Brink'S Inc And Security Leasing Co

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brink's Inc and Security Leasing Co and Teamsters Local Union No 284, affiliated with the Inter national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Peti honer Cases 9-RC-14169 and 9-UC-240 22 October 1985 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 17 January 1983 the Regional Director for Region 9 of the National Labor Relations Board issued a Decision Order and Direction of Election in the above entitled RC proceeding in which he found appropriate the Petitioner s requested unit of all coin room employees and mechanics employed by the Employer at its Columbus Ohio facility In directing an election among the two coin room em ployees and the sole mechanic the Regional Three tor rejected the Employer s contention that the coin room employees were guards and that the pe tition should be dismissed because the only remain ing employee in the unit was a mechanic Having directed an election in the RC case, the Regional Director dismissed the unit clarification petition by which the Petitioner sought to add the coin room employees and mechanic' to the existing unit of undisputed guard employees which the Petitioner has represented since 1969 based on voluntary rec ognition 2 Thereafter in accordance with Section 102 67 of the Board s Rules and Regulations, the Employer filed a timely request for review of the Regional Director's decision on the grounds that the Regional Director made factual errors and de parted from Board precedent in failing to find that the coin room employees were guards, in failing to dismiss the representation petition on the basis that the Petitioner is not qualified to represent the coin room employees under Section 9(b)(3) of the Act, and by including the nonguard mechanic in the coin room guard unit 3 contrary to Section 9(b)(3) By telegraphic order of 14 February 1983 the Board granted the Employer s request for review The election was stayed pending the Board's deci sion on review On 7 May 1984 the Employer filed a motion to dismiss on the grounds that on 30 May 1984 it would permanently close its coin room op ' The parties agree that the mechanic is not a guard The Regional Di rector found that the mechanic was jointly employed by Brink s and Se curity Leasing Co The latter Company is a division of Trans Service Leasing which was bought by Brink s 2 The most recent collective bargaining agreement for the Columbus Ohio location described the recognized unit as including Cashiers As sistant Cashiers Messengers Drivers Tellers Guards and Building Guards 2 The Petitioner s counsel stipulated on the record that the Petitioner represents employees other than guards eration On 26 June 1984 the Employer filed a re quest for an Order to Show Cause 4 The Board has considered the entire record in these cases and makes the following findings The Employer, Brink s, Inc a Delaware corporation is engaged in the transportation and storage of coin, currency and securities at locations throughout the United States Brink s maintains a secured facility in Columbus, Ohio, involved herein where it stores and processes currency, coins, and other va luables for its customers, which include a number of banks in the Columbus area The Employer uti lizes armored trucks =manned by employees in the represented unit who pick up and deliver currency, coins, and securities The items picked up from the customers locations are brought back to the Co lumbus facility which has three vaults, one of which is the coin room" where the two disputed coin room employees work The record shows that access to the building is secured and that move ment inside the building is highly controlled and restricted For this purpose there are steel doors controlled by a turret guard in the building, and movement from one area to another is limited by trap' areas which restrict persons from entering other areas unless permitted 5 The coin room is considered a working vault, and it is also protected by a steel door controlled by an alarm system and keys The coin room is locked at night and can only be reopened after notification to the outside alarm service As found by the Regional Director, the coin room employees spend virtually all of their work time within the coin room They do not go out on the trucks or otherwise interchange with represent ed employees Loose coins are brought in sealed bags to the premises where the bags are placed on skids and moved into the coin room entrance on electric lifts by existing unit employees The coin room employees are responsible for counting the bags weighing them, stacking them in the coin room until the coins are wrapped and performing the necessary paperwork regarding the coins re ceived and released They also take physical inven 4 In view of our decision herein finding that the Union is not a proper petitioner in either case we need not address the Employer s recently filed motion to dismiss or request for Order to Show Cause because of the purported discontinuance of the coin vault operation at the Colum bus Ohio facility Assuming arguendo that the facts alleged by the Em ployer were borne out by the responses to a Notice to Show Cause there would still remain for resolution the requested clarification of the existing unit to include the nonguard mechanic Member Dennis agrees with Member Zimmerman that the Board should have issued a Notice to Show Cause because the Board is evenly divided the motion falls for want of a majority As to the merits however Member Dennis agrees with Chairman Dotson and Member Hunter 5 The guard in the turret has sight of the various entrances except for the door to the coin room through the use of mirrors 272 NLRB No 125 BRINK S INC 869 tory every week, and every night a paper account ing of the inventory is made To wrap coins for the various banks and other clients the coin room em ployees open the bags, sort the coins if necessary, and load them into the hoppers of the machines used for wrapping The wrapped coins are then boxed and stored in the coin room until dispatched back to the customers as needed The coins proc essed by the coin room employees belong to the banks and other customers The value of coins in the coin room may exceed $1 million at times For that reason, access to the coin room is restricted generally to the coin room employees and supervi sors The truckdnvers and other represented em ployees do not perform any work in the coin room Everyone who enters the coin room, including the coin room employees and the supervisor, has to sign in and out on the log kept in the coin room Occasionally, bank personnel are escorted into the coin room by supervisors, and periodically some one from the outside will go in to repair a machine There is always one coin room person in the room during the workday to protect the customers moneys Coin room personnel must ensure that no one comes in who should not be there When coin is received, a coin room employee has to venfiy the amount recorded on the Employ er's forms and individually sign off that he received the number of bags for the amount recorded He must also complete Bank Coin Balance Record" forms on which he enters the monetary value of coin brought into the coin room for each particular bank broken down according to the different types of coins When coins are i to be shipped, the coin room employees must get a receipt for the amount dispatched When coin room employees are considered for employment they must fill out an application and be interviewed They are then given a Reid Test, which consists of a large number of questions re quinng a yes" or no answer to determine whether they are trustworthy In addition, they are given a supplement form to determine whether they use drugs If an applicant passes the Reid Test, he is given a polygraph examination and a physical examination and is fingerprinted and pho tographed Coin room employees are bonded and carry an ID card with their picture The record discloses that the present coin room employees were 'qualified by the Employer to fire a pistol and that such a weapon is now kept in the coin room They are authorized to use the weapon to protect the property in the coin room as well as to protect any persons on the premises In failing to find the coin room employees guards, the Regional Director relied in part on his finding that the responsibility for protecting this Employer's property lies with a building guard lo cated in the turret who controls all access to the Employer s facility The Regional Director fur ther concluded that coin room employees are "no more responsible for the protection of property than any other employee including the office den cal employee and the mechanic We disagree Our review of the record persuades us that the coin room employees possess the indicia of guards as defined in Section 9(b)(3) of the Act Initially, we note that, although the turret ivard controls access to many of the areas within the premises, he does not have sight of the coin room door and cannot therefore restrict direct entrance to the coin room That is the responsibility of the coin room employees and supervisor Moreover, it is not only the protection of the Employer's prop erty which satisfies the guard criteria As stated in Brinks Inc 226 NLRB 1182, 1183 (1976), "The Board has long held with court approval, that the foregoing definition [of guards] applies equally to persons engaged in protecting property of an em ployer's customers It is clear that the coin room employees are responsible for receiving and dis patching the coins that belong to the Employer s customers and are processed and stored in the coin vault The employees must keep accurate account of the coins received, remaining in inventory, and released In addition they have the responsibility to ensure that unauthorized persons do not enter the coin room They also possess the means if nec essary, to take action to protect the customers' property and the safety of others on the premises The fact that the nonguard employees of the Em ployer may also take measures to restrict access to the premises does not nullify the guard type duties of the coin room employees or of course the un disputed guard status of many of the represented employees Accordingly, contrary to the 'Regional Director we are satisfied on this record that the coin room employees are guards within the mean mg of Section 9(b)(3) 6 Inasmuch as the Petitioner admittedly represents nonguard employees, we shall dismiss the petition because the Board is pre eluded under the above mentioned section of the Act from certifying such a petitioner for a unit of guards Alternatively, the Petitioner sought to add the coin room employees and the mechanic to the ex isting unit by means of its unit clarification petition, which the Regional Director dismissed based on 6 Accord Teamsters Local 639 (Dunbar Armored Express) 211 NLRB 687 (1974) See also Teamsters Local 71 (Wells Fargo) 221 NLRB 1240 (1975) 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his direction of the election which we have now found improper We conclude that reinstatement of that petition is unwarranted in the circumstances here, even assuming that the employees involved could otherwise be added to the existing unit In our opinion although Section 9(b)(3) literally read, proscribes only the Board s authority to certify a labor organization as the representative of a bar gaining unit of guards if it admits to membership, as here, employees other than guards, to allow such a labor organization to clarify a unit of guards which it represents would assist it in accomplishing or perfecting that which the statute expressly seeks to avoid 1 e, the representation of guard employ ees by a union which admits to membership em ployees other than guards Although the Board does not prohibit employers from voluntarily rec ognizing such labor organizations to represent units of guard employees or even mixed units, we will not permit the Board s processes to be utilized in furtherance of that end Thus today, in University of Chicago, 272 NLRB 872 we have overruled Bally s Park Place, 257 NLRB 777 (1981), and Burns Inter national Detective Agency, 138 NLRB 449 (1962) Processing the petition in the face of the prohibi tion in Section 9(b)(3) would, in our view, place an unduly narrow interpretation on the legislative intent expressed by that provision Accordingly, the Regional Director s dismissal of the clarifica tion petition is affirmed, albeit for the different rea sons expressed in this decision 7 ORDER The Decision and Direction of Election in Case 9-RC-14169 is vacated and the petition is dis missed The Order in Case 9-UC-240 dismissing the clarification petition is affirmed MEMBER ZIMMERMAN dissenting Although I agree with my colleagues that the coin room employees are guards within the mean ing of Section 9(b)(3), and would otherwise join them in dismissing the RC petition here, both be cause it seeks a mixed guard nonguard unit and be 7 The dissent s reliance on Locomotive Firemen & Enginemen 145 NLRB 1521 (1964) in support of its argument that we should have clan tied this unit is misplaced That case merely involved a unit which as It happened had never been certified No statutory prohibition against cer tification was involved This case on the other hand involves the at tempted use of the Board s processes by a union which is uncertifiable in the requested unit Additionally insofar as the dissent relies on Arizona Public Power Coop erauve 250 NLRB 1132 (1980) we note that in Wells Fargo Corp 270 NLRB 787 fn 4 (1984) we found It unnecessary to pass on whether a respondent would have been pnvileged to withdraw recognition within the contract term We similarly find it unnecessary to pass on that issue in the instant case We further note that Wells Fargo involved the issue of the bargaining obligations of an employer under Sec 8(a)(5) of the Act and is not directly relevant to this Sec 9 proceeding cause the Petitioner admits nonguards to member ship, I nonetheless dissent from their action in this case During the pendency of this case before the Board the Employer filed a motion to dismiss the petitions on the ground that on 30 May 1984 it would permanently close the coin room operation at issue here and the two coin room employees will not be offered transfers to other locations The Board s normal procedure when presented with such a motion is to issue a Notice to Show Cause why the motion should not be granted and to give the parties an adequate time to respond In fact, on 26 June 1984 the Employer filed with the Board a request for Order to Show Cause My colleagues however without any explanation have chosen to ignore both this request and the motion to dismiss and instead decide issues which would not have to be reached if the Employer s assertions prove to be true I would have issued a Notice to Show Cause in the circumstances here If the Employer actually did close the coin room on 30 May and terminate the coin room employees this case has become moot, insofar as those employees are concerned 1 Since the majority has addressed the merits of the Regional Director s report, however, and has misinterpreted the language and intent of Section 9(b)(3) I will set forth my views on the merits of the UC petition as if these two employees remained employed in the coin room The majority s refusal to permit the UC petition here is based on the erroneous premise that the Act expressly seeks to avoid the representation of guards by a union which admits to membership employees other than guards Section 9(b)(3) bars the Board from certifying as representative of a guard unit a union that admits nonguard employees to membership but nothing in the Act bars a guard from joining a union that represents other employ ees at the plant or prohibits that union from simul taneously representing guard and nonguard em ployees, so long as the Board s processes are not invoked to certify that union as the guard s repre sentative Similarly there is no statutory impedi ment to the use of Board processes by an uncerti fiable union where, as here, there will be no Board certification—either of union or unit—and there is no question concerning representation involved ' The Petitioner s UC petition also sought to add the nonguard me charm to the existing guard unit This matter easily could have been re solved in disposing of the Employer s motion to dismiss Inasmuch as such a mixed unit obviously would be proscribed by Sec 9(b)(3) Conse quently there is no substance to my colleagues assertion that even if the facts alleged in the Employer s motion were true a decision on the merits would be necessary to resolve the issues concerning the mechanic In any event my colleagues gratuitous discussion of the merits regarding the coin room employees demonstrates that the mechanic s status had nothing to do with their refusal to issue a Notice to Show Cause BRINK S INC 871 The Petitioner contends that if the Board finds the coin room employees to be statutory guards they constitute an accretion to the existing unit of about 40 guards which the Petitioner already rep resents pursuant to the Employer s voluntary rec ognition in 1969 The starting point of the analysis required here is that a UC proceeding involves the issue of appropriate unit, not certification of a bar gaining representative It is well settled that a UC petition will be enter tamed by the Board even though the Board never has passed on the appropriateness of the unit and no certification exists Here there is no question that the all guard unit voluntarily recognized by the Employer in 1969 is an appropriate unit Adding the two coin room guards to the existing unit would not result in an inappropriate unit under Section 9(b)(3) and would not contravene the leg islative intent underlying that section If, in fact, the two coin room employees were found to be an accretion to the unit, the Board s Order in this pro ceeding simply would state that the existing unit represented by the Petitioner is clarified to include those two employees There would be no certifica tion language in the Board's Order 2 Thus, con trary to my colleagues suggestion, the statutory prohibition against certification of the Petitioner would not be undermined Further that the existing guard unit is not certi fled does not preclude a unit clarification The Board long ago held in Locomotive Firemen & En gmemen, 145 NLRB 1521 (1964), that it is proper to determine the unit placement of disputed em ployees even though the unit at issue is represented by an uncertified union because the Board as a major custodian of the national labor policy, should take all positive action available to eliminate Indus trial strife and encourage collective bargaining Those purposes would be best served in the cir cumstances of this case by deciding whether the coin room guards are a proper accretion to the ex isting guards unit through a unit clarification pro ceeding rather than leaving the disagreement over the status of the two employees unresolved Although the situation presented here is novel the Board s decision in Burns International Detective Agency 134 NLRB 451 (1961), is instructive There, the Board held that Section 9(b)(3) s pro scnption against certification of certain guard units did not preclude the application of the Board's contract bar rules to contracts covering all guard units The Board stated Section 9(b)(3) of the Act performs two functions First it precludes the Board from 2 See e g Washington Post Co 254 NLRB 168 222 (1981) finding any unit appropriate for the purposes of collective bargaining if that unit contains both guard and nonguard employees second, it precludes the Board from certifying a labor organization as the representative of employ ees in a guard unit if such labor organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards The distinction implicit in the language bears careful note A unit containing both guard and nonguard employees is inappropri ate for any purpose Conversely, a unit corn posed exclusively of guard employees is appro pnate The only limitation in the later instance is that the labor organization representing such employees cannot be certified if in other as pects of its operation it admits nonguard em ployes to membership or is affiliated directly or indirectly with an organization which does SO Congress could readily have declared a guard unit inappropriate if the representative of that unit admitted nonguards to membership or was a direct or indirect affiliate of a labor organization which did so Congress did not so declare and the preceding statutory language covering the mixed guard unit compels the conclusion that this omission in the latter situa tion was deliberate It follows, in our view, that a contract unit comprised exclusively of guards is not invalidated merely because the representative of that unit admits to member ship nonguard employees The same reasoning is applicable here inasmuch as a unit clarification is not contingent on a prior cer tification, and the all guard unit is unquestionably appropriate The Board s decision in Bally s Park Place 257 NLRB 777 (1981), which my colleagues have over ruled today but to which I would adhere, also sup ports processing the UC petition in this case 3 In Bally s the Board revived its policy—first enunci ated in 1962—that permits a union that is unquali tied for certification under Section 9(b)(3) never theless to appear on the ballot If the unqualified union wins, only the arithmetical results are certi fled to indicate majority support The Board decid 3 See my dissent issued today m University of Chicago 272 NLRB at 876 In that case the majority qlso overruled Burns International Dctecttve Agency 138 NLRB 449 (1962) in which the Board held that the statuto ry proscription in Section 9(b)(3) against certifying affiliated labor orgarn zations as representing guard units does not prevent putting such labor organizations on the ballot and certifying the arithmetical results when such an election is won by such organization 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed in Bally s that permitting a nonqualified interve nor to appear on the ballot would contribute to stable labor relations by allowing employees to express fully their wishes as to a collective bargain ing agent Similarly, proceeding with the unit clarification here would ensure the continued sta Way of the parties' 15 year bargaining relationship as to the all guard unit, which stability is threat ened by the dispute over the status of the coin room employees Under neither Bally 'S nor the unit clarification situation presented here would an un qualified union be permitted to invoke Board proc esses to raise a question concerning representation 4 Support for processing the UC petition here also can be found in Arizona Electric Power Cooperative 250 NLRB 1132 (1980) There, the Board found that an employer unlawfully refused to bargain, even though the unit included a statutory supervi sor The Board held that the employer had volun teered to include the supervisor in the unit and therefore the employer was bound to adhere to the contract during its term In its decision the Board stated that it may appropriately issue a bargaining order covering a unit which it could not have ini tially certified under the Act, but concerning which the parties have knowingly and voluntarily bargained My colleagues, however, have gone beyond the narrow issue presented here—the clarification of an already recognized appropriate unit—to hold that it 4 Bally s only allows an uncertifiable union to appear on the ballot as an intervenor not as a petitioner Moreover here the Employer already has voluntarily recognized the Petitioner as bargaining representative of its guards and no challenge Is being raised to that representative status would be improper to utilize Board processes in furtherance of the representation of guards by a union unqualified for certification While acknowl edging that employers can voluntarily recognize such labor organizations to represent guard units, they have unequivocally decided that the Board's processes will be foreclosed to a mixed union in any situation concerning the representation of guards And this will be so even where as here there is no question concerning representation raised, the employer is not attacking the parties longstanding collective bargaining relationship,5 the unit is appropriate under Board law and what is sought is the accretion of guards to an existing guard unit Congress has not barred mixed unions from rep resenting all guard units Instead, as a plain reading of Section 9(b)(3) and its legislative history makes evident, the Board may find appropriate a unit composed exclusively of guards, even if it is repre sented or sought to be represented by a mixed union 6 A unit clarification proceeding is con cerned only with the question of appropriate unit, not certification of a representative The Act s pur pose of fostering stability in collective bargaining relationships is ill served by the majority s refusal to process a UC petition in these circumstances 5 Cf Amoco Oil Co 221 NLRB 1104 (1975) 6 See my dissent in Wells Fargo Corp 270 NLRB 787 (1984) where my colleagues found that an employer did not violate Sec 8(a)(5) by withdrawing its voluntary recognition from a mixed guard union for a guards unit during a hiatus between contracts Wells Fargo however specifically left open the question whether the employer would have been privileged to withdraw recognition within the contract term The unit clarification issue here arises during the contract term