Sentry Investigation Corp.

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sentry Investigation Corp. and Allied Crafts Security Union of North America, Petitioner. Case 2-RC-15744 August 25, 1972 DECISION ON REVIEW AND DIRECTION OF ELECTION BY MEMBERS FANNING, KENNEDY AND PENELLO On January 24, 1972, the Regional Director for Region 2 issued his Decision and Order in the above- entitled proceeding, in which he dismissed the petition for a unit of guards on the ground that Petitioner, a guard union, failed to establish that it admits only guards to membership.' A question was also raised concerning Petitioner's direct or indirect affiliation with Railroad, Maintenance and Industri- al Employees District 5, AFL-CIO, and Affiliated Unions-in particular Local 801. As to this question the Regional Director found that there was insuffi- cient evidence to support this assertion. Thereafter, Petitioner timely filed a request for review of the Regional Director's decision, contending that the Regional Director erred in finding Petitioner had failed to establish that it admitted only guards to membership. On February 16, 1972, the Board granted the Request for Review and remanded this proceeding for further hearing concerning Petitioner's qualifica- tions, particularly whether "investigators or any other category of employee eligible for membership under Petitioner's constitution are guards within the meaning of the Act." On May 17, following the supplemental hearing, the Regional Director trans- ferred the case to the Board for decision. Thereafter, Petitioner made a motion to reopen the record to admit new evidence that its constitution had been revised (i.e., the word "investigator" had been deleted) and that all employees of the Petitioner who were members of Petitioner had resigned. Intervenor filed a letter in opposition to the motion.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the i The Regional Director did not reach the issue of contract bar raised by Intervenor, Local 803 , Security Guards and Watchmen Union , Internation- al Brotherhood of Teamsters Petitioner contends that Intervenor 's existing contract with Employer is no bar because it contains an illegal union- security clause The clause reads "The Employer will require each employee , immediately upon being hired , to sign a Union membership application to become effective thirty (30) days after the date of hiring " On its face, this provision denies to employees the 30-day grace period during which they may consider the matter of joining the Union We view this clause as patently illegal and thus the contract is not a bar to the proceeding Paragon Products, 134 NLRB 662 Similar clauses, when implemented by an employer, have been held to constitute unfair labor practices See Zidell Explorations, Inc, 175 NLRB 887, and Western National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this case the Board finds: We agree with the Regional Director's conclusion that Petitioner is not disqualified from certification due to any indirect affiliation with a nonguard union. The record indicates that Petitioner's president, Patrick Sottile, was formerly president of Local 801 and, in addition, other officers of Petitioner were officers of District 5 and Local 801. However, since the inception of Petitioner in March 1969, all have ceased being officers of District 5 or Local 801 and, since then, none has been a member of or held a position in another labor organization. In relation to this, there is uncontroverted testimony that Petition- er alone administers its collective-bargaining agree- ments with various employers, without advice or assistance from District 5 or Local 801, that it has its own clerical and organizing employees, and that no officers or employees of other labor organizations organize on its behalf or attempt to guide its operations.3 Intervenor contends that Petitioner's participation in District 5's health and welfare fund constitutes indirect affiliation within the meaning of Section 9(b)(3) of the Act. The employers of approximately 70 percent of employees covered by Petitioner's bargaining agreements contribute to the fund, which is administered by a board of trustees. These trustees have never interfered with the affairs of Petitioner, though some trustees are, or have been, officials of District 5.4 Other trustees of the fund are employers with whom District 5 has contracts. No representative of Petitioner nor any employer with which it has a contract is a trustee of the fund and Petitioner is free to negotiate health and welfare benefits other than those available under the District 5 fund. From a financial standpoint, it appears that Petitioner has been involved with District 5 only in the following respects: a $3,500 loan from District 5 to Petitioner repaid before March 31, 1971; 5 a $1,000 contribution to a testimonial dinner for the adminis- trator of the District 5 fund made during the year preceding March 31, 1970; and regular contributions on behalf of Petitioner's own employees. These factors, as the Regional Director has determined, are insufficient to create an indirect affiliation. Building Maintenance Co, 162 N LRB 778 2 In its motion to reopen, Petitioner also requested consolidation of this proceeding with two other proceedings now pending, King's Plaza Shopping Center, Case 29-RC-1978, and Waldbaum's Inc, Case 29-RC-1979 The motion was opposed by the Intervenor and by one of the Employers Involved, Waldbaum's Inc As the issues , other than Petitioner's qualifica- tions, differ, we deny the motion to consolidate Included in the motion to reopen was an alternative request for additional time to file a brief, which the Board granted No brief has been received 3 See The Magnavox Company, 97 NLRB 1 111. + See Rock-Hd-Uris, Inc, 193 NLRB No 47 5 See Bonded Armored Carrier Inc, 195 N LRB No 68 198 NLRB No. 152 SENTRY INVESTIGATION CORP. From all of the foregoing we conclude that the Petitioner has not been deprived of its ability to act independently in negotiating health and welfare benefits for the employees it represents, and that it acts independently in administering its contracts with employers. With regard to the question of membership in the Union, the evidence now before the Board indicates that Petitioner has never admitted to membership investigators who are not guards, and that those members represented by it, who may have occupied positions such as checkers, investigators, and recep- tionists, were, in fact, acting in a guard capacity.6 In actual practice it appears that only guards are members of the Union, except for four of Petitioner's own employees discussed below. Unlike the Regional Director, we do not read the Petitioner's constitution as differentiating between guards and investigators.? Consequently, we see no need to reopen the record to admit evidence concerning the asserted deletion of the word "investigators" from the Petitioner's consti- tution and bylaws. Likewise, for the reasons that follow, we shall not reopen the record to admit evidence that "all employees of the Petitioner formerly holding mem- bership" have resigned as members. The record before us shows that at the time of the supplemental hearing Petitioner had, four such members in its employ, three organizers and a secretary. They, as their job classifications indicate, do not act as guards. Clearly, however, the Petitioner, as to its own 6 See Tulsa Hotel Management Corp, 135 NLRB 968, and Chance Vaught Aircraft, Inc, 110 NLRB 1342 7 Article 11 of Petitioner's constitution reads "Thejurisdictions of Allied Crafts Security Union of North America shall include guards, security officers, watchmen , captains, sergeants , investigators, and policemen in the 1075 employees, could not be certified to act as a representative for collective bargaining. Though Section 9(b)(3) may literally be read to disqualify Petitioner because it accepts any nonguards as members, the purpose of the statutory provision is to prevent a guard union, such as Petitioner, from bargaining on behalf of nonguard members. Whether Petitioner has or has had employees of its own who were also members should, we believe, have no bearing on its qualifications to act for guards employed by other employers. Having found, in agreement with the Regional Director, that Petitioner is not directly or indirectly affiliated with a nonguard union, and having found additionally that it accepts only guards into member- ship (with the exception of its own employees), we shall direct an election inasmuch as Petitioner is qualified for certification should it receive a majority vote. Accordingly, we find that the following employees of the employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All house officers, security officers, guards, patrolmen and watchmen employed by the Employer of 375 E. Fordham Road, Bronx, New York, excluding all other employees and supervi- sors as defined in the Act. [Direction of Election8 and Excelsior footnote omitted from publication.] United States, Puerto Rico, Canada, and the Virgin Islands, and such other areas as the Executive Board shall, from time to time , include therein " (Emphasis supplied) 8 In 'the event the Intervenor wins the election , we shall certify only the arithmetical results of the election.