Burns International Security Services

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burns International Security Services, Inc. and Local No. 63, International Guards Union of America. Case 27-CA-5007 April 20, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge filed on July 26, 1976, by Local No. 63, International Guards Union of America, herein called the Union, and duly served on Burns Interna- tional Security Services, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 27, issued a complaint on August 27, 1976, 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 June 25, 1971, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in a unit of Respondent's full-time and regular part-time guards in the States of Colorado and Wyoming. At all times material since June 25, 1971, the Union has been the representative for collective-bargaining purposes of the employees in that unit. On June 29, 1976, the Board issued a Decision and Order in Case 27-CA-40811 finding that Respondent herein violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union on October 1, 1973, and thereafter, and ordering Respondent, inter alia, to bargain with the Union upon request. Since on or about July 2, 1976, the Union has requested bargaining. Commencing on or about July 6, 1976, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the employees exclusive bargain- ing representative. Further, since on or about July 6, 1976, Respondent has failed and refused to supply information requested by the Union regarding names and addresses of employees, work locations, etc., which is necessary for collective bargaining. On September 7, 1976, Respondent filed its answer to the I Reported at 225 NLRB 271. 2 Respondent in its answer to the complaint states, inter alia, that it is without sufficient information or knowledge as to whether Local No. 63, International Guards Union of America, is now, and has been at all times material, a labor organization within the meaning of the Act, which, under Sec. 102.20 of the Board's Rules and Regulations, operates as a denial. 229 NLRB No. 8 complaint admitting in part, and denying in part, the allegations in the complaint. On November 18, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 26, 1976, 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. 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 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, Respondent admits that it has refused to bargain and to supply the requested information but specifically alleges that its refusal to do so is warranted because of the pendency of review proceedings timely filed by it in the United States Court of Appeals for the Tenth Circuit concerning the Board Order in Case 27-CA-4081 (225 NLRB 271) and because of Respondent's continuing good-faith doubt as to the majority status of said Union, which doubt will not be resolved until a final judgment has been entered in the aforesaid Case 27-CA-4081 and all procedures for review or appeal therein have been exhausted or have not been utilized within the times duly provided by law. All issues raised by Respondent in this proceeding were or could have been litigated in the prior unfair labor practice proceeding, and 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 said earlier proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this proceeding.2 In its response to the Motion for Summary Judgment, however, Respondent reasserts that the Board should not grant a Motion for Summary Judgment where, as here, Respondent's obligation to bargain with the Union is dependent upon the resolution of an earlier related unfair labor practice proceeding which is being judicially reviewed by a However, as admitted by Respondent, this organization was certified on June 25, 1971, as the exclusive collective-bargaining representative of Respondent's employees, and the Board found this organization to be a labor organization in related Case 27-CA-081. Accordingly, this issue was litigated in the underlying unfair labor practice case and may not be litigated herein. Teledyne, Landis Machine, 212 NLRB 73, 74, fn. 4 (1974). 112 BURNS INTL. SECURITY SERVICES U.S. court of appeals. We have considered Respon- dent's argument and have concluded that there is nothing in the circumstances herein to warrant departure from our present policy of processing our 8(a)(5) summary judgment proceedings to a conclu- sion pending court adjudication of a related Board unfair labor practice proceeding. 3 We shall, accord- ingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a New York corporation with its principal office and place of business at Briarcliff Manor, New York. It also maintains offices at various other cities in the United States, including Denver and Colorado Springs, Colorado, the situs of the instant dispute. In the latter offices Respondent provides security services valued in excess of $100,000 per annum to employers who meet the Board's jurisdictional standards for direct inflow and/or outflow. We find that the operations of Respondent affect 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. 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 Local No. 63, International Guards Union of America, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time guards, including sergeants employed by Respondent in the States of Colorado and Wyoming, but excluding office clerical employees, professional 3 Lube Devices, Inc., 201 NLRB 914, 915 (1973); Great Dane Trailers, Inc., 191 NLRB 6, 7 (1971); and Porta-Kamp Manufacturing Company, Inc., 189 NLRB 899, 900(1971). employees and supervisors as defined in the Act, including lieutenants and captains. B. The Certification On April 5, 1971, 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 27 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 June 25, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act, as the Board found in its June 29, 1976, Decision and Order, 225 NLRB 271. C. The Request To Bargain and Respondent's Refusal Since on or about July 2, 1976, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective- bargaining representative of all the employees in the above-described unit. Since on or about July 6, 1976, and continuing at all times thereafter to date, 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.4 Further, the Union has requested that Respondent supply it with informa- tion regarding names and addresses of employees' work locations, etc., which information is necessary for collective bargaining. And, since on or about July 6, 1976, Respondent has failed or refused to supply the requested information. Accordingly, we find that Respondent has, since July 6, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and to supply information requested by the Union regarding names and addresses of employees, work locations, etc., which information is necessary for collective bargaining, and that, by such refusals, 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 Respondent set forth in section III, above, occurring in connection with its opera- 4 As found in the earlier proceeding, Respondent's refusal to bargain commenced prior to July 6, 1976. Thus, the refusal on this occasion constituted a continuation of that unlawful conduct. 113 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, supply the requested information and 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. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Burns International Security Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 63, International Guards Union of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time guards, including sergeants employed by Respondent in the States of Colorado and Wyoming, but excluding office clerical employees, professional employees, and supervisors as defined in the Act, including lieutenants and captains, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 25, 1971, 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 July 6, 1976, 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 refusing since on or about July 6, 1976, to supply information requested by the Union regard- ing names and addresses of employees, work loca- tions, etc., which information is necessary for collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the aforesaid refusals 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 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)(l) of the Act. 8. 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 the Respondent, Burns International Security Services, Inc., Denver and Colorado Springs, Colorado, 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 Local No. 63, International Guards Union of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time guards, including sergeants employed by Respondent in the States of Colorado and Wyoming, but excluding office clerical employees, professional employees, and supervisors as defined in the Act, including lieutenants and captains. (b) Refusing to supply the aforesaid labor organi- zation with information necessary for collective bargaining, including the names and addresses of unit employees, work locations, and the like. (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. 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) Upon request, supply the above-named labor organization with information necessary for collec- tive-bargaining including names and addresses of unit employees, work locations, and the like. (c) Post at its various facilities in Colorado and Wyoming, wherever its employees customarily meet 114 BURNS INTL. SECURITY SERVICES and congregate, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's representa- tive, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I 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 Local No. 63, International Guards Union of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to supply the above- named Union with information necessary for collective bargaining including the names and addresses of unit employees, work locations, and the like. 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 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 regular part-time guards, including sergeants employed by Respon- dent in the States of Colorado and Wyom- ing, but excluding office clerical employees, professional employees, and supervisors as defined in the Act, including lieutenants and captains. WE WILL upon request supply the above-named Union with information necessary for collective bargaining including the names and addresses of unit employees, work locations, and the like. BURNS INTERNATIONAL SECURITY SERVICES, INC. 115