Champlain Security Services

National Labor Relations Board - Board Decisions

Jul 27, 1979

243 N.L.R.B. 755 (N.L.R.B. 1979)

CHAMPLAIN SCURIVY SERVICES
Champlain Security Services, Inc.' and Federation of
Special Police and Law Enforcement Officers, Peti-
tioner. Case 2 RC 18112
July 27. 1979
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS PII O
AND TRUESDAI
On December 7, 1978, the Regional Director for
Region 2 issued a Decision and Order in the above-
entitled proceeding, in which she declined to assert
jurisdiction over the Employer because she found
that the services performed by the Employer were in-
timately connected with the operations of the United
States Coast Guard, an exempt entity under the Act.
and accordingly that the Employer shared that ex-
emption. She, therefore, dismissed the petition herein.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Petitioner filed a
timely request for review of the Regional Director's
decision on the ground that a substantial question of
law and policy was raised because of a departure
from officially reported Board precedent.
By telegraphic order dated February 12, 1979, the
Board granted the Petitioner's request for review.
Thereafter, the Employer filed a brief on review.
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 considered the entire record in this
case with respect to the issues under review, including
the briefs, and finds, contrary to the Regional Direc-
tor, that a question affecting commerce exists con-
cerning the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act, and that it will effec-
tuate the purposes of the Act to assert jurisdiction
herein.
The Employer provides security services for the
United States Coast Guard at its installation on Gov-
ernor's Island at the southern tip of Manhattan, New
York, as well as the Coast Guard's Manhattan Ferry
Terminal, and its Marine Inspection Office located on
South Street, New York. Governor's Island is under
exclusive Federal jurisdiction, and has a full-time
resident population of 4,000, of whom all are Coast
Guard personnel or their dependents, and a daytime
population of 6,000 persons, including civilians. The
i The name of the Employer appears as amended at the hearing.
island is accessible by helicopter and by the Manhat-
tan Ferry mentioned above, which is operated by the
Coast Guard and open to the general public.
On April I. 1978, the Employer was awarded a
contract by the Coast Guard to provide security ser-
vices at its installation on Governor's Island. Those
services previously had been performed by Coast
Guard personnel. In implementing this contract. the
Employer employs a crew of about 43 employees, in-
cluding I captain, 2 lieutenants, 2 sergeants, and 38
patrolmen.2 The contract requires the Employer to
establish a training program, and defines the duties of
the employees in the requested unit. It also requires
the Employer to abide by the Coast Guard's groom-
ing code and established requirements tbr the em-
ployees' health, height, weight, and vision. Moreover,
under Coast Guard regulations, all of the Employer's
employees are required to be U.S. citizens, to be flu-
ent in English. and to have passed a security clear-
ance. The employees' equipment is supplied, with a
few exceptions, by the Coast Guard.
The contract requires that the Employer provide
for an onsite supervisor with the rank of captain dur-
ing the day, and a supervisor with the rank of lieuten-
ant in the evening. The captain, or in his absence, the
lieutenant, has the complete authority to act for the
Employer with respect to the security services on
Governor's Island on a day-to-day basis. He reports
directly to the uniformed services manager at the Em-
ployer's headquarters in Middlebury, Vermont, and
also acts as direct liaison between the Employer and
the Coast Guard security forces. In addition, the con-
tract provides for a security officer, who is a commis-
sioned officer of the Coast Guard, and who is respon-
sible for the evaluation of the technical performance
of the contract. The contract further provides for an
officer of the dav and a watch commander, who are
military personnel providing a direct liaison between
the onsite supervisor of the Employer and the Coast
Guard, and who are responsible for monitoring the
Employer's performance under the contract.
The Employer's onsite supervisor receives a request
from Coast Guard officers to deploy patrolmen to
help when medical or security problems arise. Fi-
nally, the contract provides that employees must be
removed from duty in certain circumstances; i.e., ne-
glect of duty or disorderly conduct. On two occasions,
employees were removed from duty after Coast
Guard personnel expressed dissatisfaction with their
work.
While the Coast Guard thus has authority to re-
quest removal of employees, the Employer hires, dis-
2 The Petitioner seeks to represent all of these employees. except the cap-
tain and lieutenants, who, the parties stipulated. are supervisors within the
meaning of the Act
243 NLRB No. 120
755
I)[:( ISI()NS OF NAIIONAI. I.ABO()R RLATIONS BOARI)
ciplines, and discharges its employees and provides
their immediate supervision. The Employer does the
day-to-day job scheduling: sets salaries within the
minimum wage provisions established by Department
of Labor regulations: and has the authority to autho-
rize overtime and allow time off. The Coast Guard
has no control over work assignments. except that it
can direct a change in patrol patterns and occasion-
ally in the assignment of a patrolman.
The employees whom the Petitioner seeks to repre-
sent have the same powers of civilian arrest as any
private citizen. Once the civilian is detained, he or she
is turned over to military personnel who, in return,
notify the U.S. marshal and U.S. magistrate. With
respect to military personnel, the Employer's employ-
ees have the power to detain and then to turn the
offenders over to the military. There are detention
facilities located at the security office.
Based on the above facts, the Regional Director
concluded that the Employer was exempt from Board
jurisdiction because it shared the Coast Guard's sta-
tus as an exempt employer as defined in Section 2(2)
of the Act. In so finding, however, the Regional Di-
rector relied on and applied the "intimate connec-
tion" test, under which the Board would not assert
jurisdiction if the services performed by the employer
were intimately connected with the functions of the
exempt employer, or if the services performed were a
municipal function. The Regional Director also noted
that the Board would not assert jurisdiction if the
exempt entity so controls the labor relations of the
employees at issue so as to make meaningful collec-
tive bargaining impossible. The Regional Director
did not apply this test, however, because she found
that the Board did not have jurisdiction under the
first test.
In National Transportation Service, Inc.,3 the Board,
with Members Penello and Murphy dissenting. over-
ruled the intimate connection test as stated above and
concluded that "the appropriate standard for deter-
mining whether to assert jurisdiction" was "whether
the nonexempt exployer retains sufficient control over
its employees' terms and conditions of employment so
as to be capable of effective bargaining with the em-
ployees' representative."4
In its brief, the Employer argues that it is also
exempt under this standard because the Coast Guard
contract specified many of the working conditions of
the Employer's employees, including their job duties
and training program. The Coast Guard contract es-
tablished physical standards for applicants, as well as
minimum wage and insurance requirements for the
3 240 NLRB 565 (1979).
41d
Employer's employees. The Coast Guard retained the
right to request that the Employer remove any em-
ployee. iting Facilitie. l!anlagcnlent ('orporation,5
the Employer also relies on the geographical location
of its operation, i.e.. on an island under exclusive
lederal jurisdiction, as another reason for not assert-
ing jurisdiction.
We do not agree with these arguments raised by
the Employer. Rather, we find that, as in Ntionall
ralnsportation Services, supra, the Employer retains
"sufficient control over its employees' terms and con-
ditions of employment so as to be capable of effective
bargaining with the employees' representative." In
the instant case, the Employer alone is responsible for
the hiring, firing, promotion, demotion, and transfer
of the security patrolmen. It schedules the employees
and directs them in the exercise of their daily respon-
sibilities. It is true that the contract between the Coast
Guard and the Employer establishes certain require-
ments for new hires: defines the patrolmen's duties;
establishes the size of the work fbrce and their geo-
graphic placement, as well as requiring, pursuant to
Department of Labor regulations, that the Employer
pay a minimum wage. These contractual require-
ments, however, act only as outer boundaries within
which the Employer is free to bargain with the Union
over substantive terms and conditions of employ-
ment. Thus, nothing in the contract prohibits the Em-
ployer from bargaining with respect to maximum
wages: seniority systems to govern wage increases,
promotions, shift assignments, or overtime: job bid-
ding procedures a system of progressive discipline:
or grievance procedures, including arbitration.
In this respect, this case is extremely similar to The
Singer Comnpanv, Educatlion Division, Career S,.sterms,
Detroit Joh Corps Center.6 where the Board, with
Members Penello and Murphy dissenting, held that it
had jurisdiction over an employer who operated a
residential Job Corps Center in Detroit, Michigan,
over a 2-year contract with the Department of Labor
(DOL). As here, the governmental entity had estab-
lished certain contractual requirements which acted
as outer boundaries on the employer's labor relations
policies. Those boundaries were more restrictive,
however, than those found in this case. For example,
the DOL's contract established minimum and maxi-
mum wage ranges and gave the DOL control over the
selection of key personnel. Here, the Coast Guard's
contract merely established a minimum wage, and it
does not restrict the Employer, in any way, in making
the final hiring decision. Nevertheless, the Board
found that "the contract [was] broad enough to per-
5202 NLRB 1144 (1973).
6 240 NL.RB 965 (1979).
756
('HAMPI AIN SE('tTRITY SERVI('tES
mit good-faith bargaining over substantial terms and
conditions of employment."7
Finally. with respect to the fact that the Employer's
operation is located on a federally owned island, we
find that this factor alone does not warrant our refus-
ing to assert jurisdiction. Facilities Management Cor-
poration, supra. relied on by the Emplover, is distin-
guishable, since there we refused to assert jurisdiction
over an operation which was located on Wake Island.
an island which is 2,300 miles from Honolulu. Ha-
waii. We did not assert jurisdiction there because of
the island's remoteness and because it had no perma-
nent residents. Governor's Island, however. is imme-
diately adjacent and is accessible to Manhattan by a
short ferry ride which is open to the public. More-
7 Moreover. it is not significant that here we are dealing with a militar.
rather than a civilian, operation. In ' I..R R v. E. C A4tkini & Companv. 331
U.S. 398 (1947), the United States Supreme Court upheld the Board's asser-
tion ofrjurisdiction over an employer operating a defense plant. where the
employees sought - plant guards were, under Federal regulations. civilian
auxiliaries to the military police. The Court recognized that a private em-
ployer would not necessarily be exempted from the Board's Jurisdiction sole-
ly because of its relationship to the Army as a militarized operatilon
The militarization may he a qualified one: the employer ma, retain
power to fix wages, hours and other conditions of work the need and
desirability for collective action on the part of the guards ma' exist as to
the matters over which the employer retains control: and a recognition
of the statutory rights of the guards may be entirely consistent . ith their
military obligations. If that is the case. the guards remain employees for
purposes of the Act. 1331 U.S. at 405.]
And see BDM Senrices Company, 218 NLRB 1191 (1975), where the Board
asserted jurisdiction over an employer whose employees worked on a United
States Army base, providing scientific and technical advice to the ArmS and
other governmental agencies.
over, it has a sizable population. which. iduring the
daNtime. includes many civilians. Indeed. the m-
plovyer's operation on Governor's Island t is accessi-
ble as many employer perations located in rural
areas of the I nited Staltes.
Accordingly. we find that it will eflectuale the pur-
poses of' the Act to assert jurisdiction over the Em-
ployer herein.
In accordance with the stipulations of' the parties
and the record as a whole. we find the fOllowing unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9thb) of the Act:
All full-time and regular part-time uniformied se-
curity police officers employed by the E.mploer
at the United States Coast Guard facilities lo-
cated on Governor's Island, at the ['.S. ('oast
Guard Manhattan Ferr 3 Terminal. and at the
U.S. Coast Guard Marine Inspeci tation Sttn on
South Street. New York, New York. but exclud-
ing all of the clerical emplo yees: the captain and
lieutenants and other supervisors its defined in
the Act.
[Direction of Election and Evcsetsior f)ootnote
omitted from publication.
MtMn-R PNlit.(). dissenting:
For the reasons set forth in m! dissenting opinions
in 'Naiotal Transportation, supra, and The Singer
CompanrY. supra,. I would not assert jurisdiction over
the Employer. I would, therefore, dismiss the petition
in this proceeding.
757