Petition to review and set aside, and cross-petition to enforce, order of the National Labor Relations Board that found that petitioner had violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act. Petition to set aside granted in part; case otherwise remanded.
Before Feinberg, Van Graafeiland and Kearse, Circuit Judges.
Burns Electronic Security Services, Inc. (the Company) petitions to review and set aside an order of the National Labor Relations Board that found that the Company had engaged in various unfair labor practices. The Board cross-petitions for enforcement of its order. The Board found that the Company had violated section 8(a)(5) of the National Labor Relations Act by refusing to bargain with the union certified to represent the employees at three of the Company's facilities in Connecticut, and by unilaterally altering a work requirement without bargaining with the certified union. The Board also found that the Company had violated section 8(a)(1) of the Act when one of its managers made a statement to employees which the Board found tended to restrain the free exercise of employee rights. For reasons stated below, we grant the petition to set aside the Board's finding with respect to the section 8(a)(1) violation, and we remand the section 8(a)(5) claims to the Board for reconsideration.
The Company is engaged in the business of selling, installing, monitoring, answering, and servicing electronic security systems, which include burglar alarms, fire alarms, hold-up alarms, water overflow alarms and industrial process alarms. The Company maintains approximately 22 stations throughout the country that monitor and respond to alarms; at issue here is the union status of employees at facilities in Bridgeport, Hamden and New Haven, Connecticut. In June 1976, the Connecticut Union of Telephone Workers, Inc. (the Union) filed a representation petition with the Board which sought certification of a collective bargaining unit consisting of the Company's employees at the three Connecticut facilities. The Company objected to the proposed unit because it contained a group of employees known as Operator/Runners, who respond when alarms on a subscriber's premises are activated. The Company contended that Operator/Runners were guards within the meaning of section 9(b)(3) of the Act and therefore could not be included within the proposed unit.*fn1 In July 1976, there was a brief representation hearing, and in October the Regional Director issued a Decision and Direction of Election, holding that the Operator/Runners were not guards under section 9(b)(3) and could be included in the unit. The Board denied the Company's request for review of the Regional Director's finding, and the Union subsequently won the election and was certified.
To test the validity of the determination that Operator/Runners were not guards and hence were properly included within the certified unit, the Company refused to bargain with the Union. The Union subsequently filed unfair labor practice charges with the Board, and a complaint issued in June 1977. For convenience, we will call this the general refusal to bargain charge. Before a hearing was held, company managers posted memoranda at the New Haven facility to the effect that Operator/Runners, when responding to an alarm, were required to wear a uniform and carry either a nightstick or a gun. Although the Company maintained that the notices merely reiterated existing job requirements, the Union claimed that the Company had not previously enforced any requirement that Operator/Runners carry a gun or a nightstick. The Union therefore filed another refusal to bargain charge with the Board, claiming that the Company had again violated the Act by unilaterally altering the working conditions of Operator/Runners without bargaining with the Union. Upon hearing about the Union's second charge, Operations Manager Piraino inquired in the presence of a group of employees as to who was "filing these ridiculous charges in regard to carrying of nightsticks as being a change in company policy(?)" This statement provoked the Union to charge that the Company had violated section 8(a)(1) of the Act by seeking to restrict the free exercise of employee rights.
These various charges were the subject of an unfair labor practice hearing before an administrative law judge (ALJ) in January 1978.*fn2 The Board's General Counsel moved for summary judgment on the two refusal to bargain charges; the ALJ denied the motion with respect to the claim that the company had altered working conditions without bargaining with the Union, but reserved final decision with respect to the general refusal to bargain charge. In so ruling, the ALJ noted that summary judgment might be appropriate if the latter were the only issue in the proceeding, but concluded that the presence of other independent claims entitled the Company to present evidence in its defense. The ALJ ruled, however, that on the general refusal to bargain issue, the Company could only present evidence that was "previously unavailable" and that it was barred from presenting evidence on matters which were or could have been litigated at the previous representation hearing. The ALJ conceded the ambiguity of his ruling, but noted that it would be clarified as the hearing progressed.
At the hearing, the Company introduced considerable evidence concerning the functions of Operator/Runners. Most of this evidence was technically introduced to defend against the claim that the Company had unilaterally altered working conditions by requiring Operator/Runners to carry guns or nightsticks when responding to an alarm; nonetheless, the evidence was also directly relevant to the central issue of whether Operator/Runners were guards under section 9(b)(3) of the Act. In his decision, however, the ALJ granted General Counsel's motion for summary judgment on the general refusal to bargain charge. In so ruling, the ALJ expressly refused to consider the validity of the unit determination in light of the new evidence, instead concluding that principles of administrative res judicata barred relitigation of the issue. The ALJ noted that to reassess the validity of the unit on the basis of the entire record would involve "basic considerations foreclosed to the administrative law judge" and would be "wholly beyond (the ALJ's) province (under) existing Board precedents governing such issue." The ALJ instead concluded that the Company's request that the validity of the certification be assessed in light of the entire record was "more appropriately addressed to the Board." With respect to the other charges, the ALJ ruled that the Company had violated section 8(a)(5) by requiring Operator/Runners to respond to alarms carrying nightsticks or guns without first bargaining for such a change with the Union and that the remark of Manager Piraino inquiring who was filing unfair labor practice charges violated section 8(a)(1) of the Act because it tended to interfere with the free exercise of employee rights.
The Board subsequently adopted the findings of the ALJ, although Board member Murphy dissented from the finding that Piraino's remark violated the Act. On this petition to review, the Company argues strenuously that the evidence adduced at the unfair labor practice hearing conclusively establishes that the Operator/Runners were guards within the meaning of section 9(b)(3). Accordingly, the Company asserts that the ALJ and the Board shirked their statutory responsibilities in refusing to reconsider the unit certification in light of findings that it violated section 8(a)(5) of the Act by unilaterally altering working conditions and that Piraino's remark violated section (8)(a) (1) of the Act. We treat these arguments in separate sections.
The central issue before us is the validity of the Board's finding that the Operator/Runners in the Bridgeport, Hamden and New Haven unit were not guards within the meaning of section 9(b)(3) of the Act. It is conceded that if these employees were properly classifiable as guards, the collective bargaining unit could not include them.*fn3 The Board contends that there was substantial evidence to support its classification of the Operator/Runners and that the Company violated section 8(a)(5) of the Act when it flatly refused to bargain with the Union. The Company argues that its refusal to bargain was justified because the inclusion of Operator/Runners within the certified unit was erroneous and inconsistent with the Board's classification of Operator/Runners at other Company facilities. These conflicting contentions do not stem simply from different readings of the same record, however. Instead, they reflect a disagreement over what evidence should have been considered by the Board when it reviewed the certification question in the context of the general refusal to bargain charge.
In granting General Counsel's motion for summary judgment on that charge, the ALJ refused to consider new evidence on the certification issue produced at the unfair labor practice hearing and instead took into account only the record compiled at the original representation hearing. Contending that the ALJ took the right course, the Board relies primarily on its regulation, 29 C.F.R. § 102.67(f), which provides in pertinent part that the denial of a request for Board review of a regional director's unit determination shall "constitute an affirmance of the regional director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice hearing." According to the Board, this provision protects the integrity of the administrative process by requiring a party to produce all available evidence relevant to the unit certification issue at the time of the original representation hearing rather than attempting to relitigate the unit issue in the context of the subsequent unfair labor practice hearing.
On its theory that the record on review in this court is therefore limited on this issue to the evidence produced at the original representation hearing, the Board argues that there is substantial evidence to support the conclusion that the Operator/Runners at the Company facilities were not guards. The Board cites, for example, evidence at the representation hearing that Operator/Runners, when responding to a burglar alarm, were not encouraged to assist police in capturing the intruders and that Operator/Runners in such cases generally waited for the arrival of the police or the owner of the premises. This evidence, in the Board's view, indicates that the duties of the Operator/Runners did not create the potential for personal confrontation that is the hallmark of guard status under section 9(b)(3). See Drivers, Chauffeurs, Warehousemen and Helpers, Local No. 71 v. NLRB, 180 U.S. App. D.C. 192, 553 F.2d 1368 (D.C.Cir.1977); Wells Fargo Alarm Services v. NLRB, 533 F.2d 121 (3d Cir. 1976). Accordingly, the Board asserts that it properly refused to upset the ALJ's grant of summary judgment on the general refusal to bargain charge.
The Company concedes that under ordinary circumstances the principle of administrative res judicata relied upon by the Board would generally preclude relitigation of the unit certification issue in the context of a subsequent unfair labor practice hearing. However, the Company argues that special circumstances here render unjustifiable the Board's refusal to reevaluate the unit determination in light of evidence produced at the unfair labor practice hearing. First, the Company points out that the record produced at the original representation hearing was deficient in several material respects. In ruling that Operator/Runners were not guards, for example, the Regional Director did not have before him a complete job description for Operator/Runners or the Company's reports on burglary attacks. Since a Board Regulation, 29 C.F.R. § 102.64(a), provides that "(it) shall be the duty of the hearing officer to inquire fully into all matters and issues necessary to obtain a full and complete record upon which ...