Stay Security

252 311 NLRB No. 33 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The Intervenor is Industrial, Technical and Professional Employ- ees Division of District No. 1-MEBA/NMU, AFL–CIO. 2 110 NLRB 1189, 1190 (1954). 3 Burns Detective Agency, 134 NLRB 451 (1961). 4 272 NLRB 873 (1984). 5 270 NLRB 787 (1984). 6 289 NLRB 612 (1988). Stay Security and United Union of Security Guards (Independent), Petitioner. Case 5–RC–13842 May 28, 1993 DECISION GRANTING REVIEW BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH On February 9, 1993, the Regional Director for Re- gion 5 administratively dismissed the instant petition on the ground that it was barred by a collective-bar- gaining agreement between the Employer and the In- tervenor.1 The Petitioner filed a timely request for re- view of the dismissal and the Intervenor filed an oppo- sition to the Petitioner’s request. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has duly considered this matter and has decided to grant review and affirm the Regional Direc- tor’s administrative dismissal. This case presents the issue of whether a collective- bargaining agreement covering a unit of guards be- tween an employer and a labor organization that ad- mits both guards and nonguards to membership (a guard/nonguard union) bars a petition for an election in a unit composed solely of guards filed by a labor organization that admits only guards to membership. For the reasons described here, we conclude that such an agreement will bar the petition. The facts are brief and are not in dispute. The Em- ployer provides guard services at various Federal buildings in Baltimore, Maryland. The underlying col- lective-bargaining agreement between the Employer and the Intervenor covers certain of the employees per- forming guard services and is effective from July 2, 1991, to July 3, 1994. In September 1992, the Em- ployer recognized the Intervenor as the representative of the guard unit involved here and the parties agreed to apply the contract to this unit. In pertinent part, Section 9(b)(3) prohibits the Board from certifying a guard/nonguard union as the rep- resentative of a unit of guards. This prohibition was in- serted in the Act as part of the Taft-Hartley Amend- ments of 1947. When initially confronted by the issue of the application of contract-bar rules where the con- tracting union would not be qualified for certification because of Section 9(b)(3), the Board held that it would not apply contract-bar principles to bar a rival petition. In doing so, the Board in Columbia-Southern Chemical Corp.,2 concluded that its decision not to apply the contract-bar rules gave ‘‘recognition to the basic intent of Congress that guards should not be rep- resented by unions which admit to membership em- ployees other than guards.’’ Seven years later the Columbia-Southern decision was reversed in Burns I.3 There the Board held that the Columbia-Southern policy exceeded the statutory requirements of Section 9(b)(3). The Board noted that Section 9(b)(3) did not make it inappropriate for an employer to recognize a guard/nonguard union for a unit of guards but only barred certification by the Board. Thus, the Board determined that the absence of a Congressional declaration that voluntary recognition is illegal evidences a deliberate Congressional decision not to invalidate these voluntary contracts. Accord- ingly, the Board saw no basis for refusing to apply its contract-bar rules in such cases. The Regional Director relied on Burns I in dismiss- ing the instant petition. In doing so, however, he noted that the Board’s decision in University of Chicago,4 appeared to question the continuing viability of Burns I. In Wells Fargo Corp.,5 and in University of Chi- cago, the Board reversed two longstanding practices in the application of Section 9(b)(3). In Wells Fargo, the Board refused to issue a bargaining order on behalf of a guard/nonguard union for a pure guard unit and in University of Chicago the Board reversed the practice of permitting guard/nonguard unions to intervene in an election, to have their names included on the ballot and, if they won, to have a certification by the Board of the arithmetic results of the election. In deciding each of these cases, the Board specifi- cally declined the invitation of the dissenting Board Member that it reverse Burns I. In doing so the Board commented that the issue of contract-bar was ‘‘irrele- vant’’ to the issue in Wells Fargo and that it was not raised by the facts of University of Chicago. Four years later in Corporacion de Servicios Legales de Puerto Rico,6 the Board decided that a contract cover- ing a combined professional/nonprofessional unit would bar a petition seeking a unit of only the profes- sional employees, even though there had been no pro- fessional self-determination vote. In doing so, the Board noted that at least one court of appeals had commented on the ‘‘continuing viability’’ of Burns I. Id. at 613. We affirm that continuing viability here. The poli- cies of Section 9(b)(3) and of Burns I are not incon- sistent. Section 9(b)(3) is grounded in a concern about the protection of certain property rights of an em- ployer, and that concern is not undermined when the employer voluntarily waives its 9(b)(3) rights and rec- ognizes a guard/nonguard union for a unit of guards. 253 STAY SECURITY 7 272 NLRB 868, 870 (1984). Our decision here merely recognizes that waiver and acknowledges a traditional, competing claim: the im- portance of stability in collective-bargaining agree- ments. It was not the purpose of Section 9(b)(3) to re- lieve an employer during the contract period from its collective-bargaining agreement with a union which it voluntarily recognized even if that union would not qualify under Section 9(b)(3) for certification. Nor is the application of the contract-bar doctrine to the circumstances here inconsistent with the decision in Brinks Inc.,7 in which the Board refused to process a petition for clarification of a guard’s unit filed by the incumbent guard/nonguard union. In doing so, the Brinks panel noted that although the Act does not pro- hibit voluntary recognition of a guard/nonguard union for a guard unit, the Board’s processes should not be ‘‘utilized in furtherance of that end.’’ The processing of a unit clarification petition by the Board may re- quire that we interpret the agreement of the parties and may even enlarge the size of the bargaining unit. We believe that affirmative actions of this sort are, like the inclusion of the unqualified union on a ballot, pro- scribed by Section 9(b)(3)—at least by the spirit of that section, if not by its literal language. However, that situation contrasts sharply with the application of contract-bar principles in guard cases. Those principles do not place the Board’s approval on a unit, but sim- ply leave the parties to their agreement for the length of the contract term. In short, the principles of Burns I, which we reaffirm today, do not undermine the stat- utory goals of Section 9(b)(3), while at the same time, they assure the stability of freely established collec- tive-bargaining agreements.