United International Investigative Services

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 254 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 254
United International Investigative Services, Inc. and
National Union of Security Officers and Guards.
Case 21–CA–35019
September 30, 2002
ORDER DENYING MOTION
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On May 29, 2002, the General Counsel issued a com-
plaint alleging that the Respondent violated Section
8(a)(5) and (1) by unilaterally changing employee terms
and conditions of employment and by failing to give the
Union notice and an opportunity to bargain over the ef-
fects of its decision to cease operations. The Respon-
dent, acting pro se, timely filed a letter, dated June 17,
2002, in response to the complaint allegations.
On July 1, 2002, the General Counsel filed a Motion
for Summary Judgment with the Board. On July 2, 2002,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. Having duly considered the mat-
ter, the Board denies the General Counsel’s motion on
the ground that it raises genuine issues of material fact,
which would better be resolved after a hearing before an
administrative law judge.
The General Counsel contends that, under Section
102.20 of the Board’s Rules and Regulations, the Re-
spondent’s June 17 letter does not constitute an accept-
able answer because it does not clearly admit, deny, or
explain each of the complaint allegations. However, the
Board “typically has shown some leniency toward a pro
se litigant’s efforts to comply with our procedural rules.”
Mid-Wilshire Health Care Center, 331 NLRB 1032
(2000), and cases cited therein. We have therefore
evaluated the Respondent’s June 17 letter under the more
lenient standard applicable to pro se respondents. Under
this standard, we find that the letter is an acceptable an-
swer because it specifically addresses the substance of
the complaint allegations. Further, as stated, we find that
the letter raises genuine issues of material fact. There-
fore, the General Counsel’s motion must be denied.1

1 The Respondent has not moved to dismiss the complaint based on
the legal theories raised in the dissent. Therefore, Member Liebman
finds no need to address those issues.
In addition, with respect to the alleged failure to pay accrued wages
and benefits, Member Liebman observes that the Board recently re-
jected the dissent’s position in a similar case. See Scapino Steel Erec-
tors, 337 NLRB 992, 993 fn. 3 (2002); see also Oak Cliff-Golman
Baking Co., 207 NLRB 1063, 1064 (1973), enfd. 505 F.2d 1302 (5th
Cir. 1074), cert. denied 423 U.S. 826 (1975) (rejecting employer’s
argument that decision not to adhere to contractual wage rate was
breach of contract, but not unfair labor practice). With respect to the
alleged failure to bargain over the effects of the decision to cease opera-
tions, Member Liebman rejects the dissent’s claim that the complaint is
ORDER
It is ordered that the General Counsel’s motion is de-
nied and the proceeding is remanded to the Regional
Director for Region 21 for further appropriate action.

MEMBER BARTLETT, concurring.
I agree that the Respondent’s pro se letter raises genu-
ine issues of material fact that warrant denial of the Gen-
eral Counsel’s Motion for Summary Judgment and re-
mand of this case. I further note, as does Member Lieb-
man (see fn. 1, supra), that the Respondent has not
moved to dismiss the complaint based on the legal issues
raised by Member Cowen in his dissent. I, therefore, do
not address those issues. But see my concurring opinion
in Baptist Hospital of East Tennessee, 338 NLRB 249
(2002), where I stated that the Board should sua sponte
defer processing 8(a)(5) contract-breach allegations until
after the parties have exhausted the possibility of resolv-
ing their contractual dispute through their own agreed-
upon dispute resolution procedures, i.e., contractual
grievance and arbitration systems, or, in the absence of
applicable procedures for arbitrable resolution, Section
301 of the Act.

MEMBER COWEN, dissenting.
I agree with my colleagues that the Respondent’s June
17, 2002 letter constitutes an acceptable answer to the
complaint under the standards applied by the Board to
pro se respondents. I also agree that the General Coun-
sel’s Motion for Summary Judgment must be denied.

fatally defective. In her view, the complaint is sufficiently specific to
apprise the Respondent of the violation with which it is charged.
Therefore, the complaint satisfies the requirements of Sec. 102.15 of
the Board’s Rules, which provides that the “complaint shall contain . . .
a clear and concise description of the acts which are claimed to consti-
tute unfair labor practices, including, where known, the approximate
dates and places of such acts and the names of respondent’s agents or
other representatives by whom committed.” As the Second Circuit
stated in Douds v. Longshoremen, 241 F.2d 278, 283–284 (2d Cir.
1957), “The complaint, much like a pleading in a proceeding before a
court, is designed to notify the adverse party of the claims that are to be
adjudicated so that he may prepare his case, and to set a standard of
relevance which shall govern the proceedings at the hearing.” In any
event, Member Liebman observes that an employer’s decision to cease
operations and lay off its employees “obviously [has] material, substan-
tial, and significant effects on terms and conditions of employment.”
See the judge’s discussion of Board precedent in Mitchellace, Inc., 321
NLRB 191, 193 (1996). Therefore, in Member Liebman’s view, it is
elevating form over substance to argue, as the dissent does, that the
complaint is deficient merely because it does not separately allege the
impact of the Respondent’s unilateral conduct on employee terms and
conditions of employment.
338 NLRB No. 28
UNITED INTERNATIONAL INVESTIGATIVE SERVICES 255
The majority would remand this case for a hearing. I
would not. For the reasons that follow, I would find that
the complaint fails to allege any cognizable violation of
the Act. Accordingly, I would resolve this case by dis-
missing the complaint.
The complaint alleges, in substance, that the Respon-
dent violated Section 8(a)(5) by failing to pay accrued
wages, vacation pay, and overtime to its unit employees.
The complaint also alleges that the Respondent violated
Section 8(a)(5) by laying off the unit when it ceased pro-
viding guard services under a contract with the California
Highway Patrol, without prior notice to the Union or an
opportunity to bargain about the effects of the cessation
of operations. The Respondent’s answer concedes that it
failed to pay some accrued wages and benefits, but as-
serts, contrary to the allegations of the complaint, that the
Respondent provided the Union with adequate notice of
its actions.
With regard to the failure to pay accrued wages and
benefits, the only issue in this case is what remedial ac-
tion is warranted for the Respondent’s alleged refusal to
honor the terms of the parties’ collective-bargaining
agreement. Thus, the issue in this case is merely a ques-
tion of contract enforcement. In my view, the Board
should not be involved in such questions, and the parties
should be left to resolve their dispute through traditional
contract enforcement mechanisms. See United Telephone
Co. of the West, 112 NLRB 779, 782 (1955) (“The Board
is not the proper forum for parties seeking to remedy an
alleged breach of contract or to obtain specific enforce-
ment of its terms.”).
I do not suggest that the Board never has a role in re-
viewing the validity, scope, or enforceability of a collec-
tive-bargaining agreement. If a contract dispute presents
an issue of statutory interpretation or an issue within the
Board’s primary jurisdiction, the Board has a duty to
express itself on those issues. However, where no such
issue is present, and the question is merely one of con-
tract interpretation or enforcement, the Board should not
insert itself into such disputes.
Congress did not intend for the Board to become em-
broiled in contractual disputes of the sort before us today.
As the framers of the Taft-Hartley Act stated, and the
Board has long recognized,1 “[o]nce parties have made a
collective-bargaining contract, the enforcement of that
contract should be left to the usual process of the law and
not to the National Labor Relations Board.”2 Simply put,
mere breaches of contract are not unfair labor practices.

1 See, e.g., Packinghouse Workers, 89 NLRB 310, 317 fn. 10 (1950);
United Telephone Co. of the West, 112 NLRB 779, 782 (1955).
2 H.R. Cong. Rep. No. 510, 80th Congress, 1st Sess. 42; I Leg. Hist.
546 (LMRA 1947). See also NLRB v. Strong, 393 U.S. 357, 360
The allegation that the Respondent laid off unit em-
ployees without first providing the Union with notice and
an opportunity to engage in effects bargaining also fails,
as a matter of law, to allege an unfair labor practice. Al-
though the complaint alleges that the layoff was a man-
datory subject of bargaining, it fails to allege that the
layoff constituted a unilateral change in terms and condi-
tions of employment.3 To establish a prima facie case in
the situation before us, the General Counsel must show
that

(1) the Union was the bargaining representative of the
laid-off employees at the time of their layoff, (2) the
layoff was a mandatory subject of bargaining, (3) the
Company did not give notice to, nor did it bargain with,
the Union about the decision to have a layoff or its im-
pact on unit employees, and (4) the layoff constituted a
material, substantial, and significant change in the
terms and conditions of employment of unit employees.

Taino Paper Co., 290 NLRB 975, 978 (1988). The Board
has consistently reaffirmed that it is not enough that an al-
leged unilateral change involves a mandatory subject of
bargaining; it also must be a material, substantial, and sig-
nificant change in terms and conditions of employment to
trigger the employer’s statutory bargaining obligation. Id. at
977–978 (citing United Technologies Corp., 278 NLRB 306
(1986)); Golden Stevedoring Co., 335 NLRB 410, 415
(2001) (quoting Millard Processing Services, 310 NLRB
421, 425 (1993)); Peerless Food Products, 236 NLRB 161
(1978). Although the complaint in this case alleges the first
three elements of a prima facie case, the General Counsel
has not alleged that the layoff constituted a change in unit
employees’ terms and conditions of employment, let alone a
material change. Thus, an element of the prima facie case is

(1969): “[T]he Board has no plenary authority to administer and en-
force collective bargaining contracts. Those agreements are normally
enforced as agreed upon by the parties, usually through grievance and
arbitration procedures, and ultimately by the courts.”
I recognize that the Board “may proscribe conduct which is also a
breach of contract remediable as such by arbitration and in the courts.”
Id. at 359. See also NLRB v. C&C Plywood Corp., 385 U.S. 421, 428
(1967). I simply do not view the instant case as involving the types of
breaches that require the Board to exercise its jurisdiction over unfair
labor practices instead of requiring the parties to grieve/arbitrate the
matter or litigate it in court. See, e.g., Sec. 301 of the LMRA.
3 Cf. Kal-Die Casting Corp., 221 NLRB 1068 (1975) (routine pro-
duction scheduling and adjustments relating to diminishing available
hours of work without bargaining with the union does not violate
8(a)(5) in the absence of evidence that this activity varied from the
employer’s past practice); KDEN Broadcasting Co., 225 NLRB 25, 35
(1976) (failure to bargain over scheduling changes not violative of Sec.
8(a)(5) in absence of evidence that changes inconsistent with em-
ployer’s past practice of making scheduling changes).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 256
missing from the complaint allegation, and the Board cannot
find a violation of Section 8(a)(5).4

4 The General Counsel well knew the importance of alleging change
as an element of a violation in this proceeding. To that end, he alleged
the failure to pay accrued wages, vacation pay, and accrued overtime
pay was a change in the employees’ terms and conditions of employ-
ment. The complaint included no such allegation regarding the layoff.
And for the sake of clarity, I note that Mitchellace, Inc., 321 NLRB
191 (1996), cited by Member Liebman at fn. 1, did not involve, and has
For the foregoing reasons, the General Counsel’s mo-
tion for summary judgment should be denied and the
complaint should be dismissed.

no discussion regarding, an employer’s decision to cease operations and
lay off employees.