NLRB v. Detective Intelligence Service, Inc.
| Decision Date | 24 August 1971 |
| Docket Number | No. 26571.,26571. |
| Citation | 448 F.2d 1022 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DETECTIVE INTELLIGENCE SERVICE, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Daniel M. Katz (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Roy O. Hoffman, Director, NLRB, San Francisco, Cal., for appellant.
Boyd Burnison (argued), of St. Sure, Moore, Hoyt & Sizoo, Oakland, Cal., for appellee.
Before HAMLEY and KOELSCH, Circuit Judges, and BYRNE, District Judge.*
The National Labor Relations Board (Board) applies to this court pursuant to section 10(e) of the National Labor Relations Act (Act), as amended, 29 U. S.C. § 160(e), for enforcement of its order issued against Detective Intelligence Service, Inc. (Employer). The Board ordered the Employer to cease and desist from violating section 8(a) (5) and (1) of the Act, 29 U.S.C. § 158(a) (5), (1), to bargain with the certified representative of certain employees, and to post appropriate notices. The Employer defends its refusal to bargain on the ground that the certification, as clarified by the Board, is invalid.
The background of this dispute extends to July 9, 1968, when the International Union of Guards and Watchmen, Independent (Union), filed a petition with the Board for certification as the bargaining representative for "all employees employed by the employer as guards, watchmen, Patrolmen, Fire Patrol and/or Special Police." On July 19, 1968, the Union and Employer entered into a Stipulation for Certification upon Consent Election which included a paragraph defining the scope of the collective bargaining unit as follows:
"All security officer employees of the Employer working out of its Oakland, California location, including regular part-time employees; excluding office clerical employees, salesmen, part-time employees who have not worked in the calendar quarter ended June 30, 1968, and supervisors as defined in the Act."
The stipulation also included the standard provision defining those eligible to vote in the election based upon the payroll period of July 13, 1968. The stipulation was signed by the Regional Director of the Board.
The Union won the election by a vote of fifty-four to thirty-three. There were one hundred and twenty-four eligible voters. The Regional Director certified the Union as representative on August 28, 1968, describing the bargaining unit precisely as it had been described in the stipulation.
On February 7, 1969, the Union filed a petition with the Board requesting a clarification of the unit description set forth in the certification. The Union proposed that the unit description be clarified to read:
"All security officer employees of the Employer working out of its Oakland, California location, excluding office clerical employees, salesmen, and supervisors as defined by the Act."
A hearing was held on the petition on February 26, 1969, and the case was ordered transferred to the Board on March 12, 1969. The Union contended that the description was ambiguous and should be clarified to clearly include all regular part-time employees. The Employer, opposing the petition, argued that the description unambiguously excluded part-time employees hired since the specified quarter.
The Board found that the portion of the unit description excluding part-time employees who had not worked in the calendar quarter ended June 30, 1968, had been intended by the parties as the formula by which the eligibility of part-time employees to vote in the election was to have been determined, and that it was mistakenly included in the unit description.
The Board affirmed the rulings of the Hearing Officer and issued an order on June 26, 1969, clarifying the unit description as follows:
"All security officer employees of the Employer working out of its Oakland, California location including regular part-time employees, excluding office clerical employees, salesmen and supervisors as defined in the Act."
The Union requested the Employer to bargain with it as representative of the unit as clarified, and filed a charge with the Board when the Employer refused. A complaint issued from the Board charging a refusal to bargain in violation of the Act. The Employer's answer asserted that it had bargained "with respect to all employees * * * except for part-time employees who have not worked in the calendar quarter ended June 30, 1968."
The Board transferred the cause to itself and gave notice to show cause why the General Counsel's motion for summary judgment should not be granted. The Employer's response contended that the original unit description was unambiguous, was not the result of inadvertent error and that the Board had no power to modify a bargaining unit stipulated by the Employer and Union and approved by the Regional Director.
The Board granted the motion for summary judgment on the ground that the issues were identical to those decided by the Board in the representation proceeding and that the Employer was not entitled to relitigate them, in the absence of special circumstances. The Board found, on the basis of the record, that the Employer's refusal to bargain violated section 8(a) (5) and (1) of the Act, 29 U.S.C. § 158(a) (5), (1), issued the above-described order and applies for its enforcement.
The parties agree that the only question in this case...
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