Burns Security Systems, Inc.

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burns Security Systems, Inc., and International Guards Union of America, Local 33 (Ind), Petition- er. Case 10-UC-34 January 29, 1971 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS FANNING, BROWN, AND JENKINS On July 27, 1970, the Regional Director for Region 10 issued a Decision and Order in which he dismissed the Petitioner's request to include, by way of clarifica- tion, the classification of Complaints and Survey Ser- geants in its existing unit of guards employed by the Employer in its operations at Marshall Space Flights Center, Huntsville, Alabama. In accordance with Sec- tion 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Peti- tioner filed a timely request for review of the Regional Director's Decision on the grounds that in refusing to clarify the guard status of the Complaints and Survey Sergeants on the basis of the evidence presented at the hearing, he departed from Board precedent. The Board, by telegraphic order, dated August 31, 1970, granted review. The Board has considered the entire record in this case and makes the following findings: The Regional Director found that although the job classification in issue existed for approximately 3 years prior to the execution of the current collective- bargaining agreement, the contract made no mention of it, and that it was not until almost a year after the contract was executed that the Petitioner raised the issue as to guard status in the course of a contract grievance proceeding. In view of these findings, he concluded that the status of the Complaints and Sur- vey Sergeants may not be resolved in a unit clarifica- tion proceeding, and accordingly dismissed the petition. The Petitioner, in its request for review, contends that the Complaints and Survey Sergeants were in- deed included in the unit as described in the contract, and that there would be no purpose in filing a unit clarification petition but for the Employer's decision, during a grievance proceeding, to assert that these sergeants are not part of the unit. The current contract, executed August 19, 1969, describes the unit as follows: All guards, Cpls, and Sgts. (except Badge Sgt.) employed by Bums Security Systems, Inc. at the Marshall Space Flight Center, Huntsville, Ala- bama, and excluding all other employees such as clerical, professional, and supervisory. In view of the absence of a specific exclusion of Com- plaints and Survey Sergeants from the unit descrip- tion and the lack of any evidence to establish that the Petitioner had acquiesced in their exclusion , we con- clude, contrary to the Regional Director, that unit clarification is the proper method to resolve the guard status of the classification in dispute. Section 9(b) of the Act states "That the Board shall not ... decide that any unit is appropriate ... if it includes, together with other employees, any individ- ual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises ... " The record indicates that the Complaints and Sur- vey Department was created in 1961, and until 1966 it was manned only by a lieutenant. Thereafter, two sergeants were added. The department presently con- sists of a supervisor, Lieutenant H. P. Kramer, and two sergeants, who work together as a team. Lieuten- ant Kramer reports to the chief of guards at the instal- lation. The job description of Complaints and Survey Ser- geants states that The Sergeant Complaints and Surveys, under the directions of the Complaints and Survey Special- ist Supervisor, conducts investigation and sur- veys of incidents, complaints, accidents, including vehicle accidents. Prepares and sub- mits reports both special and periodic. Performs related work as requested. The Sergeant, Com- plaints, and Survey, will not perform any work that is assigned or routinely performed by guards if incidents are noted that require action, notify the guards supervisor." [sic] The testimony reveals that these sergeants, together with Lieutenant Kramer, have been involved in the analysis and investigation of such incidents as a rash of breaking into locked metal desks, theft of women's purses, and break-in thefts of vending machines. In dealing with these incidents, the Complaints and Sur- vey Sergeants engage in "stakeouts," that is, they will be hidden in order to perform their function properly. In addition, these sergeants will use electronic devices to detect when a theft or break-in is being perpetu- ated. As part of their investigations of incidents, they will also check for fingerprints. Lt. Kramer testified that following an investigation concerning the prevention of thefts, he writes a report which goes to the chief of guards, which is then placed in an envelope marked "confidential" and taken to an official of the client at the Center. The Complaints and Survey Sergeants are dressed in civilian clothing and ride in unmarked vehicles. Guards in the bargaining unit are attired in guard uniforms, and they patrol in a vehicle clearly marked with a security emblem. 188 NLRB No. 25 BURNS SECURITY SYSTEMS The Complaints and Survey Sergeants investigate all motor vehicle accidents within the limits of Mar- shall Space Flight Center, as well as any accident in the city of Huntsville that involves a NASA vehicle. On such occasions, they will care for the injured, set up traffic control if necessary, fill out forms, make diagrams, and see that photographs of the accident scene are taken. Although unit guards investigated accidents prior to 1966, it appears that since that time, only the Complaints and Survey Sergeants have per- formed that function. It appears from the foregoing, and we find, in agreement with the Petitioner, that the duties of the Complaints and Survey Sergeants are part and parcel of the statutorily described function of enforcement of rules to protect property and safety of persons. 223 Furthermore, the basic policy reasons for requiring guards to be represented in separate units and by separate unions are directly applicable to employees who perform duties of the nature here involved. The potential conflict of interest between these employees and the employees whose illegal activities they are attempting to ferret out is plainly present, and in just as significant degree as in the case of guards who are empowered to physically restrain other employees who engage in or are attempting to engage in such illegal activities. Accordin*ly, the unit is hereby clarified to include the Complaints and Survey Sergeants.' 1 To the extent inconsistent herewith, the decision in Pinkerton's National Detective Agency, Inc, 124 NLRB 1076, is hereby overruled.