Smith Alarm Systems & Central Station Alarm Co.

SMITH ALARM SYSTEMS 501 Smith Alarm Systems & Central Station Alarm Co. and International Brotherhood of Electrical Work- ers, Local 59, AFL-CIO. Case 16-CA-5528 October 31, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge and amended charge filed on April 11, 1974, and May 7, 1974, respectively, by the Inter- national Brotherhood of Electrical Workers, Local 59, AFL-CIO, herein called the Union, and duly served on Smith Alarm Systems & Central Station Alarm Co., herein called the Respondent, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a complaint on May 10, 1974, against Respondent, al- leging that Respondent had engaged in and was en- gaging 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 pro- ceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on March 22, 1974, following a Board election in Case l6-RC-6282 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about March 28, 1974, 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 May 16, 1974, Respondent filed its answer to the complaint denying the allegations of the complaint. Thereafter, Respondent filed its first amended an- swer in which it admitted the factual allegations of the complaint, but denied that a majority of the em- ployees had voted in favor of the Union because a member of the appropriate unit had been excluded and a challenge to his ballot sustained. On June 10, 1974, counsel for the General Counsel 'Official notice is taken of the record in the representation proceeding, Case 16-RC-6282, as the term "record" is defined in Sees 102 68 and 102 69(g) of the Board 's Rules and Regulations , Series 8 , as amended See LTV Electrosyslems, 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), Intertype Co v Penello, 269 F Supp 573 (D C Va . 1967), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968) Sec 9(d) of the NLRA filed directly with the Board a Motion for Summary Judgment, alleging that Respondent was attempting to relitigate issues previously raised and litigated in the underlying representation proceeding. Subse- quently, on June 24, 1974, the Board issued an order transferring the proceeding to the Board and a No- tice To Show Cause why the General Counsel's Mo- tion for Summary Judgment should not be granted. No response to this Notice To Show Cause has been filed by Respondent. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its amended answer to the complaint Respon- dent asserts that George South, a boardroom opera- tor, is an appropriate member of the bargaining unit, thus his challenged ballot should be opened and counted. Until this is done, argues Respondent, it has not been determined that a majority of the employ- ees in an appropriate unit selected the Union as their collective-bargaining representative. The Respondent also denies that the unit is appropriate for this pur- pose. Review of the record in the underlying representa- tion case, which we have before us, indicates that a hearing was held on the challenge to the ballot of George South in the election, at which both parties appeared and submitted evidence. Upon the Hearing Officer's recommendation that the challenge to his ballot be overruled, the Union took exception to the Board, to which Respondent filed a responsive brief. The Board in turn found that South did not have a community of interest with the unit employees, thus excluded him from the unit and sustained the chal- lenge to his ballot.' The Union thus received a major- ity of the votes cast, and was certified by the Board. It appears then that Respondent has raised this issue in the representation case, and offers no reason why the ruling therein should be disturbed. With regard to Respondent's denial of the appro- priateness of the unit, the record reveals that Respon- dent entered a Stipulation for Certification Upon Consent Election, in which it stipulated to the appro- priateness of the unit. Having done so, it may not now raise the issue in this proceeding.' It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special 2209 NLRB 835 (1974) 7 "Crescent Constant Care Center, Inc, 211 NLRB 671, in 2 (1974) 214 NLRB No. 41 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9(b) of the Act: All installers, maintenance , storeroom , board- room operators, and janitorial employees at Employer's locations at 2627 Flora St., Dallas, Texas; 108 Arthur St., Forth Worth, Texas; Ar- lington, Texas; and Longview, Texas, excluding all clerical employees, guards, watchmen, and supervisors as defined in the Act. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent Smith Alarm Systems & Central Sta- tion Alarm Co., a Texas corporation, maintaining its principal place of business at 2627 Flora Street, Dal- las, Texas, is engaged in the sale, installation, and servicing of burglar alarm systems and related prod- ucts. During the past 12 months, which period is rep- resentative of all times material herein, Respondent, in the course and conduct of its business operations, purchased and received at its facilities in Texas goods and materials valued in excess of $50,000 di- rectly from points outside the State of Texas and/or suppliers located in the State of Texas who received said goods and materials directly from outside the State of Texas. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED The International Brotherhood of Electrical Work- ers, Local 59 , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4 See Pittsburgh Plate Glass Co v NL RB , 313 U S 146. 162 (1941). Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) 2. The certification On June 1 , 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 16, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent . The Union was certified as the collective-bargaining representative of the em- ployees in said unit on March 22, 1974, 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 March 27, 1974, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 28, 1974, 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 employees in said unit. Accordingly, we find that the Respondent has, since March 28, 1974, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. SMITH ALARM SYSTEMS 503 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, inti- mate, 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 commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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); Bur- nett 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: CONCLUSIONS OF LAW organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 28, 1974, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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 mean- ing 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 Re- lations Board hereby orders that Respondent, Smith Alarm Systems & Central Station Alarm Co., Dallas, Texas, 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 con- ditions of employment with International Brother- hood of Electrical Workers, Local 59, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: 1. Smith Alarm Systems & Central Station Alarm Co., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Work- ers, Local 59, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All installers, maintenance, storeroom, board- room operators, and janitorial employees at the Employer's locations at 2627 Flora St., Dallas, Tex- as; 108 Arthur St., Fort Worth, Texas; Arlington, Texas; and Longview, Texas, excluding all clerical employees, guards, watchmen, and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 25, 1974, the above-named labor All installers, maintenance, storeroom, board- room operators, and janitorial employees at Employer's locations at 2627 Flora St., Dallas, Texas; 108 Arthur St., Fort Worth, Texas; Ar- lington, Texas; and Longview, Texas, excluding all clerical employees, guards, watchmen, and supervisors as defined in the Act. (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 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 2627 Flora St., Dallas, Texas; 108 Arthur St., Fort Worth, Texas; Arlington, Texas; and Longview, Texas, facilities, copies of the at- tached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5In 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 con- cerning rates of pay, wages, hours , and other terms and conditions of employment with Inter- national Brotherhood of Electrical Workers, Lo- cal 59, AFL-CIO, as the exclusive representative of the employees in the bargaining unit de- scribed 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All installers, maintenance, storeroom, board- room operators, and janitorial employees at Employer's locations at 2627 Flora St., Dallas, Texas; 108 Arthur St., Fort Worth, Texas; Ar- lington, Texas; and Longview, Texas, exclud- ing all clerical employees, guards, watchmen, and supervisors, as defined in the Act. SMITH ALARMS SYSTEMS & CENTRAL STATION ALARM Co.