Bonded Armored Carrier, Inc.

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bonded Armored Carrier, Inc. and National Federa- tion of Guards, Local Union No. 1, Petitioner. Case 5-RC-7729 February 9, 1972 DECISION ON REVIEW BY MEMBERS FANNING, JENKINS, AND KENNEDY On September 10, 1971, the Regional Director for Region 5 issued a Decision and Direction of Election in which he rejected the Employer's contention that the Petitioner is indirectly affiliated with United Independ- ent Union, called UIU herein, which admits nonguards to membership and is therefore ineligible to represent the petitioned-for guards under the prohibitions of Sec- tion 9(b)(3) of the Act. Thereafter, the Employer filed a timely request for review of his Decision on the grounds that, in rejecting its contention, he made findings of fact which are clearly erroneous and de- parted from precedent. By telegraphic order dated Oc- tober 19, 1971, the National Labor Relations Board granted review, and stayed the election pending deci- sion on 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 considered the entire record in this case with respect to the issues under review and hereby affirms the Regional Director's Decision. Like the Regional Director, we conclude that the Petitioner is not, directly or indirectly, affiliated with UIU. The Board has said that mutual sympathy, com- mon purpose, and assistance between a guard union and a nonguard union is not, without more, indicative of indirect affiliation within the meaning of Section 9(b) of the Act.' Here, the assistance and advice given by UIU, such as retention of an attorney to represent the Employer's guards in forming the Petitioner and in seeking a Board election, other acts of assistance and advice for the same purposes, and the expenditure of funds for which the Petitioner is to be billed at a later date when it is in a more stable financial position, does not, without more, add up to indirect affiliation of the Petitioner with UIU. Moreover, the record indication that UIU intends to continue to render assistance and advice of an unspecified character to the Petitioner does not, in our opinion, warrant withholding from the lat- ter the opportunity to be certified as representative of the Employer's guards through a Board-conducted election.' See International Harvester Company, Wisconsin Steel Works, 145 NLRB 1747, 1749, and cases cited therein ' In the event the Petitioner is certified herein and is shown to have Accordingly, we shall remand the case to the Re- gional Director in order that he may conduct an elec- tion pursuant to his Decision and Direction of Election, except that the eligibility payroll period therefor shall be that immediately preceding the date of issuance.' MEMBER KENNEDY, dissenting: Contrary to my colleagues, I would find that the Petitioner herein, a guard union, is indirectly affiliated with the United Independent Union, which admits nonguard employees to membership. In my view, Sec- tion 9(b)(3) of the Act prohibits our certifying Peti- tioner as the representative of the Employer's guards, and I would dismiss the petition. Under circumstances strikingly similar to those pre- sented here, the Board has dismissed a petition where it appeared that petitioner was dependent upon another nonguard labor organization and that its officers lacked "freedom and independence in formulating its own policies and deciding its own course of action." The Magnavox Company, 97 NLRB 1111, 1113. The record establishes that prior to the filing of the petition herein the UIU had obtained designation cards from the employees involved in this proceeding and demanded recognition by the Employer. The Employer refused because of the prohibition of Section 9(b)(3) of the Act. Thereafter, the president of the UIU, Chiap- pardi, held a meeting on July 6 with the employees, at which he proposed that they form their own union. Chiappardi furnished the name for the new union. He also distributed authorization cards for the new organi- zation. Previous to this meeting, Chiappardi made ar- rangements with an attorney to act as legal counsel for the new organization. On July 7, the attorney filed the petition herein. A conference on the petition was sched- uled by the Regional Office for July 28. On July 23, Chiappardi sent a letter to the members of the Peti- tioner, on UIU letterhead, advising them of the confer- ence and announcing a meeting for the night of July 27. At this meeting, Chiappardi, accompanied by another UIU official, discussed the status of the petition and presented the members with the constitution which he had drafted for the Petitioner. The constitution was adopted. Chiappardi prepared the minutes of the meet- accepted material assistance from UIU sufficient to constitute indirect affi- liation, the Board, of course, will entertain a motion to revoke the certifica- tion ' In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236; N . L . R . B . v Wyman-Gordon C o . , 394 U S 759 Accordingly, it is hereby directed that a corrected election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 5 within 7 days of the date of this Decision on Review The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary cir- cumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. 195 NLRB No. 68 BONDED ARMORED CARRIER, INC. 347 ing. The expenses incurred in connection with these meetings were paid by the UIU. All expenses that have been incurred have been paid by UIU and, as of the date of the hearing on the petition herein, no bill had been submitted to the Petitioner by the UIU. In my opinion, satisfactory evidence is lacking in this record to establish that the UIU's sponsorship of Peti- tioner, through President Chiappardi, has ceased. In- deed, Chiappardi testified forthrightly that he will con- tinue "to give them general help as far as union procedures are concerned," and that he would give them assistance in setting up programs, meetings, and agendas and by providing them general advice. It seems clear to me that Section 9(b)(3) of the Act requires dismissal of the petition.