Lawrence Security, Inc.

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lawrence Security, Inc. and International Union of Guards and Watchmen, Independent. Case 19-CA-7137 November 25, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on June 10, 1974, and amended on July 15, 1974, by International Union of Guards and Watchmen, Independent, herein called the Union, and duly served on Lawrence Security, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint on July 16, 1974, against Respondent, alleging that Respondent has 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, com- plaint, 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 com- plaint alleges in substance that on May 29, 1974, fol- lowing a Board election in Case 19-RC-6783, the Union was duly certified as the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the unit found appropriate;' and that, commencing on or about June 20, 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, and to furnish the Union with a current list of home addresses of unit employees, although the Union has requested and is requesting it to do so. On July 24, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 5, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, arguing that Respondent was attempting to relitigate issues previously determined in the underly- ing representation proceeding. Subsequently, on Au- gust 22, 1974, 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 Official notice is taken of the record in the representation proceeding, 'Case 19-RC-6783, as the term "record" is defined in Secs 102 68 102 69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, 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, 1957), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A. 7, 1968), Sec 9(d) of the NLRA Judgment should not be granted. Respondent there- after filed a Statement in opposition to Motion for Summary Judgment. 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 answer to the complaint and Statement in Op- position to the Motion for Summary Judgment, Re- spondent admits the factual allegations, but denies the validity of the election and consequent certification be- cause of union misconduct prior to and during the election in the underlying representation proceeding and irregularities in the selection and use of the polling place. The General Counsel contends that Respondent merely seeks review of the Board's certification and that its affirmative defense consists solely of matters which previously had been raised before the Board and rejected. We agree with the General Counsel. Our review of the record herein, including the record in Case 19-RC-6783, reveals that an election con- ducted pursuant to a Stipulation for Certification Upon Consent Election on November 8, 1973, resulted in a vote of 32 to 17 in favor of the Union with 7 ballots challenged. Respondent filed timely objections to con- duct affecting the results of the election in which it alleged, in substance, that: (1) The Union paid em- ployees' parking fees at the place of election; (2) em- ployees were instructed by the Union to leave their names with a parking attendant from whom the Union secured the names; (3) Respondent's proposed voting place was rejected and Respondent was not notified of the location selected until it received the official elec- tion notice; (4) the Union falsely accused Respondent of delaying the election; and (5) the union literature promised a waiver of initiation fees if the Union won the election. After investigation, the Regional Director issued his Report on Objections in which he recom- mended that Respondent's objections be overruled in their entirety and the Union be certified. Respondent filed timely exceptions to the Regional Director's re- port as it pertained to three objections and a supporting brief in which it requested the Board to set aside the election. In its Decision and Certification of Representative issued May 29, 1974,2 the Board adopted the Re- gional Director's findings and conclusions, with modification, and his recommendation to overrule the objections to the election. The Board, accordingly, cer- 2 210 NLRB 1048. 215 NLRB No. 8 LAWRENCE SECURITY, INC. tified the Union as the exclusive bargaining representa- tive of the employees in the stipulated appropriate unit. The contentions of the Respondent in this unfair labor practice proceeding are the same as those advanced in the underlying representation case, which the Board has previously considered and rejected. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior re- presentation 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 rexamine 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. 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, an Oregon corporation with facilities located in California, Oregon, and Washington, is en- gaged in the business of providing guards and security services to business firms in the aforementioned States. During the past year, a representative period, Respond- ent had a gross volume of business exceeding $500,000, sold goods and services valued in excess of $50,000 directly to customers located outside the State of Ore- gon, and purchased and received goods and services valued in excess of $50,000 directly from vendors located outside the State of Oregon. We find, on the basis of the foregoing, the Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED International Union of Guards and Watchmen, In- dependent, is a labor organization within the meaning of Section 2(5) of the Act. 3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 69(c) III THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 71 The following employees of the Respondent consti- tute a unit appropriate for collective -bargaining pur- poses within the meaning of Section 9(b) of the Act: All employees employed by the Employer who are working in or out of the Seattle, Washington, district office, excluding all office clerical em- ployees, professional employees and supervisors as defined in the Act and those employees working in the Tri-Cities, Washington, vicinity and in Van- couver, Washington, who are currently repre- sented by another labor organization. 2. The certification On November 8, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Direc- tor for Region 19 designated the Union as their re- presentative 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 May 29, 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 May 31, 1974, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit and to provide it with a cur- rent list of home addresses of unit employees. Com- mencing on or about June 20, 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 and'to provide the information requested. Accordingly, we find that the Respondent has, since June 20, 1974, 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. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 operations de- scribed 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 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, bar- gain collectively with the Union as the exclusive re- presentative of all employees in the appropriate unit, and provide the Union with the information requested, and, if an understanding is reached, embody such un- derstanding in a signed agreement. In order to insure that the employees in the approri- ate 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 begin- ning on the date Respondent commences 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); Com- merce 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 Com- pany, 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 1. Lawrence Security, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Guards and Watchmen, Independent, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All employees employed by the Employer who are working in or out of the Seattle, Washington, district office, excluding all office clerical employees, profes- sional employees and supervisors as defined in the Act and those employees working in the Tri-Cities, Wash- ington, vicinity and in Vancouver, Washington, who are currently represented by another labor organiza- tion, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 29, 1974, the above-named labor organ- ization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 20, 1974, 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 and provide the Union with a current list of home addresses of unit employees, Re- spondent 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 in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant of Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Lawrence Security, Inc., its officers, agents, successors, and as- signs, 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 of Guards and Watchmen, Independent, as the exclusive bargain- ing representative of its employees in the following ap- propriate unit: All employees employed by the Employer who are working in or out of the Seattle, Washington, district office, excluding all office clerical em- ployees, professional employees and supervisors as defined in the Act and those employees working in the Tri-Cities, Washington, vicinity and in Van- couver, Washington, who are currently repre- sented by another labor organization. (b) Refusing to provide the Union with a current list of home addresses of employees in the above-men- tioned unit. (c) 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. LAWRENCE SECURITY, INC. 73 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and conditions of employment, and provide the Union with a current list of the home addresses of employees in the unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Seattle, Washington, district office copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 19 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 notices to employees are customarily posted. Reasonable 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 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of Guards and Watchmen, Independent, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to provide the Union with a current list of home addresses of employees in the below-mentioned unit. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the exercise of the right 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 provide the Union with a current list of home addresses of employees in the bargaining unit, and, if an understanding is reached, embody each un- derstanding in a signed agreement. The bargaining unit is: All employees employed by the Employer who are working in or out of the Seattle, Wash- ington, district office, excluding all office cleri- cal employees, professional employees and supervisors as defined in the Act and those em- ployees working in the Tri-Cities, Washington, vicinity and in Vancouver, Washington, who are currently represented by another labor or- ganization. LAWRENCE SECURITY, INC