Lance Investigation Service, Inc.

LANCE INVESTIGATION SERVICE, INC. 135 Lance Investigation Service, Inc. and Special and Superior Officers Benevolent Association. Case 2-CA-17822 July 23, 1981 DECISION AND ORDER Upon a charge filed on February 5, 1981, by Special and Superior Officers Benevolent Associ- ation, herein called the Union, and duly served on Lance Investigation Service, Inc., herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint and notice of hearing on February 19, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. On March 3, 1981, the Regional Director issued an order amending com- plaint. Copies of the charge and complaint, as amended, and notice of hearing before an adminis- trative Jaw judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 5, 1981, following a Board election in Case 2-RC- 18753, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;1 and that, commencing on or about January 23, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On March 13, 1981, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint, and submitting afirma- tive defenses. On May 15, 1981, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment, with exhibits attached. Subse- quently, on May 19, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Coun- sel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. 1 Official norice is raken of rhe record in rhe representation proceed- ing, Case 2-RC-18753, as rhe rerm "record" is defined in Sees. 102.68 and 102.69(g) of rhe Board's Rules and Regulations, Series 8, as amended. See LTV Elecrrosysrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4rh Cir. 1968); Golden Age Beverage Co., 16i NLRB 151 (1967), enfd. 415 F.2d 26 (5rh Cir. 1969); lntertype Co. v. Penel/o, 269 F.Supp. 573 (D.C.Va. 1967); Folleu Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7rh Cir. 1968); Sec. 9(d) of rhe NLRA, as amended. 257 NLRB No. 32 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, Respondent admits its refusal to bargain but challenges the Union's certification on the basis that the Board erred in certifying the Union as the exclusive bar- gaining representative of Respondent's employees. In the Motion for Summary Judgment, counsel for the General Counsel alleges that Respondent seeks to relitigate issues previously considered in the un- derlying representation case and, also, that no fac- tual issues in the case warrant a hearing. Our review of the record herein, including the record in Case 2-RC-18753, discloses, inter alia, that, pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted among the employees in the stipulated unit on August 4, 1980, and the tally of ballots furnished the parties after the election showed I 07 votes cast for, and 67 against, the Union. There were five challenged ballots, an insufficient number to affect the results. Respondent filed timely objections which alleged that improper campaign literature distributed by the Union affected the results of the election. Specifically, Respondent claimed that three handbills contained threats of job loss and that two of the three handbills contained substan- tial misrepresentations of fact. Respondent further claimed that a fourth document gave the false im- pression that the Union had some affiliation with the Government and that the Government favored the Union. On September 16, 1980, the Regional Director issued her Report on Objections and Rec- ommendations in which she recommended that the objections be overruled and that the Board issue a certification of representative. On September 26, 1980, Respondent filed exceptions to the Regional Director's report and reiterated the allegations and contentions set forth in its objections. On January 5, 1981, following consideration of the entire record in the case, the Board issued a Decision and Certification of Representative adopting the Re- gional Director's findings and recommendation. 2 On January 8, 1981, the Union, by letter, re- quested that Respondent recognize and bargain col- lectively with it. On January 23, 1981, Respondent, by letter, refused to recognize and bargain with the Union. In its answer to the complaint, as amended, Respondent admits that it has refused to bargain collectively with the Union. It offers as affirmative defenses the same arguments concerning campaign literature raised in its objections to the election and 2 Nor published in volumes of Board Decisions. 136 DEClSlONS OF NATIONAL LABOR RELATIONS BOARD its exceptions to the Regional Director's Report on Objections. It thus appears that Respondent is at- tempting to raise herein issues which were raised in the underlying representation case. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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 Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and 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 decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we 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 RESPONDENT Respondent, a New York corporation, with an office and place of business in Bronx, New York, is engaged in providing protection services through- out the New York City metropolitan area. Annual- ly, in the course and conduct of its business, Re· spondent provides services valued in excess of $50,000 to enterprises located within the State of New York, each of which enterprises annually sells and ships products, goods, and materials valued in excess of $50,000 directly to points located outside the State of New York, or annually purchases and receives products, goods, and materials valued in excess of $50,000 directly from points located out- side the State of New York. We find, on the basis of the foregoing, that Re- spondent 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 Special and Superior Officers Benevolent Associ- ation is a labor organization within the meaning of Section 2(5) of the Act. 3 See Pittsburgh Plate Glass Ca. v. N.L.R.B .. 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees. !02.67(f) and 102.69(c). III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time security guards, including sergeants, employed by the Employer at its various locations throughout the New York metropolitan area, but exclud- ing field supervisors, office clerical employees, supervisors. 2. The certification On August 4, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 2, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on January 5, 1981, 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 January 8, 1981, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about January 23, 1981, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 23, 1981, 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, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (l) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Lance Investigating Service, Inc., set forth in section III, above, occurring in LANCE INVESTIGATION SERVICE, INC. 137 connection with its operations described in section I, above, have a close, intimate, and substantial re- lationship 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 {I) 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See ,\far-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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (lOth Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Lance Investigation Service, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Special and Superior Officers Benevolent As- sociation is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time security guards, including sergeants, employed by the Em- ployer at its various locations throughout the New York metropolitan area, but excluding field super- visors, office clerical employees, supervisors, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since January 5, 1981, 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- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 23, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) 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 to Section lO(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Lance Investigation Service, Inc., Bronx, New York, 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 Special and Superi- or Officers Benevolent Association as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time security guards, including sergeants, employed by the Employer at its various locations throughout the New York metropolitan area, but exclud- ing field supervisors, office clerical employees, supervisors. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. I l I. I' 138 DECISIONS OF NA T!ONAL LABOR RELATIONS BOARD (b) Post at its Bronx, New York, office copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 2, 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. Rea- sonable 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 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. • 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 Relation~ Board" shall read "Posted Pursu· ant to a Judgment of the United State~ 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 Special and Superior Officers Benevolent Association 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 employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time security guards, including sergeants, employed by the Employer at its various locations throughout the New York metropolitan area, but excluding field supervisors, office clerical employees, supervisors. LANCE INVESTIGATION SERVICE, INC.