The University Of Chicago

UNIVERSITY OF CHICAGO 873 The University of Chicago and Samuel V Evans, Jr, Petitioner, and International Union of Police Associations, Illinois State Council Local 200, affiliated with Illinois Confederation of Police Case 13-RD-1458 22 October 1984 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN, HUNTER AND DENNIS On 22 December 1982 the Regional Director for Region 13 issued a Decision and Direction of Elec tion in the above entitled proceeding in which he allowed the Intervenor, Highway Drivers, Dock men, Spotters, Rampmen, Meat Packing House and Allied Products Drivers and Helpers, Office Work ers and Miscellaneous Employees, Local 710, Inter national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein after called Local 710 which had demonstrated the requisite showing of interest to intervene in this proceeding for the sole purpose of being accorded a place on the ballot Since Section 9(b)(3) of the Act disqualifies Local 710 from certification as the bargaining representative of the guard unit in volved in this case, the Regional Director empha sized, citing Bally s Park Place, 257 NLRB 777 (1981) that he would certify only the arithmetical results if Local 710 won the election On 29 December 1982 the Employer filed a re quest for review of the Regional Director's deci sion on the grounds that no conceivable legitimate purpose can be served by permitting employees to vote for a union which is unable to compel recog mtion 'The Employer thus requested that in light of the facts in the instant case the Board reconsid er and modify its decision in Bally s Park Place, supra By telegraphic order dated 25 January 1983 the Employer s request for review was denied and the Regional Director s decision affirmed because there was a lack of majority for granting review 1 On 25 January 1983 an election by secret ballot was conducted At the conclusion of the election the parties were furnished with a tally of ballots which showed that, of approximately 63 eligible voters 32 cast ballots for Local 710 17 cast ballots for International Union of Police Associations, Illi nois State Council Local 200, and 1 cast a ballot against the participating labor organizations There was one challenged ballot 1 Former Chairman Miller and Member Hunter voted for and Member Zimmerman and former Member Jenkins against granting review On 1 February 1983 the Employer filed timely objections to conduct affecting the results of the election Pursuant to Section 102 69 of the Board s Rules and Regulations, the Regional Director con ducted an investigation of the objections and issued his report which recommended that the Employ er's objections be overruled and that a certification of the arithmetical results be issued Thereafter, on 11 March 1983, the Employer filed timely excep tions to the Regional Director's report In its Objection 1, the Employer contends that by permitting Local 710 to appear on the ballot, the Regional Director created the impression that, if selected, the Intervenor would have the legal right to secure recognition from this Employer as the bargaining representative of its employees The Regional Director, relying on Bally s Park Place supra, as well as the denial of review, recommend ed that this objection be overruled We disagree The crux of the problem in the instant case, and indeed in all guard nonguard union cases, 2 is the construction of Section 9(b)(3) of the Act, which provides in pertinent part [T]hat the Board shall not (3) decide that any unit is appropriate if it includes, to gether with other employees, any individual employed as a guard to enforce against em ployees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises, but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership or is affiliated directly or indi rectly with an organization which admits to membership, employees other than guards Although the statute explicitly prohibits certifica lion of organizations such as Local 710, which admits nonguards into its membership and which is affiliated with a guard nonguard union nowhere does the statute specify the consequences of this prohibition The Board has therefore been obliged to resolve a variety of questions raised by this stat utory void, 3 including that posed in the instant 2 A guard nonguard union is one which like Local 710 represents guards and also admits to its membership or is affiliated directly or Ind' rectly with an organization which admits to membership nonguards We today adopt the more accurate expression guard nonguard union in place of mixed guard union 3 As a result of this statutory void the Board has addressed three ques tions other than that under consideration in the instant case first wheth er to entertain an election petition filed by a union barred from certifica tion See Schenley Distilleries 77 NLRB 468 (1948) General Motors Corp 77 NLRB 1029 (1948) Armored Motor Service Co 106 NLRB 1139 (1953) Wackenhut Corp 169 NLRB 398 (1968) Second whether an em ployer can lawfully refuse to recognize a union barred from certification See City National Bank Co 76 NLRB 213 (1948) Mack Mfg Corp 107 Continued 272 NLRB No 126 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case i e, whether a union disqualified from certifi cation should be permitted to intervene in a Board conducted election 4 The Board first addressed this issue in Burns De tective Agency 138 NLRB 449 (1962), referred to herein as Burns II The Board held in Burns II that 'the statutory proscription in Section 9(b)(3) against certifying affiliated labor organizations as representing guard units does not prevent putting such labor organizations on the ballot and certify ing the arithmetical results when such an election is won by such organization " 5 The Board's holding in Burns II was apparently based on its earlier holding in Burns Detective Agency, 134 NLRB 451 (1961) (Member Leedom dissenting), that 'the stat utory proscription in Section 9(b)(3) does not preclude the application of the Board s contract bar rules to contracts covering such units 6 Both Burns cases involved incumbent guard nonguard unions Thus, in Wackenhut Corp 7 a majority of the Boarn sought to limit the scope of the holding in Burns II Noting that in Burns II the intervening union was the incumbent, the Board in Wackenhut declined to permit a nomncumbent nonguard union to intervene and to appear on the ballot on the grounds that the purpose of Section 9(b)(3) would not be served by such an action The Board ob served Whatever may be the rationale with respect to placing incumbents on the ballot, 1 e, that the Board may not wish to disturb unduly what may historically have been a voluntary bar gaining relationship such rationale has no ap plicability to an unqualified stranger labor or ganization 8 NLRB 209 (1953) Wells Fargo Corp 270 NLRB 787 (1984) Third whether a contract with a guard nonguard union acts as a bar to an elec tion petition Compare Columbia Southern Chemical Corp 110 NLRB 1189 (1954) and Burns Detective Agency 134 NLRB 451 (1961) 4 As noted in Service Employees Local 73 v NLRB 578 F 2d 361 371 (D C Cir 1978) What the Board has occasionally allowed a non certifi able union to participate in a certified election and receive an arithmetical certification of the results does not mean that the union has any right to participate Accord Teamsters Local 71 v NLRB 553 F 2d 1368 1376 (D C Cir 1977) and Teamsters Local 344 v NLRB 568 F 2d 12 (7th Cir 1977) 5 138 NLRB at 452 6 134 NLRB at 453 In Burns I the Board reasoned that Congress could readily have declared a guard unit inappropriate if the represents nye of that unit admitted nonguards to membership 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 non was deliberate For reasons set forth infra we reject this analysis We express no opinion on the result reached in Burns I since the facts of the instant case do not raise the Issue addressed therein ' 223 NLRB 83 (1976) 8 Id at 83-84 In light of our decision herein we like the majority in Wackenhut do not accept the reasoning in Rock Hill Uris Inc v McLeod 236 F Supp 395 (DC N Y 1964) affd 344 F 2d 697 (2d Cir 1965) to the extent it is inconsistent herewith Moreover we note that the decision of the district court in that case merely affirmed the Board s exercise of discretion in this area and is therefore not binding on us in In Bally's Park Place supra, however, the Board rejected the majority holding in Wackenhut Corp supra and expanded the Burns II holding to in elude even nonincumbent nonguard unions In light of today s decision in Brink s Inc , 272 NLRB 868 (1984), we have reevaluated our policy regarding intervention by noncertifiable unions in Board con ducted elections We have carefully considered the language and the history of Section 9(b)(3) and conclude that its purpose was to prevent a guard nonguard union from participating in a Board con ducted election as either a petitioner or an interve nor 9 In Brink's we dismissed a unit clarification peti tion which had been filed by a union barred from certification by Section 9(b)(3) 10 In so doing, we observed that, although Section 9(b)(3), read liter ally, proscribes only the Board's authority to cer tify a guard nonguard union [T]o allow such a labor organization to clarify a unit of guards which it represents would assist it in accomplishing that which the statute expressly seeks to avoid, i e, the representa lion of guard employees by a union which admits to membership employees other than guards [272 NLRB at 870] We concluded that, while an employer is not pro hibited from voluntarily recognizing a guard non guard union, we will not permit the Board's proc esses to be utilized in furtherance of that end " To do otherwise we noted, would place an unduly narrow interpretation on the legislative intent ex pressed by Section 9(b)(3) 12 Section 9(b)(3) was enacted by Congress in re sponse to the Supreme Court s decision in NLRB v Jones & Laughlin Steel Corp 331 US 416 deciding this case See NLRB v Iron Workers Local 103 434 U S 335 350 (1978) The determination of whether or not to place a noncertifiable union on a ballot in a Board conducted election is clearly a discretionary Board action See fn 4 supra 9 Our dissenting colleague states that nothing in the legislative history of Sec 9(b)(3) supports a total ban on the use of the Board s processes by a guard nonguard union In so doing our dissenting colleague mis states the issue raised by the instant case Even our dissenting colleague cannot dispute that Sec 9(b)(3) precludes the processing of a petition by a guard nonguard union See Member Zimmerman s dissent in Brink s 272 NLRB at 872 fn 14 Wackenhut Corp 169 NLRB 398 (1968) Thus the issue presented herein is reduced to whether Sec 9(b)(3) was intend ed to prevent a guard nonguard union from availing itself of the Board s election processes when it intervenes in a Board conducted election In Brink s the union sought to add employees whom we found to be guards to an existing guard unit That union however also represent ed nonguard employees and was therefore precluded from certification " 272 NLRB at 870 i2 For the proposition that Sec 9(b)(3) should be read broadly rather than narrowly per Bally s Park Place supra see Columbia Southern Chem ical Corp supra and NLRB v American District Telegraph Co 205 F 2d 86 (3d Cir 1953) UNIVERSITY OF CHICAGO 875 (1947)," which allowed an employer s guards and its production and maintenance employees to be members of the same union In Jones & Laughlin, the Supreme Court reversed the decision of the Sixth Circuit 14 which had denied enforcement of the Board s order requiring the employer to bar gain with a guard nonguard union The circuit court based its decision on its conclusion that In case of industrial unrest and strikes on the part of the production employees, the obliga tions of the plant guards to the municipality and state would be incompatible with their ob ligations to the Union which, since it repre sents production employees authorizes and di rects the strike 13 Impressed by the reasoning of the Sixth Circuit" and itself wary of the potential dangers arising from the conflict of loyalties when a guard is called on to enforce his employer s rules against a fellow union member," Congress sought via the provisions of Section 9(b)(3) to eliminate such con filets, without denying guards the protection of the Act Thus, commenting on his amendments, Sena tor Taft remarked that 'as to plant guards we pro vided that they could have the protection of the Wagner Act only if they had a union separate and apart from the union of the general employees '18 (Emphasis added ) Moreover, as the Board noted in International Harvester Co , 19 Section 9(b)(3) is not limited to the divided loyalty situation but is broader 20 (Emphasis added ) Section 9(b)(3) proscribes certification of a guard union if it is even indirectly affiliated with a nonguard union without regard to the situation at the particular plant involved 21 The purpose and intent of Sec tion 9(b)(3) was as the Board has consistently maintained 22 to discourage representation by a 13 The legislative history of Sec 9(b)(3) clearly demonstrates that the Supreme Court s decision triggered its drafting and enactment See 93 Cong Rec 6601 and 6658 14 154 F 2d 932 (1946) 13 Id at 935 16 2 Leg Hist 1541 (LMRA 1947) " Local 710 is affiliated with the International Brotherhood of Team sters Chauffeurs Warehousemen and Helpers of America The Employ er s clerical and service unit employees as well as the employees of the University of Chicago Press are also represented by Teamsters affiliated unions In the event of a strike the Employer has assigned the responsi Nifty for monitoring strike activities of other university employees to members of the unit which Local 710 seeks to represent Thus we note that allowing Local 710 a place on the ballot invites the very divided loyalty scenario which Congress intended to avert by its enactment of Sec 9(b)(3) 18 2 Leg Hist 1544 (LMRA 1947) 13 145 NLRB 1747 (1964) 20 Id at 1750 21 Id at 1750-1751 22 For example in Mack Mfg Corp supra at 212 the Board observed that Congress clearly intended by Section 9(b)(3) that the union repre senting guards should be completely divorced from that representing single union of guards and nonguards and to ensure that an employer is not compelled by Board action to bargain with such an organization 23 As enacted, Section 9(b)(3) applies both to mixed units of guards and other employees and to guard nonguard unions The statute renders the former inherently inappropriate and proscribes the Board from certifying the latter Although the provision addresses two different situations, we conclude that, given the purpose underlying its enactment, Section 9(b)(3) was intended to achieve a uniform result 24 Thus, we find no basis for distinguishing nonguard employees See also Monsanto Chemical Corp 108 NLRB 870 (1954) 23 See e g NLRB v White Superior Division 404 F 2d 1100 (6th Cir 1968) Teamsters Local 71 v NLRB supra Teamsters Local 344 v NLRB supra and NLRB v Bel Air Mart 497 F 2d 322 (4th Cir 1974) Contrary to our dissenting colleague s contention as set forth in Bally s and again herein we find no incongruity between the language of Sec 9(b)(3) and its legislative history Sec 9(b)(3) s prohibition against Board certification of a guard nonguard union precludes the processing of an election petition filed by such a union and thereby denies It access to the Board s election processes By denying guard nonguard unions access to the Board s election processes as well as the other benefits flowing from Board certification Congress effectively placed its legislative imprimatur on the decision of the Sixth Circuit in Jones & Laughlin and the dissent of Member Reynolds (see fn 24) that had disapproved of ordering employ ers of guards to recognize and bargain with a guard nonguard union The legislative history clearly demonstrates that this was Congress purpose in enacting Sec 9(b)(3) It is fundamentally at odds with these principles to include a guard nonguard union in a Board conducted election as an in tervenor For our dissenting colleague to create an exception to Sec 9(b)(3) simply because a guard nonguard union seeks access to a Board conducted election as an intervenor rather than as petitioner is unwar ranted The capacity in which a guard nonguard union seeks to partici pate is irrelevant to the policy concern underlying Congress enactment of Sec 9(b)(3) in no way does it diminish the threat of a divided loyalty scenario Indeed it would be incongruous to find that despite its legisla tive history Sec 9(b)(3) denies a guard nonguard union access to a Board conducted election as a petitioner but not as an Intervenor Ac cordingly we reject the approach set forth in Bally s that the statute should be so construed 24 Although our dissenting colleague intimates otherwise today s deci sion does not result from the discernment of a new purpose in Sec 9(b)(3) On the contrary even a cursory review of the cases cited herein reveals that our interpretation of the purpose underlying the enactment of Sec 9(b)(3) is hardly novel In this connection we note Member Reyn olds dissent in Monsanto Chemical Co 71 NLRB 11 (1946) wherein the majority expressed doubt that the Board under the Act as then written had the authonty to limit guards choice of bargaining representative Member Reynolds wrote I hold to the conviction that in the administration of the Act It is the affirmative duty of this Board to avoid encouraging the creation of relationships which are Inherently unsound Industrial relations practice While I construe It to be the duty of the Board to provide the processes whereby workers may designate collective bargaining representatives of their own choosing I believe it to be the col lateral duty of the Board in effectuating the purposes of the Act to consider with great care the Impact upon labor management relations of any collective bargaining procedure upon which we place the im pnmatur of the Board While I agree with my colleagues that these guards are employees within the meaning of the Ac and while I believe they may proper ly be represented by a labor organization I do not agree that the Board lacks authority to decline to use its proceesses where they would so patently effectuate results incompatible with the policies of the Act [Monsanto 71 NLRB at 13-141 Senator Taft referred to this view of Member Reynolds as set forth in Monsanto and elsewhere (e g Bethlehem Steel Co 73 NLRB 277 282 (1947) and A S Campbell Co 71 NLRB 753 756 (1946) during the Senate debates leading up to the enactment of Sec 9(b)(3) See 93 Cong Rec 6601 2 Leg Hist 1541 (LMRA 1947) 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between the degree of exclusion to be applied to a mixed unit and that to be applied to a guard non guard union Such a distinction is at odds with the fundamental purpose of Section 9(b)(3) Inasmuch as it permits a guard nonguard union to attain indi rectly that which it cannot attain directly that is, a place on the ballot in the Board conducted elec tion 25 Moreover, it can scarcely be gainsaid that placing a guard nonguard union on the ballot con tributes to a result antithetical to the legislative his tory of Section 9(b)(3) Clearly, this practice cre ates the false impression that the guard nonguard union is equally as capable of securing the protec lions of the Act as other candidates on the same ballot As we noted in Brink s, supra we shall not, indeed cannot, sanction a practice which utilizes Board processes in furtherance of an end which a specific provision of the Act was plainly intended to discourage Thus, we construe Section 9(b)(3) not only to bar the formality of certification, but also to pre dude a disqualified labor organization from taking 25 See Schenley Distilleries supra General Motors Corp supra Armored Motor Service Co supra and Wackenhut Corp 169 NLRB 398 (1968) Although our dissenting colleague admonishes us that it is fundamental to sound statutory interpretation that the Act be read as a coherent piece of legislation and that Its various provisons be reconciled he fails to rec oncile Sec 9(b)(3) s provision rendering inappropriate a mixed guard unit with its provision prohibiting the Board from certifying a guard non guard union We read these two provisions as complementary In declar mg mixed units of guards and other employees inherently inappropriate Congress denied such units access to the Board s election processes and thereby discouraged their formation This was the intent of the statute See Senator Taft s remarks in text accompanying fn 18 However as the facts in Jones & Laughlin and Indeed the instant case illustrate the guard nonguard union offers the same potential for the divided loyalty problem as does the mixed unit See fn 17 Moreover standing alone the mixed unit provision of Sec 9(b)(3) did not ensure that only guard unions separate and apart from those of the general employees would have re course to the Act Nor contra Burns I was the situation to be remedied by declaring a unit inappropriate because of its affiliation A unit is ren dered inappropriate by its makeup not its affiliation Therefore to avoid the end run Congress in Sec 9(b)(3) denied a guard nonguard union the benefit of Board certification Consequently as our dissenting col league concedes a guard nonguard union may not invoke the Board s processes to raise a question concerning representation Thus although the provision of Sec 9(b)(3) prohibiting Board certification of a guard nonguard union addresses a different factual setting it yields the same result as the provision rendering inherently inappropriate a mixed unit of guards and other employees Accordingly contrary to Burns I we find no omission in Sec 9(b)(3) regarding the situation Involving a guard non guard union Furthermore we find that to allow a guard nonguard union to participate as an intervenor in a Board conducted election clearly is to allow a variation of the end run which Sec 9(b)(3) was Intended to pre vent It would undercut the comprehensive exclusion effected by Sec 9(b)(3) and elevate form over substance Our Interpretation of Sec 9(b)(3) by contrast renders that provision Internally consistent Under our interpretation of Sec 9(b)(3) guards retain their Sec 7 right to select a union of their choice including a guard nonguard union but the Board will not encourage such a selection by affording a guard non guard union—in the capacity of an intervenor—access to a Board con ducted election This is the obvious design of Senator Taft s amendment Indeed although It preserved guards status as employees Congress by the plain language of the status imposed restrictions on their means of selecting a guard nonguard union and consequences for making that se lection Accordingly we find no basis for our dissenting colleague s cnti cism that our decision deprives those who may wish to be represented by a guard nonguard union of their Sec 7 rights advantage of the Board s election processes includ ing the privilege of being placed on the ballot as an Intervenor with an accompanying certification of the arithmetical results 26 Therefore, we hereby overrule Burns II, Bally's Park Place, and their progeny Accordingly inasmuch as we conclude that Sec tion 9(b)(3) forecloses intervention by Local 710 we find that the election must be set aside and a new election held from which Local 710 will be barred 27 [Direction of Second Election omitted from pub lication ] MEMBER ZIMMERMAN, dissenting In their decision today my colleagues complete the process which they began in Wells Fargo Corp, 270 NLRB 787 (1984), and continued in Brink s Inc 272 NLRB 868 (1984), 1 of unequivocally de nying to labor organizations which admit both guards and nonguards into membership access to the Board s processes in all situations involving the 26 Contrary to our dissenting colleague s characterization of our dee, mon we do not interpret Sec 9(b)(3) to deprive employees of their right to bargain collectively through a representative of their own choosing As noted above guards remain free to choose a guard nonguard union as their representative Thus Member Zimmerman s reliance on NLRB v Mme Workers District 50 (Bowman Transportation) 355 U S 453 (1958) is misplaced Bowman Transportation arose under former Secs 9(f) (g) and (h) which provided that no investigation shall be made by the Board and no complaint of unfair labor practice charges shall be Issued to a charge made by a labor organization unless non Communist affidavits were filed and various reporting requirements were met Bowman Trans portation involved the Board s authority under Sec 10(c) of the Act to fashion an appropriate remedy for a violation of Sec 8(a)(2) In that case the Board had Issued an order directing the company to withdraw and withhold recognition from the union that the employer had unlawfully assisted unless and until the union received the Board s certification as the employees exclusive representative Since the union had not corn plied with Secs 9(f) (g) and (h) the Board s order effectively deprived the company s employees of the opportunity to select the union The Su preme Court held in Bowman Transportation that the Board abused its dis cretion when it deprived employees of their right to choose a noncom plying union and precluded a union from obtaining voluntary recognition Thus the propriety of the Board s remedy for an 8(a)(2) violation is the sole subject which the court addresses in the language quoted by our dis sentmg colleague Therefore we find no support in Bowman Transporta tion for Member Zimmerman s proposition that outside the 8(a)(2) con text It would be appropriate to include a noncomplying union in a Board conducted representation election In fact the language of the Court im mediately preceding that quoted by our dissenting colleague lends sup port for the result which obtains herein The prohibitions of Section 9(1) and (h) against investigation of rep resentatives the requirement of Section 9(c) of Board conducted elections connected with such investigations and the prohibition of Section 9(g) against certification of a noncomplying union are con cerned not with remedial orders under Section 10(c) but with ques lions of representation and unfair labor practices raised by a labor organization The single objective of Section 9(1) (g) and (h) was to stop the use of the Labor Board by noncomplying unions Labor Board v Dant 344 US 375 385 27 As a result of our decision we need not reach the merits of the Em ployer s other objection ' Also issued this day I dissented in both Wells Fargo and Brink s as I do here on the ground that Sec 9(b)(3) is concerned with certification of not representation by a union which admits to membership employees other than guards UNIVERSITY OF CHICAGO 877 representation of guards In Wells Fargo they held that since Section 9(b)(3) of the Act prohibits the Board from certifying a mixed union of guards and nonguards, the withdrawal of voluntary recogni tion accorded to such a union by an employer at the end of a contract term would not violate the Act even if the same conduct might be construed as unlawful if directed at a certifiable labor organi zation In Brink's they hold that a guard nonguard union which has been voluntarily recognized by an employer as the representative of its guard employ ees is nevertheless precluded by Section 9(b)(3) from filing a unit clarification petition with the Board In this case, they overrule the Board's well established policy as announced in Burns Detective Agency 138 NLRB 449 (1962) (hereinafter Burns II), and reaffirmed in Bally s Park Place, 257 NLRB 777 (1980, 2 to hold that Section 9(b)(3) precludes the Board from allowing such a labor organization to be placed on the ballot in a Board conducted election and certifying the arithmetical results In all three cases they base these conclusions on what they perceive to be the purpose and intent of Sec ton 9(b)(3) 'to discourage representation by a single union of guards and nonguards and to ensure that an employer is not compelled by Board action to bargain with an unqualified union As I have explained in my dissents in Wells Fargo and Brink s, and further elaborate on here, my colleagues view of Section 9(b)(3) is premised on a flawed interpretation of the language and his tory of Section 9(b)(3) Through misinterpretation of the language and history of that provision they have discerned a purpose that they claim is not served by allowing a guard nonguard union to in tervene and appear on a Board ballot, as in this case to file a unit clarification petition as in Brink's and to find a refusal to bargain in violation of Section 8(a)(5) by withdrawing recognition from a union voluntarily recognized as in Wells Fargo where there was no good faith doubt of loss of ma jonty status shown By these decisions and the far reaching rationale on which each case is based,3 they have essentially removed the exercise of Sec tion 7 rights from employees who might wish to consider representation by a guard nonguard union, 2 In Bally s the Board overruled its decision in Wackenhut Corp 223 NLRB 83 (1976) and returned to the sound principle first announced in Burns II of allowing a guard nonguard union to appear on the ballot in a Board election and certifying the arithmetical results In Burns II the Board relied in part on its decision in Burns Detective Agency 134 NLRB 451 (hereinafter Burns I) 3 A rationale whose breadth and scope seriously calls Into question whether they would find an employer s withdrawal of bargaining during a contract s term—the question left open in their Wells Fargo decision—to be covered by the Act Indeed It is difficult to imagine their finding any situation concerning representation by a mixed union to be within the Act s coverage rather than one that takes only guards as members and is unaffiliated with a nonguard labor organiza tion In their scheme of things therefore, Section 7 becomes of secondary importance to Section 9(b)(3) It is fundamental to sound statutory interpreta tion that the Act be read as a coherent piece of legislation and that its various provisions be recon ciled rather than viewed as serving opposite ends This holds true with respect to Section 7 vis a vis Section 9(b)(3) no less than it does with respect to Section 7 read in conjunction with any other sec tion of the Act It therefore behooves the Board to interpret the Act so as to avoid rendering its van ous sections inconsistent Undoubtedly the cornerstone of our Act is Sec tion 7 which guarantees to employees certain basic rights Section 7, in part, provides that Employees shall have the right to self organization, to form, join, or assist labor organizations [and] to bargain collectively through representatives of their own choosing (emphasis added) It is quite apparent from the plain language of Section 7 as set forth above that Congress viewed the unencumbered right of employees to select the representative of their choice be it a certifiable or noncertifiable union to be of paramount importance Section 9(b)(3), on the other hand does not con cern itself with employee rights Rather, it deals exclusively with the appropriateness of a bargain ing unit, bargaining representatives, and elections Thus, Section 9(b)(3) states that the Board is pro hibited from certifying any labor organization as the representative of employees in a bargaining unit of guards if such organization admits to member ship, or is affiliated directly or indirectly with an organization which admits to membership employ ees other than guards That is all it does and was designed to do There is nothing in the plain Ian guage of that provision that, in any way prohibits the Board from allowing its processes to be used to the extent possible to assist employees in selecting or retaining the collective bargaining representative of their choice whether it be a certifiable or non certifiable union 4 All Section 9(b)(3) does is pro 4 The prohibition against certification of a guard nonguard union has no application to the prohibition of finding a mixed unit of guards and other employees appropriate Allowing an unqualified union to partici pate in a Board election in no way circumvents the prohibition against a guard nonguard unit as my colleagues claim A unit of guards will remain appropriate without regard to whether an unqualified union is allowed on the ballot or to whether such a union wins or loses the election Accordingly I see no basis for my colleagues claim to the contrary Indeed their view which represents a conflation of two separate parts of Sec 9(b)(3) would have the opposite effect of their assertion—with which I have no quarrel—that a unit is appropriate based on its composition rather than its affiliation 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hibit the Board from placing its imprimatur on the choice of representative if it involves the selection of a guard nonguard union by a unit of guard em ployees Clearly then, Section 7 and Section 9(b)(3) rather than being at odds with each other are read ily reconciliable Yet in this and the other decisions mentioned, my colleagues have created a conflict in these two statutory provisions that did not previ ously and should not now, exist Although my colleagues concede that employees have a Section 7 right to select the representative of their choice, even a noncertifiable one their de cisions in these cases will have the effect of pre eluding the selection and retention of a noncertifia ble bargaining representative through Board proc esses By denying Board access to noncertifiable unions, my colleagues have diminished the employ ees Section 7 rights to choose or reject collective bargaining representation—the cardinal tenet which the Act mandates and which the Board is assigned to effectuate in administering the Act By holding here that a guard nonguard union cannot even have its name placed on a Board ballot, the majori ty has not only limited the number of candidates that might be available for the guards to choose from it has more importantly, denied those em ployees a possible choice of representative a choice for which they may already have indicated a preference 5 Claiming that the statute nowhere specifies the consequences of its prohibition my colleagues seek refuge in the legislative history of Section 9(b)(3) to support their position As pointed out in my Wells Fargo and Brink's dissents however nothing in the legislative history of Section 9(b)(3) supports their conclusion that the prohibition against certification of a guard nonguard union by the Board imposes a total ban on the use of the Board s processes by such a labor organization 6 5 Indeed a majority of the employees in this case expressed through their vote in the first election their desire to be represented by Local 710 However when these same employees enter the voting booth a second time for the rerun of this election there will be only two not three names on the ballot Conspicuously absent from that ballot will be the labor organization which the employees first selected as their representa tive but which the majority now holds cannot appear on the ballot be cause of a statutory provision which neither proscribes such a union from representing guards nor bars it from access to all Board processes 6 My colleagues suggest that I misstate the issue here in stating that the legislative history of Sec 9(b)(3) does not support a total ban on the use of the Board s processes by a guard nonguard union But my comments in this regard only are designed to reflect the end result of the majority s decision they are not intended as a statement of the issue in this case which admittedly is whether the language of Sec 9(b)(3) precludes a guard nonguard union from participating in a Board election It clearly does not To reiterate all that language does is prevent the certification of such a labor organization This is not to suggest that an unqualified union is therefore at liberty to invoke the Board s election processes through the filing of a certification petition Rather as pointed out in my Brink s dissent under the Bally s decision an unqualified union would not be permitted to invoke Board processes to raise a question concerning Without delving again into the history of that pro vision 7 suffice it to say that before enacting Sec tion 9(b)(3) Congress considered various alterna lives to the problem perceived to be posed by the Supreme Court's decision in NLRB v Jones & Laughlin Steel Corp 8 One such proposal was to in dude guards in the definition of supervisors and thereby exclude them from the Act s coverage Congress rejected this proposal Having rejected a total exclusion Congress still had the option in Section 9(b)(3) of prohibiting guards from selecting a mixed union and thus denying such a union access to the Board's processes It chose not to do so Instead, Congress opted to prohibit only certifi cation of such a labor organization In doing so, Congress recognized that a total bar of the type which the majority extrapolates from Section 9(b)(3), would impinge on the guards Section 7 rights the withdrawal of which rights Congress had just rejected My colleagues attempt to fault this analysis by pointing out that in Bally s, I acknowledged that Congress primary concern in enacting Section 9(b)(3) was that guards not be represented by the same union that represents other employees at the premises they protect that my position today now encourages a result which is inconsistent with that concern But as I made clear in my separate post tion in Bally s the language of Section 9(b)(3) is in part contrary to the intent of Congress as ex pressed in its own legislative history' Thus in Bally s, 257 NLRB 777, 779-780 fn 12, I stated that representation Bally s only allows an uncertifiable union to appear on the ballot as an Intervenor not as a petitioner However where a peti lion for certification has been properly filed by a qualified labor organiza non seeking representation or as in this case a decertification petition is filed by unit employees seeking to oust a particular union as their repre sentative neither the Intent nor the lanugage of Sec 9(b)(3) is contra vened or frustrated by permitting an unqualified labor organization to appear on the ballot To the contrary by permitting a guard nonguard union to participate in an election under these circumstances we afford employees the opportunity to exercise their Sec 7 right to select the bar gaining representative of their choice while upholding the spirit and letter of Sec 9(b)(3) 7 The majority claims that I cite no legislative history to refute their holding today As indicated I see no need to repeat a discussion of the legislative history of Sec 9(b)(3) having already done so in my dissent in Wells Fargo and having concluded that nothing therein can be construed as supporting the majority s interpretation of that provision Indeed inas much as the language of Sec 9(b)(3) is clear and unambiguous on its face there is no need to search the history of that provision for any other meaning It was only because of the majority s refusal in their Wells Fargo decision to accept the plain language of that provision that it became necessary to make reference to the legislative history As in Wells Fargo the majority in the Instant case in order to achieve the desired result and having found nothing in the clear language of Sec 9(b)(3) to support its view creates an ambiguity in the statutory language where none exists and then feels compelled to search the history of that provi mon for some supporting rationale 8 331 US 416 (1947) UNIVERSITY OF CHICAGO 879 Congress primary concern was that guards not be represented by the same union that rep resents other employees at the premises they protect The plain language of Section 9(b)(3) is however simultaneously broader and nar rower than the issue raised by Jones & Laugh hn That Section 9(b)(3) bars us from certify ing as representative of a guard unit a union that admits nonguard employees to member ship even if it represents no other employees at the site At the same time, nothing in the Act bars a guard from joining a union that represents other employees at the plant or prohibits that union from simultaneously repre senting guard and nonguard employees, as long as the Board s processes are not invoked to certify that union as the guard s representa tive These results cannot be reconciled with the legislative history If we were to be consistent with that histo ry rather than with the language of the stat ute we might draw a distinction between the treatment to be accorded contract guards units, such as those involved in Wackenhut and on premises guard units as presented in this case In Wackenhut the union sought a unit of all guards employed by the Employer in the State of Hawaii Wackenhut provided guards to a variety of employers, some of whose em poyees presumably were represented by differ ent unions Further, it is likely that any union active in the State might, in the future, repre sent nonguard employees of an employer whose premises are protected by Wackenhut even if it did not then do so Consistent with the legislative history we might decline to permit any union representing other employees in the State to participate in such an election in a contract guard unit conducted under our auspices In effect, this is what our Wackenhut decision accomplished Here by contrast the guards work only for Bally and protect only the premises of the casino There is no evidence to suggest that the Atlantic, Cape May and part of Burling ton, Ocean and Cumberland Counties Building Trades Council represents any other Bally casino employees, or that it might seek to do so in the future Thus, pursuant to the legisla tive history we could permit Intervenor to participate in a Board election, certify it as the representative if it wins the election and still vindicate the congressional intent of Section 9(b)(3) At the same time, we could well be justified in distinguishing between contract and non contract (on premises) guard situations by find ing the former so fraught with the potential conflict the statute seeks to avoid that we should not in any way lend to it our election process In light of the above I concluded in Bally's as I do here that the language of Section 9(b)(3) itself does not permit such a construction, regardless of the congressional intent, and that given the moon gruity between Section 9(b)(3) s language and its purpose, the language of Section 9(b)(3) should be narrowly rather than broadly construed I went on to find that Nothing in the terms of Section 9(b)(3) pro hibts the Board from its pre Wackenhut prac tice of permitting nonguard unions to partici pate in representation elections conducted among guard employees and of certifying the arithmetical election results when such unions are victorious The William J Burns Interna tional Detective Agency Inc , 138 NLRB 449, 452 (1962) That practice does accord with the Act s general purpose to facilitate the identifi cation of a collective bargaining representative which is the choice of a majority of unit em ployees Accordingly, as I stated previously Congress was fully aware of the problems underlying the en actment of Section 9(b)(3) and had the opportunity, if it wished to do so to prohibit not only the certi fication of a guard nonguard union but also its status as the potential collective bargaining repre sentative of a unit of guard employees It chose not to do so opting only to prohibit the Board from finding a unit of guard and nonguard employees to be appropriate and from certifying a guard non guard union In Burns I the Board was asked to reconsider its decision in Columbia Southern Chemical Corp 110 NLRB 1189 (1954) which held that a contract for a unit of guards would not at any time during its term bar a petition for representation if the con tracting union admitted to membership employees other than guards In reversing its decision in Co lumbia Southern the Board stated Section 9(b)(3) of the Act ' perform ' s two functions First, it precludes the Board from 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 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 inappropn ate for any purpose Conversely, a unit corn posed excusively of guard employees is appro priate The only limitation in the latter in stance is that the labor organization represent mg such employees cannot be certified if in other aspects of its operations it admits non guard employees to membership or is affiliated directly or indirectly with an organization which does so [134 NLRB at 542] In addressing itself to the legislative history of Sec tion 9(b)(3), the Board in Burns I stated 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 organiza tion 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 situation was de liberate It follows in our view, that a contract unit comprised exclusively of guards is not in validated merely because the representative of that unit admits to membership or is affiliated with an organization which admits to member ship nonguard employees [134 NLRB at 452 ] The Board in Burns I then went on to hold that the statutory proscription in Section 9(b)(3) against certification of certain guard units does not preclude the application of the Board s contract bar rules to contracts covering such units While it is readily apparent that the majority here does not approve of the Board s decisions in Burns I, Burns II, and Bally's, for unexplained rea sons it has chosen to expressly overrule only the Burns II and Bally's decisions but not Burns I It is now quite apparent from their decisions in Wells Fargo Brink s, and the instant case, and from their frequent citing of Columbia Southern supra which Burns I overruled, that the holding of Burns I is at best in grave doubt and that its official demise awaits only the arrival of a case on point 9 9 Despite my colleagues claim that they express no opinion on the result reached in Burns I since the facts of the present case do not raise the Issue addressed therein their explicit rejection of the Board s analysis in that case belies their claim The majority s decision in this case even casts doubt on the continued validity of certain statements of the Board in Wackenhut In Wackenhut the Board indicating excepted status for an Contrary to my colleagues I find that a noncer tifiable union on the Board ballot for the sole pur pose of certifying the arithmetical results permits employees to fully exercise their Section 7 rights without circumventing the intent and purpose un derlying the enactment of Section 9(b)(3) that, consequently the Board correctly decided Bally s and Burns I and Burns II Judicial analysis of and of similar provisions of the Act supports this position In discussing the objections of former Sections 9(f) (g), and (h), of the Act, the Supreme Court in NLRB v Mine Workers District 50 (Bowman Trans portation) 355 U S 453, 461 (1959), stated that These subsections contain nothing compelling the Board to insist upon a Board certification and thus to deny the employees the right at an election held under proper safeguards to select the noncomplying assisted union for their rep resentative Nothing in the subsections for ex ample is a barrier to the conduct by the Board of an election not followed by a certification Clearly an election under such circum stances will also achieve the Board's prime oh jective in these cases Subsections (f) (g) and (h) of Section 9 merely described advantages that may be gained by compliance with their conditions The very specificity of the advantages to be gained and the express provision for the loss of these advantages imply that no consequences other than those so listed shall result from non compliance United Mine Workers v Arkansas Oak Flooring Co, 351 U S 62 73 Congress did not in Section 9(f) (g), and (h) make the filing required by those subsections compulso ry or a condition precedent to the right of a noncomplying union to be recognized as the incumbent noncertifiable union in refusing to permit a nonincumbent nonguard union to be on the ballot stated In our opinion the purpose of Section 9(b)(3) is not served by allowing a nonguard union to Intervene and appear on a ballot in an election among guards at least where as here such nonguard union is not the incumbent Whatever may be the rationale with respect to placing Incumbents on the ballot i e that the Board may not wish to disturb unduly what may historically have been a voluntary bar gaining relationship such rationale has no applicability to an unquali fled stranger labor organization [223 NLRB at 83-84 ] Thus while the Board in Wackenhut did not reject the Idea that an in cumbent noncertifiable labor organization may be free to utilize the Board s election processes the majority today appears to reject even this limited exception by stating that under Sec 9(b)(3) a disqualified labor organization is precluded from taking advantage of the Board s election processes even as an intervenor 1° The Board s interpretation of Sec 9(b)(3) as stated in Bally s and Burns has expressly been approved by a court in Rock Hill Uns v McLeod 236 F Supp 395 (D C N Y 1964) affd 344 F 2d 697 (2d Cir 1965) My colleagues rejection of the court s decision on the ground that it is not binding on the Board is Irrelevant to the logic of the decision s holding and rationale UNIVERSITY OF CHICAGO 881 exclusive representative of the employees United Mine Workers v Arkansas Oak Flooring Co supra Similarly, the Board cannot, through the requirement of a Board certifica ton, make noncompliance a reason for deny ing the employees the right to choose the as sisted union at an election which can readily serve its designed purpose without such certifi cation [Emphasis added ] Clearly, the Court's reasoning is also applicable to Section 9(b)(3) which like former Sections 9(f), (g), and (h), is a compliance statute ii Thus al 11 The majority suggests that the Court s comment in Bowman Trans portauon 355 U S 453—that the single objective of Secs 9(f) (g) and (h) was to stop the use of the Labor Board by a noncomplying union—actu ally supports their view that the 9(b)(3) proscription against certification by this Board of a guard nonguard union precludes the participation of such a labor organization in a Board conducted election Although It is true that the Court in Bowman did state that the object of Secs 9(1) (g) and (h) was to prevent a noncomplying union from making use of the Board its comment in this regard was premised on the fact that the actual language of those provisions prevented the Board from entertain ing a complaint (but not a charge) and certifying a union which had not complied with those provisions However the fact that a noncomplying union was expressly prohibited from utilizing the Board s processes under those provisions did not as the Court went on to note preclude the Board from conducting an election involving such a union Indeed the Court cited with approval the Board s suggestion that it might conduct an election among the employees and certify the union if it wins the elec tion provided it is in compliance but otherwise certify only the arithmetical results (355 U S at 462 emphasis added ) Thus despite the express pro hibition of Secs 9(t) (g) and (h) the Court did sanction the use of the Board s election processes by a noncomplying union Clearly then if the expressed prohibition in Secs 9(1) (g) and (h) against the use of the though Section 9(b)(3) forecloses Board certifica tion of a nonconforming union i e one that admits both guards and nonguards into membership, it does not deprive guards of the right granted under Section 7 to bargain collectively through a repre sentative of their own choosing, including a non certifiable union Indeed to exclude the noncerti fiable union will serve only to distort the selection process Inasmuch as guards, like other employees have an unrestricted right to choose their repre sentative, the use of the Board's processes to ascer tam majority will promotes the interest of stable labor relations In sum, I adhere to the principle announced in Bally s and Burns of allowing a noncertifiable union to appear on the ballot in an election involving guard employees Consistent with those decisions, I conclude that the Board's original decision in this case to allow Local 710 to intervene and appear on the ballot with the Petitioner was correct, and I would, therefore certify the arithmetical results This procedure fully conforms with the language and history of Section 9(b)(3) and contributes to sound labor relations by permitting the employees to express fully their wishes as to their choice of a representative for collective bargaining purposes Board by a noncomplying union did not prevent use of the Board s elec lion processes by such a labor organization then Sec 9(b)(3) which con tains no such prohibition must certainly be construed as similarly permit ting use of the Board s election processes by a guard nonguard union