Burns Electronic Security Services

National Labor Relations Board - Board Decisions

Jun 23, 1981

256 N.L.R.B. 860 (N.L.R.B. 1981)

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burns Electronic Security Services, Inc. and The
Connecticut Union of Telephone Workers, Inc.
Cases 1-CA-13904, 1-CA-13943, and -RC-
14565
June 23, 1981
SUPPLEMENTAL DECISION AND
ORDER
On September 28, 1979, the National Labor Re-
lations Board issued a Decision and Order in the
above-entitled proceeding.' Therein, the Board, in
agreement with the Administrative Law Judge,
found that Respondent had violated Section 8(a)(5)
and (1) of the National Labor Relations Act by re-
fusing to bargain with the Union and by unilateral-
ly changing the working conditions of its employ-
ees without prior bargaining with the Union. The
Board also adopted the Administrative Law
Judge's finding that Respondent violated Section
8(a)(l) by interrogating its employees as to the
identity of employees who may have filed unfair
labor practice charges against Respondent.
Thereafter, Respondent filed a petition to review
the Board's Order in the United States Court of
Appeals for the Second Circuit, and the Board
filed a cross-petition seeking enforcement of its
Order. On June 18, 1980, the court issued its opin-
ion 2 denying enforcement of the Board's Order
with respect to the Board's finding that Respond-
ent independently violated Section 8(a)(l) by inter-
rogating its employees regarding the filing of the
unfair labor practices charge. The court also found
that the record developed at the original represen-
tation hearing was deficient in light of the "new
and relevant information introduced at the unfair
labor practice hearing" and that the original certifi-
cation was based on an inadequate record. 3 Under
ordinary circumstances, the court asserted, it
would be proper for the Board to apply the princi-
ple of administrative res judicata and not relitigate
the unit certification issue within the context of a
subsequent unfair labor practice hearing; 4 however,
the court concluded "that in the unusual circum-
stances of this case the Board should have recon-
sidered the unit certification in light of the entire
record [both the record developed at the original
representation hearing and that developed at the
unfair labor practices hearing]. Therefore, the court
i 245 NLRB 142. For purposes of this Decision and administrative
consistency, we hereby consolidate Case 1IRC-14565 with the instant
proceeding. The Decision and Direction of Election in that case was
issued by the Regional Director for Region I. We denied Respondent's
petition for review and request for reconsideration of that denial
2 624 F.2d 403
3 E.g., the Hearing Officer failed to obtain a complete job description
for operator/runners.
4 See, e.g., Pittsburgh Plate Glass . N.L.R.B., 313 U.S. 146 (1941)
256 NLRB No. 139
remanded the case to the Board for reconsideration
on the entire record "of the issue of whether the
Operator/Runners in the Bridgeport, Hamden and
New Haven unit are guards within the meaning of
Section 9(b)(3) of the Act."5 The court added,
however, that "In so doing, we express no opinion
on the merits of this question; nor do we preclude
the Board, in its discretion, from reopening the
record for presentation of further evidence."
Thereafter, the Board accepted the court's
remand and invited the parties to submit statements
of position with respect to the issues raised by the
remand. Respondent filed such a statement. The
General Counsel and the Charging Party did not
file statements but relied on their earlier briefs in
the matter. The parties agreed that, as the record
incorporating evidence developed both at the rep-
resentation and unfair labor practices hearings was
sufficient, there was no need for the Board to
reopen the record for further evidence at an addi-
tional hearing.
The Board has reviewed the entire record in-
cluding Respondent's statement of position and the
court's decision, and has accepted, as the rule of
law governing disposition of this case, the court's
conclusion that, in the "unusual circumstances of
this case," the Board was in error in its original de-
cision in applying the rule against relitigation of
representation issues in an unfair labor practice
proceeding. 6 Therefore, the sole issue for determi-
nation now is whether on the entire record, includ-
ing both the representation and unfair labor prac-
tices hearings, Respondent's Operator/runners lo-
cated at the New Haven Central Station and its
satellite station at Bridgeport, in Connecticut, are
guards within the meaning of Section 9(b)(3) of the
Act. For the reasons set out below, we find that
they are, and that the complaints and underlying
I The parties stipulated that the employees at Respondent's Hamden
facility were not guards. These employees install and maintain alarms.
6 Another factor which the court asserts led it to conclude that recon-
sideration was warranted was the Board's failure to address the "apparent
inconsistency between the classification of the Operator/runners in the
present case and in the three other Board decisions involving the Compa-
ny." wherein the Board found to be guards employees performing alleg-
edly the same duties as the operator/runners herein. See Burns Electronic
Security Services, Inc. and International Union, United Plant Guard Work-
er of America, Case I RC 13752 (May 29, 1975, not reported in volume
of Board Decisions); Burns Electronic Security Services, Inc. and Local 376,
United Automobile, Aerospace and Agricultural Implement Workers
(A. W.), Case -RC-13413 (September 25. 1974. not reported in volume
of Board Decisions); Burns Electronic Security Services. Inc. and Commu-
rnication Workers of America, AFL-CIO. Case 3-RC-5295 (January 19.
1975, not reported in solume of Board Decisions) In this regard the
court noted that "although the Regional Director purported to distin-
guish [the above and other cases] in ruling that Operator/Runners were
not guards, these distinctions are not necessarily persuasive and to some
exlenl appear to conflict with findings made by the [Administrative Law
Judge] in the course of the unfair labor practice proceeding."
BURNS ELECTRONIC SECURITY SERVICES 861
petitions for an election should therefore be dis-
missed.
Respondent, Burns Electronic Security Services,
Inc. (BESSI), a wholly owned subsidiary of Burns
International Security Services, Inc., is a Delaware
corporation with approximately 22 central stations
and satellites throughout the United States, includ-
ing the New Haven Central Station, and the satel-
lite station at Bridgeport.
Respondent installs, maintains, and monitors
electronic sensory alarms, including burglar alarms,
fire alarms, holdup alarms, waterflow alarms for
sprinkler systems, and industrial process alarms.
Signals from these alarms go either to Respond-
ent's New Haven or Bridgeport facility. The New
Haven Central Station operates continuously, 7
days a week, 24 hours a day, with a complement of
18-bonded operator/runners. The Bridgeport satel-
lite station is equipped with monitoring devices
that are connected to and operated by the New
Haven Central Station. The Bridgeport station is in
operation from 4:30 p.m. until 8 a.m., Monday
through Friday and around the clock on Saturday
and Sunday. There are five bonded part-time
operators/runners at the Bridgeport satellite who
perform primarily as runners but do not operate
the electronic system, except in the rare event that
the line between New Haven and Bridgeport fails.
Although the primary function of the
operator/runner is to monitor the opening and
closing of customers' premises, 60 percent of Re-
spondent's customers' contracts require dispatching
an operator/runner to a customer's premises in re-
sponse to an alarm; and 25 percent of the alarm re-
sponses received by Respondent (about 5 calls a
day) involve such a dispatch. These calls ordinarily
occur outside the customer's normal open periods.
BESSI issued policies and procedures applicable
to all its stations which are to be followed at the
individual station exactly as written. In addition,
the New Haven central station and its Bridgeport
satellite are accredited by the Underwriters Labo-
ratories, Inc. (UL); consequently, operator/runners
are subject to the job descriptions and standards
found in the UL service manual "Standards for
Safety-Central Station Burglar Alarm Units and
Systems." ?7 Both BESSI and UL standards require
operator/runners (referred to in the manual as
"guards") to be equipped with a pistol or night
stick, flashlight, police whistle, and identification
I Subscribers to UIL accredited protection services receive substantial
discounts on insurance premiums a feature which is highly promoted h
the BESSI stations i their advertising and which gives ESSI Iaccred-
ited stations a competitive edge in attracting customers. Thus, BESS[
accredited stations are careful not to jeopardile their accreditation hby
being "gigged" for their operator/runners' neglect oif UlI. stanidards,
during the surprise inspections conducted periodically by l
badge, and to wear a uniform and headgear which
readily indentifies their company affiliation. When
dispatched in response to an alarm, the manual
states that unless the central station receives an ar-
rival signal from an operator/runner at the custom-
er's premises within 15 minutes from the receipt of
the burglar alarm an additional operator/runner
will be dispatched.8 After the operator/runner ar-
rives at the customer's premises, he is required by
the BESSI procedure manual to "proceed to look
for any signs of forcible entry or evidence of a
burglarious attack. If police are at the scene, coop-
erate with them in an exterior examination. Fol-
lowing an exterior examination, enter the premises
if keys are available and if no abnormal conditions
exist."9 In addition, a UL standard requires that
during the search the operator/runner "shall obtain
satisfactory evidence of the identity [of those]
found on the premises."1 0 After the interior search
has been completed, the operator/runner is re-
quired to do all that is necessary to secure the
premises and restore the protective system; and
until adequate protection can be restored, the UL
requires that an operator/runner patrol the sub-
scriber's premises hourly.
We conclude from the foregoing that
operator/runners are guards within the meaning of
Section 9(b)(3) of the Act." Although most of
their time is spent in the office monitoring alarms,
when dispatched to a customer's premises in re-
sponse to an alarm, an essential part of the
operator/runner's job is to do whatever is neces-
sary to insure that the premises are continuously
protected. 12 As the Board said in Waltherboro Man-
" According to BESSI pohlic, operator/runners are required to make
exterior searches and to enter the employer's premises to ascertait
whether there has been an entry regardless (of whether the police hax
arrived However, the practice appears to he that cach operator/runner
exercises his ouin discretion as to whether he enters with or ihout the
police.
I With respect to responding to a holdup alarm, the police are notified
immediately; however, the operator/runner is not dispatched to the
premises until ait least 15 minutes has elapsed to present the
operator/runner from gelling involved in the crime
"' The HESS procedure manual ads ises operator/runners that
"[h]urglars or intruders aire to placed in the custlsod of the police If the
BESSI enmpli ee observes a crime heiig cmmnitted, the offender shall be
detained and the police notified "
Ih See 4rAmerican District I'elcgraph Co of Cleveland, I60 N RB 1130,
1136- 37 (1hh6 6 There is uncontradicted testimony that o(1 occasion
operatr/ruliners have apprehended intruders on their on .'We also note
that the standard contract Respondent has with its customers proxides
for false arrest insurance
l. It is clear from our reie (I of ilie ESSI in sruction manual of 1969
and the UlL standards manual that Resp onldeltl's operalor/runners are re-
quired Io assist the police in apprehending itruders and to oblta in sa lis-
factors cvidctice f the ideiitLty of those found on1 the prenmise, 'lhus.
unlihke the RcgliOl l l)ircClor in his l)ecl,isn and l)irectioi of Election,
e, finl th tht the operator /runnler hereinl rleel the "potential confronlta-
tion"' test set fort h i hl/ l Ar l1arm Serolcei. 4 I)ivsiln of BuHa er In-
dtwo-i. In, , 51 1: 2d 17 (3d Cir 197'), clnfg 218 NlRB htS ( 11
7
5, and
thail their ditieics are the snme as those of their counterparts In Buffalo.
( ;tirnued
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ufacturing Corp., 106 NLRB 1383, 1384-85 (1953),
"it is the nature of the duties of guards and not the
percentage of time spent in such duties which is
and should be controlling."
In the underlying representation proceeding and
our original decision with respect to the unfair
labor practice proceeding which followed, the unit
found appropriate was:
All employees of the Employer employed at
its New Haven, Bridgeport, and Hamden,
Connecticut facilities, including dispatch oper-
ators, operator runners, installers, service sales-
men, managerial employees, and supervisors as
defined in the Act.
Section 9(b)(3) of the Act prohibits the Board
from:
* . . decid[ing] that any unit is appropriate
. . .if it includes, together with other employ-
ees, any individual employed as a guard to en-
force 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 organization shall be
certified as the representative of employees in
a bargaining unit of guards if such organiza-
tion admits to membership, or is affiliated di-
rectly or indirectly with an organization which
New York, and Hartford Connecticut, who were found by the Board to
be guards. See fn. 6, supra.
admits to membership, employees other than
guards.
Thus, having found that operator/runners are
guards within the meaning of Section 9(b)(3), we
find that the unit certified in Case -RC-14565 is
not and cannot be appropriate since as constituted
it includes both guard and nonguard employees.
We find, therefore, that the petition in that case
raised no real question concerning representation
and thus Respondent was not obligated to bargain
with the Union with respect to any of the unit em-
ployees, including the operator/runners. Accord-
ingly, its refusal to bargain with the Union con-
cerning the unit employees, and any unilateral
changes it may have made with regard to the terms
and conditions of employment of the
operator/runners did not violate the Act. We shall
therefore dismiss the complaints and the underlying
petition. 13
ORDER
It is hereby ordered that the Regional Director's
Decision and Direction of Election in Case -RC-
14565 be vacated and the certification revoked, and
that the petition therein be, and it hereby is, dis-
missed.
IT IS HEREBY FURTHER ORDERED that the com-
plaints issued in Case -RC-13904 and I-CA-
13943 be, and they hereby are, dismissed.
I' The dismissal of the petition should not be construed to prohibit the
Union from filing a petition fr an election concerning the nonguard em-
ployees at Respondent's New Haven. Bridgeport, and Hamden facilities.
provided it is supported b a sufficient showing of interest.