Defender Security & Investigation Services. Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 407 (N.L.R.B. 1974)

DEFENDER SECURITY & INVESTIGATION SERVICES, INC 407
Defender Security & Investigation Services, Inc.' and
International Union of Security Guards and Special
Police, Petitioner . Case 2-RC-16188
June 28, 1974
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Robert G. Landes of
the National Labor Relations Board. Following the
close of the hearing, the Regional Director for Region
2 transferred this case to the Board for decision.
Thereafter, the Employer filed a brief with the Board.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error They are hereby affirmed.2
Upon the entire record in this proceeding, the
Board finds:
1. The parties stipulated that the Employer is a
New York corporation having its principal place of
business in New York City where it is engaged in the
business of providing guards and security and investi-
gative services. The parties also stipulated that for the
fiscal year ending February 28, 1973, the Employer
received gross revenues from such services in excess
of $500,000, of which in excess of $50,000 was re-
ceived from employers who are themselves directly
engaged in interstate commerce. Accordingly, we find
that the Employer is engaged in commerce within the
meaning of the Act, and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer. Although the
Employer stipulated that Petitioner is a labor organi-
zation within the meaning of the Act, it argues that
Petitioner should nevertheless be disqualified from
seeking an election under Section 9(c) of the Act on
the ground that it engages in invidious discrimination
on the basis of sex regarding those individuals whom
it admits to membership. We are of the opinion that
it would not effectuate the policies of the Act to per-
mit consideration of litigation of such issues at the
preelection stage of the proceeding.'
Employer's name appears as amended at the hearing
2 The request of the Intervenor , Local 357, United Security Guards of
America, to withdraw its intervention was granted by the Hearing Officer
3 The Board has held that such inquiries are outside the scope of a preelec-
tion hearing Bekins Moving & Storage Co of Florida, Inc, 211 NLRB No
7 As noted therein , Chairman Miller and Member Jenkins would consider
objections to a labor organization's capacity to fairly represent employees
only upon the postelection filing of properly substantiated objections to the
iasuance of a certification Member Kennedy concurs substantially with that
post election procedure but would limit consideration to the issue of alleged
discnmination on the basis of "race, alienage , or national origin " Members
Fanning and Penello reject the contentions of the Employer herein for the
3. A question affecting commerce exists concern-
ing 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.
4. Petitioner seeks to represent a unit composed of
all "security guards" employed by the Employer at its
292 Madison Avenue office in New York City. The
parties disagree only as to the proper unit placement
of two on-premises undercover investigators. The
Employer contends that they should be included in
view of their responsibilities for the protection of
clients' property. Petitioner contends that the differ-
ent methods utilized by the uniformed guards and the
on-premises undercover investigators in executing
their responsibilities justifies excluding the latter em-
ployees from a unit composed principally of the for-
mer.
As noted above, the Employer is engaged in provid-
ing uniformed guards and security and investigative
services to its clients. The on-premises undercover
investigators spend virtually all of their time on the
clients' premises. They are frequently retained by
clients experiencing substantial property damage or
thefts who are interested in detecting which customers
and/or employees are responsible. For example, retail
clothing or department stores may assign undercover
investigators to their fitting rooms in order to identify
customers attempting to walk out of the stores wear-
ing unpurchased merchandise under their own cloth-
ing. Similarly, manufacturing and construction
concerns assign such investigators to assembly lines
or construction crews in an effort to isolate those
employees who are stealing or sabotaging equipment.
In view of -the nature of their assignments, on-prem-
ises undercover investigators do not wear uniforms
nor are they closely supervised by their superiors.
They are subject, however, to the same supervisory
hierarchy as the uniformed guards. In terms of com-
pensation, uniformed guards receive a fixed hourly
wage. The undercover investigators, on the other
hand, receive the appropriate rate for whatever under-
cover job they may be performing on a particular
assignment, plus an undetermined portion of the fee
charged by the Employer to its client for the services
rendered.
Whatever minor differences may exist between the
uniformed guards and the on-premises undercover
investigators in terms of attire and method of com-
pensation do not, in our opinion, destroy the commu-
nity of interest which they otherwise share by virtue
of their common job function, namely, the protection
reasons stated in their dissenting opinion in Bekins They would not consider
allegations of discriminatory practices by labor organizations in a precertifi-
cation proceeding but would "leave such questions as they may raise, with
respect to the Petitioner 's willingness or capacity fairly to represent all employ-
ees in the bargaining unit, to be resolved in other proceedings under the Act "
212 NLRB No. 23
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and security of the clients ' property . Accordingly, we
find that the on-premises undercover investigators are
properly includable in the unit ." Cf. Allied Stores of
New York, Inc d/b/a Stern 's, Paramus, 150 NLRB
799, fn. 48.
For the reasons stated above , we find that the fol-
lowing unit is appropriate for purposes of collective
bargaining within the meaning of Section 9 (b) of the
Act:
The parties stipulated that A Torres and J Skinner, whose supervisory
status is in question, should be permitted to vote subject to challenge
All security guards employed within the State of
New York by the Employer, whose principal of-
fice is 292 Madison Avenue, New York City,
New York, including on-premises undercover in-
vestigators, but excluding all other employees,
office clerical employees, supervisors as defined
in the Act, and employees engaged in off-prem-
ises undercover investigations.
[Direction of Election and Excelsior footnote omit-
ted from publication.]