Security Services USA, Inc.

372 NLRB No. 2 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. Securitas Security Services USA, Inc. and Walter J. Terzano and Service Employees International Union Local 32BJ. Case 01–RD–293620 November 4, 2022 DECISION ON REVIEW AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS RING AND WILCOX The Petitioner’s request for review of the Regional Di- rector’s administrative dismissal of the decertification pe- tition is granted as it raises substantial issues warranting review. On review, we find that the Regional Director erred by dismissing the instant petition based on her con- clusion that Section 9(b)(3) of the National Labor Rela- tions Act and University of Chicago, 272 NLRB 873 (1984), bar the processing of a petition seeking to decer- tify an incumbent mixed guard-nonguard union.1 The National Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel.2 The Union, Service Employees International Union Local 32BJ, is the recognized representative of a unit of security guards employed by the Employer, Securitas Security Ser- vices USA, Inc. There is no dispute that the security guards are “guards” within the meaning of Section 9(b)(3). On April 7, 2022,3 the Petitioner filed a decertification petition seeking to decertify the Union. On April 20, the Regional Director dismissed the petition. Citing Section 9(b)(3), which prohibits the Board from certifying a labor organization as the representative of a unit of guards “if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards,” the Regional Director reasoned that because the Union is affiliated with an organization which admits non-guards to membership (i.e., the Service Employees International Union), the Board is prohibited from certifying the Union as the rep- resentative of this unit of guards. In addition, the Regional 1 Based on our resolution of this issue, we do not reach the other contentions raised in the request for review. 2 Member Prouty is recused and took no part in the consideration of this case. 3 All dates are in 2022 unless otherwise indicated. 4 The Regional Director’s dismissal letter inadvertently stated that the parties had the right to request review pursuant to Sec. 102.67. Requests for review of administrative dismissals are governed by Sec. 102.71, however. 5 It is well-established that although Sec. 9(b)(3) prohibits the Board from certifying a mixed guard-nonguard union as the representative of a Director stated that, under University of Chicago, 272 NLRB 873 (1984), a mixed guard-nonguard union is dis- qualified from taking advantage of the Board’s election processes, including the privilege of being placed on a bal- lot. Thereafter, in accordance with Section 102.71 of the Board’s Rules and Regulations, the Petitioner filed a re- quest for review.4 The Employer filed an opposition. We find that the Regional Director erred in dismissing the petition. As the Regional Director noted, Section 9(b)(3) pro- hibits the Board from certifying a mixed guard-nonguard un- ion as the representative of a unit of guards. But as the Peti- tioner argues, Section 9(b)(3) does not address decertification proceedings seeking to remove a voluntarily recognized guard-nonguard union.5 Consequently, nothing in the plain text of 9(b)(3) prohibits the Board from processing a decerti- fication petition filed by a petitioner that, as here, is seeking to decertify an incumbent mixed guard-nonguard union. Likewise, University of Chicago does not require dis- missal of the decertification petition.6 As the Regional Di- rector indicated, University of Chicago states that Section 9(b)(3) prevents mixed guard-nonguard unions from at- taining “a place on the ballot in the Board-conducted elec- tion” and precludes “a disqualified labor organization from taking advantage of the Board’s election processes, including the privilege of being placed on the ballot as an intervenor.” 272 NLRB at 876. These broad statements must be understood in the specific context of that case, however. The narrow issue before the Board in University of Chicago was whether a mixed guard-nonguard union— which was not the incumbent union—could intervene and appear on the ballot in a decertification election. See id. at 874 fn. 9. At that time, the Board would certify the arithmetical results if an intervening mixed guard-non- guard union received a majority of the votes cast in such an election even though the Board was prohibited from is- suing a certification of representative. Resolving the issue presented in University of Chicago, the Board found that the purpose of Section 9(b)(3) is “to discourage representation by a single union of guards and nonguards,” id. at 875, and that it accordingly prevents “a guard-nonguard union from participating in a Board-con- ducted election as either a petitioner or intervenor.” Id. at unit of guards, employers remain free to voluntarily recognize such a union as the representative of a unit of guards, and guards remain free to choose such a union as their representative. See University of Chicago, 272 NLRB at 876 fn. 26. In addition, the decertification process set forth in Sec. 9(c)(1) of the Act applies to voluntarily recognized units as well as units that have been certified by the Board. See, e.g., Wahiawa Transport System, Inc., 183 NLRB 991, 991–992 (1970). 6 Although Member Wilcox agrees with her colleagues that Univer- sity of Chicago does not require dismissal of the instant petition, she would be open to reconsidering that decision in a future appropriate case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 874. At no point, however, did the Board hold that an in- cumbent mixed guard-nonguard union cannot appear on the ballot in a decertification election. By contrast, the issue in this case is whether employees can secure an election to decertify an incumbent guard- nonguard union. If a decertification election is held, the Union will appear on the ballot as a necessary party to the decertification election. The concerns underlying Univer- sity of Chicago are therefore not present here, because no mixed guard-nonguard union is seeking to appear on the ballot as an intervenor (or petitioner). To hold—as the Re- gional Director effectively did—that employees cannot secure an election to decertify a recognized mixed guard- nonguard union would be at odds with the purpose of Sec- tion 9(b)(3), as well as employees’ Section 9(c) right to seek to decertify their representative. In sum, neither Section 9(b)(3) nor University of Chi- cago prevents the processing of a petition that seeks to de- certify an incumbent mixed guard-nonguard union, in- cluding the placement of such an incumbent union on the ballot (if an election is otherwise warranted). Section 9(b)(3) does, however, affect the manner in which any election results are addressed inasmuch as it bars the Board from certifying a mixed guard-nonguard union as employees’ representative. Accordingly, we clarify that if an election is conducted in this case and if the employees vote in favor of decertification, the Regional Director shall, following resolution of any postelection proceed- ings, issue an order decertifying the mixed guard-non- guard union. In the event that the employees vote to retain representation by the mixed guard-nonguard union, the Regional Director shall, following the resolution of any post-election proceedings, issue an order stating that a ma- jority of employees have voted against decertification, but that under Section 9(b)(3) the results of the election cannot be certified. In either situation, the order that issues shall constitute the final disposition of the case. Based on the foregoing, we reinstate the petition and re- mand this case to the Regional Director for further appro- priate action, including consideration of the Union’s and the Employer’s argument that the petition is barred by an existing collective-bargaining agreement, which the Re- gional Director found unnecessary to reach. ORDER The Regional Director’s administrative dismissal of the petition is reversed, and the case is remanded to the Re- gional Director for further action consistent with this De- cision. Dated, Washington, D.C. November 4, 2022 _________________________________ Lauren McFerran, Chairman _________________________________ John F. Ring, Member ___________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD