DTG Operations, Inc

National Labor Relations Board - Board Decisions

Oct 26, 2016

364 NLRB No. 136 (N.L.R.B. 2016)

364 NLRB No. 136
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
DTG Operations, Inc. and Communications Workers
of America, AFL–CIO, CLC, Local 9003, Peti-
toner. Case 31–RC–175375
October 26, 2016
ORDER GRANTING REVIEW
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The Petitioner’s Request for Review of the Regional
Director’s Decision and Order is granted as it raises sub-
stantial issues warranting review.
Dated, Washington, D.C. October 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
The Regional Director dismissed the petition in this
case, which seeks to add the Employer’s Exit Gate
Agents to an existing unit of other employees who per-
form work associated with the Employer’s business, in-
volving the rental of cars at the Employer’s Los Angeles
Airport facility. In my view, the Regional Director had
no choice but to dismiss the representation petition be-
cause the petition sought to produce a mixed unit that
would combine conventional employees with guards.
Permitting the petition to proceed would be directly con-
trary to Section 9(b)(3) of the Act. Therefore, I believe
the Petitioner’s Request for Review does not raise any
substantial issues, and I respectfully dissent from the
Board’s decision to grant review.
Section 9(c)(3) states the following:
The Board shall decide in each case whether, in order
to assure to employees the fullest freedom in exercising
the rights guaranteed by this Act, the unit appropriate
for the purposes of collective bargaining shall be the
employer unit, craft unit, plant unit, or subdivision
thereof: Provided, That the Board shall not . . . decide
that any unit is appropriate for such purposes if it in-
cludes, 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. . . .1
In this case, the primary function of the Exit Gate Agents is
“to protect property of the employer” (id.)—specifically,
Exit Gate Agents protect the most important property
owned by the Employer, which consists of rental cars. Con-
sequently, the Exit Gate Agent is charged with the responsi-
bility of preventing customers, employees and other people
from removing the Employer’s rental cars from the premis-
es without authorization.
My colleagues apparently believe that “substantial is-
sues” exist regarding whether Exit Gate Agents satisfy
the definition of a “guard” because, as argued by the Pe-
titioner, (i) the Exit Gate Agents do not staff the separate
entrance that is most often used by employees (i.e., the
Exit Gate Agents staff the entrances used by customers
who leave the premises with rental cars that have been
leased, although employees also sometimes use the same
customer entrances), (ii) to the extent that Exit Gate
Agents fail to staff the separate entrances most often
used by employees, the Petitioner argues this means Exit
Gate Agents are not protecting property “against em-
ployees” within the meaning of Sec. 9(b)(3), and (iii)
Petitioner argues that many tasks done by Exit Gate
Agents, such as checking relevant documents and pre-
venting customers from taking purchases without paying,
resemble the work done by nonguard employees like
bank tellers, pharmacy technicians, auto parts counter
employees, and meat cutters in a traditional butcher shop
who try to prevent customers from leaving until pur-
chased steaks are cut, wrapped, priced and paid for.
Regardless of whether Exit Gate Agents “protect” the
Employer’s property against employees, customers or
other individuals, the Exit Gate Agents do what Section
9(b)(3) describes, which is “to enforce against employees
and other persons rules to protect property of the em-
ployer.”2 In this respect, the Exit Gate Agents constitute
“guards” as defined in Section 9(b)(3), and Congress
decided that the Board cannot include them in a mixed
unit consisting of other employees. See Madison Square
Garden, 333 NLRB 643 (2001); Allen Services Compa-
ny, Inc., 314 NLRB 1060 (1994); Pinkerton’s National
Detective Agency, 111 NLRB 504 (1955). Thus, the Re-
gional Director’s reasoning in this case is compelled by

1 Sec. 9(b)(3) (emphasis added). Section 9(b)(3) also provides that
“no labor organization shall be certified as the representative of em-
ployees 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.”
2 Sec. 9(b)(3) (emphasis added).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 9(b)(3), and I believe none of the above argu-
ments gives rise to any issues that warrant Board review.
Section 9(b)(3) was adopted to prevent the Board from
exercising case-by-case discretion in this area. I believe
this renders inappropriate my colleagues finding that the
Regional Director’s decision involves “substantial is-
sues” that warrant Board review. Accordingly, I respect-
fully dissent from my colleagues’ decision to grant re-
view in this case.
Dated, Washington, D.C. October 26, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD