Advance Industrial Security, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1975

217 N.L.R.B. 17 (N.L.R.B. 1975)

ADVANCE INDUSTRIAL SECURITY, INC. 17
Advance Industrial Security , Inc. and International
Union , United Plant Guard , Workers of America
(UPGWA), Petitioner. Case 31-RC-2882
March 21, 1975
DECISION AND DIRECTION OF ELECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Upon a petition duly filed on July 29, 1974,' under
Section 9(c) of the National Labor Relations Act, as
amended, a hearing was held on December 20 before
Hearing Officer Louis S. Eberhardt. Following the
hearing, and pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended, the
Regional Director for Region 31 transferred this case
to the Board for decision. Thereafter, the Inter-
venor filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and fords that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record, the Board finds:
1. Advance Industrial Security, Inc„ a Florida cor-
poration, with its home office in Atlanta, Georgia, is
engaged in the business of furnishing security personnel
and other services. The parties stipulated that during
the past calendar or fiscal year the Employer provided
services for governmental agencies in connection with
national defense valued in excess of $50,000. On the
basis of these facts and in accord with the stipulation
of the parties, we find that the Employer is engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The parties stipulated and we ford that the Peti-
tioner and the Intervenor are labor organizations as
defined in the Act and claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Sections 9(c)(1) and 2(6) and (7) of the
Act.
4. The following employees of the Employer consti-
tute an appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act:
i All dates hereinafter are in 1974, unless otherwise stated
2 Independent Guard Association of Nevada, Local No. 1, appeared as
Intervenor.
All guards performing services for the Employer
at the Sandia Corporation, Tonopah Test Range,
Tonopah, Nevada, including all its offices and
facilities thereto, excluding all clerical employees
and supervisors as defined in the Act and all other
employees.
5. The Employer provides security guard service at
the Sandia Corporation test site at Tonopah , Nevada.
It obtained the contract from the Atomic Energy Com-
mission in 1974. Prior thereto , the contract had been
held by Wackenhut from 1965 until 1974. Before
Wackenhut had the contract , it had been held by Fed-
eral Services from 1954 to 1965 . During the entire
period prior to the Employer 's obtaining its contract,
the Intervenor had collective-bargaining agreements
from 1954 to 1974 with Federal Services and Wacken-
hut, respectively . The last contract with Wackenhut
had an expiration date of July 1, 1975.
On March 4 , the Intervenor filed 8(a)(1), (2), and (5)
charges against the Employer in Case 31-CA-4302,
alleging that since February 8, the Employer, as an
alleged successor to the prior employer subject to a,
collective-bargaining agreement with the Intervenor,
refused to bargain in good faith with the Intervenor and
had illegally discharged or refused to hire nine em-
ployees of the predecessor . An amended charge was
filed deleting reference to Section 8(a)(5). The parties
thereafter entered into a settlement agreement.
On July 2 , the nine aforementioned employees filed
a complaint with the United States Department of La-
bor, charging the Employer with engaging in age dis-
crimination in violation of the Age Discrimination in
Employment Act of 1967 . This matter as of the hearing
was still pending before the Labor Department, and
there has been no determination by that Agency that
there has been a violation . If a violation is found to have
occurred , the remedy will include reinstatement.
On September 30, the Intervenor filed charges
against the Employer in Case 31 -CA-4777 , alleging
violations of Section 8(a)(1) and (5) of the Act. The
merits of the 8(a)(5) allegation turned in part on
whether the employees who were allegedly denied em-
ployment on the basis of age discrimination should be
counted toward the Intervenor 's majority status.
On October 30, the Intervenor moved under Rule
60(b) of the Federal Rules of Civil Procedure , seeking
reinstatement of the original 8(a)(5) allegations in Case
31-CA-4302 . On December 3, the Regional Director
issued a letter refusing to issue a complaint in Case
31-CA-4777 upon the ground that "all the operative
facts necessary to establish the alleged 8(a)(5) violation
occurred outside the 10(b) limitation period." An ap-
peal was taken by the Intervenor which was denied by
the General Counsel on February 12, 1975.
217 NLRB No. 1
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Intervenor asserts that the -Board should not
proceed with this case pending its appeal of the Re-
gional Director 's refusal to issue a complaint in Case
3l-CA-4777 and his refusal to reinstate the 8(a)(5)
portions of the charge in Case 3 1-CA-4302. That argu-
ment is now moot as the appeal has been denied.
In addition , the Intervenor in effect seeks to have the
Board in this representation proceeding make an in-
dependent determination as to whether the General
Counsel should have issued a complaint in the afore-
mentioned unfair labor practice proceedings . It is well
established that the General Counsel has final au-
thority under the Act to determine whether to proceed
on a charge . Accordingly , where unfair labor practice
allegations are asserted in a representation case as
ground for finding individuals eligible, the Board holds
the individuals ineligible where, as here , the charges
have been found to be nonmeritorious by the General
Counsel?
Finally , the Intervenor requests that the Board not
proceed with this representation • proceeding until the
proceeding before the Department of Labor has been
concluded, for, if the discrimination allegations are
found meritorious and the Employer had not engaged
in conduct violative ' of age discrimination , those nine
individuals would be employed . Accordingly, it asserts
no showing of interest could have been attained by the
Petitioner and the petition is the "fruit" of the unlawful
conduct of the Employer.
In Pacific Tile and Porcelain Company, 137 NLRB
13513 (1962), the Board , in considering the validity of
ballots cast in an election , held that it would defer its
ruling on the challenges to the voting eligibility of two
individuals whose terminations were the subject of
pending grievances because their status on the eligibil-
ity and election dates depended on the outcome of the
grievances . Similarly , the Board has permitted "in-
dependent contractors" to cast challenged ballots in a
decertification election despite a union 's claim that the
election should be deferred until such time as an arbi-
trator issued his award determining whether or not
3 Times Square Stores Corporation, 79 NLRB 361 (1948).
these individuals had been converted from their former
status as unit employees into "independent contrac-
tors" in violation of the contract.' The Board has also
voted subject to challenge employees who were dis-
charged but who were seeking reinstatement, backpay,
and other relief in Federal district court under the La-
bor-Management Reporting and Disclosure Act.'
The rationale of the Board in those cases is equally
applicable herein. The subject matter of the pending
Labor Department proceeding is not relevant to the
primary issue before us, which is whether the election
petitioned for should be directed. It raises an issue of
eligibility as to certain individuals, but the resolution of
that question in no way reaches the primary issue
before us. The Board has long followed the procedure
of permitting employees to vote by challenged ballot
where their eligibility could not be determined on the
existing record. The fact that the eligibility of individu-
als may turn on some question other than an em-
ployer's alleged unfair labor practices is irrelevant. The
only issue is whether the individuals were employees
within the unit on the critical dates. A finding favorable
to the Intervenor's position will result in a holding that
the disputed individuals were employees on the critical
dates, while a contrary finding will result in a determi-
nation that they were not. Any such disposition, would
have an impact on the election only in the event the
votes could be determinative, but if their votes affect
the results it would be improper for us to disenfranchise
them completely. Accordingly, the nine individuals
shall be permitted to vote in the election directed
herein, and their ballots shall be challenged by the
Board agent. If the votes of these individuals are found
to be determinative upon tallying the unchallenged bal-
lots, the Regional Director at that time shall make a
further investigation and report as to the above eligibil-
ity matters.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
4 Pepsi-Cola Bottling Company of Merced-Modesto, 154 NLRB 490
(1965).
5 Grand Lodge International Association of Machinists and Aerospace
Workers, AFL-CIO, 159 NLRB 137 (1966).