Pinkerton's, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pinkerton's, Inc. and International Union, United Plant Guard Workers of America (UPGWA). Case 7-CA- 14090 November 3, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on June 1, 1977, by Interna- tional Union, United Plant Guard Workers of America (UPGWA), herein called the Union, and duly served on Pinkerton's, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on June 28, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on March 30, 1977, following a Board election in Case 7-RC- 13656 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about May 23, 1977, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On July 8, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 17, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 24, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- : Official notice is taken of the record in the representation proceeding, Case 7-RC-13656, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electros ysems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Inrertvpe Co. v. Penello. 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 Respondent contends that the Union was disqualified to represent the unit employees because of an alleged clandestine relationship between the Union and a competitor of Respondent and that the Hearing Officer's 233 NLRB No. 39 dent thereafter filed a response to the Notice To Show Cause and a motion to supplement the record which was opposed by the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent, in substance, contests the Union's majority status and certification on the following grounds: (1) that it was deprived of due process by being denied subpenas to establish that the Union was not qualified to represent the unit employees; (2) that the election should have been set aside on the basis of its objections and the erroneous rulings of the Regional Director on challenged ballots; and (3) that the lack of evidentiary docu- ments attached to the Regional Director's supple- mental decision prejudiced it in preparing its request for review. Respondent requests that the Motion for Summary Judgment be denied and that the election and certification be set aside or, alternatively, that a hearing, required by due process, be held. The General Counsel contends that Respondent is attempting to relitigate matters which were raised and determined in the underlying representation case and that the evidentiary documents requested are not part of the record in either the representation case or the unfair labor practice proceeding. On November 23, 1976, the Regional Director issued his Decision and Direction of Election in which he found, inter alia, that the Union was qualified to represent the unit sought by the employees. 2 The Respondent filed a request for review basically alleging that substantial questions of law and policy were raised because of (1) the Regional Director's departure from Board precedent by his finding the Union to be qualified to represent employees and by the quashing of subpoenas duces tecum, and (2) the denial of due process and of the opportunity to properly present evidence. On De- cember 28, 1976, the Board denied the request for review as raising no substantial issues warranting quashing of Respondent's subpoenas duces tecum seeking to secure records to establish the clandestine relationship constituted prejudicial error. The Regional Director affirmed the ruling quashing the subpoenas and found that (1) Respondent failed to establish the materiality or relevance of the documents sought. (2) granting such broad-ranging subpenas would be contrary to due process, (3) the competitor's president disavowed under oath the existence of any such relationship with the Union, and (4) as admitted by Respondent, none of the knowledgeable union witnesses who were available at the hearing were called to testify by any party, including Respondent. 224 PINKERTON'S, INC. review. An election was held by manual and mail balloting on January 6, 1977, in which 82 votes were cast for the Union, 76 against, with 7 determinative challenged ballots. Respondent filed timely objec- tions and a supporting brief alleging, in substance, (I) that five employees did not receive mail ballots; (2) that Board agents erroneously voided one mail ballot for lack of signature and failed to advise the voter of the right to cast a ballot in person or to give the voter an extension of time to timely return the ballot; (3) that Board agents failed to count a ballot because while opening the challenged ballots they destroyed the "NO" designation portion thereby leaving exposed the "YES" portion which was blank; (4) that Board agents failed to count two challenged ballots cast 3 minutes after the first polling period closed; (5) that the Union and its agents engaged in misconduct which destroyed the secrecy of the balloting process; (6) that the Union made false preelection statements and misrepresentations; and (7) other acts of misconduct. Respondent requested that the election be set aside and that a new election be held, or, alternatively, that a hearing be held on the issues raised by the objections. On March 30, 1976, the Regional Director issued a supplemental decision in which he overruled all the objections; sustained the Board agent's challenges to the ballots cast by two employees hired after the payroll eligibility date, making it unnecessary to consider the remaining five challenged ballots as they were no longer determinative; issued a revised tally of ballots showing that the Union won the election; 3 and certified the Union. Respondent filed a timely request for review alleging that the Regional Director made erroneous rulings as to certain of the chal- lenged ballots, reiterating Objections 1, 2, 3, and 6 and requesting again that the election be set aside or, alternatively, that a hearing be held on these issues. On May 13, 1977, the Board denied the request for review as raising no substantial issues warranting review, thereby necessarily finding that Respondent had raised no issues warranting a hearing. We find no merit in Respondent's hearing conten- tion. It is well established that parties do not have an absolute right to a hearing. It is only when the 3 The revised tally indicated 82 votes cast for the Union. 76 against. 5 nondeterminative challenged ballots, and I void ballot. 4 N.L.RB. v. Modine Manufacturing Company, 500 F.2d 914 (C.A. 8, 1974), enfg. 203 NLRB 527 (1973); Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976); Janler Plastic Mold Corporation. 191 NLRB 162 (1971); Crest Leather Manufacturing Corporation, 167 NLRB 1085 (1967). and cases cited therein. $ Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc.1 v. N.LR.B., 424 F.2d 818, 828 (C.A.D.C., 1970). 6 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c). 7 In this proceeding Respondent has moved to supplement the record with all evidentiary documents compiled by and submitted to the Regional Director dunng his investigation of the objections and the challenged ballots moving party presents a prima facie showing of "substantial and material issues" which would warrant setting aside the election that it is entitled to an evidentiary hearing4 and Respondent has not made such a showing. It is clear that, absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional require- ments. 5 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.6 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.s 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 Respondent, a Delaware corporation, at all times material herein, has maintained an office and place of business at 206 E. Northland Towers, E. South- field, Michigan. Respondent maintains other places of business throughout the United States. Respon- dent is, and has been at all times material herein, engaged in providing protection services. During the year ending December 31, 1976, a representative period, Respondent, in the course and conduct of its business operations, had gross revenue in excess of $500,000 and performed services in excess of $50,000 for customers which annually purchase and cause to be transported and delivered to their Michigan that were not attached to his supplemental decision. The General Counsel contends, and we agree, that documents such as letters, statements, or affidavits related to the representation case, which were before the Regional Director in his investigation of elections, are not part of the record in either the representation case or in the related unfair labor practice proceeding and that the failure to refer to such evidence does not preclude an adequate review by the Board. Prestolite Wire Division, Eltra Corporation, 226 NLRB 327 (1976). The Regional Director, therefore, had no obligation to attach any of these documents to his supplemental decision. Further, Respondent was in no way precluded from submitting to the Board its own evidence to contradict the Regional Director's findings of fact. Kay-Bee Export Co., Inc., 222 NLRB 1294 (1976). Accordingly. Respondent's motion to supplement the record is hereby denied. 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD places of business goods and materials valued in excess of $50,000, which are transported and deliv- ered to their places of business in Michigan, directly from points located outside the State of Michigan or which annually ship more than $50,000 worth of products directly outside the State of Michigan. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union, United Plant Guard Workers of America (UPGWA), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time and part-time guards employed by Respondent under the jurisdiction of its Detroit, Michigan, branch office, including sergeants; but excluding all office clerical employees, profession- al employees, investigators, lieutenants, captains, and supervisors as defined in the Act, and all other employees. 2. The certification On January 6, 1977, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 7, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. Subsequently, the Union was certified as the collective-bargaining representa- tive of the employees in said unit on March 30, 1977, 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 17, 1977, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about May 23, 1977, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since May 23, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. 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 certifica- tion as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: 226 PINKERTON'S, INC. CONCLUSIONS OF LAW 1. Pinkerton's, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Plant Guard Workers of America (UPGWA), is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All full-time and part-time guards employed by Respondent under the jurisdiction of its Detroit, Michigan, branch office, including sergeants; but excluding all office clerical employees, professional employees, investigators, lieutenants, captains, 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 March 30, 1977, 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 pu-pose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 23, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(I) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Pinkerton's, Inc., Southfield, Michigan, its officers, agents, successors, 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 (UPGWA), as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and part-time guards employed by Respondent under the jurisdiction of its Detroit, Michigan, branch office, including sergeants; but excluding all office clerical employees, profession- al employees, investigators, lieutenants, captains, 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Detroit, Michigan, branch office copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 7, 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 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. R In the event that this 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 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 Inter- national Union, United Plant Guard Workers of America (UPGWA), as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees 227 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and part-time guards em- ployed by Respondent under the jurisdiction of its Detroit, Michigan, branch office, including sergeants; but excluding all office clerical employees, professional employees, investigators, lieutenants, captains, and su- pervisors as defined in the Act, and all other employees. PINKERTON'S INC. 228