Pinkerton's, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1971

192 N.L.R.B. 947 (N.L.R.B. 1971)

PINKERTON'S, INC. 947
Pinkerton's, Inc. and International Union, United Plant
Guard Workers of America (UPGWA). Case
9-CA-6047
August 23, 1971
DECISION AND ORDER
BY CHAIRMAN -MILLER AND MEMBERS BROWN
AND JENKINS
Upon a charge filed on January 22, 1971, by
International Union, United Plant Guard Workers
of America (UPGWA), herein called the Union, and
duly served on Pinkerton's, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 9, issued a complaint on March 15, 1971,
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 (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before a Trial Examiner were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December 10,
1970, following a Board election-in Case 9-RC-8649,
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 January 7, 1971, and at,all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On April 5, 1971, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On May 10, 1971, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment and Memorandum in Support of Motion
for Summary Judgment. Subsequently, on May 21,
1971, 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 failed
to file a' response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended,' the
National Labor Relations Board has delegated its
1 Official notice is taken on the record in the representation
proceeding , Case 9-RC-8649, as the term "record" is defined in Sees.
102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as
amended . See LTV Electrosystems, Inc., 166 NLRB.=938, enfd. 388 F.2d
683 (C.A.'4, 1968); Golden Age Beverage Co, 167 NLRB 151; Intertype
192 NLRB No. 147
powers in connection with 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
The record establishes that, after hearing, the
Regional Director on October 23, 1970, issued his
Decision and Direction of Election in Case
9-RC-8649 in which he directed an election in an
appropriate unit of Respondent's employees in the
Bowling Green, Kentucky, area. On October 30,
1970, Respondent, contending that the Regional
Director's unit determination was erroneous because
it was geographically too limited in scope, filed a
Request for Review of the Regional Director's
Decision and Direction of Election. The Board
denied the request, in a telegraphic order dated
November 23, 1970, on the ground that it raised no
substantial issues warranting review. On December
2, 1970, the Regional Director conducted an election
in which a majority of the employees of the
Respondent in the unit found to be appropriate
selected the Union as its representative for the
purposes of collective bargaining. The Regional
Director thereupon certified the Union on December
10, 1970.
In its answer to the complaint, Respondent denies
that the bargaining unit is appropriate and that a
majority of its employees in an appropriate unit
selected the Union as their bargaining representative.
It thus appears that Respondent seeks to relitigate
the single issue of the appropriateness of the
bargaining unit, an issue which was litigated before
the Regional Director, and before the Board in the
previous representation proceeding.
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.2
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 find that the Respondent has not raised
Co. v. Penello, 269 F.Supp. 573 (I7.C. Va., 1967); Follett Corp., 164
NLRB 378, enfd. 397 F.2d 91; (C.A. 7, 1968); Sec. 9(d) of the NLRA.
2 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Sees. 102.67(f) and 102.69(c).
948 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
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, a Delaware ,corporation with its
principal place of business in New York, New York,
and places 'of, business throughout several other
States, is' engaged in furnishing plant protective
services on a contract basis. During the past 12
months, which is a representative, period, Respon-
dent's gross income was in excess of $1 million.
During the same period, Respondent furnished
services valued in excess of $1 million to customers
outside the State of New York.
We find, 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
International Union , United Plant Guard Workers
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
1.' The unit
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 full-time and regular part-time guards,
-including sergeants, employed by the Respondent
at customer' installations in the Bowling Green,
Kentucky area, ' but excluding 'field officers
(captains and lieutenants) and other supervisors
as defined in the Act, and all other employees.
2. The certification
On December 2, 1970, a majority of the employees
of'Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region, 9, designated the Union as their
representative for, the purpose of collective bargain-
ing with the Respondent: The Union was certified as
the collective-bargaining representative of the em-
ployees in, said unit on December, 10, 1970, 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 December 28, 1970, 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 January 7, 1971, and continu-
ing at all times- thereafter to date, the 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 the Respondent has,
since January 7, 1971, 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.
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 i disputes burdening and
obstructing commerce and the free flow of com-,
coerce.
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 intital period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit, See Mar Jac Poultry Company, Inc., 136
PINKERTON'S, INC.
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
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 (CJPGWA), is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All full-time ' and regular part-time guards,
including sergeants, employed by the Respondent at
customer installations in the Bowling Green, Kentuc-
ky area, but excluding field officers (captains and
lieutenants) and other supervisors as defined in the
Act, and all other employees, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since December 10, 1970, 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 January 7, 1971, 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 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,
Pinkerton's Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
949
rates of pay, wages, hours,hours, and other terms and
conditions of employment with International Union,
United Plant Guard Workers of America (UPGWA),
as the exclusive bargaining representative of its
employees in the following appropriate, unit:
All full-time and regular part-time guards,
including sergeants, employed by the Respondent
at customer installations in the Bowling. Green,
Kentucky area, but excluding field , officers
(captains and lieutenants) and other. supervisors
as defined in the Act, and all other employees.
(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-
standing is reached, embody such understanding in a
signed agreement.
(b) Forthwith, mail to the last known address of
each employee on its payroll in the unit found to be
appropriate a copy of the attached notice marked
"Appendix."3 The copies to be so mailed shall be
tl}ose furnished for the purpose by the Regional
Director for Region 9 and shall be duly signed by an
authorized representative of Respondent. Additional
copies shall be duly signed by an authorized
representative of Respondent. Additional copies
shall be posted by it 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 Respondent to insure that said notices are not
altered, defaced, or covered by,any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 In the event that the Board's 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
be changed to 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
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms and conditions of employment with Inter-
national Union , United Plant Guard Workers of
America (UPGWA), as the exclusive representa-
tive 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 full-time and regular part-time guards,
including sergeants, employed by the Res-
pondent at customer installations in the
Bowling Green , Kentucky area, but exclud-
ing field officers (captains and lieutenants)
and other supervisors as defined in the Act,
and all other employees.
PINKERTON'S INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 2407, Federal Office Building,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.