Brinks, Inc. Of Florida

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 1 (N.L.R.B. 1985)

BRINKS , INC. OF FLORIDA I
Brinks, Incorporated of Florida and Local 555,
International Union of Police and Protection
Employees, I.S.O.P.G.U. Case 12-CA-10875
27 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 2 September
1983, the General Counsel of the National Labor
Relations Board issued a complaint 14 September
1983 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
The complaint alleges that on 16 February 1983,
following a Board election in Case 12-RC-6244,
the Union was certified as the exclusive collective-
bargaining representative of the Company's em-
ployees in the unit found appropriate. (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), amended
Sept. 9, 1981, 46 Fed.Reg. 45922 (1981).) The com-
plaint further alleges that since 24 August 1983 the
Company has refused to bargain with the Union.
On 21 September 1983 the Company filed its
answer admitting in part and denying in part the
allegations in the complaint.
On 21 September 1983 the Company filed with
the Division of Judges a motion to consolidate
Cases 12-CA-10875 and 12-CA-10735 and a
motion to incorporate the record in Case 12-RC-
6244. On 6 October 1983 the General Counsel filed
an opposition to the Company's motion. On 7 Oc-
tober 1983 the General Counsel filed a Motion for
Summary Judgment. On 19 October 1983 the
Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the
motions should not be granted. The Company and
the General Counsel each filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment'
The Company's answers admits that it refused to
meet and bargain as requested by the Union. The
Company attacks the validity of the certification on
the basis of its objections to the election in the un-
derlying representation proceeding and avers that it
was wrongfully denied a hearing with respect to
substantial and material issues raised prior to the
i The Company's motions to incorporate and consolidate are denied as
lacking in ment.
Union's certification and during the course of the
postelection proceeding. Specifically, the Company
contends (1) that the certification of the Union
contravenes Section 9(b)(3) of the Act2 and (2)
that certain officers of the Union possess a criminal
background making it inappropriate for the Union
to be certified. The General Counsel argues that all
material issues have been previously decided.
The. record, including the record in Case 12-
RC-6244, reveals that, pursuant to a Decision and
Direction of Election by the Regional Director for
Region 12, an election was held on 11 January
1983 in a unit of guards at the Company's Foit
Lauderdale operation. The tally of ballots shows
eight cast ballots for and three against the Union,
with no challenged ballots.
The Company filed timely objections wherein it
alleged, inter alia, that certification of the Union
was improper in that it conflicted with Section
9(b)(3) of the Act because the Union is affiliated
with Teamsters Local 390, an organization which
admits to membership employees other than
guards. In support of this position the Company
presented evidence that in January 1983, at a col-
lective-bargaining session between the Company
and Teamsters Local 390 regarding a different unit
of the Company's employees, President Lark of
Local 390 told the Company's representative that
Lark was aware of the 11 January election results
with the Union and that he was present in part to
negotiate wages for the unit employees involved
herein. The evidence further shows he stated that
the Union's president was a member of Teamsters
Local 390 and that Lark was authorized and pre-
pared to act as the "interceding union" for the
Union. The Company also presented evidence that
several -officers and agents of the Union are mem-
bers of Teamsters Local 390. The Company addi-
tionally argued that certification was improper be-
cause of the alleged criminal background of certain
officers of the Union.
The Regional Director overruled the objections
without holding an evidentiary hearing . The Com-
pany requested review with respect to these objec-
tions. On 1 August 1983 the Board, with Member
Dennis dissenting in part, denied review.
In its response to the Notice to Show Cause the
Company contends that its affirmative defenses
have raised material and factual issues which
render summary judgment inappropriate. The
Company repeats its arguments and its evidence on
2 Sec . 9(bX3) provides in pertinent part that "no labor organization
shall be certified as the representative of employees in a bargaining unit
of guards if such organization admits to membership, or is affiliated di-
rectly or indirectly with an organization which admits to membership,
employees other than guards."
276 NLRB No. I
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the affiliation issue and the criminal background
issue raised in the objections proceeding and con-
tends that it was improperly denied a hearing on
these issues.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations. The present case presents
special circumstances with respect to the issue of
the Union's alleged affiliation with a labor organi-
zation that admits nonguard employees to member-
ship, such that we find reconsideration of that issue
is appropriate.3 The Respondent has raised a sub-
stantial and material issue regarding the Union's
possible affiliation with an organization that admits
nonguards to membership. If such affiliation were
established, the Board would be statutorily pre-
cluded, by Section 9(b)(3) of the Act, from certify-
ing the Union as the bargaining representative of
the guard unit for which it petitioned.4 Under
these special circumstances, we find that the Re-
spondent is entitled to an evidentiary hearing on
the affiliation issue . Therefore, we deny the Gener-
al Counsel's Motion for Summary Judgment and
remand this proceeding to the Regional Director to
direct an evidentiary hearing before an administra-
tive law judge on the issue of the Union's alleged
affiliation with an organization that admits non-
guards to membership.
ORDER
It is ordered that the General Counsel's Motion
for Summary Judgment be denied.
8 We find no merit in the Company's argument that it is entitled to a
hearing on whether the alleged criminal background of certain of the
Union's agents precludes the Union' s certification. Even assuming that
the criminal background allegations would be found true at a hearing,
they do not provide a basis for the denial of certification The Act does
not authorize the Board to withhold its processes on the basis of the
criminal records of a labor organization 's officers if the organization
meets the definitional requirements of Sec 2(5) of the Act Alto Plastics
Mfg. Corp, 136 NLRB 850 (1962). Compare Harrah's Marina Hotel &
Casino, 267 NLRB 1007 (1983), where the Board held that a petitioner
had failed to demonstrate that it was a labor organization within the
meaning of Sec 2(5). Assuming the truth of all the evidence offered by
the Company, we find no such deficiency in this case . Rather, the record
supports the Regional Director 's determination that the Union is a labor
organization within the meaning of the Act In this situation we are not
faced with the special circumstances , presented by the affiliation issue,
which cause us to order a hearing . Accordingly, the Company is not enti-
tled to a hearing on this issue
We also find without merit the Company's contentions that it was im-
properly denied subpoenas during the investigatory stage of this proceed-
ing.
4 See Brink's, Inc., 274 NLRB 970 (1985).
IT IS FURTHER ORDERED that this proceeding be
remanded to the Regional Director to direct an
evidentiary hearing on the Company' s allegations
that certification of Local 555, International Union
of Police and Protection Employees, I.S.O.P.G.U.,
in the unit involved herein contravenes Section
9(b)(3) of the Act.
MEMBER HUNTER, concurring.
I agree with my colleagues that the General
Counsel's Motion for Summary Judgment should
be denied and the case remanded to the Regional
Director for further proceedings, including a hear-
ing, on the issue of whether, in contravention of
Section 9(b)(3) of the Act, the Union is affiliated
with a labor organization that represents nonguard
employees. I also agree with my colleagues that
the Respondent is not entitled to further proceed-
ings with respect to its contention that alleged
criminal involvement on the parts of certain agents
of the Union precludes its certification. However, I
reach these conclusions for the following reasons.
As my colleagues note, the appropriate standard
for considering the merits of the Respondent's con-
tention regarding the affiliation issue in this certifi-
cation-testing refusal-to-bargain proceeding is the
existence of newly discovered and previously un-
available evidence or special circumstances .' In the
absence of such evidence or circumstances, depar-
ture from the Board's general policy of refusing to
reconsider in this type of proceeding matters which
were or could have been litigated in the underlying
representation proceeding is unwarranted. Here the
Respondent's affiliation contention was fully litigat-
ed in the underlying representation proceeding and
the Respondent does not proffer any newly discov-
ered and previously unavailable evidence. Hence,
further proceedings with respect to the affiliation
issue are warranted only if the Board finds that
"special circumstances" exist. My colleagues do
not disagree with this proposition, but in their view
the mere reraising of the affiliation issue in the
present context is sufficient to constitute "special
circumstances."2 I cannot agree. In my view, more
than simply the reraising of an issue-even a signif-
icant statutory issue-is required for the Board to
reconsider in the refusal-to-bargain context what al-
ready has been considered in the representation
context.
Here I find special circumstances exist in the fact
that the Board has recently considered the meaning
i See Pittsburgh G l a s s C o v NLRB, 313 U S 146, 162 (1941); Secs
102 67(f) and 102.69(c) of the Board 's Rules and Regulations.
2 My colleagues state no reason for ordering further proceedings on
the affiliation issue other than to note that it is a substantial and material
issue involving a statutory requirement
BRINKS , INC. OF FLORIDA
of Section 9(b)(3)'s prohibition against indirect af-
filiation of guard with nonguard unions in a factual
setting similar to that of the present case . Thus, in
Brink's, Inc., 274 NLRB 970 (1985), the Board
found that the labor organization petitioning to
represent a unit of guard employees was indirectly
affiliated with a nonguard union based , inter alia,
on the fact that the two unions had a common offi-
cer and the fact that the petitioner's only meeting
occurred at the other union 's facility immediately
following a meeting held by that union and involv-
ing the same employees. Here, the Respondent
contends, among other things , that the president of
the Union is a shop steward of a nonguard union,
and that the nonguard union had sought to repre-
sent the Union in collective-bargaining negotia-
tions . Although this and other evidence going to
the affiliation issue was raised and rejected by the
Board in the underlying representation case, it is
my opinion that the Board's recent reconsideration
3
of what constitutes indirect affiliation in contraven-
tion of Section 9(b)(3)'s prohibition, in a factual set-
ting similar to that of this case, presents a suffi-
ciently special circumstance to warrant further pro-
ceedings.
I agree with my colleagues that the Respondent
is not entitled to a hearing on the issue of alleged
criminal involvement on the part of certain union
officials because this issue was raised and litigated
in the underlying case; the Respondent does not
offer to produce newly discovered and previously
unavailable evidence ; and there is no contention or
indication of special circumstances such as a recent
development in the controlling law.
For the reasons stated above, I join my col-
leagues in denying the Motion for Summary Judg-
ment and remanding the case for further proceed-
ings on . the affiliation issue while finding that the
issue of alleged criminal involvement does not war-
rant further proceedings.