Federation of Special Police

National Labor Relations Board - Board Decisions

Jun 18, 1979

242 N.L.R.B. 1218 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federation of Special Police and Law Enforcement
Officers and International Bureau for Protection
and Investigation, Ltd. & Grokash Corporation and
Local 32B-32J, Service Employees International
Union, AFL-CIO. Case 2-CD-567.
June 18, 1979
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY MEMBERS PENEI.I.O, MURPHY, AND TRUESDALE
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by International Bureau for Protection
and Investigation, Ltd., hereinafter referred to as
IBPI or the Employer, and Grokash Corporation,
herein called Grokash, alleging that Federation of
Special Police and Law Enforcement Officers, herein-
after referred to as Federation or Respondent, had
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring the Employer to continue the assignment
of certain work to its members rather than to assign
that work to employees represented by Local 32B
32J, Service Employees International Union, AFL
CIO, hereinafter referred to as SEIU.
Pursuant to notice, a hearing was held in this mat-
ter before Hearing Officer Peter E. Gillespie on Octo-
ber 4 and December 12, 1978. All parties appeared
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, IBPI and
SEIU filed briefs.
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 reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, includ-
ing the submitted briefs, the Board makes the follow-
ing:
I. THE BUSINESS OF THE EMPLOYER
The Employer, IBPI, a New York corporation with
its office and principal place of business located in
New York, New York, is primarily engaged in the
business of providing uniformed guard services. In
1978 it was licensed by New York City to provide
alarm response services to qualifying commercial
buildings located in the midtown area. The Employer
has annual gross revenues in excess of $500,000 and
derives gross revenues in excess of $50,000 annually
from services performed for businesses located out-
side the State of New York.
The parties stipulated, and we find, that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it will effectu-
ate the purposes of the Act to assert jurisdiction
herein.
Grokash, a New York corporation with its office
located in New York, New York, is engaged in the
management of commercial properties in New York
City, among them, an office building located at 236
West 30th Street, the sole property involved herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Respon-
dent Federation and SEIU are labor organizations
within the meaning of Section 2(5) of the Act.
111. THE DISPUTE
A. Background and Facts of the Dispute
Grokash is, and for the time periods relevant herein
has been, the owner of the commercial property, 236
West 30th Street, New York, New York, which is in-
volved in the instant proceeding. In 1956 New York
City enacted an ordinance requiring every building of
at least 150 feet in height, and within a specific mid-
town area, to have an individual present during peri-
ods when the building was unoccupied to afford fire-
men and police entry into the building in the event of
an emergency. A building subject to this regulation
was able to maintain compliance therewith if the
building owner was under contract with a company
licensed by New York City to provide alarm response
service, i.e., a company which maintained a force of
individuals located outside the building who were ca-
pable of immediately proceeding to the property and
providing the necessary access to it if the need arose.
From 1956 to 1972 Grokash did not require the ser-
vices of such a company, as the offices of one of its
tenants, Holmes Security Service, was open at all
times and staffed by personnel capable of allowing
emergency entry. In 1972, however, Holmes' tenancy
expired, and in order to insure compliance with the
New York City law, Berley and Co., the managing
agent for Grokash, contracted with Quick Response
Service, Inc., hereinafter called QRS, an alarm re-
sponse service which, until 1978, was the sole enter-
prise licensed by New York City to perform such ser-
vice. In return for providing this service, QRS billed
Grokash $5,000 per year. While Berley could have
hired its own personnel to staff the building on an
around-the-clock basis, it opted for the financially
242 NLRB No. 164
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FEDERATION OF SPECIAL POLICE
preferable alternative of contracting out the work to
QRS. QRS employed approximately 25 employees in
total; on any given shift, however, 5 employees were
on standby to provide emergency access to any of 120
buildings then under contract with QRS.'
Grokash eventually became dissatisfied with the
services provided by QRS. However, until 1978, when
IBPI received its license, Grokash had no alternative,
and so it continued its contract with QRS.
In the summer of 1978, however, IBPI was autho-
rized to perform alarm response service. Subse-
quently, Grokash, by letter dated July 31, 1978, sev-
ered its contractual relationship with QRS and
engaged IBPI to perform like services. The employees
of IBPI were represented by Federation; employees
of QRS were represented by SEIU.
On August 16, 1978, SEIU initiated a grievance
with Grokash alleging that pursuant to article 1, sec-
tion 2(c), of the current collective-bargaining agree-
ment, Grokash was obligated to retain the employees
of QRS and maintain in effect the existing wage-bene-
fit structure. The above-noted section states in perti-
nent part:
(c) The Employer shall require the contractor to
retain all bargaining unit employees working at
the location at the time the contract was
awarded and to maintain the existing wage and
benefit structure.
At the time the grievance was prepared and served,
officials of SEIU were unaware that the change of
subcontractors had not caused the layoff of any of
QRS employees represented by SEIU or that no QRS
employees could be identified as working only in the
building at issue.
IBPI became aware of SEIU's grievance and ap-
parently attempted to effect a peaceful resolution of
the dispute by suggesting to Federation President
Cunningham that IBPI employ SEIU-represented
employees to cover the Grokash property. Cunning-
ham indicated that in the event IBPI took such ac-
tion, Federation would strike. That threat precipi-
tated the instant proceeding.
At the hearing SEIU redefined its position, con-
tending that inasmuch as none of the QRS employees
it represented were adversely affected by the substitu-
tion of subcontractors, SEIU disclaimed the work in
dispute. Rather, SEIU asserted that its interest in the
matter was limited to insuring that the current em-
ployees performing the work received the wage and
benefit structure set forth in the SEIU contract, a po-
i At the time Berley engaged QRS. Grokash, as a member of the Mldtown
Realty Owners Assxociation, and QRS were parties to collective-bargaining
agreements with SEIIJ. Grokash's building service employees and QRS'
alarm response service employees were both represented by SEIt1.
sition which SEIU contends is legitimately predicated
on the above-described contract provision.
B. Work in Dispute
The work in dispute involves the providing of
alarm response services to the commercial property
located at 236 West 30th Street, New York, New
York. The employees involved are stationed at a cen-
tral location from which the building is serviced, and
in the event an emergency occurs when the building is
unoccupied, an employee will be dispatched thereto
to provide entry for the fire department or police and
to render whatever additional assistance may be re-
quired.
C. Contentions of tile Parties
The Employer argues that SEIU's disclaimer is in-
effective and that a cognizable work assignment dis-
pute exists within the meaning of Section 8(b)(4)(D)
of the Act.2 The Employer further contends that on
the basis of its collective-bargaining agreement with
Federation, its own preference, and the higher degree
of skills and training possessed by employees repre-
sented by Federation, the work in dispute should be
awarded to employees represented by Federation.
Grokash, at the hearing, indicated that it would pre-
fer an award to IBPl's Federation-represented em-
ployees, as IBPI's yearly charge of $2,400 represents
approximately half of QRS' annual billing.
SEIU contends that. inasmuch as it has no interest
in having employees represented by it perform the
work in dispute, no cognizable work assignment dis-
pute exists. It asserts that its initial claim for the dis-
puted work was founded on an erroneous belief that
the change of subcontractors would result in the lay-
off of employees it represented. However, once it be-
came aware that the transition from QRS to IBPI
would have no effect on the employment status of
those employees, it restricted its claim to IBPI's ad-
hering to the wage and benefit provisions set forth in
the SEIU contract binding both QRS and Grokash.
SEIU also contends that, even in the absence of its
disclaimer, the notice of hearing should be quashed,
I In a letter dated Apnl 12, 1979, counsel for IBPI moved that the Board
reopen the record to admit an arbitration award. nvolsing SEILJ and an
employer admittedly unrelated to this proceeding, as IBPI argued that the
award evidenced SEIU's continuing desire to obtain the work in dispute.
notwithstanding its asserted disclaimer By letter dated April 16. 179. coun-
sel for SEII urged the Board to deny IBPI's request, as the award referred
to by BPI involved a proceeding unrelated to the instant matter and an
employer not currentl) before the Board. We agree with counsel for SEIl
for the reasons noted b. him Accordingly IBPI's requet to introduce the
above arhitraion award into the record is herehb denied
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the reassigning of the work previously performed
by SEIU-represented employees is a dispute outside
the purview of Section 8(b)(4)(D), as it does not in-
volve competing groups of employees but rather en-
meshes SEIU and Grokash in a dispute.3
D. Applicability of the Statute
Section 10(k) of the Act directs the Board to hear
and determine disputes which have given rise to
charges under Section 8(b)(4)(D) of the Act. The
Board's authority under this section, however, is lim-
ited to the resolution of actual disputes between com-
peting groups of employees. Thus, it is well estab-
lished that a cognizable work assignment dispute no
longer exists when one of the competing unions or
parties effectively renounces its claim to the work in
question.4 In the instant matter, we find that SEIU
effectively renounced its claim to the disputed work
and that this disclaimer was not vitiated by any
equivocal conduct on its part. While the record re-
veals that SEIU initially made a claim for the work, it
did so only because of a mistaken belief that the em-
In support of this contention. SEIU cites Highwav Truckdrivers & Help-
ers, Local 107. International Brotherhood of Teamsters, Chauffeurs and Help-
ers of America Independent (Safeway Stores, Incorporated) 134 NLRB 1320
(1961).
' Laborers' International Union of North America, Local 935, AFL CIO
(C & S Construction Co., Inc.), 206 NLRB 807 (1973); Sheet Metal Workers
Local Union No. 465 (Thorpe Insulation Company'), 198 NLRB 1245 (1972).
ployees of QRS, which it represents, would be ad-
versely affected by the substitution of IBPI for QRS.
However, once it became aware that the new subcon-
tracting arrangement would have no appreciable ef-
fect upon QRS employees, SEIU disclaimed interest
in the work and limited its grievance, which it intends
to pursue to arbitration, to IBPI's compliance with
the wage and benefit package in the SEIU contract.
The merit of such a grievance is not an issue before us
and plays no role in a 10(k) dispute, except that in the
current case it evidences SEIU's motivation behind
its conduct, which the Employer continues to contend
is a claim for the disputed work. Contrary to the Em-
ployer, we find that once SEIU became apprised of
all the relevant circumstances surrounding the dis-
pute, it effectively renounced its claim for the work
and limited its grievance to matters outside the ambit
of Section 8(b)(4)(D). SEIU has engaged in no con-
duct since its disclaimer to evidence a contrary inten-
tion. Accordingly, in these circumstances we find that
competing claims to the disputed work within the
meaning of the Act no longer exist, and we shall
therefore quash the notice of hearing issued herein.5
ORDER
It is hereby ordered that the notice of hearing is-
sued in this case be, and it hereby is, quashed.
I Accordingly. we do not reach SEIU's further contention that Safe ay
Stores, supra, also pertains here.
1220