Diamond Detective Agency

National Labor Relations Board - Board Decisions

Jun 30, 2003

339 N.L.R.B. 443 (N.L.R.B. 2003)

DIAMOND DETECTIVE AGENCY 443
Diamond Detective Agency, Inc. and International
Guards Union of America. Case 9–CA–38569
June 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The principal issue in this case is whether the Respon-
dent violated Section 8(a)(3) by refusing to hire Eddie
Dunn, the president of the local union, who had been
unlawfully discharged by the Respondent’s predecessor.1
The Respondent adduced evidence that it did not hire
Dunn because he was not on the predecessor’s payroll at
the time the Respondent assumed operations and because
Dunn applied for a position for which the Respondent
had no opening. The judge rejected the Respondent’s
defense and found that the Respondent unlawfully re-
fused to hire Dunn because of his status as union presi-
dent. The Respondent contends that the judge erred in
rejecting its defense. We agree.
Even assuming that the General Counsel established
that Dunn’s status as union president was a motivating
factor in the Respondent’s decision not to hire him, we
find that the Respondent demonstrated that it would not
have hired Dunn even in the absence of his union status.
Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S.
393 (1983). Accordingly, we shall dismiss the 8(a)(3)
allegation of the complaint.2
I. THE FACTS
The record shows that Ernie Dunn worked for the Re-
spondent from 1993 to 1998 as a sergeant on post 9 at the
U.S. Department of Commerce Census Bureau in Jeffer-
sonville, Indiana. In 1998, Numark Security, Inc. (Nu-
mark) replaced the Respondent as the security service
provider at the Census Bureau. Numark hired all of the
Respondent’s employees, including Dunn. On February

1 In a prior case, the predecessor, Numark Security, Inc., was found
to have violated Sec. 8(a)(3) of the Act by discharging Dunn. Numark
Security Inc. and International Guards Union of America, JD–86–01,
adopted pro forma by the Board on August 18, 2001.
In the instant case, on March 5, 2002, Administrative Law Judge
Martin J. Linsky issued the attached decision. The Respondent filed
exceptions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and brief and has adopted the judge’s rulings, finding, and
conclusions only to the extent consistent with this Decision and Order.
2 We affirm the judge’s rulings, findings, and conclusions concern-
ing the Respondent’s refusal to bargain with the Union in violation of
Sec. 8(a)(5) of the Act.
2, 2000, the Union was certified as the exclusive collec-
tive-bargaining representative of Numark’s employees in
a unit of sergeants, officers, and security center opera-
tors. Dunn was elected president of the local union in
March 2000. Almost a year later, on February 2, 2001,
Numark discharged Dunn. The Union filed unfair labor
practice charges over Dunn’s discharge and a complaint
issued, alleging, inter alia, that Numark’s discharge of
Dunn violated Section 8(a)(3) of the Act.
On April 16, 2001, at the request of the Department of
Commerce, the Respondent replaced Numark as an in-
terim provider of security services at the Census Bureau
under a 6-month contract, which was extended to Octo-
ber 31, 2001. The Respondent hired all Numark em-
ployees on the payroll at the time it succeeded Numark.
This included Union Vice President Timothy Crawford
who had been disciplined but not discharged by Numark.
Crawford was also named as a discriminatee in the unfair
labor practice complaint against Numark.
All former Numark employees, whether union mem-
bers or not, were transferred without interruption from
the payroll of Numark to that of the Respondent. Dunn,
having been removed by Numark 2 months earlier, was
not on Numark’s payroll at the time the Respondent took
over operations. He was not hired and transferred to the
Respondent’s payroll. Instead, he submitted an applica-
tion to the Respondent dated April 11, 2001. The appli-
cation stated that Dunn sought a sergeant’s position on
post 9, the position he held prior to his discharge from
Numark. That position had higher pay and greater au-
thority than other sergeant or guard positions.3 Dunn’s
application did not list any other positions for which he
wished to be considered.
Vice President for Operations David Howell inter-
viewed Dunn on the day after Dunn submitted his appli-
cation. Dunn told Howell that Numark had fired him
because of his union activity. Howell told Dunn he
would hear from the Respondent about whether he would
be hired or not. Dunn contacted the Respondent again
when he did not hear anything about his hiring. He was
directed to Geoffrey White in the human resources de-
partment. White told Dunn that the Respondent was still
3 Dunn testified without contradiction that a post 9 sergeant had
more authority and was paid more than other sergeants. Further, in sec.
C-6-D of the contract between the Respondent and the Commerce
Department at the Census Bureau, the post 9 position is described as
follows: “The Post 9 guard shall serve as the Post supervisor and shall
meet all the requirements of Sec. C-9-F [Special Requirements for
Supervisors]. The Post 9 guard shall be capable of, and fully qualified,
in an emergency, of relieving the Control Center Operator and will be
responsible for seeing that all Post stations are manned correctly and
that all Post Orders are carried out in a manner consistent with the
contract and government regulations.” [R. Exh. 1.]
339 NLRB No. 62
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 444
reviewing his application. White said that he needed
copies of Dunn’s certifications at the Respondent’s local
office. Dunn later took the requested copies to the local
office and left a message at White’s office that he had
done so. Dunn called White one or two times and left
messages for him, but did not hear from him again.
The Union’s attorney, Irwin H. Cutler Jr., inquired
about Dunn’s job status on numerous occasions when
Cutler was trying to schedule negotiations with the Re-
spondent. He informed the Respondent that Region 9 of
the Board had issued a complaint alleging that Numark
unlawfully discharged Dunn.
Cutler spoke with the Respondent’s president, Richard
Taylor, about Dunn’s status on June 12, 2001. Taylor
told Cutler that the Respondent was waiting to see the
outcome of the Board’s unfair labor practice case. In a
letter to Taylor dated June 13, Cutler wrote:

I have mentioned to you and Mr. Howell several
times that the Union believes that Ernie Dunn, who
is President of the local union and who was fired by
Numark Security because of his union activity,
should have been hired by Diamond Detective
Agency the same as other Numark employees. In
the meantime, Mr. Dunn has applied to Diamond
and, even though Diamond has hired numerous other
guards to work at the Census Bureau, Mr. Dunn has
not been hired. [GC Exh. 14.]

On June 22, 2001, Administrative Law Judge Amchan
issued a decision finding, inter alia, that Numark termi-
nated Dunn in violation of Section 8(a)(3) of the Act and
that Dunn should have been listed on Numark’s payroll
at the time Numark’s contract was terminated. No ex-
ceptions were filed to Judge Amchan’s decision. It was
adopted by the Board and became final on August 18,
2001. The Respondent did not hire Dunn.
II. THE JUDGE’S DECISION
The judge focused on the Respondent’s defenses in
finding that the Respondent unlawfully refused to hire
Dunn. He rejected the Respondent’s defense that it did
not hire Dunn because there was no opening in the post 9
position. He found that when Dunn applied for the posi-
tion from which Numark unlawfully discharged him, it
was incumbent on the Respondent to consider Dunn for
some other position if the particular position he applied
for was not available. The judge observed that after
Dunn applied, the Respondent hired guards and also
promoted a person to a sergeant’s position, but did not
hire Dunn. Instead, the Respondent said it wanted to see
the outcome of the unfair labor practice case involving
Dunn’s discharge from Numark, but then did not hire
Dunn after learning that Dunn prevailed in the case.
In these circumstances, the judge found that the only
rational explanation for the Respondent’s failure to hire
Dunn was his status as union president. In this regard, he
found that Dunn was in a different position from the
other union members and officers hired by the Respon-
dent because Numark discharged Dunn for union activ-
ity. Finally, the judge found that the Respondent’s failure
to bargain in good faith with the Union in violation of
Section 8(a)(5) is evidence of the Respondent’s union
animus.
III. THE RESPONDENT’S EXCEPTIONS
The Respondent argues that the judge erred in reject-
ing its defense. The Respondent asserts that it hired all
employees on the Numark payroll on April 16, 2001,
including Union Vice President Crawford whose disci-
pline, along with Dunn’s discharge, was the subject of
the unfair labor practice complaint against Numark. The
Respondent further asserts that when Dunn applied for
the post 9 sergeant position, the position was not open.
The Respondent only had openings for positions for
which Dunn had indicated no interest—positions with
lower pay and less authority than the post 9 position. The
Respondent contends that the judge improperly expanded
an employer’s hiring obligations by finding that the Re-
spondent was required to consider Dunn for other lower
paid positions with less authority for which Dunn did not
apply or otherwise indicate he would accept.
IV. ANALYSIS
In all cases alleging violations of Section 8(a)(3) turn-
ing on employer motivation, the General Counsel must,
under Wright Line, 251 NLRB at 1089, establish that
union activity was a motivating factor in the employer’s
decision. The burden then shifts to the employer to
demonstrate that it would have taken the same action
even in the absence of the union activity.
The judge did not expressly apply the Wright Line
shifting burdens analysis. Instead, he appears to have
used a pretext analysis, which falls within the Wright
Line framework.4 Finding that the Respondent’s de-
fenses were invalid, he essentially concluded that the
Respondent used them as a pretext for the only remain-
ing rational explanation of its refusal to hire Dunn: his
status as union president. The judge supported this con-

4 See, e.g., USF Dugan, Inc., 332 NLRB 409, 413 (2000), referring
to the Wright Line test: “The test applies regardless of whether the case
involves pretextual reasons or dual motivation. Frank Black Mechani-
cal Services, 271 NLRB 1302 fn. 2 (1984). ‘A finding of pretext neces-
sarily means that the reasons advanced by the employer either did not
exist or were not in fact relied upon, thereby leaving intact the infer-
ence of wrongful motive established by the General Counsel.’ Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th
Cir. 1982).”
DIAMOND DETECTIVE AGENCY 445
clusion with a finding that the Respondent’s violation of
8(a)(5) evinced its union animus.
Applying Wright Line, we reject the judge’s analysis.
We find that even assuming that the General Counsel had
established that union activity was a motivating factor in
the Respondent’s decision not to hire Dunn, the Respon-
dent met its burden of showing that it would not have
hired Dunn even in the absence of his union activity.
A. The Respondent failed to Hire Dunn Because
he was not on Numark’s Payroll at the Time it Took Over
Operations
The Respondent asserts that it did not hire Dunn be-
cause he was not on Numark’s payroll at the time the
Respondent took over operations. The record supports
this assertion. The record shows that the Respondent
offered jobs to all employees on the Numark payroll on
April 16, 2001. Dunn, however, was not on Numark’s
payroll when the Respondent took over operations be-
cause Numark had discharged him some 2 months ear-
lier.
B. The Respondent did not Hire Dunn Because There
was no Opening in the Position for Which he Applied
Dunn’s application for work with the Respondent
stated that he sought a sergeant’s position on post 9, the
position he formerly held with Numark. As stated earlier,
the post 9 position was higher paid and vested with more
authority than other sergeant or guard positions. It is
undisputed that the position was filled at the time the
Respondent took over operations from Numark. It is
further undisputed that there was no opening in the post 9
position during the time the Respondent was the security
provider at the Census Bureau.
Beyond question then, the Respondent had no opening
in the specific position for which Dunn applied. Nor
was the Respondent required to consider Dunn for other
positions in which it had openings, but for which Dunn
had not applied. Numark unlawfully discharged Dunn.
The Respondent had no involvement in Numark’s action
and incurred no instatement obligation as a result of it.
Contrary to the judge, we find that when Dunn applied
for the post 9 position, the Respondent’s legal obligation
was limited to considering him for that position.
Further, we find that there is no convincing evidence
that Dunn sought any other position with the Respon-
dent. Dunn’s application for employment with the Re-
spondent refers solely to the post 9 position. Dunn him-
self did not assert that he expressed to the Respondent an
interest in other positions. Instead, he testified that he
could not remember whether he discussed during his
interview with Howell a willingness to accept any other
position with the Respondent.
The only possible evidence concerning Dunn’s interest
in a different position with the Respondent is Cutler’s
June 13 letter to the Respondent. The letter is ambiguous
at best. Irving told the Respondent:

the Union believes that Ernie Dunn . . . should have
been hired by Diamond Detective Agency the same as
other Numark employees. In the meantime, Mr. Dunn
has applied to Diamond, and even though Diamond has
hired numerous other guards to work at the Census Bu-
reau, Mr. Dunn has not been hired.

This letter does not clearly state that Dunn would have
accepted positions other than the one for which he ap-
plied. In fact, it is most reasonably read simply as a
complaint that Dunn was not hired in the position for
which he applied, even though other hiring had taken
place. After all, the post 9 position was higher paid and
had more authority than other guard positions. And if
Dunn had been willing to drop to a lower paying position
with less authority, either he or the Union could easily
have expressly said so. In these circumstances, the Un-
ion’s letter is not reliable evidence that Dunn indicated to
the Respondent that he would accept one of the other
guard positions which were open at the time he applied.
V. CONCLUSIONS
Even assuming that the General Counsel established
that Dunn’s union status was a motivating factor in the
Respondent’s decision not to hire Dunn, we find that the
Respondent demonstrated that it would not have hired
Dunn even in the absence of his union status because he
was not on Numark’s payroll at the time the Respondent
took over operations and because there was no opening
in the post 9 position for which he applied. We shall,
therefore, dismiss the allegation of the complaint that the
Respondent refused to hire Dunn in violation of Section
8(a)(3) and (1) of the Act.5
ORDER
The National Labor Relations Board orders that the
Respondent, Diamond Detective Agency, Inc., Jeffer-
sonville, Indiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Unlawfully refusing to bargain in good faith with
International Guards Union of America as the exclusive

5 The judge alternatively found that under Golden State Bottling Co.
v. NLRB, 414 U.S. 168 (1973), the Respondent was lawfully bound to
remedy Numark Security, Inc.’s unlawful discharge of Dunn when it
became the successor to Numark. We do not adopt this finding, as the
complaint does not allege that the Respondent is a Golden State succes-
sor, and there is no indication that the General Counsel ever advanced
that theory of liability.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 446
collective-bargaining representative of the employees in
the following appropriate unit:

All guards, including sergeants, officers, and security
center operators employed by Respondent at the De-
partment of Commerce Census Bureau National Proc-
essing Center at Jeffersonville, Indiana, excluding all
professional employees and supervisors as defined in
the Act.

(b) In any like or related manner interfering with, re-
straining, 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) Within 14 days after service by the Region, mail a
copy of the attached notice marked “Appendix”6 to all
employees who were employed by the Respondent be-
tween June 13, 2001, and October 31, 2001, at the De-
partment of Commerce Census Bureau National Process-
ing Center in Jeffersonville, Indiana. The notice shall be
mailed to the last known address of each of the employ-
ees after being signed by the Respondent’s authorized
representative.
(b) Within 21 days after service by the Region, file
with the Regional director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
(c) Notify its successor at the Census Bureau of this
decision.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations not found.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf

6 If this Order is enforced by a judgment of the Unites States court of
Appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judment
of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.”
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain in good faith with In-
ternational Guards Union of America as the collective-
bargaining representative of our employees in the follow-
ing appropriate unit:

All guards, including sergeants, officers, and security
center operators employed by Respondent at the De-
partment of Commerce Census Bureau National Proc-
essing Center at Jeffersonville, Indiana, excluding all
professional employees and supervisors as defined in
the Act.

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.

DIAMOND DETECTIVE AGENCY, INC.

Eric J. Gill, Esq., for the General Counsel.
John D. Meyer and Rayford T. Blankenship, Esqs., of Green-
wood, Indiana, for the Respondent.
Irwin H. Cutler Jr., of Louisville, Kentucky, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On June 21,
2001, the International Guards Union of America (the Charging
Party or the Union) filed a charge with Region 9 of the National
Labor Relations Board (the Board) alleging that Diamond De-
tective Agency, Inc. (Respondent) violated the National Labor
Relations Act (the Act).
On August 6, 2001, the Board, by the Regional Director for
Region 9, issued a complaint alleging that Respondent violated
Section 8(a)(1), (3), and (5) of the Act when it refused to hire
Ernie Dunn and when it failed and refused to recognize and
bargain with the Union as the collective-bargaining representa-
tive of a unit of its employees.
Respondent filed an answer in which it denied that it violated
the Act in any way.
A hearing was held before me in Louisville, Kentucky, on
December 11, 2001.1
Upon the entire record in the case, to include posthearing
briefs submitted by the General Counsel and Respondent, and
upon my observation of the demeanor of the witnesses, I make
the following
1 Respondent’s unopposed motion to correct transcript is granted.
DIAMOND DETECTIVE AGENCY 447
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent has been engaged in pro-
viding guard services, including services for the U.S. Census
Bureau in Jeffersonville, Indiana.
Respondent admits, and I find, that at all material times, Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find that, at all material times, the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Respondent is an Illinois corporation engaged in the business
of providing security services for private and public customers.
It operates nationwide and employs between 500 and 700 em-
ployees operating under approximately 120 contracts.
From 1993 until 1998 Respondent provided security services
for the U.S. Census Bureau in Jeffersonville, Indiana, through a
contract with the U.S. Department of Commerce. Ernie Dunn
was employed by Respondent at the Census Bureau during that
1993 to 1998 period of time.
In 1998, Respondent was replaced as the security service
provider by Numark Security, Inc. Numark hired all of the
Respondent’s employees at the Census Bureau when it took
over the site to include Ernie Dunn. Numark operated as the
security service provider until April 16, 2001, at which time
and at the request of the Department of Commerce Respondent
replaced Numark as an interim provider of security services
under a 6-month contract which was to run until October 15,
2001, but which was later extended to October 31, 2001.
During the time that Numark had the contract the employees
selected the Union to be their collective-bargaining representa-
tive. On February 2, 2000, the Union was certified as the ex-
clusive collective-bargaining representative of the following
unit of Numark employees:

All guards, including sergeants, officers and security center
operators employed by Respondent at the Department of
Commerce Census Bureau National Processing Center at Jef-
fersonville, Indiana, excluding all professional employees and
supervisors as defined in the Act.

The Union and Numark management engaged in some nego-
tiations for a collective-bargaining agreement but did not reach
agreement on a contract by the time Numark was replaced by
Respondent as the security provider at the Census Bureau in
Jeffersonville, Indiana.
On February 2, 2001, Numark fired Ernie Dunn, who had
been elected president of Local 143 of the International Guards
Union of America in March 2000.
Again, Respondent took over on an interim basis the security
provider duties at the Census Bureau on April 16, 2001.
On April 11, 2001, Ernie Dunn, the president of the Union,
who had been fired by Numark on February 2, 2001, applied
for work with Respondent for whom he had worked from 1993
to 1998. Respondent did not hire him.
Some days prior to Respondent taking over from Numark the
Union requested Respondent to recognize it as the exclusive
collective-bargaining representative of its employees in the
certified union and to bargain with it.
The two allegations of unfair labor practices, which I will
address separately, are that Respondent violated Section 8(a)(1)
and (3) of the Act when it refused to hire Ernie Dunn and that
Respondent violated Section 8(a)(1) and (5) of the Act when it
failed and refused to recognize and bargain with the Union.
B. Failure and Refusal to Hire Ernie Dunn
Ernie Dunn worked for Respondent from 1993 to 1998.
During the course of his employment he was disciplined with a
reprimand and a 4-day suspension. He also received a com-
mendation and testified without contradiction that he had been
offered a promotion. When Respondent lost the security con-
tract at the Census Bureau to Numark Ernie Dunn was a ser-
geant on post 9, which all parties to this litigation agreed was
an important post and as a Sergeant Ernie Dunn had a higher
rank than officer.
When Numark took over, it hired all the employees of Re-
spondent to include Dunn.
Numark fired Dunn on February 2, 2001, approximately 1
year after the Union had been certified as the exclusive collec-
tive-bargaining representative of Numark’s employees and
approximately 11 months after Dunn had been elected president
of the Local.
The Union filed unfair labor practice charges over Ernie
Dunn’s discharge and other matters and a complaint issued.
Shortly before Respondent took over from Numark on April
16, 2001, the Union informed Respondent that it was litigating
the discharge of Ernie Dunn as an unfair labor practice.
Respondent hired all the Numark employed by Numark as of
April 15, 2001, to include union offices, such as Local Vice
President Timothy Crawford, whether union members or not.
The Numark employees were not required to present any certi-
fications or take physical exams, etc. They were simply trans-
ferred without interruption from the payroll of Numark to that
of Respondent.
Ernie Dunn submitted an application to Respondent, which is
dated April 11, 2001. He was interviewed the very next day by
David Howell, Respondent’s vice president for operations. In
the interview Howell, the third highest ranking official of Re-
spondent, learned from Dunn that Dunn had worked for Re-
spondent from 1993 to 1998 and that Dunn claimed that he had
been fired by Numark because of his union activity. Howell
told Dunn he would hear in due course if he were hired or not.
Dunn didn’t hear anything so he called Jim Adams, a super-
visor for Respondent who had previously been a supervisor for
Numark. Adams directed Dunn to contact the corporate human
resources department and talk to a Geoffrey White. After sev-
eral attempts Dunn eventually spoke with White. White told
Dunn that Respondent was still reviewing his application and
needed copies of Dunn’s various certifications, e.g., gun quali-
fications, and White also mentioned that Dunn may need to
submit a physical exam. Dunn told White that all his records
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 448
were current and were on file at the Census Bureau facility
where he had worked. Dunn was told Respondent still needed
a copy of his certifications and Dunn said he had copies and
was told to take those copies to Respondent’s local office.
Dunn did so and then left a message at White’s office that he
had done so.
When Dunn heard nothing further he called White one or
two times and left messages on White’s voice mail. Dunn
never heard back from White or anyone else on behalf of Re-
spondent.
The Union’s attorney, Irwin H. Cutler Jr., on numerous occa-
sions while trying to schedule negotiating sessions with Re-
spondent for a collective-bargaining agreement, would inquire
about the job status of Ernie Dunn and informed Respondent
that Ernie Dunn’s discharge by Numark was the subject of an
unfair labor practice complaint issued by Region 9 of the
Board.
The case against Numark, i.e., Numark Security, Inc., Case
9–CA–37419, et al., was tried on April 23 and 24, 2001, before
Administrative Law Judge Arthur J. Amchan. The case in-
volved a number of alleged unfair labor practices to include the
allegation that Numark unlawfully discharged Ernie Dunn.
On June 22, 2001, Judge Amchan issued his decision, which,
among other things, found that Numark violated the Act when
it discharged Ernie Dunn on February 2, 2001. In his recom-
mended Order Judge Amchan ordered that Numark should
“Notify its successor at the Census Bureau that . . . [Numark]
disciplined and terminated Ernie Dunn in violation of the Act,
that Ernie Dunn should have been listed on its payroll at the
time . . . [Numark’s] contract with the Census Bureau was ter-
minated and that all references to the disciplining of Ernie
Dunn . . . that it maintained at the Census Bureau facility
should be expunged.”
Judge Amchan prepared a notice to employees to be mailed
by Numark to the Union as well as all Numark’s employees at
the Census Bureau, which contained the following provision

WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge and discipline of Ernie Dunn and unlawful dis-
cipline of Timothy Crawford, and will notify our successor
that any records maintained at Jeffersonville, Indiana,
should also be expunged and WE WILL, within 3 days
thereafter, notify Ernie Dunn and Timothy Crawford in
writing that this had been done.

No exceptions were filed to Judge Amchan’s decision and it
was adopted by the Board and became final agency action on
August 18, 2001. Timothy Crawford, the union vice president
had received discipline short of discharge from Numark. He
was still on Numark’s payroll when Respondent took over on
April 16, 2000, and was hired by Respondent.
Union Attorney Cutler testified that he communicated with
senior representatives of Respondent about Ernie Dunn. On
June 12, 2001, Cutler spoke with Richard Taylor, Respondent’s
president, about a number of issues to include Ernie Dunn.
Taylor told Cutler, according to Cutler’s testimony, which I
credit and which he memorialized in writing that in connection
with Ernie Dunn, Respondent was waiting to see the outcome
of the Board case.
The outcome of the Board case was that Ernie Dunn has
been unlawfully discharged and Judge Amchan specifically
found that Dunn should have been listed among Numark’s cur-
rent employees on April 16, 2001, when Respondent took over
the security duties at the Census Bureau.
When Respondent took over from Numark it offered em-
ployment to all of Numark’s employees and the overwhelming
majority of 30 to 35 employees accepted and became employ-
ees of Respondent.
According to the record, to include the uncontradicted testi-
mony of security guard Dana Moore, the new employees of
Respondent who had previously been employed by Numark
were not required to take a physical exam or provide any certi-
fications to Respondent. Respondent simply received their files
maintained at the Census Bureau from Numark, which con-
tained all the necessary paperwork. Respondent had the exact
same access to all the necessary paperwork on Ernie Dunn.
Ernie Dunn told Geoffrey White, vice president for human
resources, that his file with the necessary paperwork was main-
tained at the Census Bureau like those of all the other Numark
employees hired by Respondent. In any event Dunn furnished
copies of his certifications to Respondent after he applied and
called to inquire about what else he needed to do. Respondent
never got back to him.
Respondent claims it did not hire Ernie Dunn because Dunn
didn’t complete the application process and because he applied
for a sergeant’s position on post 9 a position for which there
was no opening.
Respondent’s defenses fail. As discussed above, Dunn did
tell Respondent’s representative where the necessary informa-
tion was, i.e., at the Census Bureau, and he even supplied cop-
ies of certifications. Ernie Dunn applied for the position from
which he was unlawfully fired by Numark. It would be incum-
bent upon Respondent to consider Dunn for some other position
if the particular position he applied for was not available but a
sergeant’s position was available. As the uncontradicted evi-
dence at trial reflects Respondent, after hiring most of Nu-
mark’s employees, found it necessary after Dunn applied and
was not hired to run ads in the newspaper seeking people to
apply for positions as guards and Respondent, after Dunn ap-
plied, hired as guards, individuals who had never worked at the
Census Bureau for either Respondent or Numark and also pro-
moted a person who had worked for Numark as a guard to a
sergeant’s position.
The only rational explanation for Respondent’s failure to
hire Ernie Dunn was his union status as president of Local 143.
And, I find as fact that that was the reason. Respondent did
hire employees of Numark who were officers or members of
the Union and only failed and refused to hire Ernie Dunn. But
Dunn was in a different position from those other people, i.e.,
he had been fired by Numark for his union activity. Respon-
dent was informed by Irwin Cutler that Ernie Dunn had been
unlawfully fired for union activity and Respondent gives Ernie
Dunn the run around and eventually, on June 12, 2001, Richard
Taylor, the president of Respondent, tells the Union they want
to wait and see the outcome of the Board case before they de-
DIAMOND DETECTIVE AGENCY 449
cide whether to hire Ernie Dunn or not. The outcome of the
Board case on June 22, 2001, is that Ernie Dunn was indeed
unlawfully discharged on February 1, 2001, because of his
union activity, and lo and behold, Respondent still does not hire
him.
The above coupled with my finding that Respondent, at the
same time it refused to hire Ernie Dunn, violates Section
8(a)(1) and (5) of the Act by failing to bargain in good faith
with the Union showing union animus on Respondent’s part
leads me to conclude that Respondent violated Section 8(a)(1)
and (3) of the Act when it failed and refused to hire Ernie
Dunn.
An alternate theory of liability is that Respondent was a
Golden State2 successor to Numark Security, Inc., i.e., before it
took over from Numark Respondent was aware of the pending
unfair labor practice allegation that Numark had unlawfully
discharged Ernie Dunn and Respondent was therefore lawfully
bound to remedy that unfair labor practice when it became the
successor. Respondent was clearly a successor to Numark as
shown in section III,C, below. Respondent signed a contract
with the Department of Commerce of April 16, 2001 (R. Exh.
1), but was aware of the unfair labor practice charges involving
Ernie Dunn when Union Attorney Cutler notified them of it by
fax on April 10, 2001 (GC Exh. 4).
C. Failure to Recognize and Bargain in Good Faith with
the Union
The Supreme Court, in NLRB v. Burns Security Services, 406
U.S. 272 (1972), held that a new employer has a duty to recog-
nize and bargain with the incumbent union when two general
factors, which can be summarized as (1) continuity of the work
force and (2) continuity of the enterprise, are present.
In order to establish a “continuity of the work force,” the
former employees of the predecessor who were employed in the
predecessor’s bargaining unit must comprise a majority of the
new employer’s complement within that same bargaining unit.
After establishing the continuity of the work force, the
analysis proceeds to the second factor; the continuity of the
enterprise. In evaluating the continuity of the enterprise, the
Board looks to the following elements: (1) whether there was
been substantial continuity of the same business operations; (2)
whether the new employer uses the same facilities; (3) whether
the same jobs exist under the same working conditions; (4)
whether the new company employs the same supervisors; (5)
whether the same equipment, machinery or processes are used;
(6) whether the same products or services are offered; and (7)
whether the new employer had basically the same body of cus-
tomers. Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987);
see also Sierra Realty Corp., 317 NLRB 832 (1995); Nephi
Rubber Products Corp., 303 NLRB 151 (1991), enfd. 976 F.2d
1361 (10th Cir. 1992). The totality of the circumstances frames
the analysis and the Board does not give controlling weight to
any single factor. Premium Foods, Inc., 260 NLRB 708, 714
(1982), enfd. 709 F.2d 623 (9th Cir. 1983).
The Board and the courts have emphasized that the question
of whether or not there is substantial continuity between the old

2 Golden State Bottling Co. v. NLRB, 414 US 168 (1973).
and new business is to be examined from the perspective of the
employees affected. The pertinent inquiry is whether there has
been enough of a change in operations to defeat the employees’
expectation of continued Union representation. Fall River Dye-
ing, supra; Premier Products, Inc., 303 NLRB 161 (1991);
Capitol Steel & Iron Co., 299 NLRB 484 (1990).
Generally, another consideration is evaluating a Burns suc-
cessor is whether there has been a hiatus between the cessation
of the old operation and the commencement of the new busi-
ness. Fall River Dyeing, supra. As a rule, the longer the hiatus,
the less likely an entity will be deemed a successor.
A successor employer’s obligation to recognize and bargain
is triggered by the incumbent Union’s request for recognition
and/or bargaining. It has long been held that a valid request for
recognition and/or bargaining need not be made in any particu-
lar form so long as the request clearly indicates a desire to bar-
gain and negotiate on behalf of the unit employees.
It is obvious that Respondent is a Burns successor to Numark
Security and had a duty to recognize the union and bargain with
it in good faith. Respondent had the same employees and su-
pervisors as Numark did and performs the same services, i.e.,
security services, at the same location for the same client, i.e.,
the Census Bureau facility in Jeffersonville, Indiana.
By letter dated April 10, 2001, the Union by its attorney, Ir-
win Cutler, informed Respondent that it represented a unit of
employees at the Census Bureau and by letter dated April 16,
2001, made a request to Respondent to bargain. The letters
were also faxed to Respondent. The first letter was directed to
Respondent by corporate name only. The second letter was
directed to David Howell, Respondent’s vice president for op-
erations.
There was a delay on Respondent’s part in meeting with the
Union caused by the fact that John Jordan, Respondent’s
owner, who wanted to be involved in the negotiations, was
recovering from organ transplant surgery. Suffice it to say, the
parties agreed to meet on June 11, 2001, almost 2 months after
Respondent took over from Numark. Respondent was to call
the Union on May 21 to confirm the June 11 date but never
called until June 7, 2001, when it left a voice mail message that
they could not meet on June 11, 2001.
The Union by Cutler on May 23, 2001, wrote again to David
Howell and wanted to know when the parties would be meeting
and also requested certain information from Respondent,
namely, a copy of Respondent’s contract with the Department
of Commerce and a list of the names, addresses, telephone
numbers, job classifications, and rates of pay for all employees
in the bargaining unit.
On May 30, 2001, the Union again wrote to Respondent and
advised that it wanted to meet on June 11, 2001, as planned but
it interpreted Respondent’s letter of May 24, 2001, signed by
David Howell as a refusal to bargain since Respondent wrote
that it did not consider itself to be a “successor contractor” to
Numark.
On June 4, 2001, Cutler spoke with Howell and said again
that the Union wanted to meet with Respondent and begin the
bargaining process.
On June 7, 2001, Cutler wrote to David Howell and Respon-
dent’s president, Richard Taylor, and asked for certain addi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 450
tional information regarding the benefits of the employees in
the bargaining unit and noted that Respondent was to get back
to the Union regarding a date the parties could meet but hadn’t
done so. Cutler also forwarded a copy of the Decision and
Direction of Election of the Acting Regional Director for Re-
gion 9, which describes the bargaining unit in question.
Earlier on June 7, 2001, Cutler received a voice mail mes-
sage from Respondent’s president, Richard Taylor, calling on
behalf of Respondent’s vice president for operations, David
Howell. Taylor informed the Union that Respondent would not
be able to meet with the Union on June 11, 2001, as previously
agreed upon.
On June 12, 2001, Cutler spoke with Taylor and Taylor ac-
knowledged, almost 2 months after taking over from Numark,
that it had a duty to bargain with the Union. The parties tried to
agree to some ground rules for negotiations. It is in this con-
versation that Taylor says that with respect to Ernie Dunn that
Respondent will wait to see the outcome of the Board case
against Numark in deciding whether to hire Ernie Dunn or not.
On June 13, 2001, Cutler sent to Taylor an update of where
negotiations stood for a collective-bargaining agreement be-
tween the Union and Numark as of the time Respondent re-
placed Numark. Cutler, in his letter, wrote, “Please call me as
soon as possible and advise when you are available to meet for
negotiations.”
The Union never heard back from Respondent and on June
21, 2001, filed its unfair labor practice charges with Region 9.
Respondent had an interim contract to provide security ser-
vices until October 15, 2001, which was later extended to Oc-
tober 31, 2001. Respondent bid to get a 5-year contract but by
letter dated July 15, 2001, Respondent was advised by the De-
partment of Commerce that the security service contract at the
Census Bureau in Jeffersonville, Indiana, would be a 100-
percent small business set aside contract and since Respondent
was a large business it could not continue at the Census Bureau
beyond October 31, 2001.
Respondent claims that the initial delay in Respondent and
the union meeting to negotiate was the result of the Respon-
dent’s owner’s health problems and from mid-July 2001 for-
ward the failure to meet was the result of Respondent not being
permitted to secure a 5-year contract and it made no sense for
the parties to agree to a contract which would bind Respon-
dent’s successor at the Census Bureau.
I find that Respondent, albeit not in record time, recognized
the Union as the collective-bargaining representative of its
employees but from June 13, 2001, forward Respondent failed
to bargain in good faith with the Union in violation of Section
8(a)(1) and (5) of the Act. Needless to say there was much that
the parties could bargain about even though Respondent would
not be the employer after October 31, 2001, e.g., wages, hours,
and the myriad remainder of other terms and conditions of
employment such as a grievance procedure, etc. Respondent
would not meet at all from June 13, 2001, forward.
A security firm named Deco replaced Respondent as the se-
curity service provider at the Census Bureau on November 1,
2001.
REMEDY
Since Respondent is no longer the security provider at the
Census Bureau the remedy for the failure and refusal to hire
Ernie Dunn should include back pay to Dunn at a sergeant’s
rate of pay from April 16, 2001, when Respondent took over
the security services at the Census Bureau until November 1,
2001, when Deco replaced Respondent. This, of course, would
be in addition to a cease and desist order and the mailing of an
appropriate notice to employees. Backpay to be computed as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Respondent should also notify its successor about the out-
come of this case.
The remedy for the refusal to bargain in good-faith finding
should be a cease and desist order and mailing of a notice to
employees.
CONCLUSIONS OF LAW
1. Respondent, Diamond Detective Agency, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union, International Guards Union of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act
when it failed and refused since April 16, 2001, to hire Ernie
Dunn.
4. Respondent violated Section 8(a)(1) and (5) of the Act
since June 13, 2001, when it refused to bargain in good faith
with the Union as the collective-bargaining representative of its
employees.
5. The above violations of the Act are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
[Recommended Order omitted from publication.]