Portland Museum of Art

370 NLRB No. 113 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Portland Museum of Art and Technical, Office & Pro- fessional Union Local 2110. Case 01‒RC‒266534 April 16, 2021 DECISION ON REVIEW AND ORDER REMANDING BY MEMBERS KAPLAN, EMANUEL, AND RING On November 9, 2020,1 the Acting Regional Director for Region 1 issued a Decision and Direction of Election (Decision), in which he found that the Employer’s Gallery Ambassadors are not guards under Section 9(b)(3) of the National Labor Relations Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board’s Rules and Regulations, the Employer filed a timely request for review of the Acting Regional Direc- tor’s Decision. The Petitioner filed an opposition. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer’s request for review is granted as it raises substantial issues warranting review. Upon review, and for the reasons discussed below, we reverse the Acting Re- gional Director and find that the Employer’s Gallery Am- bassadors are statutory guards. Background The Employer operates an art museum in Portland, Maine. In August 2020, the Employer reorganized its De- partment of Museum Experience and Safety. Part of the reorganization included creating the Gallery Ambassador position to, according to the Employer, provide security in a way that appeared less “authoritative” and more wel- coming to visitors. In an email to its employees concern- ing the reorganization, the Employer stated that “monitor- ing visitors is easier to do when you are engaged directly with them.” The Gallery Ambassador job description states that these employees are “responsible for an excep- tional visitor experience by providing exemplary customer service, education, and exhibition interpretation while safeguarding the Portland Museum of Art.” They are re- quired to perform visitor-related tasks, such as answering questions and promoting museum resources, while “keep- ing artwork and visitor safety as [the] main priority.” Gal- lery Ambassadors receive training based on the Em- ployer’s security manual, which includes the museum’s policies on staff access to art storage rooms, after-hours entry for authorized staff, vandalism to collections, break- 1 All dates hereinafter are in 2020. 2 For example, copies of staff schedules show that a Gallery Ambas- sador was the only employee scheduled to work in the security hub on ins, dangerous situations, etc. They also receive training in de-escalation tactics, responding to active-shooter inci- dents, CPR and first aid, and museum experience. Gallery Ambassadors wear badges, lanyards, and, when working in areas that place them in front of visitors, a black apron. The apron identifies the employee as a Gallery Ambassa- dor and is used for carrying items like museum maps and business cards. Gallery Ambassadors are posted through- out the museum, including the Employer’s galleries, call center, museum store, and front desk. When stationed in the galleries, Gallery Ambassadors, along with Security Officers, perform various functions to satisfy security specifications in the Employer’s contracts with art lenders. For example, they ensure that patrons maintain distance from exhibits, do not touch or damage the exhibits, and refrain from carrying food or beverages. They also posi- tion themselves at specifically designated places near ex- hibits, work night shifts to provide 24-hour security for certain exhibits, and enforce restrictions on access to closed galleries during the installation of new artwork. In the call center, Gallery Ambassadors answer calls from potential visitors and other callers. In the museum store, a Gallery Ambassador processes purchase payments and attempts to prevent theft of merchandise. At the front desk, a Gallery Ambassador welcomes visitors, sells them museum tickets, and ensures that they abide by the Em- ployer’s rules, including pandemic-related mitigation measures. The record also shows that Gallery Ambassadors have independently staffed locations typically covered by Se- curity Associates, such as its loading dock and security hub.2 Employees stationed at the loading dock monitor the entrance used by employees and for delivery of sup- plies and artwork, and they check employees’ bags as they exit. Employees stationed in the security hub view moni- tors that display live video feeds from surveillance cam- eras installed throughout the museum. Gallery Ambassa- dors do not operate alarms or respond to alarm calls, but they must stay alert to problems Security Associates report through a two-way radio. On at least one occasion, a Gal- lery Ambassador responded to an issue with a problematic patron and alerted a manager to it. On September 23, the Petitioner, Technical, Office & Professional Union Local 2110, filed a petition seeking to represent a wall-to-wall unit of all employees, excluding statutory supervisors and managers, employed by the Em- ployer. The Employer contended that its Security Associ- ates and Gallery Ambassadors should be excluded from the unit as guards within the meaning of Section 9(b)(3) September 13 from 6:00 a.m. to 10:00 a.m., and that a different Gallery Ambassador was the only employee scheduled to work at the loading dock on October 18 from 6:15 p.m. to 8:00 p.m. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 of the Act. Following a preelection hearing, on November 9, the Acting Regional Director issued his Decision, in which he found that the Security Associates, but not the Gallery Ambassadors, are statutory guards. With respect to the Gallery Ambassadors, the Acting Regional Director stated that these employees “generally do not engage in guard-like functions”; that the “bulk of their duties con- sists of answering questions, distributing maps, greeting patrons, and selling tickets and merchandise”; and that their aprons are not traditional guard attire. In addition, the Acting Regional Director found that Gallery Ambas- sadors do not control access to the Employer’s premises in the manner of statutory guards, noting that almost all retail employees could ask patrons to leave the premises for not following pandemic-related mitigation measures. He also noted that a manager resolved the one documented instance where a Gallery Ambassador engaged with a problematic patron. The Acting Regional Director found that Gallery Ambassadors should be included in the unit and directed an election to be conducted by mail ballot from November 30 to December 21. On November 23, the Employer filed its request for re- view of the Acting Regional Director’s Decision, repeat- ing its contention that Gallery Ambassadors are guards un- der Section 9(b)(3) of the Act.3 The Petitioner filed an opposition. Discussion Section 9(b)(3) of the Act prohibits the Board from cer- tifying for collective-bargaining purposes a unit of em- ployees that includes both guards and nonguards. This section defines a guard as “any individual employed . . . to enforce against employees and other persons rules to pro- tect property of the employer or to protect the safety of persons on the employer's premises[.]” 29 U.S.C. § 159(b)(3). “[T]he Board has determined that employees are guards within the meaning of the Act if they are charged with guard responsibilities that are not a minor or incidental part of their overall responsibilities.” Boeing Co., 328 NLRB 128, 130 (1999) (citing Rhode Island Hos- pital, 313 NLRB 343, 347 (1993)). The duty to enforce “against employees and other persons rules to protect 3 Neither party has requested review of the Acting Regional Direc- tor’s findings with respect to the Security Associates or with his direction of a mail-ballot election. 4 See, e.g., Madison Square Garden, 333 NLRB 643, 645 (2001) (guard status established where employees’ responsibilities included, among other things, carrying a two-way radio to send and receive reports about incidents at the facility). 5 See Allen Services Co., 314 NLRB 1060, 1062 (1994) (guard status established—notwithstanding the lack of guard training, guard uniforms, or authority to do more than observe and report trespass infractions— where employer assigned employees security-related responsibilities to satisfy contractual obligations). property of the employer,” as stated in Section 9(b)(3), is plainly a guard responsibility. In addition, the Board has found that guard responsibilities include training in secu- rity procedures, participation in security rounds or patrols, and monitoring and controlling access to the employer’s premises. Boeing Co., above at 130. In determining guard status, “[i]t is the nature of the duties of guards and not the percentage of time which they spend in such duties which is controlling.” Rhode Island Hospital, above at 346 (cit- ing Walterboro Mfg. Corp., 106 NLRB 1383, 1384 (1953)). Applying this precedent, we find, in agreement with the Employer, that the Acting Regional Director erred in find- ing that Gallery Ambassadors are not guards under Sec- tion 9(b)(3) of the Act. In our view, it is clear that the Employer has assigned its Gallery Ambassadors guard re- sponsibilities. They are responsible for maintaining secu- rity of the artworks and safety of visitors and other em- ployees on the Employer’s premises. The Employer sta- tions these employees in its galleries to monitor visitors and other employees and to enforce rules aimed at protect- ing exhibits. Gallery Ambassadors either address rule vi- olations directly or report them to a Security Associate or manager for resolution, they communicate with Security Associates via two-way radio in order to respond to inci- dents reported by the Security Associates,4 and they per- form various guard duties that are required by the security specifications in the Employer’s contracts with art lend- ers.5 In addition, Gallery Ambassadors work when the museum is closed, when the Employer presumably is not in need of their visitor-related services. Further, as dis- cussed above, the Employer assigns Gallery Ambassadors to stations, such as the loading dock, where assigned em- ployees monitor other employees and enforce the Em- ployer’s rules (e.g., bag checks) against them.6 Based on the foregoing facts, we find that Gallery Am- bassadors possess and exercise responsibility to enforce the Employer’s rules against employees and other persons to protect exhibits and other property and that their guard responsibilities are neither minor nor incidental to their overall responsibilities.7 We accordingly find that the 6 See, e.g., Raymond Metal Products Co., 223 NLRB 127, 127‒128 (1976) (guard status established where employees’ responsibilities in- cluded inspecting employees’ packages to ensure they only removed property identified on the employer’s property passes). 7 We find that the Acting Regional Director’s reliance on 55 Liberty Owners Corp., 318 NLRB 308 (1995), is misplaced. In that case, the Board found that doorpersons and elevator operators were not guards, where their guard-like functions of asking unauthorized persons to leave (or enforcing the no-loitering or no-smoking rules) were “incidental to their primary function of providing courtesy oriented and receptionist type service” to building tenants. Id. at 310. Here, by contrast, the PORTLAND MUSEUM OF ART 3 Employer’s Gallery Ambassadors are guards under Sec- tion 9(b)(3) of the Act. For the foregoing reasons, we find, contrary to the Act- ing Regional Director, that the Employer’s Gallery Am- bassadors are guards within the meaning of Section 9(b)(3) of the Act. Accordingly, the Acting Regional Di- rector’s finding that these employees are included in the wall-to-wall unit is reversed. ORDER The case is remanded to the Acting Regional Director for further appropriate action consistent with this decision. Dated, Washington, D.C. April 16, 2021 ______________________________________ Marvin E. Kaplan, Member ________________________________________ William J. Emanuel, Member ______________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Gallery Ambassadors’ guard duties are neither incidental nor minimal for the reasons explained above.