Intl. Brothd. of Teamsters, Local 344

National Labor Relations Board - Board Decisions

Apr 12, 1977

228 N.L.R.B. 1379 (N.L.R.B. 1977)

INTL. BROTHD. OF TEAMSTERS, LOCAL 344
International Brotherhood of Teamsters , Local 344
and Purolator Security, Inc. Case 30-CP-56
April 12, 1977
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS
PENELLO AND WALTHER
On December 17, 1976, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in answer to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, International
Brotherhood of Teamsters, Local 344, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
CHAIRMAN MURPHY, dissenting:
For the reasons expressed in my concurring
opinion in Brink's, Incorporated, 226 NLRB 1182
(1976), I would find that none of the Employer's
employees are guards within the meaning of Section
9(b)(3) of the Act. Accordingly, the petition in Case
30-RC-2904 should have been processed and, thus,
there is no basis for finding the Union violated
Section 8(b)(7)(C) of the Act. I would therefore
dismiss the complaint herein.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case was
heard at Milwaukee, Wisconsin, on October 14, 1976.1
Upon a charge filed August 20 and served August 23, the
Regional Director for Region 30 issued a complaint in this
proceeding on September 7. Thereafter, on September 22
I All dates hereinafter refer to 1976.
2 The General Counsel filed a motion to correct the transcript. As the
228 NLRB No. 172
1379
the Regional Director issued an amended complaint based
upon an amended charge filed September 21 and served
September 22. The amended complaint alleges that
International Brotherhood of Teamsters, Local 344, herein
called the Union, violated Section 8(b)(7)(C) of the Act by
threatening to picket, and picketing Purolator Security,
Inc., herein called Purolator or the Employer, for more
than a reasonable period during which no petition raising a
valid question concerning representation under Section
9(c) of the Act could be filed, with an object to force or
require Purolator to recognize and bargain with Respon-
dent as representative of Purolator's guard employees. The
Respondent filed an answer denying the commission of
unfair labor practices.
Issues
Whether Purolator's employees are guards within the
meaning of Section 9(b)(3) of the Act.
Assuming that Purolator's employees are guards, does
the Union violate Section 8(b)(7)(C) by threatening to
picket and picketing to obtain recognition as the collective-
bargaining agent of such employees.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses , to argue orally, and to file briefs. All parties
submitted briefs which have been carefully considered.
On the entire record2 in the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Purolator, a Texas corporation, maintains its principal
office in Dallas, Texas, and operates a facility in Milwau-
kee, Wisconsin, and at all times material herein has been
engaged in providing armored carrier service for the
transportation of moneys and other valuable items. The
parties stipulated that, during the 12 months prior to the
hearing, Purolator, at its Milwaukee location, purchased
goods valued in excess of $50,000 which it received from
suppliers located directly outside the State of Wisconsin. It
has been further stipulated and I find that Purolator is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts as set forth herein are based on either
stipulations or essentially uncontradicted testimony. Puro-
lator is in the business of providing armored car services
for customers in the metropolitan Milwaukee area, includ-
motion relates to minor errors , and there being no opposition thereto, it is
hereby granted.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing retailers , manufacturers, financial institutions, and
governmental agencies. Its employees pick up deposits for
the customers and deliver money, cash receipts, daily
receipts, securities, both negotiable and nonnegotiable, as
well as valuable personal property. Most of the deliveries
are made to and from the customers' depositories and
places of business. In proceeding along their normal route,
the driver will stop at a customer's location, the other
driver guard working with him will then pick up a sealed
package from the customer, sign a receipt, and deliver it to
the destination listed on the package, there obtaining a
receipt for the delivery. On occasion undelivered packages
will be brought to the terminal where it will be stored
overnight in the vault until the following morning. On a
typical daily route the total items picked up during the run
may be valued as much as $2 to $3 million and sometimes
more.
Purolator maintains nine vehicles of which eight are
armored. The armor is of such thickness that it will stop a
.37 Magnum bullet. Besides the bulletproofing and armor,
some of the trucks are equipped with sirens and all have
type locks and key locks. In addition, all except one vehicle
are equipped with radios to communicate with the base
station at the Employer's headquarters. Purolator employs
25 people of whom 10 are full-time driver guards, 12 are
part-time employees of whom 10 are driver guards, I is a
mechanic who occasionally drives, and the other is a
vaultman . There are also three administrative types of
which one is a clerk, another an operation manager, and a
third the district manager. All driver guards wear uniforms,
insignia , and shields indicating that they are employees of
Purolator, and carry firearms issued by the Employer.
However they are not licensed, as the law of Wisconsin
does not require licensing to wear an unconcealed weapon.
Purolator maintains a policy for training in the use of
firearms. The employees are not deputized, but they carry
the guns for the protection of the customer's property, to
protect themselves against possible assault , and as a
deterrent to such conduct.
The driver guards each morning are also given keys for
those customers who have key-controlled safes on their
route . When the guard stops at such a customer the key is
given to the customer who along with his own key opens
the safe and empties the currency therein into a bag which
is sealed and given to the guard who signs a receipt.
Purolator has a vault at the terminal in which it keeps
deposits and packages which were undelivered at the end
of a day. The operations manager is responsible for the
vault and a vaultman is there who also wears a uniform
and carries a gun . During nonworking hours the vault is
electronically protected.
The employees are not bonded by any outside bonding
or insurance company, but Purolator is responsible for any
losses caused by its own employees. Purolator carries
insurance against loss of cargo up to $50 million. In
addition its liability insurance covers responsibility for
injuries caused by its own employees during the course of
their duties. The Employer also carries assault insurance
which protects its employees against any assaults they may
sustain in the course of their duties, a benefit which is in
addition to workmen's compensation.
Purolator is not licensed by the State or any other agency
to engage in the armored car service business. However it
does have a certificate from the State Public Service
Commission which permits it to pick up and deliver goods
within the State. Purolator does the same type of work as
Brinks, one of its competitors, with whom the Union has a
collective-bargaining agreement covering its employees.
On July 28 the Union wrote Purolator advising that it
had been authorized by a majority of the employees to
represent them for the purposes of collective bargaining
and requested recognition as such representative. On July
30 the Union filed a representation petition with the Board
seeking an election in a unit of "all driver guards, driver
messengers , guard messengers , and mechanics," in Case
30-RC-2904. Thereafter, the Acting Regional Director, on
August 4, dismissed the petition as a result of its
investigation finding that the employees in the unit were
guards within the meaning of Section 9(b)(3) of the Act and
that the petitioner is a labor organization which admits to
membership, and is affiliated with, an organization which
admits to membership employees other than guards. The
Union then requested review by the Board of the dismissal
of its petition. The Board, on September 13, issued its
Ruling On Administrative Action, affirming the dismissal
of the petition (Chairman Murphy dissenting).
After the dismissal of its petition by the Acting Director
but before the Board's ruling on its request for review, the
Union wrote on August 14 to Purolator reasserting its
representation of a majority of the employees and offering
to furnish Purolator with the signed authorization cards or
enter into some arrangement for a secret-ballot election to
demonstrate its majority. It also informed Purolator that
the Union would do everything to protect the rights of the
employees including the right of the Union "to engage in
activities for the purpose of truthfully informing the public
the precise nature of the dispute Purolator has initiated by
its refusal to recognize this union as the bargaining
representative of its employees." It further pointed out that
the Union represents employees of Brinks and does not
intend to permit area standards it has established to be
undermined. Finally, it advised that unless the matter is
resolved the Union intends to engage in peaceful picketing
to publicize the matter. Subsequently, on September 21 the
Union picketed the premises of Purolator and distributed
handbills at the same time. The picket signs bore the
following legend on one side: "Our only dispute is with
Purolator Security, Inc."; and on the other side the legend
read: "Purolator Security, Inc. denies the right of its
employees to be represented by Teamsters Local 344." The
handbill informed the public that a majority of Purolator's
employees had designated the Union, that the Federal
Government refused to hold an election and, as a result,
Purolator is refusing to recognize the Union as the
representative of its employees. It also advised that the
Union filed unfair labor practice charges against Purolator.
On September 22, 23, and 29, the Union also engaged in
ambulatory picketing and handbilling of Purolator at the
premises of some of its customers at times when Purolator's
vehicles were present at those locations.
The parties further stipulated that, on August 17,
Respondent together with Thomas J. D'Acquisto filed
INTL. BROTHD. OF TEAMSTERS, LOCAL 344 1381
unfair labor practice charges in Case 30-CA-3754 alleging
that Purolator violated Section 8(a)(l), (3), and (5) of the
Act. The Regional Director dismissed that portion of the
charge alleging violation of Section 8(a)(5) of the Act on
August 27. Respondent's appeal of this partial dismissal to
the General Counsel was denied on August 31. Thereafter,
the Regional Director entered into and approved a
unilateral informal settlement agreement with Purolator as
to the remaining Section 8(a)(1) and (3) allegations of the
charge. The settlement agreement provided for Purolator
to post a notice and undertake not to commit various
specified violations of Section 8(a)(1) and (3) of the Act
and, further, to make whole Mr. D'Acquisto for losses he
may have sustained as a result of Purolator's discrimina-
tion against him. The Respondent appealed to the General
Counsel, contending that the proposed settlement agree-
ment had failed to provide an adequate remedy by not
requiring Purolator to recognize its legal obligation to
bargain with the union for the employees. The appeal was
still pending at the time of the hearing.
B. Discussion
The General Counsel contends that upon the basis of
decided cases the employees which Respondent seeks to
represent are guards within the meaning of Section 8(b)(3)
of the Act.3 Since the Union is admittedly seeking
recognition for a unit of employees which is not certifiable
under the Act, its threat to picket and its actual picketing
for such objectives are violative, according to the General
Counsel, of Section 8(b)(7)(C) of the Act. Although the
Union did not picket for a period of more than 30 days, the
General Counsel contends that it is not necessary to wait
for such a period of time because a petition could not be
validly filed at any time for such a unit; thus picketing for
any period of time would be unreasonable.
Respondent, on the other hand, contends initially that
the employees in the unit it seeks to represent are not
guards within the meaning of Section 9(b)(3) principally
because the Union argues that Section 8(b)(3) was intended
to apply to plant guards. It was enacted to avoid the
potential conflict of interest that may exist between an
employer's production employees vis-a-vis the guard em-
ployees utilized for protection of the plant property. If such
a finding were made then obviously the Union's petition
under Section 9(c) would not be dismissed and Section
8(b)(7)(C) would not have been violated. Even assuming
that the Purolator employees involved herein are found to
be guards within the meaning of Section 9(b)(3), Respon-
dent contends that it did not in any event violate Section
8(b)(7)(C). Respondent argues that Section 9(b)(3) limits
3 Armored Motor Service Company, Inc., 106 NLRB 1139 (1953);
N L R B v. American District Telegraph Co of Pa, 205 F.2d 86 (C.A. 3,
1953).
4 Teamsters Local Union No 115 (Vila-Barr Company), 157 NLRB 588
(1966).
5 Drivers, Chauffeurs, Warehousemen and Helpers, Local Union No 71,
affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America (Wells Fargo Armored Service Corporation), 221
NLRB 1240 (1975), Drivers, Chauffeurs & Helpers, Local Union 639,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers ofAmerica (Dunbar Armored Express, Inc ), 211 NLRB 687
(1974).
6 In Wells Fargo, supra, Member Fanning , who was not a member of the
the Board by providing it may not certify as representatives
of guards, a union which admits nonguards for member-
ship. Respondent argues that Section 9(b)(3) places no
limitation on the rights of guards to select a nonguard
union as their representative, and urges consideration of
employee rights under Sections 7, 9(a), and 13. Respondent
asserts that it is picketing for recognition, not certification,
and the Board is not required to dismiss its petition but
rather could hold an election and certify the arithmetical
results. Thus, if the Board decides to conduct such an
election the provisions of Section 8(b)(7)(C) would thereby
be satisfied.
The Respondent also would find analagous the case of
the union picketing for recognition in a unit of one
employee. The Board has found that such picketing does
not violate Section 8(b)(7)(C) despite its policy of not
entertaining a petition for a one-man unit .4
Notwithstanding the arguments of Respondent herein, I
am bound by the decision of the Board in Case 30-RC-
2904 sustaining the Acting Regional Director's dismissal of
Respondent's petition which, in effect, found that the
employees in the requested unit are guards within the
meaning of Section 9(b)(3) and the petitioner (the Respon-
dent herein) is a labor organization which admits to
membership employees other than guards .5 It is noted that,
in Dunbar, the Board reaffirmed the vitality of Armored
Motor Service Company, Inc., supra, in which the Board
held that employees performing essentially the same duties
as the employees involved in Dunbar, as well as in the
instant case, are guards within the meaning of Section
9(b)(3) of the Act. Armored Motor, of course, had overruled
Brinks, Incorporated 77 NLRB 1182 (1948), which had
found that armored truck guards were not guards within
the meaning of Section 9(b)(3) and which Respondent
herein would hope to have restored. I therefore find that
Purolator's employees are guards within the meaning of
Section 9(b)(3) of the Act.
As the Respondent has picketed for recognition in a unit
of guards for which it is unable to obtain a Board
certification I further find that it has violated Section
8(b)(7)(C) of the Act by such conduct. In this connection I
am similarly bound by the Board's decisions in Wells Fargo
Armored Service Corporation, supra, and Dunbar Armored
Express, supra, cases in which the facts are almost identical
to those presented in the instant case .6
The Board has recently found that a threat to picket for a
proscribed recognitional object also violates Section
8(b)(7)(C).7 As the Respondent's letter dated August 14 to
Purolator, after the dismissal of its representation petition,
contained a threat to picket Purolator for recognition as
panel in Dunbar, dissented, finding that there is no inhibition in the statute
to the Board conducting an election and certifying merely the arithmetical
results thereof and, of course, withholding certification of representative in
the event the union succeeded in the election . Member Fanning believes
that it would be in accordance with the import of Sec 8(bX7)(C) to
implement the expedited election procedure provided in the statute noting
that, should the union lose the election , it would be barred by Sec. 8(b)(7)(B)
from further picketing for a year
7 General Service Employees Union Local No. 73, a/w Service Employees
International Union, AFL-CIO (A-I Security Service Co), 224 NLRB 434
(1976). Chairman Murphy and Member Fanning dissented as to this aspect
of the Board's decision as they do not find threats to picket to be
encompassed by Sec. 8(bX7XC).
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of its guard employees , I find that Respon-
dent thereby further violated Section 8(b)(7)(C) of the Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
CONCLUSIONS OF LAW
1. Purolator Security, Inc., is an employer within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2 (5) of the Act.
3. The Respondent is not certified as the representative
of any of Purolator 's employees at its Milwaukee , Wiscon-
sin, facility.
4. By threatening to picket , by picketing Purolator's
Milwaukee , Wisconsin's, facility, and by picketing Purola-
tor's armored trucks at the premises of its customers, with
an object of forcing Purolator to recognize Respondent as
the collective-bargaining representative of its employees,
the Respondent has violated Section 8(b)(7)(C) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER8
Respondent, International Brotherhood of Teamsters,
Local 344, its officers, agents, and representatives, shall:
1. Cease and desist from threatening to picket, picket-
ing, or causing to be picketed, Purolator Security, Inc.,
where an object thereof is forcing or requiring said
employer to recognize or bargain with Respondent as the
collective-bargaining representative of employees who
function as guards, or forcing or requiring employees who
function as guards for such employer, to accept or select
Respondent as their collective-bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business office copies of the attached notice
marked "Appendix." 9 Copies of said notice, on forms
provided by the Regional Director for Region 30, after
being duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Furnish the Regional Director for Region 30 signed
copies of said notice for posting by Purolator Secunty, Inc.,
if willing, in places where notices to employees are
customarily posted.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
8 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket, or cause to be picketed,
Purolator Secunty, Inc., where an object thereof is
forcing or requiring said Employer to recognize or
bargain with us as a collective-bargaining representa-
tive of its guard employees, or forcing or requiring
guard employees of such Employer, to accept or select
us as their collective-bargaining representative.
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS,
LOCAL 344