Burns International Security Service

BURNS INTERNATIONAL SECURITY SERVICE Burns International Security Service, Inc. and Inter- national Union, United Plant Guard Workers of America (UPGWA), Petitioner. Cases 13-RC- 15462 and 13-RC-15467 July 30, 1981 DECISION ON REVIEW AND DIRECTION OF ELECTIONS On July 29, 1980, the Regional Director for Region 13 issued a Decision and Order in the above-entitled proceeding in which he found the petitioned-for single-employer units inappropriate in view of a history of multiemployer bargaining. Accordingly, he dismissed the petitions. Thereafter, pursuant to the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision on the grounds that he departed from precedent in finding that the mul- tiemployer agreement was sufficiently operable to the employees sought to constitute a bar to any elections in single-employer units. By telegraphic order dated August 27, 1980, the National Labor Relations Board granted the Peti- tioner's request for review. The Intervenor, Gener- al Service Employees Union Local 73, Service Em- ployees International Union, AFL-CIO, filed a brief on review. The Board has considered the entire record in this case, including the brief on review, with re- spect to the issues under review and makes the fol- lowing findings: The Employer provides guards and security services under contract with Commonwealth Edison at the Dresden nuclear power plant (Morris, Illinois) and at the Zion nuclear power plant (Zion, Illinois). These two plants are within the Employer's Nuclear Unit, which in turn, is within the Hinsdale Region of the Employer's Cen- tral Group located in Chicago, Illinois. The Em- ployer began operations at the Dresden and Zion locations in 1977, in each case considering itself the successor employer to the firms previously supply- ing guards and security services. At that time, the Employer voluntarily recognized the Intervenor herein as the collective-bargaining representative of employees at these locations. The Employer has been a member of Associated Guard and Patrol Agencies,' a multiemployer bar- gaining association, for 25 years. The Association is comprised of 17 companies and has negotiated a series of collective-bargaining agreements with the Intervenor. The most recent contract, effective from July 1, 1977, through June 30., 1980, was ' Hlercilker ctalled the Ark,,ciatioin signed by the 17 member companies, including the Employer, as well as by 37 nonmember signatories. The petitions were timely filed in relation to this contract, on April 18 (Zion) and April 24 (Dres- den). The recently expired contract covers approxi- mately 5,800 guards, including about 900 employed by the Employer. Prior to July 1, 1977, employees of the Employer's predecessors at Dresden and Zion were covered by collective-bargaining agree- ments between the Intervenor and the Association. At the time of the hearing in the instant case, nego- tiations for a new Association contract were in progress. A representative of the Employer was on the Association's negotiating committee, and the Employer had agreed to be bound by the negotia- tions. The Petitioner seeks to represent employees in two separate single-employer units or, alternative- ly, a combined unit of the 100 guards at Dresden and the 85 guards at Zion. The Employer and In- tervenor contend the long bargaining history be- tween the Intervenor and the Association renders single-employer units inappropriate.2 The Petitioner asserts that the multiemployer bargaining history is not controlling as many of the contractually pro- vided benefits expressly are not applicable to the Dresden and Zion employees it seeks to represent. Moreover, these employees do not realize the bene- fits of "effective representation" under the agree- ment between the Intervenor and the Association. Therefore, such a history of bargaining cannot be a bar to separate representation of these employees in single-employer units. We find merit in the Peti- tioner's contentions. As found by the Regional Director, the most recent contract between the Association and the Intervenor is applicable to guards working in the Chicago metropolitan area, which is further divid- ed into Areas A and B. The Dresden and Zion plants both have been treated by the parties as being located within Area B, although only Zion is clearly within the Area B description appended to the agreement. Certain terms are applicable to all employees covered by the agreement, while other terms expressly exclude application to Area B em- ployees. Among those provisions not applicable to Area 13. but which are contractually established for Area A, are: sick benefits, vacations, call-in pay, extra travel fare, limitation upon breakage and loss liability, canceled accounts, holidays, seniority for union officers, grievance time pay, employment ex- amination expenses, limitations on stationary stand- ing posts, extra work refusal, health and welfare -llmkx r, t11 the end of te hearinig, the lnliplh ter ltortii iaO.tt d ihall, if Illhrt \ tci to he ;1I1 ,elcioni. Ihe Ftnlplo~ .. r would .anllt there to he t\,O ClctiCilllv. ow l t .ich ileC 257 NLRB No. 26 387 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trust fund, and funeral pay. The record discloses, however, that Dresden and Zion employees re- ceive nonwage benefits in the areas of sick leave and holidays, and have an alternative health and welfare policy which was negotiated by the Em- ployer's predecessors and continued by the Em- ployer. Further, the agreement sets out only mini- mum wages for employees and these minimum wages differ for Area A ($3.50 per hour after 1 year's seniority) and for Area B ($2.70 per hour after 1 year's seniority). Guards at the Dresden and Zion sites, however, currently receive $6.70 per hour after 1 year's seniority. Wage rates for Dres- den and Zion were established by letter sent from the Employer to the Intervenor designating the guard positions at these sites as premium jobs. 3 Further, the record discloses that contractual bene- fits differ widely between Areas A and B in several categories. As noted earlier, many provisions are expressly not applicable to Area B employees (thereby apparently excluding the Dresden and Zion locations). The sick leave, holiday, and health and welfare benefits which are received by Area B employees are not incorporated into the basic agreement by any express provision of supplemen- tal agreement. 4 It is unclear from the record exact- ly how these benefits were achieved and why they have not been included in the contract. The Intervenor contends that its multiemployer bargaining history has afforded genuine and signifi- cant representation to the Dresden and Zion em- ployees, as well as stabilized labor relations at these sites since they opened in 1974. It urges that the Dresden and Zion employees enjoy established terms and conditions under the contract, s and that the premium letter procedure provides a flexible means by which these employees achieve premium wages and benefits in addition to their contractual- ly established rights. It is well settled that a contract must "chart with adequate precision the course of the bargaining re- lationship," 6 in order that the parties may look to ' Art. XIII, sec. 4, of the agreement provides that "An Eniploler will report all premium jobs to the Union, gi ing the locationt and employees' rates of pay for such jobs," The parties refer to such report as a "premi- um letter." 4 For example Dresden and Zion employees receire tine and a hal i' they work on a holiday, although no holiday pa: system is specified in the contract for Area B: however, Area A employees receie double time pay for holidays. I These include minimum wage rates, leaves, uniforls. promotionlls hours of work and overtime, transfer provisionls. protection against unljust discipline and discharge. seniority rights. union representation. grieallnce and arbitration procedures (in fact, these employees hlave a to-step grievance procedure as compared to a one-step procedure for Area A employees), union security aind dues checkoff, protection of bellefits against reduction during life of the agreement. as ,sell as imlproved bene- fits or wages through the premium letter procedure 6 4ppalachian Shale Products Co, 121 NL.RB 1160, 1163 1958) its actual terms and conditions as a guide in their day-to-day relations. While limited adjustments to an agreement through individual negotiations are not inconsistent with a multiemployer unit, 7 where the terms and conditions of employment of em- ployees purportedly covered by such an agreement vary substantially from those incorporated in the contract, such contract will not constitute a bar to a representation petition. The record shows that while the list of subjects covered by the contract is widespread, many of its provisions expressly do not apply to employees in Area B which includes the Dresden and Zion sites. On the other hand, the Dresden and Zion guards receive certain benefits, detailed earlier, which the contract terms as "not applicable" to Area B employees. Moreover, there is no showing that these benefits were obtained through associationwide bargaining. In addition, al- though article XIII, section 4 requires an employer to report "premium jobs" to the Union, neither the locations of such premium jobs nor the rates paid at those locations can be determined from the agreement. Further, the record discloses that indi- vidual employers establish the rates for their re- spective premium jobs, and, as the Intervenor's representative testified, there is no way of telling how many different wages have been established. The Board has long been mindful of the benefi- cial stability and uniformity of labor conditions to be achieved through associationwide bargaining co- extensive with employee units of various employers in the same industry. It will not, however, give deference to such multiemployer bargaining history where it is shown that the fruits of such bargaining were not translated into terms and conditions of employment applicable to employees sought to be separately represented.8 In our view, the multiemployer bargaining histo- ry herein, particularly as reflected in the most recent agreement as it applies to the unit employees at the Dresden and Zion locations, does not dem- onstrate that the benefits and stability to be achieved through associationwide bargaining have inured to those employees. Rather, it appears that bargaining on crucial terms and conditions of em- ployment has been relegated to individual employ- ers. Therefore, the Board's policy reasons for pre- serving multiemployer bargaining have been dimin- ished by the Association's own practices. In these circumstances, we conclude that the bargaining his- tory is not controlling as to the Dresden and Zion employees, and does not bar the processing of the representation petitions filed by the Petitioner. i Ihe Kroger Co., 148 NLRB 569 (1964). 7it, LaNson Brothers Company. 59 NLRB 1561 (1945). 388 BURNS INTERNATIONAL SECURITY SERVICE The Appropriate Unit The Dresden and Zion sites are within the Em- ployer's Nuclear Unit-Hinsdale Region. Two addi- tional Employer locations (Cordova, Illinois, and LaCrosse, Wisconsin) are also within the Nuclear Unit.9 The Petitioner seeks to represent guards at Dresden and Zion in separate bargaining units or, alternatively, in a combined unit. As noted earlier, the Employer would agree to two separate units if elections are directed. The Intervenor, urging dis- missal of the petitions in view of the bargaining history, maintains that two separate units are inap- propriate, but that a single unit composed of both sites would be less inappropriate. As found by the Regional Director, approximate- ly 100 guards work at Dresden and 85 work at Zion. These guards enforce rules promulgated by Commonwealth Edison and the Nuclear Regula- tory Commission. At each site, there is a hierarchy of authority for day-to-day operations and labor re- lations matters, which includes: a site commander (or captain), an assistant site commander, shift lieu- tenants, and sergeants.' ° Additionally, at each site there is a lieutenant who acts as training coordina- tor, as well as a lieutenant who is the administra- tive officer. The site commanders report to Ray- mond Benn, an operating manager for the Employ- er located at Zion. Benn testified he has overall re- sponsibility for both locations, including labor rela- tions, on-site visitations, and conferences with site commanders. Benn also has limited training respon- sibility for all sites within the Nuclear Unit. Site commanders make recommendations as to promotions, demotions, or discharges at their re- spective sites. Benn testified he reviews recommen- dations and may sit in on a promotion interview, but he stated he has never turned down a promo- tion recommended by a site commander, although he has that authority." Recommendations as to dis- charges made by the site commanders are indepen- dently investigated by the Nuclear Unit's headquar- ters. Although applications for guard positions have been taken at the specific locations, generally all applicants are interviewed in the headquarters office at Bensonville, Illinios, and final hiring deci- sions are made there. Testimony is not clear, how- ever, as to whether or not the individual site com- manders interview or screen applicants. ' Guards at the Quad Cities plant at Cordova are represented by the Petitioner pursuant to a Stipulation for Certification Upon Consent Elec- tion issued in December 1979 The LaCrosse location had been open onll 2 weeks at the time of the hearing. "' The parties stipulated that sergeants, lieutenants, and captains are su- pervisors and should be excluded from any unit that may be found appro- priate. " Benn further testified that "it is not our policy to say es or no, it is our policy to review. We feel that the site commander is in the besl posi- tion to determine who would make the best supers isor." Wages, benefits, skills, and offsite training are the same for all employees; however, if an employee transfers sites, he would have to have on-the-job training for the particular location. Payrolls are separate and checks are issued from the Employer's New York office. Personnel records are maintained at each site and at the Nuclear Unit office. Inter- change is infrequent and there have been only one or two transfers between Dresden and Zion since the Nuclear Unit's inception in February 1979. These apparently were requested by the employees. Separate seniority lists are maintained at each site which control selection for layoffs, while contrac- tual benefits are determined by anniversary date of employment. Grievances are initially handled by the site commander. If not resolved at that level, Operating Manager Benn or one of his superiors becomes involved. If still not resolved, the matter may be taken before a joint arbitration board, 12 then, if necessary, before an impartial arbitrator. We find that the single-location units sought by the Petitioner are appropriate for bargaining. Al- though the Employer has established centralized hiring and offsite training procedures, the individu- al site commanders exercise immediate, direct su- pervision of the day-to-day operations at their re- spective power plant sites. They also have respon- sibility for personnel matters once the applicant has been hired. Thus, they effectively recommend pro- motions, demotions, and handle the first step in the grievance procedure in an effort to resolve griev- ances. Apart from discharge recommendations, which are independently investigated, site com- manders' recommendations in these other personnel areas are followed. In addition, it is noted that the guards at each location receive specialized training particular to the site where they are employed, and there is little or no employee interchange between these two sites which according to the record are over 100 miles apart.'3 On the basis of the foregoing and the record as a whole, we find that the following employees of the Employer constitute units appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All guards employed by the Employer at Dresden nuclear power plant at Morris, Illi- This joiit rbitration board is composed of equal numbers (of repre- setilals c if Ile 1ittcer.enllor and the Association. / lhc H a cnhu! (orporutiot 224 NIL RI 1142 (197t). (Coitra: S.Sio/lry Secltriti 51rikt 1 lit. 230 NIRBI 1170) (1977) (separate unit found inap- propriate hcre the emplcer's operations s, ere highly centralized and tl-rc saU I 1 slhltb lttil ;ilioullt f intlerchaJngCe ad transfers); and i'lh Huacuinilut ('orrri,,rati . 21 l NI. R 293 (1'174 ) ( thcre there ere sub- stlllita l r;ttsters of gua ds io other sites, itd a lack itof authorit il the site slpers sor) 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nois, excluding all other employees and super- visors as defined in the Act. All guards employed by the Employer at its Zion, Illinois nuclear power plant, excluding all other employees and supervisors as defined in the Act. [Direction of Elections" omitted from publica- tion.] S CHAIRMAN FANNING, dissenting: I cannot join my colleagues in directing elections in single-location units and in ignoring 25 years of bargaining history on a multiemployer basis. The facts are not in dispute. Burns, the Employ- er, has been a member of the Associated Guard and Patrol Agencies (AGPA) for the past 25 years. During that period it has been party to a series of collective-bargaining agreements negotiated with the Intervenor by AGPA. Burns had a representa- tive on the AGPA negotiating team for the con- tract expiring in June 1980 and, at the time of the hearing in this case, had two representatives on the APGA team negotiating a successor contract. There is no contention or evidence that either Burns or any other APGA member did not agree to be bound by negotiations between the APGA and the Intervenor and, in fact, the Regional Di- rector found otherwise. The basis for the majority's decision lies in the recently expired agreement between the Intervenor and AGPA, which applies to guards at workplaces in the Chicago metropolitan area'6 and divides this area, geographically, into Areas A and B. The agreement contains provisions uniformly applicable to all employees covered, such as grievance and ar- bitration, union security, seniority, transfers, pro- motions, and discharges. However, the agreement also contains certain other provisions only applica- ble to Area A employees. These include sick bene- fits, vacations, call-in pay, extra travel fare, holi- days, a health and welfare program, and funeral pay. Further, the agreement sets only minimum wages scales for employees in each area, allowing ' t[Excel)or footnote otmitted from publication.] " As found by the Regional Director, the I tervenior adiits tIo llCelll- hership employees who are not statutory guards It is, therefore, iligi- b l under Sec. 9(h)(3) for certificatiol hy the Board it may. ho\cx er. itlerlene as it is the lcumbnh ent unionl representinlg eilployees I a Dresden and Zionl. If tile employees elect lepresentatioll b Ilthe Ilnterenior. the re- suits n;a be arithmetically certified he 'ackeliitlr Corporation. 223 NLR 63 (1976) "T he 17 members of the AP(iA are signatory Ito the agreentellt is well as 7 olher colmpanies. hich are it APGA ilmemlhbers TIhe agree- melit covers aipproxinmalel 5. 8) guards icluding (t)t enlplhsed bh Burns o' Other prosisions listed by Ihe Regiona;ll Director are managemenlt rights. malilntelnance t;lada ds. leaves of ab,sence. free unifirms, htours 1' work and oLertinie. palystLbhs Utillll rprcsclltation. Idd-olrs antd strikes an employer to raise wages above the minimum by sending a "pre.nium letter" to the Intervenor. The Dresden and Zion facilities involved in this proceeding are treated as being located in Area B. The employees at these facilities receive wages higher than the contract minimum, which were es- tablished pursuant to the agreement by a "premium letter" sent by Burns to the Intervenor. Also, Burns has provided these employees with certain benefits not provided Area B employees by con- tract, such as vacation benefits, holiday pay, sick leave, and a health and welfare program.'" As the Regional Director correctly noted, a mul- tiemployer unit exists when, as here, the parties have indicated an unequivocal intent to be bound in their collective bargaining by group rather than individual action,'9 and that when parties have bar- gained in a multiemployer unit for a substantial period of time, as the parties here have, that bar- gaining history in ordinarily determinative of scope of the appropriate unit.2" My colleagues do not dis- pute these well-established principles. Rather, be- cause the employees of the Zion and Dresden facil- ities receive higher-than-minimum contract wages as well as some benefits not provided them by con- tract, my colleagues conclude that the benefits and stability to be achieved through association bar- gaining have not inured to these employees and, therefore, there is no reason to preserve the histor- ic associationwide unit. In doing so, my colleagues, first, misapply existing law and, second, rely on a 36-year-old decision which, on its facts, is clearly distinguishable. My colleagues first note that a contract must "chart with adequate precision the course of the bargaining relationship, " "2 and that "where the terms and conditions of employment of employees purportedly covered by such an agreement vary substantially from those incorporated in the con- tract, such contract will not constitute a bar to a representation petition." I might agree with that general proposition if it had anything to do with this case. However, contract bar is not alleged here and the question of whether a contract, the result of bargaining, is sufficient to bar an election is dis- tinct from the question of unit scope-the unit in which bargaining or an election takes place.22 In ' I'hcse henctits diflcl- frll tlose pros ided in the agreementt for Area A emnploees Vin IEerden C'onpatV. 154 NI RB 496 (1965)l h' 1'e Jo/l J (r tirhtt Pre, ('orporation. 172 NL.R1 1124 11968). ltppalahitln Sha' Prodic (C . 121 NL R II 1160, 1163 11958) ?: I d not indicalle, aIsuiing the question would ever he raised, w-hether or not I woiuld find the AGl'A/llcersvelnl*r conitract sufficient to bar all election i lie ilultlicntplo er itlit I Itote hilever, thait s far as the emrplo ees of tile D)resden alid ZiOl fciliies are concerned, this is rtoit a case herl the actual \iorkitig collditions ary substanti lllL from (Conlitmued 390 BURNS INTERNAIONAL SECURITY SERVICI this case, the latter question is, as the Regional Di- rector recognized, addressed by Board policy as to multiemployer units. Next, the majority relies on Larnson Brothers,2 which it cites for the proposition that a multiem- ployer bargaining history is not controlling "where it is shown that the fruits of such bargaining were not translated into terms and conditions of employ- ment applicable to employees sought to be sepa- rately represented." Even assuming that to be the holding of Lamson Brothers, the case is clearly dis- tinguishable. There, the Board found that the only evidence that collective bargaining had taken place on an associationwide basis was the existence of written contracts. That is not the case here. There, the Board found that no machinery existed and that no bargaining had been conducted for the purpose of amplifying the general provisions of the con- tracts into terms applicable to the particular condi- tions of the petitioned-for employees. Here, howev- er, the parties negotiated the "premium letter" pro- vision as a way of amplifying the minimum wages set forth in their agreement.24 Also, as the Regional Director found, there exists a specific grievance procedure which is applicable to both Area A and Area B and has been used by Burns' employees. Further, in Lamson Brothers, the Board noted that a number of the unions which claimed to represent the petitioned-for employees in the alleged mul- tiemployer unit were not signatory to the collec- tive-bargaining agreement, a fact which raised doubt as to whether some enployees were covered by the agreement at all. Nc, such situation exists here. Thus, unlike Lamson Brothers, there is no basis to conclude that actual multiemployer bar- gaining has not taken place in this case, or that a stable and viable multiemployer unit does not exist. Nor is there reason to assume, as the Petitioner argues, that the Dresden and Zion employees have those incorporated in the contract A, to Area B enmplo ecs the cnlrai.t merely does not provide certainl heiefits and the ages of D)rc. denll ; Zion employees were raised ahoxe the contract nimilnt h tlhe proce- dure incorporated in the conltract. l rt her, the faclt that e [ )le . i den 1,,- cation is treated as alln Area I facilil s. hen it would appear to 11i gI c graphically in Area A is mercl,, a qpte oll f contl'tIt i[terplrcttloin. IlitI contract sufficiency :' 5i NI RB 15hl 'I ti ss.gc, oft i)r-sden aind Z ion nilpo. c., , crc r,..ed plrliailt to thi, pros Is lon not received "effective" representation through multiemplover bargaining. For there is no evidence that the exclusion of Area B employees from cer- tain benefits provided those in Area A resulted from anything other than the arm's-length collec- tive bargaining on a multienlployer basis. ; There is also o evidence that those contract provisions ap- plicable to the Dresden and Zion employees have not been abided by or enforced. As the Regional Director concluded, the fact that the AGPA/Intervenor agreement provides different benefits for employees n Area A and Area 13, at most, tends to establish that bargaining has been conducted for two distinct multiemployer units. It does not support the proposition that, given such a bargaining history, the single-location units sought here are appropriate. It does not establish that bar- gaining of crucial terms and conditions of employ- ment has been "relegated" to individual mrplo,ers. In reaching its decision in this case, the majority has focused on the result of the bargaining rather than its form. My colleagues may feel that the In- tervenor might and should have negotiated a better contract for Area 13 employees. The n mal feel that those employees should not have been excluded from receiving certainl benefits,' and, in this regard, that the employer members of the AGPA got the better part of the bargain. I might agree. However, regardless of the nature of the bargain, it clearly w\as struck through multiemployer bargain- ing in which all the parties agreed to be hbound by group action. Therefore, as the Regional Director concluded, there is no reasorn for failing to follo\\ :he normal Board policy \ hich requires indigi single units inappropriate in tl'e face of such a 25- year bargaining history. - ihe Regional Directl rm dl I}f1 il >rc idid.iual hilrgiatllirig rb ilN} i likt e. 1' , i 'llC lli1. . 11tt' ii IriolI1r o..rtls In its bractf lhi: til, Ilittr\ erlnl- 11i rItl li r hO Irg :iltlc I illdl ll dlill I, t Il 11 .. 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