Brink's, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1948

77 N.L.R.B. 1182 (N.L.R.B. 1948)

In the Matter of BRINK'S, INCORPORATED, EMPLOYER and TRUCK
DRIVERS UNION LOCAL No. 541, AFFILIATED WITH THE INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL, PETITIONER
Case No. 17-UAL.Decided June 17,1948
Mr. T. E. Frazee, of Kansas City, Mo., for the Employer.
Messrs. J. M. Lester and 0. L. Ring, of Kansas City, Mo., for the
Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Kansas
City, Missouri, on November 21,1947, before Harry L. Browne, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Brink's, Incorporated, an Illinois corporation with its principal
office in Chicago, Illinois, is engaged in the armored-car business, in
the course of which it transports money, valuables, and securities, and
handles pay rolls and the cashing of checks for its customers. It has
65 branch offices located in 26 States of the United States and in the
District of Columbia, employing approximately 2300 service em-
ployees. The local branch office located in Kansas City, Missouri, the
only one involved in this proceeding, employs approximately 29 em-
ployees, and operates under contracts with various firms and concerns
located in Greater Kansas City, which includes Kansas City, Missouri,
and Kansas City, Kansas. Service charges made by the local office
during the past 12 months amounted to in excess of $100,000, approxi-
mately 15 percent being charges for business concerns located in Kansas
77 N. L. R. B., No. 189.
1182
BRINK'S; INCORPORATED 1183
City, Kansas. In connection with its business operations, the local
office transports securities, money, and other valuables for business
concerns under contract to, among others, the United States Post Office,
express agencies, and banks, for further transportation to other desti-
nations located within and without the State of Missouri.
The Employer admits and we find that it is engaged in commerce
,N ithin the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a, labor organization affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, which in turn is affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
III. QUESTION CONCERNING AUTHORIZATION OF A UNION-SHOP ELECTION
In October 1947 the Petitioner, as the exclusive collective bargaining
representative of the employees covered by the petition herein,' entered
into its fourth agreement with the Employer, which stated that it
was to become effective on November 9, 1947, and to be automatically
renewed from year to year, absent 60 days' written notice. The
contract contained a provision that the Employer "agrees that it will
not keep in its employ or will it employ in the future any regular
employee who shall not be or who shall not become a member of the
union in good standing and within thirty days after the date of his
employment as a regular employee or the effective date of this agree-
ment, whichever is later.'' 2 The contract provides further, however,
that this union-shop provision was not to become effective until the
Board "shall have certified to the employer that the union is qualified
to enter into an agreement with the employer respecting the subject
matter contained therein."
The petition herein alleges that more than 30 percent of the em-
ployees in the unit desire to authorize the Petitioner to make an
agreement with the Employer requiring membership in the Petitioner
as a condition of employment in such unit, which allegation was
I The petition herein was filed pursuant to Section 9 (e) (1), which provides as follows :
"(1) Upon the filing with the Board by a labor organization , which is the representative
of employees as provided in Section 9 (a), of a petition alleging that 30 per centum or
more of the employees within a unit claimed to be appropriate for such purposes desire
to authorize such labor organization to make an agreement with the employer of such
employees requiring membership in such labor organization as a condition of employment
in such unit , upon an appropriate showing thereof the Board shall, if no question of
representation exists, take a secret ballot of such employees , and shall certify the results
thereof to such labor organizations and to the employer"
2 The petition alleges that the Employer and the Petitioner have had closed -shop contracts
for several years covering the employees herein Involved.
'1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supported by documentary evidence submitted by the Petitioner for
examination by Board agents.
The Employer having recognized the Petitioner, we find that no
question affecting commerce exists concerning the representation of
employees of the Employer in the unit sought by the Petitioner. The
preliminary requirements for a union-shop authorization election,
set forth in Section 9 (e) (1), have been met.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit composed of all the guards, drivers,
messengers, paymasters, and assistant cashiers of the Employer, ex-
'cluding all office employees and supervisors. All the employees in
,the unit are uniformed, wear sidearms, are commissioned as special
officers while on duty, are hourly paid, work the same number of
hours, are generally subject to the same working conditions, and are
directly responsible to the branch manager. The assistant cashiers
dispatch the armored trucks, have charge of customers' securities
which are stored overnight in the Employer's vault, and at times
accompany the armored-truck crews. All the other employees in the
unit work on the armored trucks, picking up, transporting, guarding,
and delivering valuables belonging to the Employer's customers.
There is frequent interchange among these employees.
The office employees and supervisors, who are not included in the
unit, are the only other categories employed by the Employer.
Inasmuch as all the employees in the unit are classified as guards or
have the responsibility of guarding valuables temporarily in the
possession of their Employer, and inasmuch as the Petitioner is af-
filiated with an organization which admits to membership employees
other than guards, it is necessary to determine whether the prohibi-
tions contained in Section 9 (b) (3)3 are applicable to guards of the
type herein involved.4 Their employer is itself engaged in the busi-
ness of guarding the property of others.
During the Senate debates on Section 9 (b) (3), the employees to
whom the section was to be applicable were frequently referred to
a This Section provides :
"That the Board shall not . . . decide that any unit is appropriate for such purposes
if it includes , together with other employees , any individual employed as a guard to
enforce against employees and other persons rules to protect property of the employer
or to protect the safety of persons on the employer 's premises ; but no labor organiza-
tion shall be certified as the representative 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 "
Nowhere in the legislative history of the Labor-Management Relations Act, 1947, is
there any specific reference to armored truck guards
BRINK'S, INCORPORATED 1185
specifically as "plant guards." 5 The report on the original House bill,
in explaining why certain categories were barred froln,inclusion in
units with other employees , stated that "Plant policemen and guards
prevent disorders and report misconduct of employees and of unions
and their members." H. Rept. No. 245 , 80th Cong ., 1st Sess., 1947;
p. 16. [Emphasis supplied.]
The Senate debates also contain statements 6 which indicate that
Section 9 ( b) (3) resulted in large part from the court decisions in the
Jones & Laughlin and Atkins cases.7 These cases involved plant
guards.
For example, Senator Taft at one point stated that :
"We accepted a provision regarding plant guards. We had exempted foremen in the
Senate bill, but we had not exempted plant guards The House bill exempted plant
guards, and also time-study employees and personnel forces. We did not accept any
of those provisions, except that as to plant guards we provided that they could have
the protection of the Wagner Act only if they had a union separate and apart from
the union of the general employees " Cong Rec , 80th Cong., 1st Sess , 1947, p 6603.
At another point Senator Taft stated that
"By the provision of the House bill plant guards were completely excluded from the
Wagner Act We compromised with the House by providing that they should have
the protection of the Wagner Act, but in a separate unit from the workers in the
plants" Cong Rec, 80th Cong , 1st Sess, 1947, p 6658 [Emphasis supplied ] See
also footnote 6, below
"The statements referred to are as follows
"Section 9 (b) is also the same as Section 9 (b) of the Senate amendment with the
exception of an addition of a third clause relating to plant guards As has been pre-
viously stated, the Senate rejected a provision in the House bill which would have
excluded plant guards as employees protected by the Act The conferees on both sides,
however, have been impressed with the reasoning of the Circuit Court of Appeals for
the Sixth Circuit in the Jones and Laughlin case in which an order of the Board cer-
tifvuig as a bargaining representative of guards, the same union representing the pio-
duction eniplovees was set aside Although this case was recently reversed by the
Supreme Court on the ground that the Board had it within its power to make such a
holding, four of the Justices agreed with the Circuit Court of Appeals holding that
this way an abuse of the discretion permitted to the Board under the Act" Extension
of Senator Taft's remarks, Cong Rec , 80th Cong, 1st Sess , 1947, it 6601.
Mr MURRAY
The conferees hale adopted a new rule with respect to plant guards in Section
9 (b), denying then rights under present legislation This is merely it petulant gesture
at the Supreme Court which decided, while the conferees were in session, that plant
guards were employees and entitled to the benefits of national labor legislation 1
have here no time to discuss the merits of this issue, which are fully set forth in the
opinions of the Supi erne Court
Mr TAFT Let me call the Senator's attention to the further facts that the Supreme
Court's opinion to which the Senator has referred was only a 5-to-4 opinion, and the
dissenting opinion was about as good as the majority opinion. [Cong Ree, 80th Cong..
1st Sess , 1947, p. 6658 1
Finally, the Board may not include guards in the same unit with other em.
ployees and may not certify any labor organization as the bargaining representative
of guards if it admits to membership employees other than guards. This last provi•
sion was added by the conference committee after the Supreme Court's Atkins case."
Analysis of Title I of H R. 3020, printed in extension of Mr Murray's remarks, Cong
Rec , 80th Cong., 1st Sess , 1947, p. 6663 [Emphasis supplied.]
+N L R B v Jones eC Laughlin Steel Cotp, 154 F. (2d) 932 (C. C A 6), 331 U. S
416, N. L R. B v Atkins cC Co, 155 F. (2d) 567 (C. C. A. 7), 331 U. S. 398.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, it appears, from the language in the original House
bill," as well as from the legislative history generally, that in imposing
restrictions upon guard units, the Congress was concerned with the
possibility that if guards were included in production units, their
loyalty to-fellow union members might conflict with their duty, to
report to their employer derelictions of duty or violations of rules by
fellow employees.
The conclusion that the Congress, in enacting Section 9 (b) (3), had
plant guards in mind is further demonstrated by the description of
"guards" in that section. Although it describes their duties as includ-
ing enforcement of rules against "other persons" as well as against em-
ployees, this phrase, read with the phrase "on the employer's premises,"
which appears in the same section, indicates that Congress was refer-
ring to employees and to other persons who had access to the employ-
er's premises. There are no references to men employed to guard,
while transporting property belonging-not to their employer-but
to customers of their employer.9
Accordingly, we find that all the guards, drivers, messengers, pay-
masters, and assistant' cashiers of the Employer, excluding all clerical
employees and supervisors, constitute a unit appropriate for the pur-
poses of Section 9 (e) (1) of the Act.10
e Tlie .House bill defined "supervisors " to include any employee "with police duties or who
is employed to act in other respects for the employer in dealing with other individuals em-
ployed by the employer " H It 3020 , 80th Cong ., 1st Sess , 1947, Sec. 2 (12) (b). The
House Report explained that the bill excluded the several categories of employees defined as
"supervisors" because "there must be in management and loyal to it persons not subject to
influence or control of unions " In describing the classifications to be excluded for this
reason, the report stated that "Plant policemen and guards prevent disorders and iepoit
misconduct of employees and of unions and their members " H Rept No 245. 80th Cong ,
1st Sess., 1947, p. 16.
See, however , the Statement of the Managers on the Part of the House , with iefcrence
to Section 9 (b) (3) :
"The conference agreement . . . provides that the Board cannot decide that any
unit is appropriate for collective bargaining if it includes , together with other em-
ployees, an individual employed as a guard to enforce against employees and other
peisons rules to protect property belonging to the employer or for which the the Em-
ployer is responsible, or to urotect the safety of persons on the employer ' s premises "
House Conf. Itept No 510 , 80th Cong , 1st Sess , 1947, pp 47-48 [Emphasis sup-
plied ]
There is no explanation of the italicized clause It not only does not appeai in and of the
bills or in the Act as passed, but it also does not appeai in any of the Senate interpretations
of Section 9 (b) (3) or in any other House statement on this subject It might have been
intended to refer to plants leased and operated by an employer In any event. in view of
the language of Section 9 (b) (3) and its entire legislative history , it would not seen
reasonable to conclude that the House Managers intended by this isolated use of the phrase
in question to include armored -truck guards in the applicability of Section 9 (b) (3)
i0 See Matter of Giant Food Shopping Center , Inc, 77 N L It B 791 Chairman
Herzog and Member Houston regard the Giant Food decision as a holding by the Board
that the unit appropriate for Section 9 (e) pui poses may be different from that appropriate
for the purposes of Section 9 (a), and consider themselves bound thereby . They theiefor(
raise no objection to the fact that the finding in the present case refers only to Section
i (e).
BRINKS, INCORPORATED
DIRECTION OF ELECTION
1187
Pursuant to Section 9 (c) (1) of the National Labor Relations Act,
as amended, an election by secret ballot shall be conducted as early
as possible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Direc-
tor of the Seventeenth Region, and subject to Section 203.61 of Na-
tional Labor Relations Board Rules and Regulations-Series 5, among
the employees of Brink's, Incorporated, Kansas City, Missouri, in the
unit found appropriate in Section IV, above, who were employed dur-
ing the pay-roll period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll pe-
riod because they were ill or on vacation or temporarily laid off, but
excluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, and also excluding employees on strike who are not entitled to
reinstatement, to determine whether or not they desire to authorize
Truck Drivers Union Local No. 541, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, to make an agreement with Brink's, Incorporated,
Kansas City, Missouri, requiring membership in the aforesaid labor
organization as a condition of employment in such unit.
MEMBER MURDOCK, dissenting :
I am unable to agree with the conclusion of my colleagues that the
armored-truck guards in the unit found appropriate herein do not
fall within any of the prohibitions of Section 9 (b) (3) of the Act,
in view of the construction placed upon that section by our unanimous
opinion in Matter of C. V. Hill c Company, Inc.','
As the majority opinion demonstrates, it is possible to make an argu-
ment from the legislative history that in enacting Section 9 (b) (3)
Congress' concern was with plant guards whose duty it is to report
derelictions of duty or violations of rules by other employees, the
theory being that if such guards are included in units with other em-
ployees, their loyalty to fellow union members might conflict with
the strict' performance of their duty. It is possible that Congress
actually may have intended to write into law the distinction between
monitorial employees (typically plant guards) and non-monitorial
employees (typically watchmen) and a different treatment of them
which the Board itself applied in some respects prior to the recent
amendment of the Act 12 Nevertheless, the wording of Section 9 (b)
11 76 N . L. R B. 158
12 The Board placed monitorial employees in separate units, but non-monitorial employees
such as simple watchmen were included in production and maintenance units. See Eleventh
Annual Report , 1946, p . 32; Tenth Annual Report, 1945 , pp. 34-35.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) broadly covers "any individual employed as a guard to enforce
against employees and other persons rules to protect property of the
employer or to protect the safety of persons on the employer' s prem-
ises." (Emphasis supplied.) In the C. V. Hill case, the Board ac-
cepted a literal interpretation of the foregoing language to cover
watchmen having a duty to protect property of the employer against
theft "whether by employees or by `other persons'." The Board there
implicitly rejected an interpretation under which the scope of Section
9 (b) (3) would be limited to the kind of guards who enforce rules
against other employees.
The mere fact that Congress may have had plant guards primarily
in mind in framing Section 9 (b) (3) does not prove that armored-
truck guards do not come under the section if they fall within the de-
finition of "guard" contained therein. Armored-truck guards protect
property of the employer against theft by "other persons" and protect
"the safety of persons on the employer's premises ." 13 They accord-
ingly come within the definition of "guards" to whom Section 9 (b)
(3) applies. The basic considerations which the majority present
for not including armored-truck guards within the prohibition would
require the same result for simple watchmen. Yet in the C. V. Hill
case the Board applied a strict interpretation of Section 9 (b) (3) to
include watchmen in its scope. Having adopted the strict interpreta-
tion of the section in that case, it seems to me that the Board should
consistently follow it.
Accepting the position of the majority that there is no problem here
of including guards "together with other employees" in the same unit
because of the composition of the unit herein, we are still faced with the
second prohibition of Section 9 (b) (3) which states that "no labor
organization shall be certified as the representative of employees in a
bargaining unit of guards if such organization admits to membership,
employees other than guards." Even if the petitioning local herein
should be limited to guards, it is affiliated with an international union
which admits to membership employees other than guards. We would
therefore be precluded by Section 9 (b) (3) from certifying the peti-
tioner as the representative of a unit of guards. If we could not
certify the petitioner because of the restriction laid down in Section
9 (b) (3) I do not believe that we should direct a union authorization
election on its petition. Clearly the privilege of negotiating a contract
" Cleaily it would be their duty to protect the employer's truck from theft Nor do I
think the contents of the truck can be treated as not the employer ' s property merely be-
cause they may be bailed to the employer . It is also obviously the duty of the guards to
protect the safety of the driver , messengers, and paymasters who are "on the employer's
prenuses " when they are i iding in the employer s armored trucks
BRINK'S, INCORPORATED 1189
containing a union security clause is an additional privilege which
Congress intended might be secured under the specified conditions by a
union which had been certified or could qualify for certification. It
would be unreasonable to conclude the Congress ever intended that the
added benefits of the union authorization election procedure should
be made available to a union which Congress would not permit to be
certified in the first place. Accordingly, I would dismiss the petition
herein.
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