Dynair Services

National Labor Relations Board - Board Decisions

Jun 27, 1994

314 N.L.R.B. 161 (N.L.R.B. 1994)

161
314 NLRB No. 37
DYNAIR SERVICES
1 Sec. 9(b)(3) states in pertinent part that ‘‘no labor organization
shall be certified as the representative of employees in a bargaining
unit of guards if such organization admits to membership, or is af-
filiated directly or indirectly with an organization which admits to
membership, employees other than guards.’’
2 By an unpublished Order dated March 22, 1994, the Board de-
nied the Employer’s appeal of the Regional Director’s ruling and de-
nied the Employer’s request for a stay of the election. The parties
were advised that a fully articulated decision would follow.
Dynair Services, Inc. and International Longshore-
men’s and Warehousemen’s Union, Local 19,
Petitioner. Case 19–RC–12810
June 27, 1994
ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
The petition in the above proceeding was filed on
January 24, 1994, by International Longshoremen’s
and Warehousemen’s Union, Local 19 seeking a unit
of all employees of the Employer employed at the Port
of Seattle excluding, inter alia, guards, professional
employees, and supervisors as defined in the Act. Pur-
suant to a Stipulated Election Agreement executed by
the parties and approved by the Regional Director for
Region 19 on February 18, 1994, an election by secret
ballot was scheduled for March 24, 1994.
On March 1, 1994, the Employer filed with the Re-
gional Director a motion to dismiss petition and in-
terim motion to vacate election and hold petition in
abeyance and, on March 7, 1994, a motion to with-
draw from the Stipulated Election Agreement. Both
motions are based on the Employer’s discovery that
the Petitioner also represents ‘‘access controllers’’ who
are employed directly by the Port of Seattle. The Em-
ployer argued before the Regional Director that the ac-
cess controllers are guards under the Act and that Sec-
tion 9(b)(3)1 of the Act requires that the petition be
dismissed because ‘‘[t]his statutory proscription was
designed to prevent any union from representing guard
employees on the one hand and non-guard employees
on the other.’’
In its response to the Employer’s motions, the Peti-
tioner, citing Ojai Valley Community Hospital, 254
NLRB 1354 (1981), argued that Section 9(b)(3) has no
application here because the access controllers are pub-
lic employees and thus not guards under the Act. The
Petitioner further argued that even if the access con-
trollers were guards, Section 9(b)(3) would still not be
applicable because it is a limitation only on the
Board’s authority to certify a union as the representa-
tive of guards, whereas here the Petitioner is seeking
certification as a representative of nonguards.
By order dated March 9, 1994, the Regional Direc-
tor for Region 19, noting that Section 9(b)(3) is not
applicable because the Petitioner is not seeking a unit
of guards, issued an order denying motion to dismiss
election petition and interim petition to vacate election
and hold petition in abeyance and motion to withdraw
from Stipulated Election Agreement.
On March 10, 1994, the Employer filed a request for
review (appeal) of the Regional Director’s ruling.2 In
its appeal, the Employer argues that the Regional Di-
rector’s position ‘‘is clearly inconsistent with the legis-
lative purpose of Section 9(b)(3) because it sanctions
the precise conflict of loyalty the statute was designed
to protect.’’ With regard to the Petitioner’s argument
that under Ojai Valley the controllers are public em-
ployees not subject to the Act, and therefore Section
9(b)(3) is inapplicable, the Employer contends that the
instant case is factually distinguishable. Unlike the sit-
uation in Ojai Valley, the Employer claims that here
there exists a conflict of loyalty resulting from the ac-
cess controllers’ responsibilities to protect the Employ-
er’s property in the event of a strike and to monitor
picketing activities of the Employer’s employees. The
Employer further asserts that ‘‘there is no controlling
case law sanctioning the certification of a guard union
as representative of nonguard employees.’’
In its opposition, the Petitioner renews its arguments
that because the access controllers are public employ-
ees, they cannot be found to be guards. Further, the
Petitioner contends that because the access controllers
are public employees, they ‘‘do not have the right to
strike or take any concerted action’’ and that ‘‘there is
no potential conflict of loyalty in this case.’’ Finally,
the Petitioner argues that Section 9(b)(3) is inappli-
cable to the instant case because the unit it sought in
the instant petition is for nonguards.
Having duly considered the matter, the Board finds
that the Employer’s request for review is lacking in
merit. Even assuming arguendo that the access control-
lers the Petitioner represents are guards as the Em-
ployer contends, the Board has long held that ‘‘the Act
does not prohibit the Board from certifying a labor or-
ganization which itself represents guards as the rep-
resentative of employees other than guards.’’ Pinker-
ton’s National Detective Agency, 90 NLRB 532, 533
(1950), citing E. R. Squibb & Sons, 77 NLRB 84
(1948). Thus, we find, contrary to the Employer’s as-
sertion, that its appeal does not present a novel issue
but rather is clearly controlled by the Pinkerton’s
precedent.
We also deny the Employer’s appeal for the follow-
ing independent reason. The Employer does not dis-
pute the Petitioner’s assertion that the access control-
lers are public employees because they are employed
by the Port of Seattle. Ojai Valley, supra, holds that
public employees are not guards within the meaning of
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Because Ojai Valley held as a matter of law that public employ-
ees are not guards within the meaning of the NLRA, the Employer’s
attempt to distinguish Ojai Valley on factual grounds is wholly with-
out merit.
the Act.3 Therefore, the access controllers the Peti-
tioner represents are not statutory guards and Section
9(b)(3) has no application here for that additional rea-
son.
With regard to the Employer’s motion to withdraw
from the Stipulated Election Agreement, it is well es-
tablished that the Board will allow a party to withdraw
from an Election Agreement only on a showing of un-
usual circumstances or by agreement of all the parties.
Sunnyvale Medical Clinic, 241 NLRB 1156, 1157
(1979). The Employer has not made a showing of any
unusal circumstances which would justify withdrawal
in this case. Accordingly,
IT IS ORDERED that the Employer’s appeal of the Re-
gional Director’s denial of Employer’s motion to dis-
miss election petition, motion to reopen the record and
hold a hearing to take new evidence, and motion to
withdraw from Stipulated Election Agreement are de-
nied.
IT IS FURTHER ORDERED that the request for a stay
of the election is denied and the proceeding is re-
manded to the Regional Director for Region 19 for fur-
ther appropriate action.