Universal Protection Service, LLC d/b/a Allied Universal Security Services

373 NLRB No. 3 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. Universal Protection Service, LLC d/b/a Allied Uni- versal Security Services and Philadelphia Secu- rity Officers Union (PSOU), Petitioner. Case 04– RC–295105 December 13, 2023 DECISION ON REVIEW AND ORDER REMANDING BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX On November 10, 2022, the Regional Director for Re- gion 4 issued a Decision and Order in which he dismissed the Petitioner’s petition to represent a unit of guards based on his finding that the Petitioner also represents employ- ees who are not guards within the meaning of Section 9(b)(3) of the National Labor Relations Act. Thereafter, in accordance with Section 102.67 of the National Labor Re- lations Board’s Rules and Regulations, the Petitioner filed a timely request for review of the Regional Director’s De- cision. The Employer filed an opposition brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 The Petitioner’s request for review is granted as it raises substantial issues warranting review. Upon review, and having carefully considered the entire record in this pro- ceeding, we reverse the Regional Director and find that the Petitioner is not disqualified from representing the peti- tioned-for guards under Section 9(b)(3) of the Act.2 The Employer provides security services to various en- tities, including Saint Joseph’s University and the Univer- sity of Pennsylvania (Penn) in Philadelphia. In May 2022, the Petitioner filed the instant petition seeking to represent a unit of Public Safety Officers (PSOs) employed by the Employer at Saint Joseph’s University. The parties stipu- lated that the PSOs are guards within the meaning of Sec- tion 9(b)(3). The Employer asserted that the Petitioner could not be certified to represent the PSOs because it also represents Traffic Control Aides (TCAs) who work at Penn and whom the Employer contends are not guards. TCAs are employed by the Employer and represented by the Petitioner but are not otherwise involved in the instant proceeding. In November 2022, the Regional Director dis- missed the petition based solely on his finding that the Pe- titioner also admits nonguard employees to its 1 Member Prouty took no part in the consideration of this case. 2 The Board has exercised its discretion to read the entire record. See Sec. 102.67(e) of the Board’s Rules and Regulations. Based on our care- ful review of the record, we reject the Petitioner’s unsubstantiated claims that the Regional Director was “vying for any way to find against the Petitioner” and that the Regional Director “invented” or “fabricated” facts in his decision. 3 The Board has defined guard responsibilities as those typically as- sociated with traditional police and plant security functions such as: (1) the enforcement of rules directed at other employees; (2) the authority to membership. In granting review, we find first that the Re- gional Director failed to apply the correct legal standard. Specifically, the issue presented here is whether the Em- ployer has shown, by definitive evidence, that the TCAs are not guards. Second, applying that standard, we find that the Employer has failed to do so. Accordingly, we re- verse the Regional Director. The proviso to Section 9(b)(3) of the Act provides that the Board shall not certify a labor organization “as the rep- resentative of employees in a bargaining 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.” However, “within the constraints of the guard proviso to Section 9(b), guards are fully entitled to representatives of their own choosing and to join and form local and national labor organizations.” Burns Security Services, 278 NLRB 565, 568 (1986). Accordingly, the Board concluded in Burns Security Services that “the proviso to Section 9(b), when read in context, requires that the noncertifiability of a guard union must be shown by definitive evidence. Other- wise the rights of guards to be represented by a union and of guard unions to represent guards would be seriously un- dermined.” Id.; accord Elite Protective & Security Ser- vices, 300 NLRB 832, 832 (1990). It follows necessarily from this formulation that the burden of establishing non- certifiability rests with the party asserting it. See Lee Ad- justment Center, 325 NLRB 375, 376 (1998) (citing Chil- dren’s Hospital of Michigan, 317 NLRB 580, 581 (1995), enfd. sub nom. Henry Ford Health System v. NLRB, 105 F.3d 1139 (6th Cir. 1997)). Because the Employer has asserted that the Petitioner cannot be certified to represent the petitioned-for guards at Saint Joseph’s University because it also represents nonguard TCAs at Penn, the Employer must show, “by definitive evidence,” that TCAs are not guards. Having considered the overall nature of TCAs’ traffic control re- sponsibilities, evidence of TCAs’ duties unrelated to traf- fic control, and TCAs’ responsibility under the parties’ collective-bargaining agreement to protect the customer’s property during a strike, we find that the Employer has not met its burden and accordingly has not established that the Petitioner could not be certified. Here, there is ample record evidence that TCAs perform some guard-like duties and have guard-like responsibili- ties.3 To begin, although TCAs are primarily tasked with traffic control duties,4 the record establishes that they have compel compliance with those rules; (3) training in weapons and security procedures; (4) possession of weapons; (5) participation in security rounds or patrols; (6) monitoring and controlling access to the em- ployer’s premises; and (7) wearing guard-type uniforms or displaying other indicia of guard status. Boeing Co., 328 NLRB 128, 130 (1999) (citing Wolverine Dispatch, Inc., 321 NLRB 796, 798 (1996)). No one factor alone is dispositive. See Purolator Courier Corp., 300 NLRB 812, 815 fn. 11 (1990). 4 It is well established that while security functions performed by pu- tative guards “may in some instances represent a small portion of their DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 an ongoing responsibility to observe and report security concerns while performing their traffic duties—obliga- tions that the Board has found to be indicative of guard status. See Rhode Island Hospital, 313 NLRB 343, 346– 347 (1993) (“Although one of their primary duties is to transport employees from building to building, [shuttle van drivers] are also charged with the responsibility of be- ing on the look out for and reporting security problems or rules violations. They also respond to threatening situa- tions when needed. Thus, although they primarily operate shuttle vans, the record shows that they are specifically charged with guard responsibilities which, we find, are not a minor or incidental part of their overall responsibili- ties.”). There are also a number of record examples of TCA ac- tions “associated with traditional police and plant security functions,” such as assisting law enforcement with on- scene investigations and responding to police requests to look out for criminal suspects or suspicious persons. See Boeing Co., 328 at 130. These duties carry with them the potential for confrontation. See A. W. Schlesinger Geriat- ric Center, Inc., 267 NLRB 1363, 1363–1364 (1983). Sig- nificantly, the traffic control unit is placed administra- tively in Penn’s safety division, which also includes the Penn Police Department and Penn Patrol officers (who are admitted guards). In addition, both TCAs and Penn Patrol officers operate under the supervision of, and are required to take orders from, the Penn Police. See International Harvester Co., 81 NLRB 374, 377 (1949). To this end, the three units are in constant communication over radio. Finally, we observe that the collective-bargaining agreement between the Employer and the Petitioner re- quires that TCAs must, in the event of a strike, “remain on the job for protection of life, limb, and property.” As the Board underscored in Boeing Co., “of particular concern to the drafters of Section 9(b)(3) is the role a disputed em- ployee may play during a period of industrial unrest or strike by other members of an employer’s work force.” 328 NLRB at 130. Accordingly, “the Board will scruti- nize the duties and responsibilities assumed by the dis- puted employees during periods of industrial unrest or strike.” Id. Here, we find that TCAs’ obligations during a strike at the very least raise the potential for a divided loy- alty issue with nonguard employees. Applying Burns to the foregoing pertinent facts, we find that TCAs perform at least some guard-like duties and conclude that the Employer has failed to establish, by de- finitive evidence, that TCAs are not guards.5 We accord- ingly reverse the Regional Director’s finding that the Pe- titioner is disqualified from representing the petitioned-for guard employees under Section 9(b)(3) of the Act.6 ORDER The Regional Director’s Decision and Order is re- versed, the petition is reinstated, and the case is remanded to the Regional Director for further appropriate action consistent with this decision. Dated, Washington, D.C. December 13, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan Member _____________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD overall job duties, . . . it is the nature of the duties performed by guards and not the percentage of time performing such duties which is control- ling.” Madison Square Garden, 333 NLRB 643, 645–646 (2001). 5 In addition, because we have concluded that the Employer has not met its burden based on the current record, it is unnecessary for us to pass on the issues related to the Employer’s alleged noncompliance with the Petitioner’s subpoena duces tecum, which sought additional documenta- tion related to TCAs’ duties. 6 Member Kaplan agrees that the Regional Director erred in dismiss- ing the petition, as the Employer failed to provide “definitive evidence” that TCAs are not guards. At most, the Employer raised close factual questions about TCAs’ guard status, making them “close-call” employ- ees within the meaning of Board law. See Burns Security Services, 278 NLRB at 567, 569. The Board does not allow collateral attacks on the guard status of “close-call” employees to establish the noncertifiability of a union under Sec. 9(b)(3). See Rapid Armored Corp., 323 NLRB 709, 711 (1997). Accordingly, the Regional Director should not have allowed the Employer to litigate TCAs’ guard status, nor should he have dismissed the petition on the basis that TCAs are not guards.