The Wackenhut Corp.

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Wackenhut Corporation and International Union, United - Plant Guard Workers, of America and its affiliated Local No. 110. Case 9-CA-6321 November 23, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge and first amended charge filed on June 14, 1971, and September 29, 1971, respectively, by International Union, United Plant Guard Workers of America and its affiliated Local No. 110, herein called the Union, and duly served on The Wackenhut Corporation, herein called the Respondent, the Acting General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 9, issued a complaint against the Respondent on June 29, 1971, and on October 5, 1971, the General Counsel and Regional Director issued an order amending complaint, wherein the caption referring to "International Union, United Plant Guard Workers of America (UPGWA)" as charging party therein was changed to read "International Union, United Plant Guard Workers of America and its affiliated Local No. 110," 1 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 or about December 24, 1970, following a Board election in consolidated Cases 9-RC-8373 and 9-RC-8397, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commencing on or about May 19, 1971, orally, and on or about 1 On October 7, 1971, the General Counsel also filed with the Board a Motion, to Amend Motion for Summary Judgment moving that the caption in its Motion for Summary Judgment filed on July 26, 1971, and the supporting memorandum filed therewith , referring to "International Union, United Plant Guard Workers of America (UPGWA)" be changed to read "International Union, United Plant Guard Workers of America and its affiliated Local No. 110." On October 12, 1971, the Respondent, in substance, requested review of the Regional Director's actions on the ground that the amendments seriously prejudice Respondent's case, and seek to materially change the identity of the Charging Party and come after the case has been transferred to the Board on a Motion for Summary Judgment The Respondent also contends that the October 5, 1971, order amending complaint was issued without prior notice to the Respondent. On October 20, 1971 , the General Counsel filed with the Board a response in opposition to the Respondent's request for review We find no meet to these contentions. The record shows that on December 24, 1970, the "International Union, United Plant Guard Workers of America and its affiliated Local No. 110" was certified as the employees' representative for May 28, 1971, in writing, and at all times thereafter, Respondent has refused, and continues 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 July 8, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent admits, inter alia, that an election was conducted by the Board in an appropriate unit of the Respondent's employees in consolidated Cases 9-RC-8373 and 9-RC-8397; that the Union requested the Respondent to bargain collectively with it as the exclusive representative of these employees; and that the Respondent both orally and in writing refused, and continues to refuse, to bargain collectively with the Union. On July 26, 1971, counsel for the Acting General Counsel filed directly with the Board a Motion for Summary Judgment (caption thereon was amended on October 7, 1971, see supra, fn. 1). On August 13, 1971, the Union filed a Charging Party's Statement in Support of Motion for Summary Judgment, submit- ting, in effect, that the Respondent, in its answer, is attempting to relitigate matters which have been previously litigated and decided in a representation proceeding, Cases 9-RC-8373 and 9-RC-8397. Sub- sequently, on August 2, 1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Acting General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed 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 powers in connection with this proceeding to a three- member panel. Upon the entire record in this proceeding, the Board makes the following: the purposes of collective bargaining . The record further shows that at the hearing held on January 14, 1970, the correct name of the Petitioner in Case 9-RC-8397 was amended to read "International Union, United Plant Guard Workers of America and its affiliated Local No 110" Accordingly, we find that the amended motions correcting a technical deficiency in the pleadings have not prejudiced the Respondent's case. Moreover, the fact that the amended complaint was issued without prior notice to the Respondent is immaterial and irrelevant to the propriety of the pleadings, its issuance in these circumstances clearly authorized under Section 102 17 of the Board's Rules and Regulations. 2 Official notice is taken of the record in the representation proceeding, consolidated Cases 9-RC-8373 and 9-RC-8397, as the term "record" is defined in Secs. 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 Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp, 164 NLRB 378, enfd. 397 F 2d 91 (C A. 7, 1968); Sec. 9(d) of the NLRA. 194 NLRB No. 45 THE WACKENHUT CORP. Ruling on the Motion for Summary Judgment In its Response to Notice To Show Cause, as in its answer to the complaint, the Respondent alleges that, notwithstanding the Board's certification, special circumstances exist which =make , any contemplated order or unfair labor practice finding inappropriate and inequitable. Upon our review of the record, including the records in consolidated Cases 9-RC-8373 and 9-RC-8397, we find no merit to this allegation. Pursuant to a Decision and Direction of Election by the Regional Director in these cases an election was conducted on March 12, 1970. The tally of ballots reflected that none of the choices on the ballot had received a majority of the valid votes cast. No objections to the election were filed. Subsequently, a runoff election was conducted by mail. The ballots were counted on April 21, 1970, which disclosed that of the valid votes cast, 22 were for the Union, 21 ballots were cast against the Union, and 3 ballots, determinative of the results of the election, were challenged. On April 28, 1970, the Respondent filed timely objections to conduct of election and conduct affecting the results of the election. On September 11, 1970, the Regional Director issued his Supplemental Decision, Order Directing Hearing, and Notice of Hearing in which he overruled the Respondent's objections in their entirety, including the Respon- dent's allegation that its employee complement had substantially changed, and directed that a hearing be held to resolve the issues raised by the challenged ballots. Subsequently, on October 2, 1970, the Respondent filed a request for review of the Regional Director's Supplemental Decision, which was denied by the Board on November 12,1970. On December 3, 1970, a hearing was held and pursuant to an agreement of the parties made at the hearing, and subseq ently approved by the Regional Director, the three challenged ballots were opened and counted. A revised tally of ballots, issued on December 18, 1970, showed that of the valid votes cast, 24 were for the Union, and 22 ballots were cast against the Union. Accordingly, on December 24, 1970, the Union was certified by the Regional Director as the exclusive collective-bargaining repre- sentative in the unit herein found appropriate. With respect to the Respondent's contention that special circumstances exist which make any contem- plated order or an unfair labor practice finding inappropriate and inequitable, the Respondent sub- mits that its employee complement has substantially changed since the April 1970 election, and that a hearing should be ordered to take evidence concern- 303 ing the special circumstances. We find no merit to this contention. As reflected above, the Regional Director overruled the Respondent's objections to the election in their entirety, including the change of employee complement allegation, which the Board considered and decided in its review wof the Respondent's exceptions to the Regional Director's Supplemental Decision, Order Directing Hearing, and Notice of Hearing. 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.3 All issues raised by the Respondent in this proceed- ing 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 any such special circumstances herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice pro- ceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Florida corporation with its principal place of business located at Coral Gables, Florida, is engaged in the business of providing protection service and security guard services for various employers throughout the United States. The Respondent's Louisville, Kentucky, area office is the subject of this proceeding. During the past 12 months, which is a representative period, the Respondent, in the course and conduct of its nonretail business operations, performed services valued in excess of $50,000 for customers located ,outside the State of Florida. 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. 3 See Pittsburgh Plate Glass Co. v. N L RB., 313 U S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102 67(f) and 102.69(c). 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED International Union, United Plant Guard Workers of America, and its affiliated Local No. 110, 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 consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All security guards of the Employer in its Louisville, Kentucky area operations, but exclud- ing all office clerical employees, professional employees, and supervisors as defined in the Act, and all other employees. 2. The certification On April 21, 1970, a majority of the employees of Respondent in said unit, in a runoff election conduct- ed by mail under the supervision of the Regional Director for Region 9, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on December 24, 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 May 19,197 1, the Union has orally requested the Respondent to bargain collectively with it as the exclusive collective-bargain- ing representative of all the employees in the above- described unit. Commencing on or about May 19, 1971, orally, and on or about May 28, in writing, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employ- ees in said unit. Accordingly, we find that the Respondent has, since May 19, 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, Respondent 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 operations 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 disputes burdening and obstructing com- merce and the free flow of commerce. 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 initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 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. The Wackenhut Corporation 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, and its affiliated Local No. 110, is a labor organization within the meaning of Section 2(5) of the Act. 3. All security guards of the Employer in its Louisville, Kentucky, area operations, but excluding all office clerical employees, professional employees and 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 24, 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- THE WACKENHUT CORP. 305 tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 19, 1971, orally, and on or about May 28, 1971, in writing, 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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, The Wackenhut Corporation, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union, United Plant Guard Workers of America, and its affiliated Local No. 110, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All security guards of the Employer in its Louisville, Kentucky area operations, but exclud- ing all office clerical employees, professional employees and 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Louisville, Kentucky, area office copies of the attached notice marked "Appendix.' 14 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by 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 Respon- dent 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. 4 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 terms and conditions of employment with Interna- tional Union, United Plant Guard Workers of America, and its affiliated Local No. 110, as the exclusive representative 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 representative 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 under- standing in a signed agreement. The bargaining unit is: All security guards of the Employer in its Louisville, Kentucky area operations, but excluding all office clerical employees, pro- fessional employees and supervisors as de- fined in the Act. THE WACKENHUT CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive with its provisions may be directed to the Board's days from the date of posting and must not be altered, Office, Federal Office Building, Room 2407, 550 defaced, or covered by any other material. Main Street, Cincinnati, Ohio 45202, Telephone Any questions concerning this notice or compliance 513-684-3686.