Globe Security Services

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Globe Security Services, Inc. and International Union of Security Officers, Local No. 1. Case 4-CA-7783 May 5, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge filed on December 31, 1975, by International Union of Security Officers, Local No. 1, herein called the Union, and duly served on Globe Security Services, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 4, issued a complaint and notice of hearing on February 26, 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 March 5, 1975, following a Board election in Case 4-RC- 11330, 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 January 31, 1976, 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, concerning the effects on unit employees of Respon- dent's termination of its contract with the Pennsylva- nia Liquor Control Board.2 On October 1, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 13, 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. Respon- dent thereafter filed a response to Notice To Show Cause, entitled "Statement in Opposition to Motion ' Official notice is taken of the record in the representation proceeding, Case 4-RC-11330, 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 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); Iniertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 There is no allegation regarding a refusal to bargain over the decision to terminate the contract. 3 In its response the Respondent states that the Commonwealth of Pennsylvania awarded its Liquor Control Board contract to another firm which took over operations on February 2, 1976. 229 NLRB No. 75 for Summary Judgment and Issuance of Board Decision and Order." 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 basically (1) denies the validity of the certification based on its contention that the unit is inappropriate; (2) asserts that the facts concerning the termination of its contract with the Pennsylvania Liquor Control Board 3 and subsequent transfer of unit employees constitute new evidence on unit appropriateness which requires a hearing; (3) argues that these proceedings, as well as the previous Decision and Order 4 against it, are mooted by the termination of the contract; and (4) contends that, if it is obligated to bargain with the Union, that duty was fulfilled by its letter in reply to the Union's request for meeting to discuss the contract termination because such a meeting would have served no basic purpose. The General Counsel contends that the unit issues have been previously considered and decided in the underlying representation case and, as was found in the previous Decision and Order, may not be relitigated. We agree. In the Decision and Order issued on November 11, 1975, the Board ordered Respondent to bargain with the Union after review of the same representation case contention as to the invalidity of the certifica- tion now raised again by Respondent in these proceedings. On February 7, 1977, the United States Court of Appeals for the Third Circuit dismissed as moot the Board's petition for enforcement of that Order without deciding the propriety of the bargain- ing unit.5 As we found in our Decision and Order, we now find again that Respondent is attempting to raise and relitigate unit determination issues already litigated and determined in the underlying represen- 4 221 NLRB 596(1975) (Case 4CA 7326). 5 N.LR.B. v. Globe Security Services, Inc., 548 F.2d 1115 (C.A. 3, 1977). The court found that the Board's petition for enforcement of its bargaining order was moot because Respondent had stopped providing guards for the Liquor Control Board as of January I, 1976, and therefore the certified unit no longer existed. This mootness finding was based on the erroneous conclusion that there was no successor against whom the Board's Order could operate since the Respondent had not transferred its business to any successor or assign. But see The William J. Burns International Detective Agency, Inc., v. N.LRB., 406 U.S. 272 (1972), affg. 182 NLRB 348 (1970). The court also found that, despite the pendency of the instant proceedings in which the same unit issues are raised, such issues were not ripe for review. 460 GLOBE SECURITY SERVICES, INC. tation proceeding, Case 4-RC-11330, and this it may not do. 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 Except as follows, all issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respon- dent 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.7 We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Contrary to Respondent, the termination of its contract with the Liq. or Control Board does not moot these proceedings since it is well established that an employer is obliged to bargain concerning the effects of the contract termination on unit employees whether the termination is partial s or total.9 Respon- dent's letter, refusing the Union's request for a meeting on the grounds that any meeting would have been futile since the letter set forth the most Respondent would have offered to do, does not satisfy Respondent's duty to bargain over the effects of the termination because Section 8(d) of the Act expressly requires parties to meet and confer.10 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 is, and has been at all times material herein, a Delaware corporation and is engaged in the business of providing security services to business 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 contends that the facts concerning the termination of its contract with the Liquor Control Board and the subsequent transfer of unit employees of jobs with another security guard employer and to other jobs with Respondent constitute new evidence on unit appropriateness which requires a hearing. We do not agree. Posttermi- nation placement of employees does not impugn a prior determination of unit appropriateness, especially where, as here, the issue of employee interchange was litigated in the underlying representation case. According- ly, no hearing is warranted. a P. B. Mutrie Motor Transportation, Inc., 226 NLRB 1325 (1976): Metro Transportation Services Company. Inc.; Texas Western Transportation Company: and Jim Beavers, Individually, d/boa Jim Beavers Company, 218 NLRB 534 (1975), Royal Typewriter Company, a Division of Litton Business Systems, Inc., a Subsidiary of Litton Indurstries, Inc.. 209 NLRB 1006 (1974); firms and institutions located throughout the United States. During the past year, Respondent provided services in excess of $50,000 directly to persons and firms located outside the State of Delaware. We find, on the basis of the foregoing, the 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 of Security Officers, Local No. 1, 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 bargaining purposes within the meaning of Section 9(b) of the Act: All guards employed by Respondent at the Pennsylvania Liquor Control Board's State Stores located in Philadelphia, Pennsylvania, but exclud- ing all other employees, guards employed at other locations, and supervisors within the meaning of the Act. 2. The certification On February 25, 1975, 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 4, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 5, 1975, and the Union Regal Aluminum, Inc., 190 NLRB 468 (1971); Morrison Cafeterias Consoli- date4 Inc., and Morrison Cafeteria Company of Little Rock, Inc., 177 NLRB 591 (1969); Transmarine Navigation Corporation, 170 NLRB 389 (1968): Draper), Manufacturing Co., Inc., and American White Goods Compony, 170 NLRB 1706 (1968); McGregor Printing Corporation. 163 NLRB 938 (1967); Ozark Trailers, Incorporated 161 NLRB 561 (1966); Royal Plating and Polishing Co., Inc., 160 NLRB 990(1966). 9 Stanley Oil Company, Inc., 213 NLRB 219 (1974); Automation Instirute of Los Angeles, Inc., d/b/a West Coast Schools, 208 NLRB 725 (1974): All State Factors, Secured Party in Possession of North Park Meat Company, 205 NLRB 1122 (1973); Interstate Tool Co., Inc., 177 NLRB 686 (1969). o1 Sec. 8(d) of the National Labor Relations Act, as amended, provides that "to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment .... " 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Prior to January 30, 1976, the Union requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit concern- ing the effects on unit employees of Respondent's termination of its contract with the Pennsylvania Liquor Control Board.I ' Commencing on or about January 31, 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 concerning the effects on unit employees of the contract termination. Accordingly, we find that Respondent has, since January 31, 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 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 engaged 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. As a result of Respondent's unlawful failure to bargain about the effects of the termination of its I" Although the complaint does not specifically allege a request to bargain, Respondent's statement in opposition recited that Respondent "had received a letter from the Union requesting a meeting to discuss the termination of the contract on the guards at the Liquor stores" and that it responded by letter dated January 30, 1976. contract with the Pennsylvania Liquor Control Board, displaced employees have been denied an opportunity to bargain through their collective-bar- gaining representative at a time when Respondent was still in need of their services to fulfill its contract with the Liquor Control Board, and a measure of balanced bargaining power existed. Meaningful bargaining cannot be assured until some measure of economic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed. Accordingly, we deem it necessary, in order to effectuate the purposes of the Act, to require Respondent to bargain with the Union concerning the effects of the contract termination on its employees, and we shall accompany our order with a limited backpay requirement designed both to make whole the employees for losses suffered as a result of the violation and to recreate in some practicable manner a situation in which the Union's bargaining position is not entirely devoid of economic conse- quences for Respondent. We shall do so in this case by requiring Respondent to pay backpay to its employees in a manner similar to that required in Transmarine Navigation Corporation and its Subsid- iary, International Terminals, Inc.,12 and Interstate Tool Co., Inc. 3 Thus, Respondent shall pay employ- ees backpay at the rate of their normal wages when last in Respondent's employ under the Liquor Control Board contract from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions: (1) the date Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the contract termination on its employees; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of this Decision, or to commence negotiations within 5 days of Respondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount he would have earned as wages from the date on which Respondent ceased providing security services to the Pennsylvania Liquor Control Board to the time he secured equivalent employment, or the date on which Respondent shall have offered to bargain, whichever occurs sooner; provided, how- ever, that in no event shall this sum be less than these employees would have earned for a 2-week period at 12 170 NLRB 389 (1968). Despite his dissent in Transmarine, Member Jenkins notes that the remedy there has been accepted by the courts and the Board and that some type of remedy for the misconduct is needed, and he is therefore willing to join in the decision here. 13 177 NLRB 686(1969). 462 GLOBE SECURITY SERVICES, INC. the rate of their normal wages when last in Respondent's employ under the Liquor Control Board contract. Of course, Respondent's backpay obligation to any individual employee shall cease to run should Respondent offer such employee rein- statement to a substantially equivalent position at any of its Philadelphia facilities without prejudice to his seniority or other rights and privileges previously enjoyed. 14 Backpay shall be based upon earnings which the terminated employees would normally have received during the applicable period, less any net interim earnings, and shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company,'5 together with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co. 16 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Globe Security Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Security Officers, Local No. i, is a labor organization within the meaning of Section 2(5) of the Act. 3. All guards employed by Respondent at the Pennsylvania Liquor Control Board's State Stores located in Philadelphia, Pennsylvania, but excluding all other employees, guards employed at other locations, and supervisors within the meaning of 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 5, 1975, 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 31, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative concerning the effects on unit employees of the contract termination, Respon- dent 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 14 The obligation to bargain about the effects of the contract termination includes an obligation to discuss offering the terminated employees employment at other facilities serviced by Respondent. Royal Type.riter Compan}', 209 NLRB 1006, 1015, fn. 21 (1974). 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. 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 Globe Security Services, Inc., Philadelphia, Pennsyl- vania, its officers, agents, successors and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively with Interna- tional Union of Security Officers, Local No. 1, concerning the effects of the termination of its contract with the Pennsylvania Liquor Control Board on employees in the following appropriate unit: All guards employed by Respondent at the Pennsylvania Liquor Control Board's State Stores located in Philadelphia, Pennsylvania, but exclud- ing all other employees, guards employed at other locations, and supervisors within the meaning of 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 respect to the effects on employees of the termination of its contract with the Pennsylvania Liquor Control Board, and reduce to writing any agreement reached as a result of such bargaining. (b) Pay the terminated employees their normal wages for the period set forth in the Remedy section of this Decision and Order. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records, and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. i5 90 NLRB 289 (1950). 16 138NLRB716(1962). 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Mail a copy of the attached notice marked "Appendix" 17 to the International Union of Security Officers, Local No. 1, and to all the employees who were employed at the Pennsylvania Liquor Control Board sites on the date Respondent terminated its contract with the Pennsylvania Liquor Control Board. Copies of said notice, on forms provided by the Regional Director for Region 4, 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 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. t7 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 of Security Officers, Local No. 1, 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 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 the effects on employees of the termination of its contract with the Pennsylvania Liquor Control Board, and reduce to writing any agreement reached as a result of such bargaining. The bargaining unit is: All guards employed by Respondent at the Pennsylvania Liquor Control Board's State Stores located in Philadelphia, Pennsylvania, but excluding all other employees, guards employed at other locations, and supervisors within the meaning of the Act. WE WILL pay the terminated employees their normal wages for a period required by a Decision and Order of the National Labor Relations Board. GLOBE SECURITY SERVICES, INC. 464