Drivers, Chauffeurs & Helpers Local 639

DRIVERS, CHAUFFEURS & HELPERS LOCAL 639 Drivers, Chauffeurs & Helpers, Local Union 639 affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Dunbar Armored Express, Inc. Case 5-CP-94 June 18, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed December 6, 1973, by Dunbar Armored Express, Inc., the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint on January 2, 1974, against Drivers, Chauffeurs & Helpers, Local Union 639 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Respondent herein, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(7)(C) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. On February 6, 1974, the Respondent and the Charging Party entered into a stipulation, subse- quently agreed to by the General Counsel on February 11, 1974, in which they agreed that the formal papers filed in this proceeding and the stipulation of the parties shall constitute the entire record in this case. The parties agreed that no oral testimony was therefore necessary or desired. They waived their right to a hearing before an Administra- tive Law Judge, the making of findings of fact and conclusions of law by an Administrative Law Judge, and the issuance of an Administrative Law Judge's Decision and recommended Order, and asked that the case be transferred directly to the Board for decision. The stipulation also provided for the filing of briefs with the Board. On February 20, 1974, the Board issued its Order approving the stipulation and transferring the pro- ceeding to the Board. Thereafter, the General Counsel, the Charging Party, and the Respondent filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this case, including the briefs of the parties. For the The Respondent's request for oral argument is denied since the record and briefs adequately present the issues and positions of the parties. 687 reasons hereinafter indicated, the Board finds that the Respondent has violated Section 8 (b)(7)(C) of the Act as alleged by the complaint.' FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Dunbar, a Maryland corporation, is and has been at all times material herein, engaged in Maryland, the District of Columbia, and the State of Virginia, in providing armored car carrier service for the trans- port of moneys and other valuable items. During the past year, in the course and conduct of its business operations, Dunbar received in interstate commerce in excess of $50,000 for services per- formed outside of the State of Maryland. We find that Dunbar is and, at all times material herein, has been an employer engaged in commerce and an operation affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction. II. THE LABOR ORGANIZATION INVOLVED The parties agree, and we find, that the Respon- dent is and, at all times material herein, has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ALLEGED A. The Relevant Stipulated Facts Dunbar, at its Riverdale, Maryland, facility em- ploys approximately 38 employees and operates approximately 12 armored trucks; 32 of the employ- ees, viz, 23 full-time driver-helpers, 1 driver, 2 vaultmen, and 6 part-time driver-helpers, are the employees with which this case is concerned. Dunbar's trucks are usually operated by two-man teams with one man picking up valuable items from Dunbar's customers and placing them in the armored truck. This individual is engaged in an operation known as "hopping" and, accordingly, is called a "hopper." The two men on a given team alternate, so that one man drives half the day while the other acts as a "hopper." The two men in this team are responsible for protecting the items entrusted to them by customers while they are in their possession. Dunbar is liable for its customers' items from the time that the "hoppers" sign a receipt indicating that the items have been picked up until the items are delivered to their destination and are signed over to the appropriate recipient. 211 NLRB No. 78 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Two employees function as vaultmen. These two employees' functions are to receive items picked up by the armored truck, but which had not been delivered, and to stuff individual pay envelopes which are delivered by Dunbar driver-hoppers to customers' locations. Dunbar is liable for these stored items during the entire period that they are in Dunbar's vault. One of the vaultmen works primarily as a vaultman, but also drives an armored truck when needed. The other vaultman regularly spends about half of each day functioning as a vaultman and spends the remainder of time as a driver-hopper. All of the foregoing employees, while functioning as drivers, hoppers, or vaultmen, wear uniforms and carry loaded weapons. They are bonded, are licensed to carry weapons, and are tested and certified on an annual basis in the use of their weapons. These employees, on a daily basis, handle, and are charged with responsibility for, money, checks, credit cards, nonnegotiable instruments, and other items of great value. Dunbar has approximately 150 customers who are engaged in a variety of enterprises, including banking and the operation of public schools. On November 16, 1973, Respondent filed a petition for representation with Region 5 of the Board in which it requested that it be certified as the collective-bargaining representative for a unit con- sisting of the following employees of Dunbar: Drivers, helpers, hoppers, guards, messengers, vaultmen, and routemen, excluding clerical per- sonnel, salesmen, office supervisors, and all others excluded by the Act. Concurrently, the Respondent demanded, and has continued to demand, that Dunbar recognize and bargain with it as the representative of Dunbar's employees. After an administrative investigation, the Regional Director for Region 5 of the Board concluded that the employees petitioned for were guards within the meaning of Section 9(b)(3) of the Act, and because Respondent admitted to membership employees other than guards, it could not be certified under the Act in an election as the collective-bargaining representative of the employees it sought to repre- sent. After being advised that its petition would be 2 The pickets carved signs beanng the following legend: DUNBAR ON STRIKE LOCAL UNION 639 dismissed, the Respondent submitted a withdrawal request on or about November 29, 1973, which was approved on November 30, 1973. By letter dated December 3, 1973, the Respondent and Dunbar were notified by the Regional Director that the withdraw- al request had been approved. Subsequent to its withdrawal of its petition, on or about December 3, 1973, the Respondent established a picket line at Dunbar's Riverdale, Maryland, facility, and maintained that picket line until Decem- ber 18, 1973. The picketing was conducted by a majority of Dunbar's employees, as well as by business agents and/or representatives of the Re- Ispondent.2 On December 18, 1973, the Respondent voluntarily terminated its picketing in response to a petition for injunction pursuant to Section 10(1) of the Act filed in United States District Court for the District of Maryland. On that same day, the Respondent filed with Region 5 of the Board a second representation petition, wherein it sought to be certified as a representative of the same employees of Dunbar as it had sought in its first petition. On December 20, 1973, the Regional Director dismissed this second petition and no appeal of the dismissal of that petition was filed. On January 28, 1974, the United States District Court for the District of Maryland issued an injunction against further picketing by the Respondent. In the stipulation, the parties agreed that an object of the Respondent's picketing was to force or require Dunbar to recognize or bargain with the Respondent as the representative of certain of Dunbar's employ- ees. B. Contentions of the Parties and Findings In the complaint, the General Counsel alleges that although the picketing between December 3 and 18 did not exceed 30 days, it was nevertheless conduct- ed beyond a reasonable period of time since the Respondent could not be certified as the collective- bargaining representative for Dunbar's employees in the unit sought and, consequently, any petition for an election pursuant to Section 9(c) filed by the Respondent would not be processed by the Board.,, The General Counsel thus alleges that the Respon- dent violated Section 8(b)(7)(C) of the Act by picketing the Employer for recognition while Re- spondent was precluded by Section 9(b)(3) of the Act from being certified as the representative of those employees. Respondent's answer denies the commission of anyl DRIVERS, CHAUFFEURS AND HELPERS INTERNATIONAL BROTHERHOOD OF TEAMSTERS DRIVERS, CHAUFFEURS & HELPERS LOCAL 639 unfair labor practice on two grounds. First, the Respondent averred that the employees it seeks to represent are not guards within the meaning of Section 9(b)(3). Secondly, the Respondent maintains that, even if the employees it seeks to represent are guards, its picketing was not beyond a reasonable period of time. The issues thus presented are (1) whether the employees sought are "guards" within the meaning of Section 9(b)(3); (2) whether the filing of the two representation petitions which did not raise a question concerning representation under the Act can serve as a bar to the finding of a violation of Section 8(b)(7)(C); and (3) whether an inability to obtain certification as representative of a particular group of employees constitutes a defense to a charge that Section 8(b)(7)(C) has been violated. 1. Employees' status as guards The Respondent argues that the service provided by Dunbar is no different than that of a regular trucking operation, and that Dunbar's drivers and "hoppers" are merely "truckdrivers with guns." It points out that Dunbar's employees enforce no rules against the employees of its customers, and it states that any potential conflict of interest that might occur if a customer of Dunbar was struck by a Teamsters local could be dealt with by a clause requiring Dunbar's employees to cross picket lines when necessary. Indicating its awareness of the Board's decision in Armored Motor Service Company, Inc., 106 NLRB 1139, in which the Board held that employees performing essentially the same duties as the employees involved in the instant proceeding were guards, the Respondent argues that continued adherence to that precedent effectively disenfran- chises a significant number of employees in the absence of express congressional intent. Finally, the Respondent argues that the prohibition within Section 9(b)(3) of the Act runs only to plant guards, rather than to individuals who perform functions similar to those involved in the instant case. We are not persuaded by these arguments. Dunbar's operations are significantly different from that of a regular trucking operation, and it is a facile oversimplication to argue that the employees sought by the Respondent are merely "truckdrivers with guns." Dunbar is engaged in the transportation of valuable items owned by others and, in order to insure the safe transportation of these items, its employees are trained, certified, and licensed with respect to the possible use of lethal weapons against 3 N. L. R. B. v. American District Telegraph Company, 205 F.2d 86, 89-90 (C.A. 3, 1953); American District Telegraph Company, 160 NLRB 1130, 1136 ( 1966). See also The Wackenhut Corporation, 196 NLRB 278 (1972). 689 those who would steal those items. Furthermore, the fact that the employees sought are primarily charged with the protection of property of Dunbar's custom- ers, rather than Dunbar's own property, makes no difference. In performing their primary duties, they must protect property entrusted to Dunbar as well as to protect Dunbar's armored trucks and vault. Certainly, our decisions as well as court decisions have adhered to the principle that it makes no difference that the property to be protected is that of a customer of the employer rather than that of the employer .3 The argument that the conflict-of-interest problem could be resolved in negotiations is a wholly irrelevant one. It disregards the fact that Section 9(b)(3) precludes the grant of bargaining rights by this Board to any union which, like the Petitioner, admits to membership employees other than guards. Lastly, although these employees cannot be repre- sented by a union which represents nonguard employees, they can choose a representative that exclusively represents guard employees, and thus obtain representation by a labor organization which fulfills the statutory requirements for certification under Section 9(b)(3). In sum, we conclude that the employees sought by the Respondent are guards. 2. The effect of the two petitions To reiterate, the record shows that the Respondent filed a representation petition on November 16, 1973, that its withdrawal of that petition was approved on November 30, 1973, and that the Respondent was advised by the Regional Director of his approval of said withdrawal request on December 3, 1973. Thus, the record shows that the Respondent began its picketing after it had filed a representation petition. However, because the Respondent sought to repre- sent a unit of guards and because Respondent admits to membership employees other than guards, the Regional Director for Region 5 of the Board correctly observed that the Respondent could not be certified in an election as the collective-bargaining representative of the guards it sought to represent because of the restrictions contained in Section 9(b)(3) of the Act.4 The Regional Director was correct in informing the Respondent that, in the absence of a withdrawal of its petition, its petition would be dismissed. The record is devoid of any indication as to why, in effect, the Respondent sought to obtain an election in a unit for which it could not be certified as the representative. Due to its disability, i.e., the fact that 4 Rock-Hill-Uris, Inc. d/b/a The New York Hilton at Rockefeller Center, 193 NLRB 313, fn. 3, and Sentry Investigation Corp., 198 NLRB No. 152. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it admitted to membership employees other than guards, its petition, in our opinion, raised no question concerning representation . Absent a valid question concerning representation a petition cannot be entertained pursuant to Section 9(c)(1) of the Act, and thus the petition would be a nullity. In light of the foregoing, the question thus posed is whether a petition which does not raise a question concerning representation under the Act can serve as a bar to the finding of a violation under Section 8(b)(7)(C). There is no legislative history with regard to this question, and it is quite possible that this rare instance was one that was not foreseen by Congress. Nevertheless, our consideration of Section 8(b)(7)(A) and (B) leads us to the conclusion that those two sections preclude recognitional picketing when a question concerning representation cannot be prop- erly raised in the circumstances set forth in each section. Consequently, we conclude that a petition which does not raise a valid question concerning representation does not preclude the finding of a violation under Section 8(b)(7)(C) of the Act. Thus, the Respondent violated Section 8(b)(7)(C) by its picketing of Dunbar on December 3 and thereafter for a proscribed object because the two petitions which Respondent filed did not raise a valid question concerning representation under the Act. 3. Picketing by a union unable to obtain certification This last consideration is one which is analogous to the situation where a union has lost a representation election held pursuant to the provisions of Section 9(c) of the Act. Under Section 9(c)(3), a union which loses a valid election cannot seek another representa- tion election in the same unit for a 12-month period from the date of the prior valid election. In that type of situation, the union would obviously be barred from obtaining a Board certification during that 12- month period. Moreover, were that union to picket, cause to be picketed, or threaten to picket the employer of the employees who voted against it, with an object of forcing or requiring the employer to recognize it as a representative of said employees, that union would violate Section 8(b)(7)(B). In short, the losing union would be unable to file a petition that raised a valid question concerning representa- tion and thereby obtain Board certification through an election. In the present case, the Respondent is likewise unable to obtain a Board certification in this guard unit, but its inability to obtain a certification arises from its own voluntary choice; i.e., a decision on its part to admit nonguard employees to membership. Since Respondent's inability to obtain a Board certification in this guard unit results from its own action and not from any policy of the Board, this case is distinguishable from Teamsters Local Union No. 115 (Vila-Barr Company), 157 NLRB 588, which involved picketing where there was only a one-man unit. Thus, in Vila-Barr the Board recognized that the union there was "disabled through no fault of its own from invoking the Board's election processes" because the Board would not entertain a representa- tion petition for a one-man unit. In this case, the Union's inability to utilize the Board's election processes in this guard unit does result from Respondent's practice of admitting nonguards to membership . Furthermore, unlike the one-man unit in Vila-Barr, the unit here can be petitioned for and an election held if the petition is filed by a labor organization which admits only guards to member- ship. CONCLUSION OF LAW We therefore conclude that the Respondent has engaged in picketing in violation of Section 8(b)(7)(C) of the Act, as alleged in the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Drivers, Chauffeurs & Helpers, Local Union 639 affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from picketing, or causing to be picketed, Dunbar Armored Express, Inc., where an object thereof is forcing or requiring said Employer to recognize or bargain with Respondent as the collective-bargaining representative of employ- ees who function as guards, or forcing or requiring employees who function as guards for such Employ- er to accept or select Respondent as their collective- bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its business office copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized representative, shall be posted by Re - 6 In the event that this Order is enforced by a Judgment of a United Judgment of the United States Court of Appeals Enforcing an Order of the States Court of Appeals, the words in the notice reading "Posted by Order National Labor Relations Board." of the National Labor Relations Board " shall read "Posted Pursuant to a DRIVERS, CHAUFFEURS & HELPERS LOCAL 639 spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted . Reasona- ble steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (b) Furnish the Regional Director for Region 5 signed copies of said notice for posting by Dunbar Armored Express, Inc., if willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER JENKINS , concurring: I concur in the result. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket, or cause to be picketed, Dunbar Armored Express , Inc., where an object thereof is forcing or requiring said Employer to recognize or bargain with us as a collective- 691 bargaining representative of its guard employees, or forcing or requiring guard employees of such Employer to accept or select us as their collective- bargaining representative. DRIVERS, CHAUFFEURS & HELPERS, LOCAL UNION 639 AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Tele- phone 301-962-2822.