The Williams J. Burns International Detective Agency, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1962

137 N.L.R.B. 1235 (N.L.R.B. 1962)

WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1235
The William J. Burns International Detective Agency, Inc. and
International Guards Union of America . Case No. 17-CA-1845.
July 11, 1962
DECISION AND ORDER
On April 9, 1962, Trial Examiner Robert E. Mullin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report, a supporting brief, and a request for oral argument.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications :
(1) The words "A Decision and Order" shall be substituted for the
words "The Recommendations of a Trial Examiner" in the notice.
In the event that the Order is enforced by a decree of a United States
Court of Appeals, the notice shall be further amended by substituting
the words "Pursuant to a Decree of the United States Court of Ap-
peals, Enforcing an Order" for the words "Pursuant to a Decision and
Order."
(2) Section 2(d) of the Order should read "Notify said Regional
Director, in writing, within 10 days from the date of this Order,
what steps the Respondent has taken to comply herewith."
' As the record , including the exceptions and brief , adequately sets forth the issues and
the positions of the parties , the request is hereby denied
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Labor Management Rela-
tions Act of 1947, as amended , 61 Stat. 136, 73 Stat . 519, herein called the Act, was
heard in Kansas City, Missouri, on December 6 and 7, 1961, and in Omaha , Nebraska,
137 NLRB No. 132.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on February 26, 1962, pursuant to due notice to all parties. The complaint issued
by the General Counsel of the National Labor Relations Board on November 3, 1961,
was based on charges duly filed and served.' The complaint, as amended at the
hearing, alleged that the Respondent had engaged in various unfair labor practices
proscribed by Section 8 (a) (1) and,(5) of the Act. In its answer, the Respondent
conceded certain facts with respect to its business operations, but denied the com-
mission of any unfair labor practices. At the hearing all parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant
evidence, and to argue orally. At the outset of the hearing the General Counsel
moved to amend the complaint to allege that a strike which began on November 16,
1961, had been caused by the Respondent's alleged unlawful refusal to bargain. This
motion was granted.
On January 3, 1962, the Respondent moved to reopen the hearing for the purpose
of receiving testimony to ,the effect that it had reemployed the strikers. This motion
was at first denied. Thereafter, the General Counsel moved to reopen the record
and remand the case to the Regional Director for the purpose of issuing an order
consolidating it with Case No. 17-CA-1902.2 This motion was denied by order
dated February 12, 1962.
On February 26, 1962, the hearing was reopened for the purpose of hearing oral
argument on the Respondent's motion to adduce additional evidence. This latter
motion was granted. Thereafter, upon motion by the Respondent, the Respondent
and ,the General Counsel joined in a stipulation that the Trial Examiner could take
official notice in both Case No. 17-CA-1845 and Case No. 17-CA-1902 [137 NLRB
1689] of the record made in the other case. This stipulation was received. On
March 16, 1962, a brief was received from the General Counsel but not from any
other party.
On April 4, 1962, the Respondent and the Charging Party, on the ground that they
had arrived at a collective bargaining agreement, filed with the Trial Examiner a
motion to withdraw the charges and dismiss the complaint in Case No. 17-CA-1845,
as well as certain allegations of the complaint in Case No. 17-CA-1902. The General
Counsel opposed this motion and urged that such disposition would not effectuate
the policies of the Act. In view of this opposition from the party designated as the
representative of the public in the administration of the Act, the aforesaid motion is
denied. N.L.R.B. v. Horace G. Prettyman and Arthur J. Wiltse, co-partners d/b/a
Ann Arbor Press, 117 F. 2d 786, 792 (C.A. 6); N.L.R.B. v. Hekman Furniture Com-
pany, 207 F. 2d 561, 562 (C.A. 6); N.L.R.B. v. Federal Engineering Company, Inc.,
153 F. 2d 233, 234 (C.A. 6); Wine, Liquor & Distillery Workers Union, Local 1, et
al. (Schenley Distillers Corporation), 78 NLRB 504, 505. Cf. National Licorice
Company v. N.L.R.B., 309 U.S. 350, 362.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, with its headquarters in New York City
and offices in the various States of the United States, is engaged in furnishing guard
services to manufacturing plants and defense installations, including a facility at
Mead, Nebraska, where it has had a series of contracts with General Dy-
namics/Astronautics (herein, and throughout the record, referred to as "Convair").
The Respondent annually furnishes guard services valued in excess of $50,000 to
customers located outside the State of New York and annually furnishes services
valued in excess of $50,000 to customers who, in turn, annually make interstate ship-
ments of goods valued in excess of $50,000. During the 12-month period preceding
the filing of the charge herein the Respondent furnished guard services valued in ex-
cess of $50,000 at missile bases and other national defense installations in the State
of Nebraska. Upon the foregoing facts, the Respondent concedes, and I find, that
the William J. Burns International Detective Agency, Inc., is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Guards Union of America, herein called Union, is a labor organiza-
tion within the meaning of the Act.
1 The original charge in this case was filed on September 14, 1961.
2 By order dated February 8, 1962, the Chief Trial Examiner designated the Trial
Examiner to hear Case No. 17-CA-1902. The hearing in the latter case was opened in
Omaha, Nebraska, on February 26, 1962.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1237
as. THE ALLEGED UNFAIR LABOR PRACTICES
A. The appropriate unit
Upon a petition for certification, filed by the Union in Case No. 17-RC-3494 (not
published in NLRB volumes), and after a hearing, the Board, on June 28, 1961,
issued a decision in which it directed an election in a unit consisting of all guards at
the Mead Offutt Air Force Base Missile Complex, excluding all other employees and
supervisors as defined in the Act, the unit which the Board found to be appropriate.
On July 20, 1961, in an election by secret ballot, conducted under the supervision of
the Regional Director for the Seventeenth Region, a majority of the employees
selected the Union as their representative. On July 28, 1961, no objections having
been filed to the election or to its conduct, the Regional Director certified the Union
as the bargaining representative of the employees in the unit heretofore mentioned.
At the hearing the Respondent contended that the Board's unit finding is not ap-
propriate, in that the Company no longer has a contract covering guard services at
the Mead Offutt Air Force Base Missile Complex. From the facts developed at the
hearing it appears that for some time prior to December 1, 1960, the Respondent had
a contract with Convair to provide guard service at various buildings at Offutt Air
Force Base, at three missile sites, then under construction, and at an administration
headquarters known as the Mead Facility. In a contract with Convair whereby Burns
agreed to provide guard service at these different points they were all referred to col-
lectively as the "Mead Offutt Air Force Base Missile Complex." As the construction
work at several of these different sites was completed each was turned over to the
Air Force, and Burns' responsibility for providing guard service was thereupon ter-
minated. For this reason, sometime in December 1960, Burns discontinued guard
service at Offutt, and when the three missile sites had been completed, it terminated its
services in April 1961 at those locations. However, approximately 21 Burns guards
continued to be stationed at one area that is referred to in the record by some wit-
nesses as the Mead Facility and by others as the Mead Complex.
Burns' contract with Convair, whereby it provided guard service at Mead Offutt
Air Force Base Missile Complex, expired on March 31, 1961. For a time, Burns
operated under an interim agreement with Convair. Eventually, these parties agreed
upon the terms of a new contract. The latter, although dated August 30, 1961,
covered the period from April 1, 1961, through March 31, 1963, and provided for
security guard and fire protection at Lincoln Air Force Base, Wahoo, Nebraska .3
Ernest H. Branam, branch manager for the Respondent, testified that since the ex-
piration of the original contract on March 31, 1961, it has continued to maintain the
21 guards at the Mead Facility under the succeeding interim agreement and the
Lincoln contract referred to above. From the record it is apparent that this latter
group of employees has remained a homogeneous unit . All voted in the election
held on June 28, 1961, pursuant to the Board Decision and Direction. Subsequent
to the certification of the Union, the latter bargained on their behalf at numerous
conferences held with the Respondent.
The Board decision in Case No. 17-RC-3494 found appropriate a unit consisting of
the Respondent's guards employed at the "Mead Offutt Air Force Base Missile Com-
plex." This unit designation is attacked by the Respondent on the ground that it
presently has employees only at the "Mead Facility." On the other hand, the
Respondent has never filed a motion with the Board to amend or clarify the unit deter-
mination made in Case No. 17-RC-3494. The Trial Examiner does not have the
authority to amend or modify such a Board decision. The latter represents the law
of the case until such time as the Board, upon motion of the parties, or sua sponte,
modifies or revises that unit determination. In view of the fact that the Respondent
has never sought such a modification in the representation case and, more particularly,
in view of the history of bargaining on behalf of the 21 guard employees at the Mead
Facility, it is my conclusion that the unit description set out by the Board in Case
No. 17-RC-3494, far from being archaic or meaningless, was fully understood by the
parties and was at no time a source of confusion. I, therefore, find, in accord with
that determination that all guards employed by the Respondent at the Mead Offutt
Air Force Base Missile Complex, excluding all other employees and supervisors as
defined in the Act, are a unit appropriate for collective bargaining within the meaning
of Section 9(b) of the Act .4
8 The Mead Facility is approximately 30 miles from Offutt Air Force Base and approxi-
mately 7 miles from Wahoo, Nebraska.
4 An employer 's obligation to bargain with the certified union is unaffected by the fact
that the unit has been redefined by the exclusion of a particular class of employees if
such exclusion does not substantially alter the certified unit. John Deere Killefer Com-
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The alleged refusal to bargain
The General Counsel alleges that the Respondent violated Section 8(a)(5) of
the Act in that it refused to furnish the Union with information and material to
substantiate the Respondent's position that it was financially unable to meet the
Union's demands. This contention is denied by the Respondent.
On July 24, 1961, Arthur Newman, regional director and a vice president of the
Guards Union, sent to the Respondent's headquarters in New York City, a proposed
contract and requested that negotiations start immediately. By letter dated July 31,
J. M. Geraty, industrial relations manager for the Respondent, acknowledged New-
man's letter and stated that he would arrange for a meeting shortly. On August 19,
Newman wrote Ernest Branam, regional manager for the Respondent's office in
Kansas City, to request that he set a time and place for starting negotiations. There-
after the parties agreed to meet in Omaha, Nebraska, on September 7.
On the latter date, the parties met for their first bargaining conference. The
Union was represented by Newman, Carl Hose, Albert McDaniel, Lawrence Bonow,
and Eugene Johnson. The Company was represented by C. E. Hoxie, division man-
ager, and Branam. The meeting lasted for several hours and the parties discussed
the provisions of the Union's proposed contract. According to Branam, many of
the proposed terms were agreeable to the Respondent and the Union was so in-
formed that day. The Union's proposed agreement provided for a pay rate of $1.75
an hour for a 40-hour week. Newman testified that in discussing this proposal
Branam told them that the Company was unable to pay any more money than the
current rate 5 because of its contract with Convair. According to Newman, when
he asked if the company representatives would show the Union a copy of the Burns'
contract with Convair "or book of expenses , and so forth," Branam stated that they
did not have to show this material to the Union.6 Carl Hose, another union dele-
gate at the bargaining conference, corroborated this testimony. Thus, according to
Hose, in the discussion on the Union's wage proposal Branam protested that the
Company had incurred many expenses during the past months for which it had not
yet been reimbursed. Hose testified that at this point Newman asked whether
Branam had any proof to support this statement in the form of books or the contract
between Convair and Burns, and that Branam replied, "You can't force us to show
you our books, we don't have to."
In his testimony as to this first conference, Branam stated at one point in his
testimony that there was no specific demand for books and records. At another
point, however, he testified that Newman demanded that the Company "throw open
your books." He further stated that Newman insisted the Union was entitled to this
information and "at one point he [Newman] indicated to us, `Well, we can get the
books, we can get your records...: He came back and told us, `We'll get them
one way or the other.' I said, `I kind of have my doubts about that, Art.' And he
said `I will get them."' In his report to Geraty, the Respondent's industrial rela-
tions manager, Branam wrote that, with respect to the Union's wage proposals, "We
did indicate as conditions now exist the agency could not meet the demands of the
Union and at the same time maintain our contract with your client."
On September 28 the parties met again. This time, the Union was represented
by Newman, Johnson, McDaniel, and Bonow, the Company by Branam and Geraty.
Also in attendance was Edward H. Ries, a commissioner for the Federal Mediation
and Conciliation Service. At this session the Union restated its demand for $1.75
per hour and a 40-hour week. According to Newman, the company representatives
pany, 86 NLRB 1073, 1074 Nor does mere decrease in size of a unit make inappropriate
for purposes of a complaint proceeding, a unit previously found appropriate by the Board
in a representation case. The Lock Nut Corporation of America, and/or The Boss Bolt
and Nut Company, 77 NLRB 600, 601. Nor does a change in employers, per se , operate
to destroy the effectiveness of a certification N L R B. v Albert Armato and Wire t
Sheet Metal Specialty Co, 199 F. 2d 800, 801 (C.A 7) ; Boyce Wallace and Louise M.
Wallace, t/a Investment Building Cafeteria, 120 NLRB 38, 43-44 Here there was no
substantial change in the employer's operations or processes (Electric Sprayit Company
and Moe Bridges Corporation, 67 NLRB 780, 783) and no substantial diminution in the
size of the unit or the employing industry N L R B. v. L under Shoe Corp , d/b/a
Bruce Shoe Co., 211 F. 2d 284, 2185, 287 (C.A 1). Cf. Mrs. Homer E. Ash and Bill H. B.
Williams, a Copartnership doing business as Ash Market and Gasoline, 130 NLRB 641,
642-643
5 At this time the guards were receiving $1 35 per hour. This was the rate they had
been receiving from a date sometime in April. Prior to April 1, 1961, they had been on
a 40-hour week at $1.60 per hour.
O The quotation is from Newman's testimony.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1239
stated that it would be impossible to make a concrete wage offer until the Union
agreed to a 48-hour week. Newman further testified that the Union again requested
a copy of the contract which Burns had with Convair and some evidence of the Com-
pany's expenses at Mead. Branam stated that no specific demand for books and
records was made at this meeting. On the other hand, he testified that there was
some discussion of the amount which the Company would have to receive over and
above the wages paid to the guards and that Newman stated that he realized Burns
would have to have 45 cents per hour per man in order to make a profit. In this
connection, Branam testified that Newman told them, "Prove to us you do not ex-
ceed that [the 45-cent overhead allowance ] and we can talk on that." According
to Branam , Newman also said, "I know you have to have 45 cents. Why don't you
show us everything and take the 45 cents. . Branam testified that at this time
he had nothing to show the union representatives that would "throw any light on
the subject I felt was reasonable."
On October 11, in a telephone conversation between Branam and Newman as to
the next convenient date for a meeting, the subject of company records was discussed
again . According to Newman, on this occasion when he asked Branam to produce
a copy of Burns' contract with Convair as well as other books and records, the
latter told him to put the request in writing. Branam's testimony was not in conflict
with that of Newman. In relevant part, he testified as follows:
Mr. Newman said something to the effect when are you going to produce the
things. I said , "What do you want." He said, "You know what I want." I
said, "I don't know what you want. That is what we have been discussing all
the time, if you want it, tell me, I don't know what you want. I have some
things I can get." He asked for a contract. I said, "I cannot give you a con-
tract because I simply do not have it."
On October 23 the parties met again , this time in the office of Commissioner Ries.
There was no change in the union demand for a $1.75 wage and a 40-hour week.
At this meeting the Company presented a proposed agreement, but Geraty and
Branam stated that the Union would have to agree to a 48-hour week before Burns
could make a concrete wage offer. Branam testified that the Union made no new
demand for company records. Newman, however, testified that he renewed his
request, again to no avail, that the Company furnish a copy of its contract with
Convair and also such records as would show its expenses.
The next meeting of the parties was held on November 8, again in the office of
Commissioner Ries. At the outset of this meeting Newman announced that the
Union had established a strike deadline of November 10. At this time he also re-
quested that the Company come forward with a wage offer and that it supply the
union representatives with the books and records that had been requested earlier.
During the course of the meeting, the Burns representatives offered a 3-cent an hour
raise to the guards. Branam told the union conferees that "with their contract that
they have with Convair they are not in a position to pay any more than the rate of
a dollar thirty-eight." 7
The following day, the parties renewed their negotiations. In addition to the con-
ferees present the day before, John Grogan, member of the industrial relations board
for the Air Force, was in attendance, as well as J. N. Freeman, director of industrial
relations for Convair. At a lengthy session held that day, the Company raised its
wage offer to $1.40 per hour. Newman renewed his request for a copy of the Com-
pany's contract with Convair. After an extended discussion of the question, Grogan,
in a separate meeting with the company representatives, urged them to present to
the Union some evidence of their rate under the contract .8 Branam then suggested
to Grogan that the Company could show the union representatives a copy of one
of their monthly invoices or bills which Burns submitted to Convair. Branam did
not have such data with him, but the Convair representative was able to secure a
copy of the bill which Burns had submitted for the month of August 1961. After
this was obtained from the files in the office of the Convair representative, the union
representatives were permitted to see only as much of the document as set forth the
hourly rate of reimbursement for which the Respondent was billing Convair. Also,
during the course of this conference, Branam told Newman that although he still
did not have a copy of the finalized contract between Burns and Convair he would
endeavor to secure such document from the Respondent's Los Angeles office.
Branam also assured Newman that he would ask that same office of the Respondent
to seek a release from the 48-hour a week requirement which the Convair headquar-
ters had imposed by its contract on Burns. Although Newman and his associates
7 The quotation is from Newman's testimony which was credible and undenled.
8 The foregoing finding is based on the testimony of Branam
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were accorded an opportunity to scan a portion of the August invoice referred to
above, they were not supplied a copy. Branam testified that before the close of this
conference Grogan told him that the union representatives were dissatisfied with the
manner in which they had been allowed to examine the document. According to
Branam, he then had a copy of the relevant portion of this invoice duplicated and
gave it to Grogan for submission to the union representatives. Whether the latter
ever, in fact, received this document does not appear in the record.
On November 16 the parties again met in the office of Commissioner Ries. At
this meeting Newman gave the company representatives a written statement which
read as follows:
We have, in the past, requested you show evidence that you have an inability
to pay our demands. We have continually requested that this information be
furnished us, and we have not been furnished with any information showing
the company's inability to pay. We are herewith demanding proof of the
company's inability to pay which would be the books and records of your
company showing income and expenses.
Early in the meeting Branam announced that he had secured a copy of the Burns'
contract with Convair. In so doing, he related the difficulty connected with obtaining
a copy because the final draft of the agreement had been, for some time, in what
he described as the "signature cycle." He further stated that he had received this
single copy only the night before the meeting. Newman testified that Branam
pointed out to him that section of the contract which set forth the basic hourly rate
that Convair agreed to pay Burns for guard service. Newman asked if he could have
a copy of the agreement , but Branam told him that he had no additional copies.
According to Newman, although Branam permitted him to look at the one section
of the document mentioned above, the company representative would not show the
contract to other members of the union committee and at all times kept it in his own
hand. McDaniel corroborated this testimony. This last testimony was contradicted
by Branam who stated at the hearing that the document was handed over to Newman
and that there was a point when it was in the hands of the latter and not in the
Company's possession. Whereas this last might have been true of a momentary peri-
od, it is my conclusion, from the testimony of all these witnesses that throughout
most of the time when Newman was engaged in his examination of the contract,
Branam did have it in his own hands, and that no effort was made to let the union
representatives examine it freely, provide them with a copy or permit them to make
a copy of its relevant portions. The meeting closed shortly afterward when New-
man asked if the Company had anything new to offer. Geraty stated that it could
only renew the offer of $1.40 per hour based on a 48-hour week. The union
representatives then terminated the meeting with the announcement that they were
going on strike.
The strike began that day and was in progress until about December 14. Several
meetings were held subsequent to the strike. On November 24, the parties met again
with Commissioner Ries and discussed the terms of the contract first proposed by
the Company on October 24. Some agreement was reached on certain paragraphs
but the meeting ended when Ries told the union committee that the company repre-
sentatives stated that they could not better their original wage offer because of the
Burns' contract with Convair. Another conference, arranged by Commissioner
Ries, was held on December 5. At the time of the reopened hearing in February
1962, the parties were scheduled to hold another meeting in March.
The General Counsel contends that the Respondent refused to bargain with the
Union in good faith by its refusal to furnish the Union with any records or docu-
mentation to support the position that it was financially unable to meet the wage
demands of the latter. The Respondent denies that there is any basis for the alle-
gation of bad faith.
Throughout the course of the numerous meetings which the Union and the Re-
spondent held, the only issues as to which there was any dispute were the wage rate
and the length of the workweek. The wage rate for the guards had been a subject
of dissatisfaction for many months. Prior to March 31, 1961, and during the
period that Burns' earlier contract was in effect, they received $1.60 per hour.
Shortly after April 1, however, their rate was cut to $1.35 per hour.9 About the
middle of April, Branam met with the guards at Mead and explained to them that
the Company had bid for a new contract with Convair, and that it had had to bid
so low that it was forced to cut their wages from $1.60 per hour to $1.35 and extend
the workweek from 5 days to 6. Branam testified that at the same time he told
O This was for guards in the company employ for more that 90 days. The beginners'
pay rate subsequent to April 1, 1961 , was $1 . 30 per hour.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1241
the men ,that there was a prospect of getting a 2-year contract from Convair. He
also testified that he further told them that although they would be paid $1.35 per
hour for the first 40 hours each week there would be an additional 8 hours at over-
time, so that the overall average rate for the entire week would approximate $1.46
per hour.
On the findings set forth above, it is my conclusion that at the first bargaining
session , held on September 7, the Company took the position that because of the
terms of its contract with Convair, Bums was unable to increase the wage rate
above that which the guards were then receiving. It is likewise clear that when the
union representatives asked that the Company substantiate this position with its
books and records, the Respondent declined to do so. In each succeeding con-
ference the Union renewed its request that Burns produce a copy of the contract
with Convair and such records as would support the Company's stand on the wage
rate. Nothing was ever shown to the union conferees until November 9, when
at the urging of the conciliator present, Branam permitted Newman to examine
one of the monthly bills which the Company had submitted to Convair and which
set forth the hourly rate of reimbursement that Burns was charging the latter. It
was not until the meeting on November 16, that the company representatives came
to a bargaining conference with a copy of the agreement with Convair.
Branam testified that a copy of the last-mentioned document was not available,
even to him, until the night of November 14, when he received a copy from his
superiors in Los Angeles. He further testified that until about that date there was
no finalized draft of the agreement available to anyone. This is difficult to under-
stand, more particularly in view of the fact that the copy which was received in
evidence at the hearing is dated August 30, 1961.10 Even apart from whether
Branam might have secured a draft of the agreement prior to November 16, had he
chosen to do so, it is clear that there was readily available other tangible evidence as
to the rate which the Company was charging Convair. Thus, the invoice which the
Burns' representatives showed Newman on November 9, was a bill for guard service
which the Company had submitted to Convair in August. Branam testified that it
was similar to the other bills which Burns had been submitting to the latter on a
monthly basis. Obviously, this latter type of record was available to Branam through-
out the course of the negotiations. Notwithstanding this fact, the company repre-
sentatives never offered to let the union conferees examine such a record until they
were faced with the threat of a strike on November 10.
The Respondent contends that, in any event, much of the material which the Union
desired was made available to it on November 3 during the course of a representa-
tion hearing in Case No. 17-RC-3663.11 At that time, and in response to a subpena
which the Union served on the Company, the latter produced various records. In-
cluded among these was one described as -a "letter of contract anticipating purchase
order" as well as certain other records. At the hearing in the instant case, Branam
conceded: that the last mentioned "letter" was in effect for only 90 days after April 1
and had already expired before July 28, 1961, when the Union was certified;
that none of the records produced at the representation hearing showed the hourly,
weekly, or monthly rate of reimbursement that Burns was receiving; and that none
of those documents disclosed the operating expenses which Burns incurred at the
Mead facility or anywhere else. From this it is apparent that none of the informa-
tion supplied in compliance with a subpena served in another case was of any value
to the Union in formulating a conclusion gas to the validity of the company position
at the bargaining sessions involved here.
On the facts found above, it is my conclusion that on and after September 7, 1961,
the Company refused to furnish the Union with information and material that would
substantiate Burns' position that it was financially unable to meet the Union's
demands. This was a violation of its obligation to bargain in good faith with the
majority representative of its employees and I so find. N.L.R.B. v. Truitt Mfg. Co.,
351 U.S. 149, 152154; N.L.R.B. v. Boston-Herald Traveler Corporation, 210 F.
2d 134, 136, 137 (C.A. 1); N.L.R.B. v. New Britain Machine Co., 210 F. 2d 61, 62
(C.A 2); N.L.R.B. v. Otis Elevator Co., 208 F. 2d 176, 177-179 (C.A. 2); N.L.R.B.
v. Whitin Machine Works, 217 F. 2d 593, 594 (C.A. 4), cert denied 349 US. 905;
N.L.R.B. v. Marion G. Denton and Valedia W. Denton, d/b/a Marden Mfg. Co.,
217 F. 2d 567, 570 (C.A. 5); Taylor Forge & Pipe Works v. N.L.R.B., 234 F. 2d
227, 231 (C.A. 7), cert. denied 352 U.S. 942; N.L.R.B. v. Stanislaus Implement and
Hardware Company, Ltd., 226 F. 2d 377, 381 (C.A. 9).
10 It was to be effective, however, from April 1, 1961.
11 This was another representation matter involving the same parties as are in the
instant case
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The strike; contentions of the parties and conclusions with respect thereto
On September 19, 1961, the Union held a meeting of its members in the unit here
involved. The bargaining committee for the local and the members discussed the
bargaining conference which had been held and the Company's position on the wage
issue. Thereafter a strike vote was taken and the members voted 17-1 to authorize
the leadership to call a strike in the event the Company refused to accede to their
demands. On November 16 the strike began. On December X14, Branam met with
the strikers and reemployed all but one of their number.12
The Board has found in innumerable cases that the refusal of an employer to
bargain in good faith with the certified representative of its employees frequently
leads to labor disputes which burden and obstruct the free flow of commerce. In
the opinion of the Trial Examiner the record herein demonstrates that the Re-
spondent's pattern of conduct gave rise to that very development here. Shortly after
the initial meeting with the company representatives the union members met to
decide upon their course of action. Throughout subsequent conferences with the
management the latter refused to supply the union conferees with records and data
that would substantiate the company position and which the Union insisted that
it have an opportunity to examine. I have already found that this conduct by the
Respondent was a refusal to bargain in good faith and a violation of the Act. In
view of the facts set forth above, it is my conclusion that the subsequent strike of the
employees arose out of the Company's refusal to supply the records that had been
requested and the Respondent's lack of a desire to engage in bona fide bargaining
with the majority representative. It is my conclusion on the record in this proceed-
ing that the strike which began on November 16, arose out of the Respondent's
refusal to comply with the Act, that the objective of the walkout was to compel the
Company to bargain in good faith and that it was, therefore, an unfair labor prac-
tice strike. N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131
(C.A. 1), cert. denied 346 U.S. 887.
The foregoing conclusion is unaffected by the fact that in mid-December the Re-
spondent reemployed all of the striking employees who sought reinstatement with
the exception of Albert McDaniel. The issues raised by the Respondent's refusal to
reemploy McDaniel are resolved in Case No.,17-CA-1902, the Intermediate Report
in which is pending. The General Counsel conceded at the reopened hearing in the
instant case that, apart from McDaniel, ,the Respondent has reemployed all the
strikers who desired reinstatement. Under these circumstances, I will not include
in the Recommended Order the conventional provision on reinstatement of unfair
labor practice strikers. Efco Manufacturing, Inc., 108 NLRB 245, 248-249, enfd.
227 F. 2d 675 (C.A. 1); City Packing Company and Trinity Packing Company, 98
NLRB 1261, 1262.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate, and
substantial relation 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 commerce.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative action
of the type conventionally ordered in such cases as provided in the Recommended
Order below, which I find necessary to remedy and to remove the effects of the un-
fair labor practices and to effectuate the policies of the Act.
Having found that the Respondent has engaged in unfair labor practices by refusing
to bargain in good faith with the Union as the exclusive representative of its em-
ployees in an appropriate unit, I will recommend that the Respondent, upon request,
bargain collectively with the Union.
CONCLUSIONS OF LAW
1. The Respondent is an employer and is engaged in commerce and the Union
is a labor organization, all within the meaning of the Act.
2. All guards employed by the Respondent at the Mead Offutt Air Force Base Mis-
sile Complex, excluding all other employees and supervisors as defined in the Act,
12The only striker not reinstated was Albert McDaniel.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1243
area unit appropriate for collective bargaining within the meaning of Section 9(b)
of the Act.
3. At all times since July 28, 1961, the Union has been the exclusive representative
of all employees in ,the aforesaid appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
4. By refusing to bargain in good faith with the Union on September 7, 1961, and
thereafter, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
5. The purpose of the strike called by the Union on about November 16, 1961,
was to compel the Respondent, by strike action, to bargain in good faith with the
certified majority representative.
6. The strike which began on the aforementioned date resulted from the Re-
spondent's refusal to bargain with the Union in good faith and for this reason was
an unfair labor practice strike.
7. The employees who participated in this strike were unfair labor practice strikers
and, as such, entitled to reinstatement upon their application to return unconditionally.
8. By said acts the Respondents has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section •10(c) of the Act, I hereby recommend that the Respondent, William J.
Burns International Detective Agency, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
'(a) Refusing to bargain in good faith with International Guards Union of
America as the exclusive representative of all guards employed by the Respondent
at the Mead Offutt Air Force Base Missile Complex, excluding all other employees
and supervisors as defined in the Act.
(b) In any other manner interfering with , restraining , or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request, bargain collectively with International Guards Union of Amer-
ica as the exclusive representative of all its employees in the aforesaid bargaining unit,
with respect to rates of pay, wages, hours of employment, or other terms or condi-
tions of employment.
(b) Upon request, furnish International Guards Union of America with such
statistical and other information as will substantiate the Respondent's position of
its economic inability to pay the requested wage increase and will enable the afore-
said Union to discharge its functions as the statutory representative of the employees
in the above-described appropriate unit.
(c) Post at its field office at the Mead Facility, copies of the notice attached hereto
marked "Appendix." Copies of said notice, to be furnished by the Regional Director
for the Seventeenth Region, shall, after being signed by the Respondent, be posted
by the 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 the Re-
spondent to insure that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Seventeenth Region, in writing, within
20 days from the receipt of this Intermediate Report and Recommended Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT engage in any acts in any manner interfering with the efforts
of International Guards Union of America to negotiate for or represent the
employees in the bargaining unit described below.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively ; upon request , with International Guards Union
of America , as the exclusive representative of all the employees in the bargaining
unit described below, with respect to rates of pay, wages, hours of employment,
or other conditions of employment , and, if an agreement is reached , embody
it in a signed contract . The bargaining unit is:
All guards employed by the Respondent at the Mead Offutt Air Force
Base Missile Complex, excluding all other employees and supervisors as
defined in the Act.
WE WILL, upon request , furnish International Guards Union of America, with
such statistical and other information as will substantiate our position as to our
ability to pay any requested wage increase and will enable the aforesaid Union
to discharge its functions as the statutory representative of the employees in the
above-described unit.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above-named Union , or any other labor
organization , to bargain collectively through representatives of their own
choosing , to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection , or to refrain from any or all such
activities.
THE WILLIAM I. BURNS INTERNATIONAL
DETECTIVE AGENCY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone Number
Baltimore 1-7000, Extension 73.1, if they have any questions concerning this notice
or compliance with its provisions.
S. H. Kress & Co. and Teamsters , Chauffeurs, Warehousemen &
Helpers, Local 439, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America. Case No.
dO-CA-2104. July 11, 1962
DECISION AND ORDER
Upon charges duly filed by Teamsters, Chauffeurs, Warehousemen
& Helpers, Local 439, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, herein called Local
439, the General Counsel of the National Labor Relations Board, by
the Regional Director for the Twentieth Region, issued a complaint
dated October 26, 1961,1 against S. H. Kress & Co., herein called the
Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section
8(a) (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 upon the Respond-
ent and the Charging Party.
1 Unless otherwise specified , all dates herein refer to 1961.
137 NLRB No. 126.