NLRB v. William J. Burns Internat'l Detective Agency, Inc., No. 17850.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit
Citation346 F.2d 897
Docket NumberNo. 17850.
Decision Date18 June 1965
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. The WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY, INC., Respondent.

346 F.2d 897 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
The WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY, INC., Respondent.

No. 17850.

United States Court of Appeals Eighth Circuit.

June 18, 1965.


346 F.2d 898

Stephen B. Goldberg, Attorney, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, N. L. R. B., Washington,

346 F.2d 899
D. C., Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel and Herman M. Levy, Attorney, N. L. R. B., Washington, D. C., for petitioner

Lucian Lane, of Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, Mo., for respondent.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This case is before this court upon petition of the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act as amended1 for enforcement of its order issued against the respondent, William J. Burns International Detective Agency, Inc., hereinafter Burns, on September 24, 1964.

Burns, by cross-petition pursuant to § 10(f) of the Act, asks the court to review and set aside the portion of the Board's order finding it to be in violation of the Act and the order setting aside a representation election at Kansas City. The Board's decision and order and the report of the Trial Examiner are reported at 148 NLRB No. 13.

The alleged unfair labor practices occurred in Omaha, Nebraska, and Kansas City, Missouri, within this judicial circuit. This court has jurisdiction over the controversy here presented except with respect to the attack on the Board's order setting aside the Kansas City representation election. No charge on refusal to bargain with a certified bargaining agent of the Kansas City employees is involved in this proceeding. Courts of Appeal lack jurisdiction to directly review Board's decisions on certification proceedings. The attacks on an election generally can only be reviewed as part of the record in a hearing upon a complaint charging a refusal to bargain. See Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L. Ed.2d 849; Hendrix Mfg. Co. v. N. L. R. B., 5 Cir., 321 F.2d 100, 106; N. L. R. B. v. Blades Mfg. Corp., 8 Cir., 344 F.2d 998 (May 10, 1965).

Separate complaints were filed charging Burns with violations of the Act in its operations at Omaha and Kansas City. Such complaints were consolidated for hearing. All matters litigated are covered by the Board's decision and order. The issues raised with respect to the Omaha and Kansas City divisions of Burns are quite different and hence, separate discussion of such operations appears desirable.

Omaha Operation.

The Board found that Burns violated § 8(a) (5) and (1) by terminating its contract with Creighton University without notice to or bargaining with the International Guards Union of America, hereinafter called the Union, which was the certified bargaining agent of the Omaha employees. Such bargaining, the Board urges, is compelled by Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233.

On February 19, 1963, following a Board conducted mail election, the Union was certified as the collective bargaining agent for Burns guard employees in the metropolitan Omaha area. At the time of the election, there were four employees in the bargaining unit all of whom were performing their duties at Creighton University under a Burns contract calling for forty-three hours of guard service per week. Within a year prior to the election, Omaha Steel, Safeway Stores and Kellogg Company had terminated contracts with Burns calling for guard service.

On March 1, 1963, Burns' manager contacted the Union representative expressing a willingness to enter into bargaining negotiations. A meeting was delayed by reason of illness in the Union representative's family. Later, a meeting was tentatively fixed for April 8. On

346 F.2d 900
April 5, Burns wrote the Union a letter, stating
"This will confirm receipt of your March 26, 1963, letter regarding Burns guards at Omaha, Nebraska. We have just currently been advised by the Kellogg Company, Omaha, Nebraska, that they have canceled our contract, effective April 8, 1963. The Agency\'s guard service at Creighton University in Omaha is also to be discontinued as of April 14, 1963. As you know, this leaves the Agency with no guard contracts in Omaha. In view of the foregoing developments, I can see no practical reason for meeting with you in Omaha as suggested."

After receiving such letter, the Union made no effort to contact Burns to request further bargaining, but instead filed charges that Safeway, Kellogg and Creighton University had conspired with Burns to terminate the contracts in order to interfere with, and coerce and restrain Burns' employees. Such charges were withdrawn by the Union. A new charge filed against Burns alleged refusal since March 1, 1963, to bargain with the Union as the exclusive bargaining agent of its employees in violation of § 8(a) (5). The present complaint is based upon such charge.

Near the close of the hearing upon the complaint, the Trial Examiner inquired: "Is the General Counsel alleging or assuming any Town and Country overtones in this case, in other words, is the complaint alleging that the mere refusal to consult the union about termination of the Creighton contract, irrespective of anything else, is a violation of Section 8(a) (5)?" He received an affirmative response. After the Trial Examiner expressed doubt as to whether such issue had been properly raised, the General Counsel moved to amend paragraph 12 of the complaint "to add to that paragraph that the respondent also did on or about April 14, 1963, cancel the Creighton contract without notification or discussion with the union." Burns objected to the amendment. Such objection was overruled. The Examiner advised counsel that he would give him any time he might need to consider the matter and to produce testimony to meet the amendment. No error resulted from permitting the amendment. Section 10(b) specifically gives the Board or hearing officer discretionary power to permit amendments. The amendment falls within the terms of the § 8(a) (5) charge in the complaint. It served the purpose of more specifically advising the Board and the parties that refusal to bargain with respect to the termination of the Creighton University contract was being charged. Inasmuch as Burns was granted such time as might be needed to produce evidence and brief the issue, no prejudice resulted from permitting the amendment. See Radio Officers' Union, etc. v. N. L. R. B., 347 U.S. 17, 34, footnote 30, 74 S.Ct. 323, 98 L.Ed. 455; N. L. R. B. v. Local 691, Intern. Broth. of...

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25 practice notes
  • First National Maintenance Corporation v. National Labor Relations Board, No. 80-544
    • United States
    • United States Supreme Court
    • June 22, 1981
    ...F.2d 254 (CA8 1970); NLRB v. Drapery Mfg. Co., 425 F.2d 1026 (CA8 1970); NLRB v. William J. Burns International Detective Agency, Inc., 346 F.2d 897 (CA8 1965). 10. Compare National Car Rental System, Inc., 252 N.L.R.B. 159, 161 (1980) (employer's decision to terminate car leasing operation......
  • Raley's, Inc. v. N.L.R.B., AFL-CIO and I
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 7, 1983
    ...(4th Cir.1967); Daniel Constr. Co. v. NLRB, 341 F.2d 805, 808-10 (4th Cir.1965); NLRB v. William J. Burns Int'l. Detective Agency, Inc., 346 F.2d 897, 899 (8th Cir.1965); Hendrix Mfg. Co. v. NLRB, 321 F.2d 100, 106 (5th Cir.1963); Bonwit Teller, Inc. v. NLRB, 197 F.2d 640, 642 n. 1 (2d Cir.......
  • INT'L LADIES'GARMENT WORKERS U. v. NLRB, No. 71-1159
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 8, 1972
    ...v. Royal Plating & Polishing Co., 3 Cir., 350 F.2d 191, 195-196 (1965); NLRB v. William J. Burns International Detective Agency, 8 Cir., 346 F.2d 897, 899-902 21 See notes 10 & 11 supra. 22 Brief for petitioners in No. 71-1328 at 28. 23 We might add also that in the circumstances of this ca......
  • Pure Oil Company v. Suarez, No. 21446.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 7, 1965
    ...of business there both before and after the event about which the plaintiff complains and at the time the suit is filed with the expressed 346 F.2d 897 intention to continue doing business in such locale, but allows the corporation to insist on a trial of the factual issues in the district ......
  • Request a trial to view additional results
25 cases
  • First National Maintenance Corporation v. National Labor Relations Board, No. 80-544
    • United States
    • United States Supreme Court
    • June 22, 1981
    ...F.2d 254 (CA8 1970); NLRB v. Drapery Mfg. Co., 425 F.2d 1026 (CA8 1970); NLRB v. William J. Burns International Detective Agency, Inc., 346 F.2d 897 (CA8 1965). 10. Compare National Car Rental System, Inc., 252 N.L.R.B. 159, 161 (1980) (employer's decision to terminate car leasing operation......
  • Raley's, Inc. v. N.L.R.B., AFL-CIO and I
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 7, 1983
    ...(4th Cir.1967); Daniel Constr. Co. v. NLRB, 341 F.2d 805, 808-10 (4th Cir.1965); NLRB v. William J. Burns Int'l. Detective Agency, Inc., 346 F.2d 897, 899 (8th Cir.1965); Hendrix Mfg. Co. v. NLRB, 321 F.2d 100, 106 (5th Cir.1963); Bonwit Teller, Inc. v. NLRB, 197 F.2d 640, 642 n. 1 (2d Cir.......
  • INT'L LADIES'GARMENT WORKERS U. v. NLRB, No. 71-1159
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 8, 1972
    ...v. Royal Plating & Polishing Co., 3 Cir., 350 F.2d 191, 195-196 (1965); NLRB v. William J. Burns International Detective Agency, 8 Cir., 346 F.2d 897, 899-902 21 See notes 10 & 11 supra. 22 Brief for petitioners in No. 71-1328 at 28. 23 We might add also that in the circumstances of this ca......
  • Pure Oil Company v. Suarez, No. 21446.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 7, 1965
    ...of business there both before and after the event about which the plaintiff complains and at the time the suit is filed with the expressed 346 F.2d 897 intention to continue doing business in such locale, but allows the corporation to insist on a trial of the factual issues in the district ......
  • Request a trial to view additional results

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