Deluxe General Inc.

DELUXE GENERAL INCORPORATED Deluxe General Incorporated and National Security Association-Studio Security Association, Peti- tioner. Case 31-RC-4294 March 19. 1979 DECISION ON REVIEW AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Petitioner seeks to represent a unit of the Employ- er's security guards and watchmen. On November 30, 1978, the Regional Director for Region 31 issued a Decision and Direction of Election in the above-enti- tled proceeding, finding that Petitioner is qualified under Section 9(b)(3) of the Act to represent a unit of guards, and directing an election in a unit consisting of "all full-time and regular part-time security guards and watchmen employed by the Employer at its Ser- rano and Argyle facilities in Hollywood, California." Thereafter, in accordance with Section 102.69 of the National Labor Relations Board's Rules and Regula- tions, Series 8, as amended, the Employer filed a re- quest for review of the Regional Director's decision asserting, inter alia, that Petitioner is ineligible to rep- resent the requested unit of guards because it admits into membership employees other than statutory guards. Specifically, the Employer argues that part- time whistlemen and flagmen, two of the job classifi- cations currently represented by Petitioner, are clearly not guards within the meaning of the Act and that the Regional Director's findings that they per- form guard functions as a significant portion of their job responsibilities and interchange with admitted guards are unsupported by the record evidence. The Petitioner filed a brief in support of the Regional Di- rector's decision. On December 26, 1978, the Board telegraphically granted the Employer's request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing held on November 6, 1978, and finds that they are free from prejudicial error. They are hereby affirmed. We have carefully reviewed the record herein and find no basis for the Regional Director's findings of fact. The record shows that the sole task assigned to part-time whistlemen and flagmen is to regulate the flow of traffic during the Employer's filming of a mov- ie, thereby minimizing extraneous sound interference. Contrary to the Regional Director's findings, there is no evidence that part-time whistlemen and flagmen interchange with admitted guards or that they are vested with or exercise any authority to enforce rules against employees or other persons to protect the Em- ployer's property. Indeed, we note that Petitioner, in its brief, neither alludes to nor relies on the Regional Director's findings in this regard. Rather, Petitioner takes the position that part-time whistlemen and flag- men, by virtue of their undisputed authority to stop traffic, are guards within the meaning of Section 9(b)(3) of the Act. For the reasons set forth below, we cannot agree with such a strained view of the mean- ing of "guard" within Section 9(b)(3). Review of the legislative history Section 9(b)(3) re- veals that Congress drafted that provision in order to minimize the danger of divided loyalty that may arise when a guard is called upon to enforce the rules of his employer against a fellow union member.' Although the Board has construed Section 9(b)(3) to encompass nonplant guards,2 it has not departed from that sec- tion's strict requirements that employees found to be guards are those who "enforce against employees and other persons rules to protect property of the em- ployer or to protect the safety of persons on the em- ployer's premises." In the instant case, it is clear that part-time whistlemen and flagmen are neither en- trusted with the protection of the Employer's prop- erty nor with the safety of persons on its premises. An employee engaged in traffic control, albeit fa- cilitating the Employer's film production, bears little resemblance to employees historically found to be guards.3 Indeed, we perceive the functions performed by part-time whistlemen and flagmen to be an inte- gral part of the Employer's production process. Thus, quiet on a movie set is as important to the film's pro- duction as the sound crew. Yet employees tradition- ally found to be guards perform a role apart from the L See Walterboro Manufacturing Corporation, 106 NLRB 1383. 1384 (1953). 2 Since 1953 the Board and courts have held that the special provisions of Sec. 9(bX3) also apply to armored car guards. See, e.g., Armored Motor Service Company, Inc., 106 NLRB 1139 (1953); Brink's, Incorporated 226 NLRB 1182 (1976). Like plant guards and unlike other employees, the prin- cipal function of armored car guards is to physically protect the property entrusted to their care. By applying the provisions of Sec. 9(bX3) to such employees, the Board is serving the congressional purpose underlying that section of insulating all guard employees from conflicting loyalties to non- guard labor organizations. For the reasons stated in her concurrence in Brink's Incorporated, supra, Member Murphy does not subscribe to the view that the statutory definition of "guard" also includes employees employed by an armored truck company or companies providing protective services for customers However, that issue is not presented here, as the question is whether the Employer's own employees in question protect the property of their Employer's and the safety of persons thereon, and thereby qualify as guards within the statutory definition of the term. S] ee, e.g., George Junior Republic, 224 NLRB 1581 (1976) (secunty em- ployees who patrol grounds of employer's institution to prevent fire, theft, illegal entry, and trespassing); Texas Electric Cooperatives, Inc., 160 NLRB 440 (1966) (watchmen responsible for enforcing employer's rules for protec- tion of plant property and who are authonzed to apprehend unauthorized persons); Columbia Pictures Corporation, 152 NLRB 899 (1965) (individuals guarding entrances to building who are uniformed, wear special police badges, and are instructed to use force in restincting unauthorized entries); Weyerhauser Cornpany, 132 N.RB 84 (1961) (watchman who wears uniform, carries a gun, protects propert) from theft, and prevents trespassing). 241 NLRB No. 33 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD actual production process and are often most active when production has ceased. More akin to regular production employees, part-time whistlemen and flagmen are no more responsible for the protection of the Employer's property than any other regular pro- duction employee, including sound crewmen. Thus, were we to find part-time whistlemen and flagmen to be guards, we would not only ignore the congres- sional intent behind Section 9(b)(3) but would ignore the literal requirements of that section. Accordingly, although urged to do so by Petitioner, we decline to infer a statutory guard function solely from the au- thority to regulate the flow of traffic. Rather, the du- ties of part-time whistlemen and flagmen appear to be analogous to those of gatemen found not to be guards in Lion Country Safari, 225 NLRB 969 (1976). After careful review of the record herein and cogni- zant of the legislative purposes behind Section 9(b)(3), we find that part-time whistlemen and flag- men are not guards within the meaning of Section 9(b)(3) of the Act. Since Petitioner admits into mem- bership these employees who are not guards, it is, as a consequence, barred from invoking the Board's statu- tory election processes. 4 Accordingly, we find that no question concerning representation exists within the meaning of the Act and shall dismiss the petition herein. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. 4 The WackenhuI Corporation, 169 NLRB 398 (196%8). 230