Children'S Hospital Of Michigan

430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Children's Hospital of Michigan and Michigan Asso- ciation of Police-911. Case 7-RC-19241 August 10, 1990 DECISION ON REVIEW AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On June 7, 1990, a three-member panel of the Board (Chairman Stephens and Members Devaney and Oviatt) granted the Employer's Request for Review of the Regional Director's Decision and Direction of Election. Thereafter, the Employer filed a brief on review. The Board, by a three-member panel, has care- fully reviewed the entire record, including the brief on review, and has decided to affirm the Regional Director's determination that the Petitioner is not disqualified under Section 9(b)(3) of the National Labor Relations Act (the Act) from seeking certifi- cation as the representative of a unit of guards. As the Regional Director found,' the Petitioner directly represents several bargaining units consist- ing of police officers, guards, dispatchers, adminis- trative technicians, and laboratory personnel em- ployed by various municipalities of the State of Michigan. The Petitioner is also involved in the representation of two guards units, whose constitu- ents are employed in the private sector. In addi- tion, the Petitioner is affiliated with an organiza- tion, the Michigan Association of Public Employ- ees (MAPE), which limits its membership to public employees or organizations composed of public employees, and which currently represents non- guard public employees. The Petitioner here seeks to represent a unit of guards at the Employer's hos- pital. The Regional Director's determination that the Petitioner should not be disqualified from repre- senting the Employer's guards under Section 9(b)(3) is correct, as the plain wording of the stat- ute makes clear. Section 9(b)(3) states, inter alia, that the Board shall not certify a labor organization as a representative of employees in a bargaining unit of guards if such organization admits to mem- bership, or is affiliated directly or indirectly with an organization which admits to membership "em- ployees other than guards" (emphasis added). Sec- tion 2(3) of the Act defines "employee" as "any employee. . . but shall not include any individual employed . . . by any other person who is not an employer as herein defined." And Section 2(2) of the Act defines "employer" as any person, "but Relevant portions of the Regional Director's Decision and Direction of Election are attached as an appendix. shall not include. . . any State or political subdivi- sion thereof . . . ." Accordingly, reading these provisions of the statute together, as we must, 2 we first note that an individual employed by a State or political subdivision is not an "employee" within the meaning of the Act. Ojai Valley Community Hospital, 254 NLRB 1354 (1981). Because the Act requires that its definitions be used wherever men- tioned, it follows that the term "employees" used in Section 9(b)(3) excludes those employed by em- ployers excluded from coverage under the Act by virtue of Section 2(2). 3 That is, a union is disquali- fied from representing guards under Section 9(b)(3) only if it represents employees other than guards. Because individuals working for States or political subdivisions are not "employees," it follows that if a union represents such individuals, it does not rep- resent "employees other than guards" under Sec- tion 9(b)(3), and thus may represent guards under that provision. Accordingly, regardless of their duties, the individuals employed by various munici- palities who are represented by the Petitioner or by MAPE, the organization with which the Petitioner is affiliated, are not "employees other than guards" under Section 9(b)(3). Based on the foregoing, we conclude that Sec- tion 9(b)(3) of the Act does not disqualify the Peti- tioner, which represents nonguard employees of the State of Michigan and its political subdivisions, and is affiliated with an organization which repre- sents nonguard public employees, from seeking cer- tification as the representative of the Employer's guards. ORDER The Regional Director's Decision and Direction of Election is affirmed. 2 Definitions set forth in a statute are understood to establish meaning where the term appears in that same act. 2A Sutherland, Statutory Con- struction Sec. 47.07 (4th ed. 1984). The meanings of the terms "employee" and "employer," as used in the National Labor Relations Act, are deter- mined in the light of the purposes served by the respective statutes and without reference to their common-law meanings. 3A, Sutherland, Statu- tory Construction Sec. 73.01 (4th ed. 1984). 3 Nothing in the legislative history of the Act, which we have careful- ly examined in our consideration of this case, is to the contrary. APPENDIX While the parties are in agreement that the Petitioner is a labor organization within the meaning of Section 2(5) of the Act, the Employer, contrary to the Petitioner, contends that the Petitioner is not qualified to represent a unit of guards under Section 9(b)(3) of the Act because it admits to membership employees that are not guards, and that it is also affiliated with an organization that admits to its membership employees who are not guards. 299 NLRB No. 63 CHILDREN'S HOSPITAL OF MICHIGAN 431 At the hearing the parties stipulated to include in the record the facts as found in my Decision and Direction of Election in Wackenhut Corporation, Case No 7-RM- 1316, dated September 23, 1987, Request for Review denied October 16, 1987, to resolve these issues 3 The parties also stipulated that the Petitioner, on March 12, 1990, was certified to represent a unit of guards in De- troit Medical Center, Case No 7-RC-19180 The parties further stipulated that the Petitioner also represents police officers for the cities of Southfield, Pontiac (com- mand and patrol officers), St Clair Shores, and Sterling Heights, Michigan 4 The facts as found in Wackenhut were as follows Article VII of the Petitioner's articles of association states An individual or organization shall be eligible for membership as long as (a) The individual is a law enforcement officer (b) The organization is composed of law en- forcement officers Membership may be obtained by submitting an ap- plication for membership to the Advisory Board of this organization for approval by a majonty of the Board members present and voting After approval of the membership application, membership may be maintained by payment of membership dues as pro- vided for by Executive Board action The Petitioner is affiliated with another labor organi- zation, Michigan Association of Public Employees ("MAPE"), which, in turn, through its articles of asso- ciation, limits its membership to public employees or or- ganizations composed of public employees The nature of the affiliation was not set forth in detail, except that the two organizations operate out of a common office, were incorporated at the same time with three out of five of each of their incorporators being the same, that one of their original officers and one of their ongmal directors was the same person, and that they had separate bank ac- counts MAPE represents pnmanly clerical employees, mechanics, and employees working for various municipal courts of the State of Michigan In addition, MAPE had representation petitions on file with the Michigan Em- ployment Relations Commission seeking to represent var- ious employees of the City of Taylor court system as well as some employees employed by Macomb County, Michigan No evidence was presented at the instant hear- ing to show that MAPE represents any other employees Also, no evidence was adduced that MAPE represents or has sought to represent any non-governmental or pri- vate employer employees The record further establishes that the Petitioner itself directly represents approximately ten bargaining units consisting of police officers, guards, dispatchers, adnums- 3 Although not in this record, the same issue involving the Petitioner was handled in my Decision and Direction in General Motors Corp, Cases No 7-RC-18673 and 7-RC-18689, dated August 22, 1988, of which I take notice 4 The record is corrected to reflect the complete names of these mu- nicipalities trative technicians, and laboratory personnel employed by various municipalities of the State of Michigan It is involved in the representation of two bargaining units, whose constituents are employed in the private sector, these units encompass the guards who provide security services at the Renaissance Center, a privately owned office, retail, and hotel development located in the City of Detroit, and the security or police officers of the Uni- versity of Detroit, a privately owned and incorporated, non-profit educational institution Apparently, as is the case of MAPE, the Petitioner is not the direct collective- bargaining representative of the employees of the two units in the private sector, rather, for a per capita fee, it provides representational services consisting of the nego- tiation of collective-bargaining agreements and the proc- essing of grievances for the certified bargaining repre- sentative of each of those units 5 At the Renaissance Center, the unit encompasses both security officers and certified officers However, both job categories perform essentially the same duties Thus, the functions of both of the classifications include patrolling the facility, respond- ing to fire alarms, and generally protecting tenants, visi- tors, and property within the Renaissance Center The only distinction between the two guards was that the certified officers carry firearms 6 In addition, individuals in both classifications were eligible to be certified as emergency medical technicians, though this was not a re- quirement of either classification At the University of Detroit the unit encompasses dispatchers, security offi- cers, and certified officers at its three campuses The se- curity officers and certified officers are certified by the Michigan Law Enforcement Training Council The dis- patchers receive emergency calls, collate the incoming information, and relay relevant instructions to both secu- rity officers and certified officers In addition, they pre- pare investigatory reports based on complaints filed by individuals on campus Dispatchers often "move up" to the security officer classification The security officers' duties consist of conducting routine property patrols at the various campuses, safeguarding university personnel, answering alarms, responding to dispatch calls, and pre- paring reports regarding theft of property The certified officers perform the same duties as do the secunty offi- cers but, in addition, deal with victims following reports of felomous acts committed against individuals Both se- curity officers and certified officers receive their training from the Detroit Police Department Reserve Unit The record evidence presented in Wackenhut and the parties' contentions raise a number of issues crucial to 5 Based on official case records, I note that in Case No 7-RC-14605, this office on January 17, 1978, certified the University of Detroit Police Officers Association as the collective-bargaining representative of a unit of the public safety officers, public service officers, and dispatchers em- ployed at the University of Detroit at three of its campuses, and that in Case No 7-RC-16950, this office on July 1, 1983, certified the Renais- sance Center Police Officer Association as the collective-bargaining rep- resentative of a unit of that employer's secunty officers and guards Both of these elections were conducted pursuant to consent election agree- ments a I assume that the certification classification and requirements relate to the State of Michigan's laws and regulations concerning security officers, especially if they are armed 432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the determination of the qualification of the Petitioner to represent the petitioned for guards herein MAPE clearly represents non-guard employees of the State of Michigan and its political subdivisions Does this fact disqualify the Petitioner from representing guards because it, as proscnbed by Section 9(b)(3) of the Act, 4. is affiliated directly or indirectly with an organiza- tion which admits to membership employees other than guards?" The Petitioner appeared to concede in Wacken- hut, although the record is far from clear in this respect, that it was "affiliated" with MAPE within the contem- plation of Section 9(b)(3) of the Act The evidence in that case supported such a conclusion and I so found The next issue, therefore, is whether MAPE's non-guard members are "employees other than guards" within the meaning of Section 9(b)(3) of the Act The language of Section 9(b)(3) is precise, for a qualified guard union, the admission to mem- bership by it or a union to which it is affiliated of "employees other than guards" is precluded It would appear that the definitions of "employees" in Section 2(3) and "employer" m Section 2(2) of the Act would seem to apply to Section 9(b)(3) Clearly excluded from these definitions are individ- uals employed by a state or municipality Accord- ingly, the mdividuals employed by various munici- palities who are members of MAPE or are repre- sented by the Petitioner itself are not "employees other than guards" (emphasis supplied) To be a statutory employee under the NLRA, one must be employed by a statutory employer Examination of the development of Section 8(b)(4) of the Act illus- trates the distinction between "employees" and "m- dividuals" as those terms are used in the Act Pnor to the Landrum-Griffin Act amendments in 159, the language of that section, which then read "em- ployees' of any employer", was interpreted by the Board, accordmg to the definitions in Section 2(2) and 2(3), to not prohibit inducement of employees of public employers or of other exempt entities, be- cause they were not "employees" as defined in Section 2(3) of the Act See, e g, Auto Workers, Local 833, (Hammill & Gillespie, Inc ), 116 NLRB 267 (1956) To fill this loophole, the language was changed by the Landrum-Gnffin amendments to the Act to read "any individual employed by an person", a phrase having much broader scope No such change has been made of Section 9(b)(3) of the Act Had Congress sought an interpretation of Section 9(b)(3) advanced by the Employer, it could have drafted language to reflect such an intention Accordingly, in Wackenhut I found that the Petitioner was not disqualified from seeking certification under the Act although it has members who are non-guards in the public sector and it is affiliated with MAPE, a labor or- ganization that admits non-guards to membership, in either case these members are public employees not sub- ject to the Act 7 I also so conclude in this case The Petitioner's relationship with the University of Detroit Police Officers Association and the Renaissance Center Public Officers Association appears to be limited to providing representational services for these organiza- tions, for which it receives a per capita fee The Wacken- hut record does not show what position the parties took as to whether these facts create a Section 9(b)(3) "affili- ation" While Petitioner's contractual agreements do not result technically in a formal affiliation with the two police officer's associations, the relationship is neverthe- less a permanent one, to be distinguished from those situ- ations where a labor organization provides some initial "start-up" assistance Presumably, also, the revenues that the Petitioner receives from the two associations are sub- stantial Therefore, the relationship between them is not minimal Finally, when the Petitioner negotiates for the two associations, it presumably negotiates on behalf of these employees with as much commitment as it would on behalf of its own members All of these factors argue in favor of a conclusion that the Petitioner's relationship with the University of Detroit Police Officer Association and the Renaissance Center Police Officer Association constitutes an indirect affiliation I so concluded in Wackenhut, as do so here Accordingly, since the alleged non-guard individuals employed by the University of De- troit and Renaissance Center are employees of a statuto- ry employer, it is necessary to reach the issue of whether there are other than guard employees in the University of Detroit and Renaissance Center units While some of the guards at the Renaissance Center are certified to provide emergency medical service, they nevertheless also serve as guards within the meaning of Section 9(b)(3) on a regular and substantial basis There- fore, the unit consists of statutory guards Waterboro Manufacturing Corporation, 106 NLRB 1383 (1953) At the University of Detroit, certain of the employees in the unit are classified as dispatchers From the sparse record facts set forth in Wackenhut, it was difficult to reach a definitive determination on the dispatchers' guard status However, it did appear quite clear that the dispatchers served as an intrinsic part of the University of Detroit's secunty system I noted that the dispatchers were certi- fied as part of the guard unit in Case No 7-RC-14605 See footnote 3, supra Accordingly, I concluded in Wackenhut that the employer had not met its burden of establishing, by definitive evidence, that the dispatchers employed at the University of Detroit were not statutory guards Burns International Security Services, Inc , 278 NLRB 565 at p 568 (1986) In Burns, where the conten- tion was made that several classifications of guard-relat- ed employees, including dispatchers of guards, disquali- fied a labor organization from representing a unit of guards, the Board held that such evidence proffered in support of such an argument must be definitive, as "oth- erwise the rights of guards to be represented and of 7 The Request for Review in Wackenhut on the same issue was denied by the Board See N LR B vs Magnesium Casting Company, 427 Fed 114, 119 (1st Cir , 1970, cert denied 400 US 818) CHILDREN'S HOSPITAL OF MICHIGAN 433 guard unions to represent guards would be seriously un- dermined" Id, at p 568 The additional facts presented herem do not re- quire a different conclusion than in Wackenhut since the parties stipulated that the employees rep- resented by the Petitioner in Detroit Medical Center are guards within the meaning of Section 9(b)(3) of the Act and that the other police officers noted by the Petitioner as being represented employees are clearly not employees as defined by the Act Thus, a common sense application of the facts delineated in Wackenhut together with the addi- tional facts stipulated herein calls for ' the conclu- sion that the Petitioner is a guard union certifiable under the Act I so find 8 8 The Employer's bnef postulates a potential conflict of interest in a stnke situation between the guards herein, represented by the Petitioner, and police officers responsible for keeping the peace dunng such a stnke First of all, the Petitioner does not represent any member of the constab- ulary of the Qty of Detroit, Wayne County, or the State Police of Michigan Secondly, I note that Section 9(b)(3) does not eliminate all possible conflicts of Interest, especially if conjectural rumor For exam- ple, there is a potential conflict of Interest whenever two or more groups of guards, in separate units but represented by the same labor organiza- tion, Interface As the Board has held, Section 9(bX3) is a practical, common sense solution to the plant protection employees conflict of In- terest problem See, Burns, supra