Brink'S Inc And Security Leasing Co

National Labor Relations Board - Board Decisions

Oct 22, 1985

272 N.L.R.B. 868 (N.L.R.B. 1985)

868
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brink's Inc and Security Leasing Co and Teamsters
Local Union No 284, affiliated with the Inter
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Peti
honer Cases 9-RC-14169 and 9-UC-240
22 October 1985
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN, HUNTER, AND DENNIS
On 17 January 1983 the Regional Director for
Region 9 of the National Labor Relations Board
issued a Decision Order and Direction of Election
in the above entitled RC proceeding in which he
found appropriate the Petitioner s requested unit of
all coin room employees and mechanics employed
by the Employer at its Columbus Ohio facility In
directing an election among the two coin room em
ployees and the sole mechanic the Regional Three
tor rejected the Employer s contention that the
coin room employees were guards and that the pe
tition should be dismissed because the only remain
ing employee in the unit was a mechanic Having
directed an election in the RC case, the Regional
Director dismissed the unit clarification petition by
which the Petitioner sought to add the coin room
employees and mechanic' to the existing unit of
undisputed guard employees which the Petitioner
has represented since 1969 based on voluntary rec
ognition 2 Thereafter in accordance with Section
102 67 of the Board s Rules and Regulations, the
Employer filed a timely request for review of the
Regional Director's decision on the grounds that
the Regional Director made factual errors and de
parted from Board precedent in failing to find that
the coin room employees were guards, in failing to
dismiss the representation petition on the basis that
the Petitioner is not qualified to represent the coin
room employees under Section 9(b)(3) of the Act,
and by including the nonguard mechanic in the
coin room guard unit 3 contrary to Section 9(b)(3)
By telegraphic order of 14 February 1983 the
Board granted the Employer s request for review
The election was stayed pending the Board's deci
sion on review On 7 May 1984 the Employer filed
a motion to dismiss on the grounds that on 30 May
1984 it would permanently close its coin room op
' The parties agree that the mechanic is not a guard The Regional Di
rector found that the mechanic was jointly employed by Brink s and Se
curity Leasing Co The latter Company is a division of Trans Service
Leasing which was bought by Brink s
2 The most recent collective bargaining agreement for the Columbus
Ohio location described the recognized unit as including Cashiers As
sistant Cashiers Messengers Drivers Tellers Guards and Building
Guards
2 The Petitioner s counsel stipulated on the record that the Petitioner
represents employees other than guards
eration On 26 June 1984 the Employer filed a re
quest for an Order to Show Cause 4
The Board has considered the entire record in
these cases and makes the following findings The
Employer, Brink s, Inc a Delaware corporation is
engaged in the transportation and storage of coin,
currency and securities at locations throughout the
United States Brink s maintains a secured facility
in Columbus, Ohio, involved herein where it
stores and processes currency, coins, and other va
luables for its customers, which include a number
of banks in the Columbus area The Employer uti
lizes armored trucks =manned by employees in the
represented unit who pick up and deliver currency,
coins, and securities The items picked up from the
customers locations are brought back to the Co
lumbus facility which has three vaults, one of
which is the coin room" where the two disputed
coin room employees work The record shows that
access to the building is secured and that move
ment inside the building is highly controlled and
restricted For this purpose there are steel doors
controlled by a turret guard in the building, and
movement from one area to another is limited by
trap' areas which restrict persons from entering
other areas unless permitted 5 The coin room is
considered a working vault, and it is also protected
by a steel door controlled by an alarm system and
keys The coin room is locked at night and can
only be reopened after notification to the outside
alarm service
As found by the Regional Director, the coin
room employees spend virtually all of their work
time within the coin room They do not go out on
the trucks or otherwise interchange with represent
ed employees Loose coins are brought in sealed
bags to the premises where the bags are placed on
skids and moved into the coin room entrance on
electric lifts by existing unit employees The coin
room employees are responsible for counting the
bags weighing them, stacking them in the coin
room until the coins are wrapped and performing
the necessary paperwork regarding the coins re
ceived and released They also take physical inven
4 In view of our decision herein finding that the Union is not a proper
petitioner in either case we need not address the Employer s recently
filed motion to dismiss or request for Order to Show Cause because of
the purported discontinuance of the coin vault operation at the Colum
bus Ohio facility Assuming arguendo that the facts alleged by the Em
ployer were borne out by the responses to a Notice to Show Cause there
would still remain for resolution the requested clarification of the existing
unit to include the nonguard mechanic Member Dennis agrees with
Member Zimmerman that the Board should have issued a Notice to
Show Cause because the Board is evenly divided the motion falls for
want of a majority As to the merits however Member Dennis agrees
with Chairman Dotson and Member Hunter
5 The guard in the turret has sight of the various entrances except for
the door to the coin room through the use of mirrors
272 NLRB No 125
BRINK S INC 869
tory every week, and every night a paper account
ing of the inventory is made To wrap coins for the
various banks and other clients the coin room em
ployees open the bags, sort the coins if necessary,
and load them into the hoppers of the machines
used for wrapping The wrapped coins are then
boxed and stored in the coin room until dispatched
back to the customers as needed The coins proc
essed by the coin room employees belong to the
banks and other customers The value of coins in
the coin room may exceed $1 million at times For
that reason, access to the coin room is restricted
generally to the coin room employees and supervi
sors The truckdnvers and other represented em
ployees do not perform any work in the coin room
Everyone who enters the coin room, including the
coin room employees and the supervisor, has to
sign in and out on the log kept in the coin room
Occasionally, bank personnel are escorted into the
coin room by supervisors, and periodically some
one from the outside will go in to repair a machine
There is always one coin room person in the room
during the workday to protect the customers
moneys Coin room personnel must ensure that no
one comes in who should not be there
When coin is received, a coin room employee
has to venfiy the amount recorded on the Employ
er's forms and individually sign off that he received
the number of bags for the amount recorded He
must also complete Bank Coin Balance Record"
forms on which he enters the monetary value of
coin brought into the coin room for each particular
bank broken down according to the different types
of coins When coins are i to be shipped, the coin
room employees must get a receipt for the amount
dispatched
When coin room employees are considered for
employment they must fill out an application and
be interviewed They are then given a Reid Test,
which consists of a large number of questions re
quinng a yes" or no answer to determine
whether they are trustworthy In addition, they are
given a supplement form to determine whether
they use drugs If an applicant passes the Reid
Test, he is given a polygraph examination and a
physical examination and is fingerprinted and pho
tographed Coin room employees are bonded and
carry an ID card with their picture The record
discloses that the present coin room employees
were 'qualified by the Employer to fire a pistol
and that such a weapon is now kept in the coin
room They are authorized to use the weapon to
protect the property in the coin room as well as to
protect any persons on the premises
In failing to find the coin room employees
guards, the Regional Director relied in part on his
finding that the responsibility for protecting this
Employer's property lies with a building guard lo
cated in the turret who controls all access to the
Employer s facility The Regional Director fur
ther concluded that coin room employees are "no
more responsible for the protection of property
than any other employee including the office den
cal employee and the mechanic We disagree Our
review of the record persuades us that the coin
room employees possess the indicia of guards as
defined in Section 9(b)(3) of the Act
Initially, we note that, although the turret ivard
controls access to many of the areas within the
premises, he does not have sight of the coin room
door and cannot therefore restrict direct entrance
to the coin room That is the responsibility of the
coin room employees and supervisor Moreover, it
is not only the protection of the Employer's prop
erty which satisfies the guard criteria As stated in
Brinks Inc 226 NLRB 1182, 1183 (1976), "The
Board has long held with court approval, that the
foregoing definition [of guards] applies equally to
persons engaged in protecting property of an em
ployer's customers It is clear that the coin room
employees are responsible for receiving and dis
patching the coins that belong to the Employer s
customers and are processed and stored in the coin
vault The employees must keep accurate account
of the coins received, remaining in inventory, and
released In addition they have the responsibility
to ensure that unauthorized persons do not enter
the coin room They also possess the means if nec
essary, to take action to protect the customers'
property and the safety of others on the premises
The fact that the nonguard employees of the Em
ployer may also take measures to restrict access to
the premises does not nullify the guard type duties
of the coin room employees or of course the un
disputed guard status of many of the represented
employees Accordingly, contrary to the 'Regional
Director we are satisfied on this record that the
coin room employees are guards within the mean
mg of Section 9(b)(3) 6 Inasmuch as the Petitioner
admittedly represents nonguard employees, we
shall dismiss the petition because the Board is pre
eluded under the above mentioned section of the
Act from certifying such a petitioner for a unit of
guards
Alternatively, the Petitioner sought to add the
coin room employees and the mechanic to the ex
isting unit by means of its unit clarification petition,
which the Regional Director dismissed based on
6 Accord Teamsters Local 639 (Dunbar Armored Express) 211 NLRB
687 (1974) See also Teamsters Local 71 (Wells Fargo) 221 NLRB 1240
(1975)
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his direction of the election which we have now
found improper We conclude that reinstatement of
that petition is unwarranted in the circumstances
here, even assuming that the employees involved
could otherwise be added to the existing unit In
our opinion although Section 9(b)(3) literally read,
proscribes only the Board s authority to certify a
labor organization as the representative of a bar
gaining unit of guards if it admits to membership,
as here, employees other than guards, to allow
such a labor organization to clarify a unit of guards
which it represents would assist it in accomplishing
or perfecting that which the statute expressly seeks
to avoid 1 e, the representation of guard employ
ees by a union which admits to membership em
ployees other than guards Although the Board
does not prohibit employers from voluntarily rec
ognizing such labor organizations to represent units
of guard employees or even mixed units, we will
not permit the Board s processes to be utilized in
furtherance of that end Thus today, in University of
Chicago, 272 NLRB 872 we have overruled Bally s
Park Place, 257 NLRB 777 (1981), and Burns Inter
national Detective Agency, 138 NLRB 449 (1962)
Processing the petition in the face of the prohibi
tion in Section 9(b)(3) would, in our view, place an
unduly narrow interpretation on the legislative
intent expressed by that provision Accordingly,
the Regional Director s dismissal of the clarifica
tion petition is affirmed, albeit for the different rea
sons expressed in this decision 7
ORDER
The Decision and Direction of Election in Case
9-RC-14169 is vacated and the petition is dis
missed The Order in Case 9-UC-240 dismissing
the clarification petition is affirmed
MEMBER ZIMMERMAN dissenting
Although I agree with my colleagues that the
coin room employees are guards within the mean
ing of Section 9(b)(3), and would otherwise join
them in dismissing the RC petition here, both be
cause it seeks a mixed guard nonguard unit and be
7 The dissent s reliance on Locomotive Firemen & Enginemen 145
NLRB 1521 (1964) in support of its argument that we should have clan
tied this unit is misplaced That case merely involved a unit which as It
happened had never been certified No statutory prohibition against cer
tification was involved This case on the other hand involves the at
tempted use of the Board s processes by a union which is uncertifiable in
the requested unit
Additionally insofar as the dissent relies on Arizona Public Power Coop
erauve 250 NLRB 1132 (1980) we note that in Wells Fargo Corp 270
NLRB 787 fn 4 (1984) we found It unnecessary to pass on whether a
respondent would have been pnvileged to withdraw recognition within
the contract term We similarly find it unnecessary to pass on that issue
in the instant case We further note that Wells Fargo involved the issue of
the bargaining obligations of an employer under Sec 8(a)(5) of the Act
and is not directly relevant to this Sec 9 proceeding
cause the Petitioner admits nonguards to member
ship, I nonetheless dissent from their action in this
case During the pendency of this case before the
Board the Employer filed a motion to dismiss the
petitions on the ground that on 30 May 1984 it
would permanently close the coin room operation
at issue here and the two coin room employees will
not be offered transfers to other locations The
Board s normal procedure when presented with
such a motion is to issue a Notice to Show Cause
why the motion should not be granted and to give
the parties an adequate time to respond In fact, on
26 June 1984 the Employer filed with the Board a
request for Order to Show Cause My colleagues
however without any explanation have chosen to
ignore both this request and the motion to dismiss
and instead decide issues which would not have to
be reached if the Employer s assertions prove to be
true I would have issued a Notice to Show Cause
in the circumstances here If the Employer actually
did close the coin room on 30 May and terminate
the coin room employees this case has become
moot, insofar as those employees are concerned 1
Since the majority has addressed the merits of
the Regional Director s report, however, and has
misinterpreted the language and intent of Section
9(b)(3) I will set forth my views on the merits of
the UC petition as if these two employees remained
employed in the coin room
The majority s refusal to permit the UC petition
here is based on the erroneous premise that the Act
expressly seeks to avoid the representation of
guards by a union which admits to membership
employees other than guards Section 9(b)(3) bars
the Board from certifying as representative of a
guard unit a union that admits nonguard employees
to membership but nothing in the Act bars a guard
from joining a union that represents other employ
ees at the plant or prohibits that union from simul
taneously representing guard and nonguard em
ployees, so long as the Board s processes are not
invoked to certify that union as the guard s repre
sentative Similarly there is no statutory impedi
ment to the use of Board processes by an uncerti
fiable union where, as here, there will be no Board
certification—either of union or unit—and there is
no question concerning representation involved
' The Petitioner s UC petition also sought to add the nonguard me
charm to the existing guard unit This matter easily could have been re
solved in disposing of the Employer s motion to dismiss Inasmuch as
such a mixed unit obviously would be proscribed by Sec 9(b)(3) Conse
quently there is no substance to my colleagues assertion that even if the
facts alleged in the Employer s motion were true a decision on the
merits would be necessary to resolve the issues concerning the mechanic
In any event my colleagues gratuitous discussion of the merits regarding
the coin room employees demonstrates that the mechanic s status had
nothing to do with their refusal to issue a Notice to Show Cause
BRINK S INC 871
The Petitioner contends that if the Board finds
the coin room employees to be statutory guards
they constitute an accretion to the existing unit of
about 40 guards which the Petitioner already rep
resents pursuant to the Employer s voluntary rec
ognition in 1969 The starting point of the analysis
required here is that a UC proceeding involves the
issue of appropriate unit, not certification of a bar
gaining representative
It is well settled that a UC petition will be enter
tamed by the Board even though the Board never
has passed on the appropriateness of the unit and
no certification exists Here there is no question
that the all guard unit voluntarily recognized by
the Employer in 1969 is an appropriate unit
Adding the two coin room guards to the existing
unit would not result in an inappropriate unit under
Section 9(b)(3) and would not contravene the leg
islative intent underlying that section If, in fact,
the two coin room employees were found to be an
accretion to the unit, the Board s Order in this pro
ceeding simply would state that the existing unit
represented by the Petitioner is clarified to include
those two employees There would be no certifica
tion language in the Board's Order 2 Thus, con
trary to my colleagues suggestion, the statutory
prohibition against certification of the Petitioner
would not be undermined
Further that the existing guard unit is not certi
fled does not preclude a unit clarification The
Board long ago held in Locomotive Firemen & En
gmemen, 145 NLRB 1521 (1964), that it is proper
to determine the unit placement of disputed em
ployees even though the unit at issue is represented
by an uncertified union because the Board as a
major custodian of the national labor policy, should
take all positive action available to eliminate Indus
trial strife and encourage collective bargaining
Those purposes would be best served in the cir
cumstances of this case by deciding whether the
coin room guards are a proper accretion to the ex
isting guards unit through a unit clarification pro
ceeding rather than leaving the disagreement over
the status of the two employees unresolved
Although the situation presented here is novel
the Board s decision in Burns International Detective
Agency 134 NLRB 451 (1961), is instructive
There, the Board held that Section 9(b)(3) s pro
scnption against certification of certain guard units
did not preclude the application of the Board's
contract bar rules to contracts covering all guard
units The Board stated
Section 9(b)(3) of the Act performs two
functions First it precludes the Board from
2 See e g Washington Post Co 254 NLRB 168 222 (1981)
finding any unit appropriate for the purposes
of collective bargaining if that unit contains
both guard and nonguard employees second,
it precludes the Board from certifying a labor
organization as the representative of employ
ees in a guard unit if such labor organization
admits to membership, or is affiliated directly
or indirectly with an organization which
admits to membership, employees other than
guards
The distinction implicit in the language
bears careful note A unit containing both
guard and nonguard employees is inappropri
ate for any purpose Conversely, a unit corn
posed exclusively of guard employees is appro
pnate The only limitation in the later instance
is that the labor organization representing such
employees cannot be certified if in other as
pects of its operation it admits nonguard em
ployes to membership or is affiliated directly
or indirectly with an organization which does
SO
Congress could readily have declared a
guard unit inappropriate if the representative
of that unit admitted nonguards to membership
or was a direct or indirect affiliate of a labor
organization which did so Congress did not so
declare and the preceding statutory language
covering the mixed guard unit compels the
conclusion that this omission in the latter situa
tion was deliberate It follows, in our view,
that a contract unit comprised exclusively of
guards is not invalidated merely because the
representative of that unit admits to member
ship nonguard employees
The same reasoning is applicable here inasmuch as
a unit clarification is not contingent on a prior cer
tification, and the all guard unit is unquestionably
appropriate
The Board s decision in Bally s Park Place 257
NLRB 777 (1981), which my colleagues have over
ruled today but to which I would adhere, also sup
ports processing the UC petition in this case 3 In
Bally s the Board revived its policy—first enunci
ated in 1962—that permits a union that is unquali
tied for certification under Section 9(b)(3) never
theless to appear on the ballot If the unqualified
union wins, only the arithmetical results are certi
fled to indicate majority support The Board decid
3 See my dissent issued today m University of Chicago 272 NLRB at
876 In that case the majority q lso overruled Burns International Dctecttve
Agency 138 NLRB 449 (1962) in which the Board held that the statuto
ry proscription in Section 9(b)(3) against certifying affiliated labor orgarn
zations as representing guard units does not prevent putting such labor
organizations on the ballot and certifying the arithmetical results when
such an election is won by such organization
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed in Bally s that permitting a nonqualified interve
nor to appear on the ballot would contribute to
stable labor relations by allowing employees to
express fully their wishes as to a collective bargain
ing agent Similarly, proceeding with the unit
clarification here would ensure the continued sta
Way of the parties' 15 year bargaining relationship
as to the all guard unit, which stability is threat
ened by the dispute over the status of the coin
room employees Under neither Bally 'S nor the unit
clarification situation presented here would an un
qualified union be permitted to invoke Board proc
esses to raise a question concerning representation 4
Support for processing the UC petition here also
can be found in Arizona Electric Power Cooperative
250 NLRB 1132 (1980) There, the Board found
that an employer unlawfully refused to bargain,
even though the unit included a statutory supervi
sor The Board held that the employer had volun
teered to include the supervisor in the unit and
therefore the employer was bound to adhere to the
contract during its term In its decision the Board
stated that it may appropriately issue a bargaining
order covering a unit which it could not have ini
tially certified under the Act, but concerning
which the parties have knowingly and voluntarily
bargained
My colleagues, however, have gone beyond the
narrow issue presented here—the clarification of an
already recognized appropriate unit—to hold that it
4 Bally s only allows an uncertifiable union to appear on the ballot as
an intervenor not as a petitioner Moreover here the Employer already
has voluntarily recognized the Petitioner as bargaining representative of
its guards and no challenge Is being raised to that representative status
would be improper to utilize Board processes in
furtherance of the representation of guards by a
union unqualified for certification While acknowl
edging that employers can voluntarily recognize
such labor organizations to represent guard units,
they have unequivocally decided that the Board's
processes will be foreclosed to a mixed union in
any situation concerning the representation of
guards And this will be so even where as here
there is no question concerning representation
raised, the employer is not attacking the parties
longstanding collective bargaining relationship,5
the unit is appropriate under Board law and what
is sought is the accretion of guards to an existing
guard unit
Congress has not barred mixed unions from rep
resenting all guard units Instead, as a plain reading
of Section 9(b)(3) and its legislative history makes
evident, the Board may find appropriate a unit
composed exclusively of guards, even if it is repre
sented or sought to be represented by a mixed
union 6 A unit clarification proceeding is con
cerned only with the question of appropriate unit,
not certification of a representative The Act s pur
pose of fostering stability in collective bargaining
relationships is ill served by the majority s refusal
to process a UC petition in these circumstances
5 Cf Amoco Oil Co 221 NLRB 1104 (1975)
6 See my dissent in Wells Fargo Corp 270 NLRB 787 (1984) where
my colleagues found that an employer did not violate Sec 8(a)(5) by
withdrawing its voluntary recognition from a mixed guard union for a
guards unit during a hiatus between contracts Wells Fargo however
specifically left open the question whether the employer would have
been privileged to withdraw recognition within the contract term The
unit clarification issue here arises during the contract term