Worldwide Detective Bureau

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 888 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Chiotis d/b/a Worldwide Detective Bureau and
Allied International Union of Security Guards and
Special Police. Case 2-CA- 15234
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On July 11, 1979, Administrative Law Judge Peter
E. Donnelly issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, John Chiotis d/b/a
Worldwide Detective Bureau, New York, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge herein was filed on November 3, 1977, by Allied
International Union of Security Guards and Special Police,
herein called Union or Charging Party. A complaint
thereon was issued on December 28, 1977, alleging that
John Chiotis d/b/a Worldwide Detective Bureau (herein
called Employer or Respondent), violated Section 8(a)(5)
and (I) of the Act, by failing and refusing to bargain with
Respondent for a new collective-bargaining agreement. An
answer thereto was timely filed by Respondent. Pursuant to
notice a hearing was held before the Administrative Law
Judge at New York, New York, on January 10 and II,
1979. Briefs have been timely filed by General Counsel and
Respondent and have been duly considered.
FINDINGS OF FACT
I. EMPLOYER'S BUSINESS
John Chiotis is an individual proprietor doing business
under the trade name and style of Worldwide Detective
Bureau. Employer maintains its principal office and place
of business in New York, New York, and is at all times
material herein engaged in providing security guards and
related services. During the calendar year ending December
31, 1976, Respondent in the course and conduct of its op-
erations furnished services valued in excess of $50,000 in
States other than the State of New York. The jurisdictional
allegations are not denied in Respondent's answer and
therefore are deemed admitted.' Based on these facts, I con-
clude that the Employer is an employer as defined in Sec-
tion 2(6) and (7) of the Act.
I. THE LABOR ORGANIZATION INVOLVED
The record discloses that the Union represents, under
contract as collective-bargaining representative, the em-
ployees of several employers and clearly deals with employ-
ers concerning grievances, labor disputes, wages, rates of
pay, hours of employment and conditions of work. Accord-
ingly, I conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union and Respondent were parties to a collective-
bargaining agreement which expired by its terms on April
12, 1977.2 Prior thereto, on January 14, Daniel Cunning-
ham, president of the Union, wrote to John Chiotis, owner
of Respondent, confirming arrangements for a contract ne-
gotiating session on January 24.
On January 24, a meeting took place at a Manhattan
restaurant.' At this meeting, the parties discussed several
contract provisions with a view towards negotiating a new
contract. On February 14, Cunningham wrote to Chiotis
outlining certain contract provisions dealing with holidays,
wages, paid sick time, and vacations, as well as health and
life insurance benefits. In this letter, Cunningham requested
Chiotis to call his office to schedule a meeting to conclude
the negotiations. Having received no response from Chiotis,
Cunningham again, by letter dated February 21, requested
Chiotis to call to arrange a meeting date to conclude nego-
I Rules and Regulations of the National Labor Relations Board, Sec.
102.20.
2 All dates refer to 1977, unless otherwise indicated.
3Contrary to Cunningham, both Chiotis and Patrick Sottile, Executive
Director of the Security Industry Association, attending as a representative
of Respondent, testified that the meting took place on February 28. How-
ever, I credit Cunningham's testimony in this regard in view of the Union
letters of January 14 and February 14, both citing the date as January 24,
and the failure of Chiotis to recall any date for the meeting in an affidavit
submitted on December 2. 1977.
245 NLRB No. 113
888
WORLDWIDE DETECTIVE BUREAU
tiations. After the letter of February 14, Cunningham at-
tempted on an average of two or three times a week to
contact Chiotis to set up a negotiating session. At these
times, some 12 times in all, he spoke to a Mrs. Russell. the
Respondent's office manager, and was told that his mes-
sages were being given to Chiotis and that it was not her
problem if Chiotis did not call back. Again on March 7
Cunningham wrote to Chiotis as follows.
We have made numerous attempts to arrange an ap-
pointment to conclude negotiations on the collective-
bargaining agreement.
Since we had no reply from you to this date, we
must now insist that you contact our office to arrange a
mutual convenient date and time for negotiations or
we will be forced to take legal action.
It is undisputed that no bargaining sessions on a new con-
tract took place thereafter at anytime.4
On April 12, the contract expired by its terms. According
to Chiotis, the contract automatically renewed itself for one
year.
On November 1, Cunningham again wrote to Chiotis re-
citing Chiotis' failure to respond to prior bargaining re-
quests and advising him that an unfair labor practice
charge was filed on that date. By letter of February 2, 1978,
Chiotis notified the Union of his intention to terminate the
contract on its expiration date, and by letter dated Febru-
ary 9, 1978, Cunningham reminded Chiotis that the Union
remained the collective-bargaining representative of the
employees and requested confirmation of a mutually conve-
nient date to negotiate.
On March 2, 1978, Chiotis wrote to the Union that Re-
spondent was ready to comply with its legal bargaining ob-
ligations and requested the Union "to write setting forth
your contract proposals and several alternative dates and
times for meetings at the office of my attorney, Mr. Peter J.
Curley, 170 Broadway, New York, New York 10038."
On March 21, 1978, Cunningham wrote to Curley to ar-
range a negotiating date during the week of March 27,
1978, and Curley replied by letter of March 24, 1978, say-
ing, "Your attention is directed to my above captioned cli-
ents letter of March 2, 1978, in which you were requested to
submit written contract proposals. In view of the fact that
the proposals have not been received any meeting prior to
our receipt of same would be of no avail."
On March 27, 1978, Cunningham wrote to Curley enclos-
ing the Union's contract proposals and requesting counter-
proposals in writing within 10 days.'
' Chiotis testified that about a week after the first meeting, he called Cun-
ningham to tell him that the Union's proposals were too high and "left word
with a lady in his office saying that I did not agree." Chiotis also admits
having been advised of Cunningham's attempts to contact him, but testified
that Cunningham was unavailable when he returned those calls.
5 Despite this exchange of correspondence, ostensibly with a view toward
negotiations on a new contract, Chiotis testified that he stop negotiating for
a new contract with the Unionjust before his February 2, 1978, termination
letter. Chiotis testified "I sent this letter because, after speaking to several
men, and many of the men who were all dissatisfied, plus the not coming to
terms with Mr. Cunningham because he gave me the increases which were a
little above what should have been, then I decided that I would terminate
and see what else transpires after that."
With respect to Respondent's contention that it had a
good-faith doubt that the Union represented a majorit of
its guard employees. Chiotis testified that in his contacts
with employees, they expressed to him their dissatisfaction
with certain deficiencies attributable to the Union. These
included the Union's failure to furnish health insurance or
welfare and membership cards. Chiotis testified that some 4
employees in the unit of about 25 quit because of dissatis-
faction. According to Chiotis. most of his complaints were
voiced in 1976 with some in 1975 and 1977 as well.
With respect to the matter of the Union's affiliation with
a nonguard union, it appears that in January or February
1977, Cunningham and Herman Jaffe. secretary of the
Union. were involved in the formation of a labor organiza-
tion called the Association of Public and Private Labor Em-
ployees (APPLE). At that time, Cunningham was the pres-
ident of APPLE, and Jaffe was a trustee. Both labor
organizations occupied offices in the same building. About
May 1977, upon the advice of counsel, both Cunningham
and Jaffe withdrew from any further participation in the
affairs of APPLE. While APPLE did admit to membership
employees other than guard employees. Cunningham testi-
fied that to his knowledge APPLE's organizing efforts were
fruitless and never represented any employees at all.
B. Analysis and Recommendation
Clearly, the record in this case discloses that Respondent,
since January 1977, has engaged in a course of conduct
designed to undermine the bargaining process, despite re-
peated efforts by the Union to involve Respondent in con-
tract discussions. Beginning in January 1977, Respondent
rejected the Union's written and verbal bargaining requests,
and, in essence, took a position that could only be described
as categorically opposed to, and in derogation of. the collec-
tive-bargaining principle. Thereafter, despite the Union's
continuing demands to negotiate a new contract. Respon-
dent assumed the posture that on April 12. 1977, the con-
tract, by its terms, extended itself for another year. In my
opinion, the contract never was extended properly, and Re-
spondent, by treating it as extended, was in derogation of
its obligation to bargain with the Union. Thus, it is appar-
ent that since January 1977, and continuing to date, Re-
spondent has had a bargaining obligation to the Union and
has failed to meet that obligation. Thus it follows that Re-
spondent was not privileged on February 2, 1978, to termi-
nate its bargaining relationship with the Union. However,
Respondent contends that it has available to it several legal
defenses which insulate its conduct from any violation of
Section 8(a)(5) of the Act.
First, Respondent contends that it has a good-faith doubt
that the Union represented a majority of Respondent's em-
ployees and was therefore privileged to decline to bargain
with the Union. This position obviously conflicts with Re-
spondent's contention that the contract was extended to
April 12, 1978, because it was clearly extending contract
recognition to the Union during that period of time. But
apart from that fact, the evidence adduced b Respondent
to show its good-faith doubt is unconvincing. Nowhere does
there appear any truly objective considerations upon which
to base such a belief. The evidence produced in this regard
889
DECISIONS OF NATIONAL ABOR RELATIONS BOARD
was general, undocumented, and uncorroborated. Essen-
tially, they were self-serving declarations totally insufficient
to rebut the presumption of the majority status. Cornell of
California, Inc., 222 NLRB 303 (1976).
Second, Respondent takes the position that in view of the
fact that it originally extended voluntary recognition to the
Union, without a Board certification, the General Counsel
has the burden of establishing that the contract unit herein
is appropriate and that since this was not done, no bargain-
ing order can be issued. The evidence shows that Respon-
dent under a series of contracts, the last expiring by its
terms on April 12, 1977, has recognized the Union as the
collective-bargaining representative of substantially the
same unit of guard employees since 1971. The propriety of
the overall guard unit has never been contested, and it was
not contested at this hearing. In these circumstances. I find
that the overall guard unit described in the complaint is the
appropriate unit for the purposes of collective bargaining.
Respondent further defends its refusal to bargain on the
grounds that the Union is affiliated with another union
which admits to membership employees other than guards.6
As noted above, at the inception of APPLE, Cunningham
and Jaffe were chief officials in both the Union and AP-
PLE, and while APPLE did admit to membership employ-
ees other than guards, it does not appear that it ever repre-
sented any employees. Thus, it would appear that from
January 1977 until April or May 1977, when Cunningham
and Jaffe left APPLE, there was a substantial affiliation.
Respondent contends that such an affiliation negates its
duty to bargain with the Union. I do not agree.
Section 9(b)(3) of the Act provides, inter alia, that the
Board shall not "decide that any unit is appropriate for
such purposes if it includes, together with other employees.
any individual employed as a guard to enforce against em-
ployees and other persons rules to protect property of the
employer or to protect the safety of persons on the Employ-
er's premises; but no labor organization shall be certified as
the representative of employees in a bargaining unit of
guards if such organization admits to membership, or is
affiliated directly or indirectly with an organization which
admits to membership employees other than guards." How-
ever, these considerations do not apply with respect to
8(a)(5) situations so as to privilege an employer to refuse to
bargain in all circumstances where its employees are repre-
sented by a union which admits to membership nonguard
employees. In the instant case, the guard unit had been
extended recognition by Respondent in 1971. and the
Union has represented the guard unit under contract begin-
ning in 1971. The Union does not and never has repre-
sented any other of the employees of Respondent. The brief
affiliation between the Union and APPLE in 1977 did not
privilege Respondent to refuse to bargain with the Union,
especially when no employees of Respondent were in-
volved. These circumstances bear no resemblance to the
danger of "divided loyalties" with which Congress appears
to have been concerned when it enacted Section 9(b)(3)2
' Cunously, although this issue was litigated. it was not treated in Respon-
dent's brieL
The Board has previously passed on the propnely of a similar affiliation
between Federation of Special Police and Law Enfobrcement Officers (Feder-
ation), a labor organization in which both Cunningham and Jaffe hold office
particularly since the Union not only did not represent any
other of Respondent's employees. but never represented
any employees at all, at least during the period of affili-
ation. Amoco Oil (Cotnparn, 221 NRB 1104 11975).
Respondent also contends that the complaint should be
dismissed under the provisions of Section 10(b) of the Act,
which provides that no complaint shall issue based upon
an, unfair labor practice occurring more that 6 months
prior to the filing of the charge. Respondent's position is
that it has had a bona fide good-faith doubt of the Union's
niajority status since the 10(b) date (May 3. 1977) dating
hack before the expiration date of the contract on April 12.
1977. This being the case. Respondent argues that nothing
it did thereafter could be construed as an undermining of
the Union's majority status. Therefore, any allegations of
the refusal to bargain thereafter are misplaced because Re-
spondent was not at any' time during the 10(b) period
obliged to bargain with the Union. This position is unten-
able. Apart from the fact that this argument is inconsistent
with its contention that the contract was automatically re-
newed, thereby extending recognition for an additional
year, I have concluded that Respondent's "good-faith
doubt" defense is Without merit. In these circumstances I
conclude that Respondent's 10(b) argument is also without
merit.
In summary, it is my conclusion that the Union has at all
times relevant herein represented a majority of Respon-
dent's guards in a unit appropriate for collective-bargaining
and that Respondent has failed to meet its obligation to
bargain with the Union. Of course any misconduct outside
the 10(b) period, while regrettable, is not actionable. The
beginning of Respondent's misconduct in this case occurred
prior to the lO(b) date, starting after the single bargaining
session in January of 1977. However. the misconduct begun
at that time continued into the 10(b) period. The Union
communicated its desire to bargain with Respondent by
telephone and letter, and Respondent avoided these at-
tempts by the Union to bring it to the bargaining table to
negotiate a new contract. The justifications offered by Re-
spondent for failing to respond to these repeated union re-
quests are unconvincing.' Indeed. once having taken the
position. as Respondent does. that the Union's loss of ma-
jority status prejudiced Respondent's refusal to recognize
the Union, why should Respondent have bargained with
the Union for a new contract? In addition. I conclude that
unilaterally renewing the existing contract while the Union
sought bargaining on a new contract was an independent
refusal to bargain on the part of Respondent. Finally. I
conclude that Respondent also violated its bargaining duty
to the Union by withdrawing recognition and terminating
its bargaining relationship with the Union as of February 2.
1978. since the Union remains the legal collective-bargain-
ing representative of Respondent's guard employees.
as president and vice president. respectively. and PPLE: the Board con-
cluding that the affiliation was nsufficient I. dsquality Fedcraiion. under
Sectionl 9(hH31. rom participation n an electilll n 't'( I',ro, (;Guard Ser
v,t, D ivision ,, BlA, r P,or', ,re Sicrit, I,l,, 236 N RB 1196 1978).
(Chiolis' telephone call to a I niln secretary ca.ing woird Ihal he did not
agree io the t lln
's props.ll. as not an n adequate response
890
WORLDWIDE DETECTIVE BUREAU
IV. THE EFFECT OF THF UNFAIR ABOR PRACTICES PON
COMMER( '
The activities of Respondent. set forth in section III.
above, have a close, intimate, and substantial relationship
to trade, traffic. and commerce among the several States
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(5) and (I)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It has been found that Respondent has unlawfully with-
drawn recognition from the Union and has failed and re-
fused, despite a valid demand. to bargain collectively with
the Union as the exclusive representative of the employees
in an appropriate unit. It will therefore be recommended
that Respondent be required to recognize. and upon re-
quest, bargain with the Union as the exclusive representa-
tive of the employees in an appropriate bargaining unit.
Upon the basis of the foregoing findings of fact. and
upon the entire record in this case, I hereby make the fol-
lowing:
CONCI.USIONS OF LAW
I. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material herein, the following unit has
been an appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time guards employed by
Respondent within the United States and its posses-
sions, excluding executives, professional, confidential.
clerical, and nonguards employees, and all supervisors
as defined in Section 2(11 ) of the Act.
4. At all times material herein, the Union has been and
now is the exclusive representative of the employees in the
above described appropriate bargaining unit, for the pur-
poses of collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing to meet and bargain to negotiate a new
contract, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. The contract, by unilaterally being treated as having
been renewed, expired on April 12, 1977. while the Union
was attempting to negotiate a new contract; Respondent
therefore has engaged in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
7. By terminating, on or about February 2. 1978. its col-
lective-bargaining relationship with the Union, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
8. By virtue of its conduct. Respondent has interfered
with, restrained. and coerced employees in the exercise of
rights guaranteed under Section 7 of' the Act. thereby en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)( I) of the Act.
The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact. conclu-
sions of law, and upon the entire record in this case. and
pursuant to Section Ic) of the Act. I hereb' issue the
following recommended:
ORDER'
The Respondent. John Chiotis, d/b/a Worldwide Detec-
tive Bureau. New York. New York, its officers, agents. suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Failing and refusing to recognize and bargain collec-
tively with the Union as the exclusive representative of all
the employees in the appropriate bargaining unit, as herein
above described, with regard to rates of pay, wages. hours
of employment. and other terms and conditions of employ-
ment.
(b) In any like or related manner. interfering with, re-
straining, or coercing their employees in the exercise of
their rights to self-organization, to form labor organiza-
tions, to join or assist the Union, or any other labor organi-
zation. to bargain collectively through representatives of
their own choosing, or to engage in other protected con-
certed activity within the purpose of mutual aid or protec-
tion, or to refrain from any or all such activities as guaran-
teed by Section 7 of the Act, as amended.
2. Take the following affirmative action which is found
will effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with Allied International Union of Securit' Guards and
Special Police, as the exclusive representative of all employ-
ees in the appropriate unit described above, with regard to
rates of pay. hours of employment, and other terms and
conditions of employment. and. if an understanding is
reached, embody such an understanding in a signed agree-
ment.
(b) Post. at its principal place of business in New York,
New York. copies of the attached notice marked "Appen-
dix."" Copies of this notice on forms provided b the Re-
gional Director for Region 2, after being dul1 signed by a
representative of Respondent. shall be posted by it immedi-
ately upon receipt thereof. and be maintained b Respon-
dent for 60 consecutive days thereafter in conspicuous
places. including all places where notices to emplo)ees cus-
tormarily are posted. Reasonable steps shall be taken bh
* In he event no exceptions are filed, as provided h Sec 10246 of the
Rules and Regulations of the National Lab)r Relalions Board, the findings.
conclusions, and recommended Order herein shall. as prolided in Sec 102.48
oft the Rules and Regulations. he adopted h) the Board and hecome Its
findings, conclusions, and Order, and all objections thereto shall he deemed
waived or all purposes
t0 In the evenl that thls Order is enforced h a iJdgncritl o .1 t:niled
Sltaes (ourt ,ot Appeals. the , orJds i the ntice refding "IPosted hs Order ot
the Naltonal abor Relalions Board'" hall read l'osted Pur..lint to i Judg-
ment of he I'niled State, ('ourt oft ppeal I ntorcing n Order .,t the Na-
tional I.;lhor Relations Boardl"
891
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 2 in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
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 recognize and upon request
bargain with Allied International Union of Security
Guards and Special Police as the exclusive representa-
tive of our employees in the appropriate unit described
below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form labor or-
ganizations, to join or assist Allied International Union
of Security Guards and Special Police or any other
labor organization, to bargain collectively with repre-
sentatives of their own choosing, or to engage in other
protected concerted activity for the purposes of mutual
aid or protection, or to refrain from any and all such
activities, as guaranteed by Section 7 of the Act.
WE WILI., upon request, bargain collectively with
Allied International Union of Security Guards and
Special Police, as the exclusive representative of all our
employees in the appropriate unit described below.
with regard to rates of pay, hours of employment, and
other terms and conditions of employment, and if an
understanding is reached, embody such understanding
in a signed agreement. The appropriate unit is:
All full-time and regular part-time guards employed
by Respondent within the United States and its pos-
sessions, excluding executives. professional, confi-
dential, clerical and nonguards employees, and all
supervisors as defined in Section 2(11) of the Act.
JOHN CHIOTIS D/B/A WORLDWIDE DETECTIIVE
BUREAU
892