Task Force Security & Investigations

412 312 NLRB No. 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 All dates are in 1993 unless otherwise noted. 2 Contrary to his colleagues, Member Devaney, in the cir- cumstances of this case, would accept the letter filed pro se by the Respondent’s president in response to the Notice to Show Cause, and would deny the General Counsel’s Motion for Summary Judg- ment. Task Force Security & Investigations and Local 1, the Independent Brotherhood of Security Em- ployees, Guards and Watchmen of America. Case 22–CA–18578 September 24, 1993 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH Upon a charge filed by Local 1, the Independent Brotherhood of Security Employees, Guards and Watchmen of America (the Union) on July 22, 1992, the General Counsel of the National Labor Relations Board issued a complaint on January 28, 1993,1 against Task Force Security & Investigations (the Re- spondent), alleging that it has violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Al- though properly served copies of the charge and com- plaint, the Respondent has failed to file an answer. On April 9, the General Counsel filed a Motion for Summary Judgment, with exhibits attached. On April 14, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. On April 26, the Re- spondent filed a letter in response to the Board’s No- tice to Show Cause. Ruling on Motion for Summary Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 14 days of service, ‘‘all the allegations in the complaint shall be considered to be admitted to be true and shall be so found by the Board.’’ Further, the exhibits attached to the Motion for Summary Judg- ment indicate that the Regional Attorney for Region 22, by letter dated February 16, advised the Respond- ent that the deadline for filing an answer had been ex- tended until February 23, and that if an answer was not received by the close of business on that date, a Motion for Default Judgment would be filed. It is undisputed that the Respondent failed to file an answer within the allotted time. The Respondent as- serts in its response to the Notice to Show Cause, however, that a letter it received dated March 29, led it to believe that the case had been dismissed. We note that the Respondent did not provide a copy of this let- ter with its response. That fact notwithstanding, a March 29 letter assertedly acknowledging dismissal of the case does not in any way justify the Respondent’s antecedent failure to file an answer by the original February 11 deadline, or by the extended February 23 deadline. Indeed, the Respondent offers no explanation for its failure to file a timely answer. We accordingly find that the Respondent has failed to show good cause why the allegations of the complaint should not be found to be true. In the absence of good cause being shown for the failure of the Respondent to file a timely answer, we grant the General Counsel’s Motion for Summary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation with an office and place of business in Newark, New Jersey, is engaged in providing security and other related services for the New York/New Jersey Port Authority at Newark Inter- national Airport. Based on a projection of its oper- ations since about May 6, 1992, when the Respondent commenced its operations, the Respondent will provide services valued in excess of $50,000 for the New York/New Jersey Port Authority, an enterprise within the State of New Jersey, which in turn is directly en- gaged in interstate commerce. About May 16, 1992, the Respondent commenced work under a contract with the New York/New Jersey Port Authority at Newark International Airport. Tri- Way Security and Escort Services (Tri-Way Security) previously held this contract. Since securing the con- tract, the Respondent has continued to operate the business of Tri-Way Security in basically unchanged form, and has employed as a majority of its employees individuals who were previously employees of Tri- Way Security. Based on the foregoing, we find that the Respondent is an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act and is a successor to Tri-Way Security. See Burns Security Services, 406 U.S. 272 (1972). We also find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Unit and the Union’s Representative Status The following employees of the Respondent con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act: 413 TASK FORCE SECURITY & INVESTIGATIONS All full-time and regular part-time airport security agents employed by the Employer at its Newark International Airport, Newark, New Jersey loca- tion, but excluding all office clerical employees and supervisors as defined in the Act, and all other employees. On December 17, 1991, the Union was certified as the exclusive collective-bargaining representative of the unit employed by Tri-Way Security. From at least December 17, 1991, to May 16, 1992, the Union, by virtue of Section 9(a) of the Act, was the exclusive representative of the unit employed by Tri-Way Secu- rity for the purposes of collective bargaining. Since May 16, 1992, the Union, by virtue of Section 9(a) of the Act, has been and is the exclusive representative of the Respondent’s employees in the above-described unit for the purposes of collective bargaining with re- spect to rates of pay, wages, hours, and other terms and conditions of employment. B. The Violations About May 14 and June 25, 1992, the Union, by certified letter, requested that the Respondent recognize it as the exclusive collective-bargaining representative of the employees in the unit and bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the unit. Since about May 16, 1992, the Respondent has failed and re- fused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that by these acts, the Respondent has violated Section 8(a)(5) and (1) of the Act. The Respondent, about May 1, 1992, by Frank Maddalina Sr., about May 2 and 8, 1992, by Dominick Maddalina and about May 8, 1992, by Frank Maddalina Jr., informed its employees that selection of a union would be futile by telling employees that the Respondent would not allow a union at its facility. We find that by these acts, the Respondent has violated Section 8(a)(1) of the Act. The Respondent, about May 1, 1992, by Frank Maddalina Sr., early May 1992, by Frank Maddalina Jr., and early May 1992 and May 16, 1992, by Dominick Maddalina, conditioned prospective employ- ees’ employment upon the employees remaining non- union. Further, about May 16, 1992, the Respondent refused to employ Donald Hall, Willie France, and Hakin Razzaaq because they joined, supported or as- sisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. We find that by these acts, the Respondent has violated Section 8(a)(3) and (1) of the Act. CONCLUSION OF LAW By the conduct described above in the section enti- tled ‘‘The Violations,’’ the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(2), (6), and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Having found that the Respondent has failed since about May 16, 1992, to recognize and bargain with the Union, we shall order the Respondent to do so on request. In ad- dition, having found that the Respondent has refused since about May 16, 1992, to employ Donald Hall, Willie France, and Hakin Razzaaq, we shall order it to offer immediate employment to those individuals in the jobs to which they applied or substantially equiva- lent positions, and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Task Force Security & Investigations, Newark, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Local 1, the Independent Brotherhood of Security Employees, Guards and Watchmen of America, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time airport security agents employed by the Employer at its Newark International Airport, Newark, New Jersey loca- tion, but excluding all office clerical employees and supervisors as defined in the Act, and all other employees. (b) Informing employees that selection of a union would be futile by telling employees that it would not allow a union at its facility. (c) Conditioning prospective employees’ employ- ment upon the employees remaining nonunion. (d) Refusing to employ prospective employees be- cause they joined, supported, or assisted the Union, and engaged in concerted activities. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 If 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.’’ (a) On request, recognize and bargain with the Union as the exclusive collective-bargaining represent- ative of the employees in the above-described unit. (b) Offer Donald Hall, Willie France, and Hakin Razzaaq immediate employment in the jobs to which they applied or substantially equivalent positions, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Newark, New Jersey, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT fail and refuse to recognize and bar- gain with Local 1, the Independent Brotherhood of Se- curity Employees, Guards and Watchmen of America, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time airport security agents employed by us at our Newark Inter- national Airport, Newark, New Jersey location, but excluding all office clerical employees and su- pervisors as defined in the Act, and all other em- ployees. WE WILL NOT inform employees that selection of a union would be futile by telling employees that we would not allow a union at our facility. WE WILL NOT condition prospective employees’ em- ployment upon the employees remaining nonunion. WE WILL NOT refuse to employ prospective employ- ees because they joined, supported, or assisted the Union, and engaged in concerted activites. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL on request, recognize and bargain with the Union as the exclusive collective-bargaining represent- ative of the employees in the above-described unit. WE WILL offer Donald Hall, Willie France, and Hakin Razzaaq immediate employment in the jobs to which they applied or substantially equivalent positions and WE WILL make them whole for any loss of earn- ings and other benefits suffered as a result of our dis- crimination against them. TASK FORCE SECURITY & INVESTIGA- TIONS