Defender Security & Investigation Services. Inc.

DEFENDER SECURITY & INVESTIGATION SERVICES, INC 407 Defender Security & Investigation Services, Inc.' and International Union of Security Guards and Special Police, Petitioner . Case 2-RC-16188 June 28, 1974 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Robert G. Landes of the National Labor Relations Board. Following the close of the hearing, the Regional Director for Region 2 transferred this case to the Board for decision. Thereafter, the Employer filed a brief with the Board. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error They are hereby affirmed.2 Upon the entire record in this proceeding, the Board finds: 1. The parties stipulated that the Employer is a New York corporation having its principal place of business in New York City where it is engaged in the business of providing guards and security and investi- gative services. The parties also stipulated that for the fiscal year ending February 28, 1973, the Employer received gross revenues from such services in excess of $500,000, of which in excess of $50,000 was re- ceived from employers who are themselves directly engaged in interstate commerce. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent certain employees of the Employer. Although the Employer stipulated that Petitioner is a labor organi- zation within the meaning of the Act, it argues that Petitioner should nevertheless be disqualified from seeking an election under Section 9(c) of the Act on the ground that it engages in invidious discrimination on the basis of sex regarding those individuals whom it admits to membership. We are of the opinion that it would not effectuate the policies of the Act to per- mit consideration of litigation of such issues at the preelection stage of the proceeding.' Employer's name appears as amended at the hearing 2 The request of the Intervenor, Local 357, United Security Guards of America, to withdraw its intervention was granted by the Hearing Officer 3 The Board has held that such inquiries are outside the scope of a preelec- tion hearing Bekins Moving & Storage Co of Florida, Inc, 211 NLRB No 7 As noted therein , Chairman Miller and Member Jenkins would consider objections to a labor organization's capacity to fairly represent employees only upon the postelection filing of properly substantiated objections to the iasuance of a certification Member Kennedy concurs substantially with that post election procedure but would limit consideration to the issue of alleged discnmination on the basis of "race, alienage , or national origin " Members Fanning and Penello reject the contentions of the Employer herein for the 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. Petitioner seeks to represent a unit composed of all "security guards" employed by the Employer at its 292 Madison Avenue office in New York City. The parties disagree only as to the proper unit placement of two on-premises undercover investigators. The Employer contends that they should be included in view of their responsibilities for the protection of clients' property. Petitioner contends that the differ- ent methods utilized by the uniformed guards and the on-premises undercover investigators in executing their responsibilities justifies excluding the latter em- ployees from a unit composed principally of the for- mer. As noted above, the Employer is engaged in provid- ing uniformed guards and security and investigative services to its clients. The on-premises undercover investigators spend virtually all of their time on the clients' premises. They are frequently retained by clients experiencing substantial property damage or thefts who are interested in detecting which customers and/or employees are responsible. For example, retail clothing or department stores may assign undercover investigators to their fitting rooms in order to identify customers attempting to walk out of the stores wear- ing unpurchased merchandise under their own cloth- ing. Similarly, manufacturing and construction concerns assign such investigators to assembly lines or construction crews in an effort to isolate those employees who are stealing or sabotaging equipment. In view of -the nature of their assignments, on-prem- ises undercover investigators do not wear uniforms nor are they closely supervised by their superiors. They are subject, however, to the same supervisory hierarchy as the uniformed guards. In terms of com- pensation, uniformed guards receive a fixed hourly wage. The undercover investigators, on the other hand, receive the appropriate rate for whatever under- cover job they may be performing on a particular assignment, plus an undetermined portion of the fee charged by the Employer to its client for the services rendered. Whatever minor differences may exist between the uniformed guards and the on-premises undercover investigators in terms of attire and method of com- pensation do not, in our opinion, destroy the commu- nity of interest which they otherwise share by virtue of their common job function, namely, the protection reasons stated in their dissenting opinion in Bekins They would not consider allegations of discriminatory practices by labor organizations in a precertifi- cation proceeding but would "leave such questions as they may raise, with respect to the Petitioner's willingness or capacity fairly to represent all employ- ees in the bargaining unit, to be resolved in other proceedings under the Act " 212 NLRB No. 23 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and security of the clients' property . Accordingly, we find that the on-premises undercover investigators are properly includable in the unit." Cf. Allied Stores of New York, Inc d/b/a Stern 's, Paramus, 150 NLRB 799, fn. 48. For the reasons stated above , we find that the fol- lowing unit is appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: The parties stipulated that A Torres and J Skinner, whose supervisory status is in question, should be permitted to vote subject to challenge All security guards employed within the State of New York by the Employer, whose principal of- fice is 292 Madison Avenue, New York City, New York, including on-premises undercover in- vestigators, but excluding all other employees, office clerical employees, supervisors as defined in the Act, and employees engaged in off-prem- ises undercover investigations. [Direction of Election and Excelsior footnote omit- ted from publication.]