Brinks, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1985

274 N.L.R.B. 970 (N.L.R.B. 1985)

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brinks, Incorporated and International Brotherhood
of Armored Car Workers and Affiliates, Peti-
tioner. Case 9-RC-14388
14 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a petition filed under Section 9(c) of the
National Labor Relations Act, a hearing was held
before Hearing Officer James E. Horner. Follow-
ing the hearing and pursuant to Section 102.67 of
the National Labor Relations Board Rules and
Regulations, the Regional Director for Region 9
transferred this case to the Board for decision.
Thereafter, the Employer filed a brief.
The Board affirms the hearing officer' s rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
The Employer, a Delaware corporation, is en-
gaged in the transportation and storage of coin,
currency, and securities at locations throughout the
United States. The present case involves the Em-
ployer's secured facility in Cincinnati, Ohio.
The Petitioner' seeks to represent a unit of the
Employer's guard employees, including employees
who pick up and deliver cash and securities to and
from the Employer's customers in armored trucks
and employees who work in the vaults in the Em-
ployer's facility.2
The Employer contends that the petition should
be dismissed on the ground that the Board is pre-
cluded under Section 9(b)(3) of the Act from certi-
fying the Petitioner to represent guard employees
because it is indirectly affiliated with a labor orga-
nization that admits to membership employees
other than guards. We find merit to this contention.
Prior to March 1983, Ice Storage, Scrap Material
and Grain Warehousemen Local 105, affiliated
with the International Brotherhood of Teamsters,
i At the hearing and in its brief, the Employer took the position, inter
alia, that the Petitioner was not a labor organization within the meaning
of the Act Based on uncontroverted evidence in the record, however,
we find that the Petitioner meets the criteria for labor organization status
in Sec 2(5) of the Act Nevertheless, for the reasons set forth below, we
find that the Petitioner is statutorily precluded from representing the unit
of guard employees for which it has petitioned.
2 Specifically, the unit the Petitioner seeks to represent includes
All full time and regular part time assistant cashiers, messengers,
vault employees, drivers, and all other guards as defined by the Act
employed by the Employer at its Cincinnati, Ohio facility, and ex-
cludes all office clerical employees, professional employees, all non-
guard employees, and supervisors as defined in the Act
In view of our decision to dismiss the petition on the ground that the
Petitioner is not qualified to represent a unit of guards, we find it unnec-
essary to pass on the questions raised by the parties as to the alleged su-
pervisory status of the assistant cashiers and the guard or nonguard status
of the coin vault employees
Chauffeurs, Warehousemen and Helpers of Amer-
ica, referred to herein as Local 105, was recog-
nized by the Employer as the exclusive representa-
tive of a unit of guard and nonguard employees.
The Employer and Local 105 had had a series of
collective-bargaining agreements. When the last
such agreement expired in March 1983, the Em-
ployer withdrew recognition of Local 105 as the
bargaining representative of its guard employees.
Beginning in June 1983, Noble, then a guard em-
ployed by the Employer, with a fellow guard em-
ployee, composed proposed bylaws for the Peti-
tioner, using Local 105's bylaws as a model. In
September or October 1983, following the General
Counsel's denial of an appeal from the Regional
Director's dismissal of an unfair labor practice
charge in which Local 105 alleged that the Em-
ployer's withdrawal of recognition was an unfair
labor practice, a meeting for the Employer's guard
employees was held at Local 105's office. The first
part of the meeting apparently consisted of a dis-
cussion of the consequences of the Employer's
withdrawal of recognition, including the possible
effects on the employees' pension benefits. Two
representatives of the International Brotherhood of
Teamsters were present as was the president of
Local 105. Immediately following that discussion,
the guard employees met among themselves, with-
out any nonemployee representatives of either
Local 105 or the International present. Noble pre-
sided over the meeting. The guard employees
adopted the bylaws previously drafted by Noble
and the other guard employee, approved the name
of the Petitioner, signed authorization cards, and
elected officers. Noble was elected secretary- treas-
urer. Other guard employees of the Employer were
elected to fill other officership positions. There had
been no other meetings of the Petitioner as of the
time of the hearing. The Petitioner filed the peti-
tion herein on 17 November 1983.
Noble testified that he was the main force behind
the Petitioner. At the time of the Petitioner's orga-
nizational meeting in September or October 1983
and at the time of the hearing in August 1984, he
was an elected trustee of Local 105. As a trustee,
he was an officer of Local 105 and participated ac-
tively in its policymaking board, which decided,
among other matters, which groups of employees
Local 105 should attempt to organize. He also
served as a member of the Cincinnati Joint Council
of Teamsters and regularly attended its meetings.
He was still a member of the joint council at the
time of the hearing. Noble was paid an officer's fee
for each meeting of the Local 105 board and the
joint council he attended. In 1983, according to tax
records introduced at the hearing, Noble received
274 NLRB No. 144
BRINKS , INC 971
in excess of $600 in such fees. Prior to the Employ-
er's withdrawal of recognition from Local 105 in
March 1983, Noble was a Local 105 steward for
the Employer's guard employees, in addition to his
trustee and Joint Council positions. A comparison
of Local 105's and the Petitioner's bylaws reveals
that they are identical in most respects. Similarly,
the language of the Petitioner's authorization cards
is nearly identical to that of Local 105's authoriza-
tion cards. Noble acknowledged in his testimony
that he used Local 105's cards as a model for the
Petitioner's.
Section 9(b)(3) of the Act provides, in pertinent
part, "no labor organization shall be certified as the
representative of employees in a bargaining unit of
guards if such organization . . . is affiliated directly
or indirectly with an organization which admits to
membership employees other than guards." On the
basis of the undisputed evidence summarized
above, we are persuaded that while the Petitioner
maintains no formal affiliation with Local 105 it is
indirectly affiliated with that labor organization
and that the record indicates that the Petitioner
lacks freedom and independence in formulating its
own policies and deciding its own course of
action.3 In so finding, we rely particularly on the
facts that Noble, the individual primarily responsi-
ble for the formation and continued existence of
a Wackenhut Corp, 223 NLRB 1131 (1976)
the Petitioner and an officer of the Petitioner, at all
times material has also been a paid officer and pol-
icymaker in Local 105, and that the Petitioner's
only meeting occurred at Local 105's office imme-
diately following a discussion attended by Team-
sters officials.4 In view of our finding that the Peti-
tioner is indirectly affiliated with Local 105, and
since it is undisputed that Local 105 admits non-
guard employees as members, we are precluded
under Section 9(b)(3) from certifying the Petitioner
as the bargaining representative of the petitioned-
for unit. Accordingly, we shall dismiss the petition.
ORDER
,It is ordered that the petition is dismissed.
° See Wackenhut Corp, id, Magnavox Co, 97 NLRB 1111 (1952) The
present case is distinguished from such cases as International Security
Corp, 223 NLRB 1129 (1976), by the fact that there, although there had
been previous connections between the petitioner seeking to represent
guards and a nonguard union , as of the time of the hearing no officials of
the petitioner were affiliated with the nonguard union Similarly, the
present case is distinguished from cases such as International Harvester
Co, 81 NLRB 374 (1949), where the Board found no affiliation between
the petitioning union and a nonguard union despite the fact that the non-
guard union had assisted the petitioner during its organizational phases
In International Harvester , the Board found that the assistance of the non-
guard union was only a "temporary expedient " and that as of the time of
the Board's decision the petitioner was free to decide its own policy and
course of action In the present case, by contrast, the close affiliation of
the Petitioner and Local 105, including a common officer, had existed for
at least 10 months at the time of the hearing We are not convinced
under these circumstances that the Petitioner is free to and does in fact
set its own policies and courses of action