Arcus Data Security Systems

496 324 NLRB No. 111 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The only issue raised in the request for review is whether the Re- gional Director erred in finding the inside and outside customer serv- ice representatives not to be guards under Sec. 9(b)(3) of the Act. Arcus Data Security Systems, Inc. and Chauffeurs, Teamsters & Helpers, Local 186, International Brotherhood of Teamsters, AFL–CIO, Peti- tioner. Case 31–RC–7530 September 29, 1997 ORDER DENYING REVIEW BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS The National Labor Relations Board has considered the Employer’s request for review of the Regional Di- rector’s Decision and Direction of Election (relevant parts are attached as an appendix). The request for re- view is denied as it raises no substantial issues war- ranting review.1 APPENDIX REGIONAL DIRECTOR’S DECISION AND DIRECTION OF ELECTION (2) The petitioned-for unit, as amended at the hearing, seeks to include customer service representatives at the Simi Valley facility (the facility). The lone issue involved herein is whether the customer service representatives are guards within the meaning of Sec- tion 9(b)(3) of the Act. The Employer contends that the cus- tomer service representatives are guards and, as such, the Pe- titioner would be ineligible to represent the customer service representatives as the Petitioner admits to membership and represents nonguards. The Petitioner asserts that the customer service representatives are not guards. Overview of Employer’s Operation The Employer specializes in the storage of electronic media and the provision of related services. Customers store their electronic data—such as computer backup tapes—with the Employer so that, in cases where a customer’s on-site data is damaged or lost, they will have their electronic records preserved with the Employer. Customers store their data on to cartridges, magnetic tapes, disks, or other mag- netic media and place them into lockable container boxes supplied by the Employer. Customer service representatives then pick up the containers, transport them back to the Em- ployer’s facility, and warehouse them in the Employer’s vault. The Employer employs approximately 19 employees at its Simi Valley facility. There is a branch manager, an adminis- trative assistant, an account representative, a sales support representative, a customer service supervisor, and 14 cus- tomer service representatives. The customer service rep- resentatives are further designated as follows: outside cus- tomer service representatives, inside customer service rep- resentatives, senior customer service representative, and IO clerk. The parties stipulated that each of these job classifica- tions, if found not to be guards, would be appropriately in- cluded in the unit. The Guard Status of Customer Service Representatives Section 9(b)(3) of the Act describes a guard as ‘‘an indi- vidual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer’s premises.’’ Starting in the mid-1970s, the Board issued several deci- sions which, on the whole, expanded the definition of guards. See Brink’s, Inc., 272 NLRB 868 (1985), 226 NLRB 1182 (1976), and Purolator Courier Corp., 268 NLRB 452 (1983), 266 NLRB 384 (1983), 265 NLRB 659 (1982), 254 NLRB 599 (1981). More recently, however, the Board has refined and narrowed its definition of guard status in Purolator Cou- rier Corp., 300 NLRB 812 (1990), and Pony Express Cou- rier Corp., 310 NLRB 102 (1993). In these more recent cases, the Board’s determination that the courier-guards were not guards was based on various characteristics of employee duties and employer operations. Accordingly, the duties of the customer service representatives and the operations of the Employer involved here will be examined in light of the characteristics relied on by the Board. Training and Instruction in the Protection of Customer Property. The customer service representatives are trained and instructed that, when confronted with a dangerous situa- tion, they are not to resist in any way. Rather, if physically threatened, the customer service representatives are to surren- der the containers holding customer property. After the dan- gerous incident passes, the customer service representatives are to report the incident to the Employer and the police. Protection of Employer Property. The customer service representatives do not protect the facility and are not in- structed to protect the Employer’s facility. If the alarm at the facility is activated, the customer service representatives are instructed to call the Employer’s security company. No out- side security force is stationed at the Employer’s facility. Training and Instruction in the Use of Weapons and Force. The customer service representatives do not carry or wear weapons. The customer service representatives are not trained in weapons or the use of force, do not wear bullet proof vests, and are not required to be certified as guards. The vehicles driven by the customer service representatives to transport containers to and from customer sites are equipped not with weapons but rather with fire extinguishers and tinted glass on the back windows. The vehicles are not fortified with bullet-proof glass. Duties. Inside customer service representatives work pri- marily inside the vault. The employer job description states that their duty is to ‘‘Perform routine pulling and filing of media, vehicle loading and unloading of media containers, inventory maintenance and required documentation of cus- tomer data stored in the Arcus vault.’’ Outside customer service representatives work largely outside of the employer facility, transporting containers to and from customers. The employer job description states that the role of the outside customer service representative is to ‘‘Pick up and deliver customers’ archives and vital back-up media.’’ The senior customer service representative’s duties are the same as the duties performed by the inside and outside customer service representatives. The employer job description states that the duties of the senior customer service representative includes VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00496 Fmt 0610 Sfmt 0610 D:\NLRB\324.065 APPS10 PsN: APPS10 497 ARCUS DATA SECURITY SYSTEMS training customer service personnel, interfacing with cus- tomers, pulling and filing cartridges, staging containers for route delivery, loading and unloading vehicles, and complet- ing documents concerning the receipt and release of cus- tomer data. The IO clerk works in the ‘‘private suite’’ ad- joining the vault and generates much of the paperwork relat- ed to the work of the other customer service representatives. Level of Access to Customer Premises. Customer service representatives visit customer facilities during work and afterwork hours. At the customers’ facilities, customer serv- ice representatives have security clearances, receive identi- fication badges when on premises, and often have access codes or cards to enter secured interior rooms. One customer service representative, however, testified that he has never deactivated an alarm at a customer’s facility. Approximately 80 percent of the deliveries are to customers’ data centers, which are typically restricted areas, requiring a key or access code for entry. Degree of Accountability to Employer for Property. Customer service representatives are held personally account- able for loss or damage to customers’ containers. During the past 3-1/2 years, there have been two incidents when a cus- tomer service representative lost or damaged a customer’s container. For each incident, the customer service representa- tive was disciplined. It also appears that customer service representatives are bonded. The Manner in Which the Business Holds Itself out to the Public. The Employer does not hold itself out as a secu- rity guard service, but rather as a storage center for data and as a recovery service for electronic data in the event of a dis- aster. The Employer’s advertising package refers to the com- pany as ‘‘the world’s most experienced off-site data storage and disaster recovery services corporation.’’ In its advertising package, the Employer points to staff skills pertaining not to protecting property from theft but rather to providing tech- nical assistance by restoring customers’ electronic data. The advertising package thus describes the Employer’s forte as ‘‘speed, accuracy and business savvy in getting our cus- tomers back in business fast.’’ Most of the services provided by the Employer other than data storage are more closely re- lated to technical sales, support, and storage rather than the protection of valuable property. For example, the services highlighted in the advertising package include: a staff with technical expertise in personal computers and network; the sale of data products, such as cartridge holders and racks; the sale of lockable boxes to carry and store electronic data, and data recovery services in case the customer’s on-site data system is damaged. The two services that begin to approach the services typically provided by courier-guards—media li- brary moves and media transportation—focus more on the safe transport of media rather than the protection of customer property. Value of Customer Property. While undoubtedly impor- tant to the customers, the electronic media transported and stored by the Employer does not possess high intrinsic value. The customer property is essentially backup computer tapes. That is, in case of damage to or destruction of the customer’s computer system, there would be a backup set of computer business records stored at the facility. Upon this examination of the customer service representa- tives’ duties and the Employer’s operation, I find that the primary function of the customer service representatives is not, directly and substantially, to protect intrinsically valu- able property of the Employer or its customers. Rather, the primary duties of the customer service representatives are to safely transport and store customer property. In asserting that the outside customer service representa- tives are guards, the Employer places emphasis on the Board’s decision in Brinks, Inc., 226 NLRB 1182 (1976). There are, however, material differences between the couriers found to be guards in Brinks compared to the customer serv- ice representatives involved here. First, the couriers in Brinks were required to both protect employer property and to resist the theft of customer property. Id. at 1184. In the immediate case, however, the customer service representatives are not required to protect either the Employer’s or the customers’ property. To the contrary, as established above, the customer service representatives are trained and instructed that, when presented with a threatening situation, to not resist and to hand over customer property. Second, the couriers in Brinks were equipped to protect: they always wore firearms and sometimes traveled in armored vehicles. Id. at 1183. In this case, however, the customer service representatives do not wear weapons and travel in unarmored vehicles. Third, one duty of the couriers in Brinks was to enter banks after hours, make the deliveries or pickups, and then secure the banks upon their exit. Id. at 1183. In the present case, the customer service representatives are not charged with such singular re- sponsibility for the welfare of customer premises. Fourth, the couriers in Brinks were used interchangeably in acknowl- edged and established guard positions. Id. at 1184. In this case, the customer service representatives are never utilized in positions which have been long-established under the Act as guard positions. Due to the material factual differences be- tween the couriers in Brinks and the customer service rep- resentatives herein, I am unpersuaded by the Employer’s analogy between Brinks and the immediate case. In contending that the inside customer service representa- tives are guards, the Employer grounds much of its argument on Brink’s, Inc., 272 NLRB 868 (1985). Again, there are key factual differences between the coin room employees found to be guards in that case and the customer service representa- tives involved herein. First, the coin room employees were empowered to take action to protect the property of the cus- tomers and ensure the safety of others on the premises. Id. at 869. In contrast, the inside customer service representa- tives, if faced with a threatening situation, are instructed not to protect the property of the customers. Nor are the inside customer service representatives instructed to ensure the safe- ty of others at the facility. Second, the coin room employees restricted access to the coin room. Id. at 868–869. The cus- tomer service representatives involved in the immediate case, however, are not responsible for deciding who may enter or exit the vault. Other employees are free to enter and exit the vault and customers predecide which of their representatives may enter the vault. Third, the coin room employees pro- tected coins, which are by definition intrinsically valuable. In contrast, the value of the electronic data involved herein is extrinsic not intrinsic: the stored electronic data is valuable only to the customers and select others who can make use of the data; the data standing on its own does not possess significant value. Due to the key differences between the coin room employees in that case and the customer service VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00497 Fmt 0610 Sfmt 0610 D:\NLRB\324.065 APPS10 PsN: APPS10 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD representatives here, I am unpersuaded by the Employer’s analogy between that case and the immediate case. Accordingly, I conclude that the customer service rep- resentatives are not guards within the meaning of Section 9(b)(3) of the Act and that the Petitioner is eligible to serve as the representative of the customer service representatives for purposes of collective bargaining if so elected. There are approximately 14 employees in the unit found appropriate. VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00498 Fmt 0610 Sfmt 0610 D:\NLRB\324.065 APPS10 PsN: APPS10