Secs 102.67(1) and 102.69(c).
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Wells Fargo Alarm Services, a Division of
Baker Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Electrical, Radio & Machine Workers
of America {UE) is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including servicemen , installers and central office
operators of Wells Fargo Alarm Services, a Division
of Baker Industries, Inc., Philadelphia, Pennsylvania;
but excluding salesmen , office clerical employees and
supervisors 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. Since September 30, 1974, 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 November 13, 1974,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Wells Fargo Alarm Services, a Division of Baker
Industries, Inc., Philadelphia, Pennsylvania, its offi-
cers, 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 United Electrical,
Radio & Machine Workers of America (UE) as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees,
including servicemen , installers and central office
operators of Wells Fargo Alarm Service, a
Division of Baker Industries, Inc., Philadelphia,
Pennsylvania; but excluding salesmen , office
clerical employees and supervisors as defined in
the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
WELLS FARGO ALARM SERVICES 71
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Philadelphia, Pennsylvania, facility
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 4, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with United
Electrical, Radio & Machine Workers of America
(UE) as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees,
including servicemen, installers and central
office operators of Wells Fargo Alarm
Services, a Division of Baker Industries, Inc.,
Philadelphia, Pennsylvania; but excluding
salesmen, office clerical employees and
supervisors as defined in the Act.
WELLS FARGO ALARM
SERVICES, A DIVISION OF
BAKER INDUSTRIES, INC.