Dunbar Armored, Inc.

1 326 NLRB No. 139 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Dunbar Armored, Inc. and International Union, United Plant Guard Workers of America (UPGWA) and its Local 506.1 Case 4–CA– 27245 September 30, 1998 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Pursuant to a charge filed on June 26, 1998,2 the Act- ing General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on July 30, 1998, alleging that the Respondent has violated Sec- tion 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the UPGWA’s certification in Case 4–RC–19348. (Official notice is taken of the “record” in the representation pro- ceeding as defined in the Board’s Rules and Regula- tions, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, with affirmative defenses, admitting in part and denying in part the allegations in the complaint. On August 28, 1998, the Acting General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On August 31, 1998, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. Thereafter, on September 22, 1998, the Charging Party filed a Statement in Support of Motion for Summary Judgment. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.3 Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to rec- ognize and bargain, but attacks the validity of the certi- fication on the basis of the Board’s unit determination in the representation proceeding. The Respondent also alleges that the Union is directly or indirectly affiliated with the International Brotherhood of Teamsters, a non– 1 Herein individually called UPGWA and Local 506, respectively, and collectively called the Union. 2 In its Motion for Summary Judgment and Memorandum in Sup- port, the Acting General Counsel states that “[T]here was only one charge filed in Case 4-CA–27245 and it was both filed and served on June 26, 1998. The Second Amended Charge referred to by Respon- dent in its Answer involved Case 4–CA–27143 which is not the sub- ject of the instant Motion.” 3 Member Hurtgen did not participate in the underlying representa- tion case. He agrees for institutional reasons with this decision be- cause the Respondent has not raised any new matters in this proceed- ing. guard union, and therefore is not certifiable pursuant to Section 9(b)(3) of the Act, 29 U.S.C. §159(b)(3).4 All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previ- ously unavailable evidence, nor does it allege any spe- cial circumstances that would require the Board to reex- amine the decisions made in the representation pro- ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Maryland corporation, with a branch facility in Cinnaminson, New Jersey, herein called the Cinnaminson branch, has been engaged in the business of providing armored car carrier services for the transport of money and other valuable items throughout the United States. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations, performed services valued in excess of $50,000 outside the States of Maryland and New Jersey. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.5 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held May 7, 1998, the UPGWA was certified on May 18, 1998, as the exclu- sive collective–bargaining representative of the employ- ees in the following appropriate unit: 4 As set forth in the Acting General Counsel’s Memorandum in Support of Motion for Summary Judgment, the issue of the appropri- ateness of the unit was considered and decided by the Board and Re- gional Director in the underlying representation proceeding. The issue of the Union’s alleged affiliation with the International Brotherhood of Teamsters was raised in the Respondent’s Motion to Revoke Certifi- cation. The Acting Regional Director considered the Respondent’s Motion and issued an Order Denying Motion to Revoke Certification on August 20, 1998. On September 28, 1998, the Board denied review of the Order. We therefore find that the Respondent’s defenses do not raise any issues warranting a hearing. 5 Although the Respondent’s answer to the complaint states that it is without knowledge as to whether the Union is a 2(5) labor organiza- tion, the Respondent failed to raise this issue in the underlying repre- sentation proceeding. Accordingly, we find that the Respondent is precluded from now litigating the matter in this proceeding. See Biewer Wisconsin Sawmill, 306 NLRB 732 fn. 1 (1992); and Wickes Furniture, 261 NLRB 1062, 1063 fn. 4 (1982). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 All full–time and regular part–time driver/guards, dis- patchers and vault employees employed by Respon- dent at the Cinnaminson branch, excluding all cash room employees, clerical employees, Branch Manag- ers, Vault Managers, Operations Managers, and super- visors as defined in the Act. The UPGWA continues to be the exclusive represen- tative under Section 9(a) of the Act. B. Refusal to Bargain On or about May 19, 1998, the Union, by letter, re- quested that the Respondent recognize and bargain, and, since on or about May 19, 1998, the Respondent has failed and refused. We find that this failure and refusal constitutes an unlawful failure and refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By failing and refusing on and after May 19, 1998, to recognize and bargain with the Union as the exclusive collective–bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to recognize and bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the certification as beginning the date the Respondent begins to recognize and bargain in good faith with the Union. Mar–Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Dunbar Armored, Inc., Cinnaminson, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Union, United Plant Guard Workers of America (UPGWA) and its Local 506, as the exclusive bargaining representative of the employees in the bargaining unit. (b) 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. (a) On request, recognize and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of employment, and if an understanding is reached, em- body the understanding in a signed agreement: All full–time and regular part–time driver/guards, dis- patchers and vault employees employed by Respon- dent at the Cinnaminson branch, excluding all cash room employees, clerical employees, Branch Manag- ers, Vault Managers, Operations Managers, and super- visors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Cinnaminson, New Jersey, copies of the attached notice marked “Appendix.”6 Copies of the no- tice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent 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 Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 19, 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. September 30, 1998 Sarah M. Fox, Member Wilma B. Liebman, Member Peter J. Hurtgen, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 6 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DUNBAR ARMORED, INC. 3 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with International Un- ion, United Plant Guard Workers of America (UPGWA) and its Local 506, as the exclusive representative of the employees in the bargaining unit. 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, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All full–time and regular part–time driver/guards, dis- patchers and vault employees employed by us at our Cinnaminson branch, excluding all cash room em- ployees, clerical employees, Branch Managers, Vault Managers, Operations Managers, and supervisors as defined in the Act. DUNBAR ARMORED, INC.