Loomis Armored US, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 11, 2012

32-CA-025316 (N.L.R.B. Jan. 11, 2012)

JD(SF)-01-12
Oakland, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
LOOMIS ARMORED US, INC.
and Case 32-CA-25316
TEAMSTERS LOCAL UNION NO. 439 INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHANGE TO
WIN COALITION; TEAMSTERS LOCAL UNION NO. 315,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHANGE TO WIN COALITION; And TEAMSTERS
LOCAL UNION 853, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS; CHANGE TO WIN
LOOMIS ARMORED US, INC.
and Case 32-CA-25708
TEAMSTERS LOCAL 150, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHANGE TO
WIN COALITION
LOOMIS ARMORED US INC.
and Case 32-CA-25709
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS, LOCAL NO. 542, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
LOOMIS ARMORED US, INC.
and Case 32-CA-25727
PACKAGE AND GENERAL UTILITY DRIVERS,
LOCAL 396,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Gabriela Teodorescu Alvaro, Esq. for the General Counsel.
Theodora Lee, Esq., and Michael G. Pedhirney, Esq.,
for the Respondent.
Andrew H. Baker, Esq., for the Charging Parties.
DECISION
Statement of the Case
JAY R. POLLACK, Administrative Law Judge: On August 16, 2010, Teamsters Local
Union No. 439, Teamsters Local Union No. 315 and Teamsters Local Union No. 853 (Local
Unions 439, 315 and 853) filed the charge in Case 32-CA-25316 against Loomis Armored US,
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Inc. (Respondent or the Employer). On March 7, 2011, Local 439, Local 315, and Local 853
filed an amended charge against Respondent. On February 23, 2011, Teamsters Local 150
(Local 150) filed a charge against Respondent in Case 32-CA-25708. On January 20, 2011,
Teamsters Local 542 (Local 542) filed a charge against Respondent Local 542 filed an
amended charge on March 8, 2011. On January 20, Teamsters Local 396 (Local 396) filed a
charge against Respondent. Local 396 filed an amended charge on March 10, 2011. On
March 18, 2011, the Regional Director for Region 32 of the National Labor Relations Board (the
Board) issued a complaint against Respondent in Case 32-CA-25316. The complaint alleges
that Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act)
by withdrawing recognition from Local 430 as the collective bargaining representative of
Respondent’s employees at its Stockton California facility. . The Respondent filed a timely
answer in which it denied that it had violated the Act. On April 14, 2011, the Regional Director
issued an amendment to the Complaint. On April 7, 2011, the Regional Director for Region 20
issued a complaint against Respondent in Case 20-CA-35433 (now Case 32-CA-25708). On
March 25, 2011, the Regional Director for Region 21 issued a complaint in Case 21-CA-39651
(now Case 32-CA-25709). On May 10, 2011, the Regional Director for Region 31 issued a
complaint against Respondent in Case 31-CA-30093 (now Case 32-CA-25727). On June 3,
2011, the Regional Director for Region 32 issued an order consolidating the four cases for trial.
On October 7, 2011, before the scheduled hearing in this case commenced, the parties jointly
waived a hearing and agreed to have the case decided based on a stipulated record.
Based on the stipulated record submitted by the parties, and after considering the
briefs, I make the following findings of fact and conclusions of law.
Findings of Fact
I. Jurisdiction
At all times material, Respondent a Delaware corporation with headquarters in Houston,
Texas, has been providing nation wide cash handling services, including secure transfer by
armored vehicle, cash processing, and outsourced vault service at various locations in California.
During the twelve months prior to the issuance of the complaint, Respondent sold and shipped
goods or provided services valued in excess of $50,000 directly to customers located outside the
State of California.
Accordingly, the parties stipulated and I find, Respondent is an employer engaged in
commerce within the meaning of Sections 2(2), (6) and (7) of the Act.
The parties stipulated that Local 439, Local 315, Local 853, Local 150, Local 542, and
Local 396 are labor organizations within the meaning of Section 2(5) of the Act.
II. Facts
Since at least 1990, Local 439 has been the exclusive collective-bargaining
representative of a unit of Respondent’s employees in Stockton, California. The most recent
collective-bargaining agreement between the parties is effective by its terms from April 1, 2009
to March 31, 2010. The bargaining unit covered by the agreement is:
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All full-time and regular part-time custodians, drivers and guards; excluding all other
employees, office clerical employees, vault employees, mechanics, turret guards, and
supervisory employees as defined in the Act.
The employees in the bargaining unit are all guards within the meaning of Section 9 (b)(3)of the
Act.
From July 1, 2008, to September 30, 2010, Local 315 was recognized as the exclusive
bargaining representative of Respondent’s employees at Richmond, California, in the following
unit:
All full-time and regular part-time custodians, drivers, and guards; excluding all other
employees, office clerical employees, watchmen, and supervisory employees as
defined in the Act.
The employees in the bargaining unit are all guards within the meaning of Section 9(b)(3) of the
Act.
From February 1, 2008, to September 30, 2010, Local 853 was the exclusive collective-
bargaining representative at Milpitas, California, for the following unit:
All full-time and regular part-time custodians, drivers, and guards; excluding all other
employees, office clerical employees as defined in the Act.
The employees in the bargaining unit are all guards within the meaning of the Act.
Local 439, Local 315 and Local 853 all admit into membership guards and non-guards.
On July 27, 2010, Respondent withdrew recognition of Local 439 as the exclusive
collective-bargaining representative of the employees in the Stockton unit. Respondent
withdrew recognition based on Board precedent that permits withdrawal of recognition of a
labor organization that represents both guards and non-guards upon the expiration of the
relevant collective-bargaining agreement.
On July 26, 2010, Respondent withdrew recognition, effective September 30, 2010, of
Local 315, as the exclusive bargaining representative of the employees in the Richmond unit.
Respondent withdrew recognition based on Board precedent that permits withdrawal of
recognition of a labor organization that represents both guards and non-guards upon the
expiration of the relevant collective-bargaining agreement.
On July 26, 2010, Respondent withdrew recognition, effective September 30, 2010, of
Local 853 as the exclusive bargaining representative of the employees in the Milpitas Unit.
Respondent withdrew recognition based on Board precedent that permits withdrawal of
recognition of a labor organization that represents both guards and non-guards upon the
expiration of the relevant collective-bargaining agreement.
Since at least 1965, Local 150 the Union has been the exclusive collective-bargaining
representative of a unit of Respondent’s employees in Sacramento, California. The most
recent collective-bargaining agreement between the parties is effective by its terms from
December 1, 2006 to November 30, 2010, 2010. The bargaining unit covered by the
agreement is:
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All full-time and regular part-time employees employed by Respondent out of its
Sacramento facility as custodians, drivers and guards; excluding all other employees,
office and clerical employees , watchmen, and supervisory employees as defined in the
Act.
The employees in the bargaining unit are all guards within the meaning of Section9 (b)(3)of the
Act.
On September 27 2010, Respondent withdrew recognition, effective November 30,
2010, of Local 150 as the exclusive bargaining representative of the employees in the
Sacramento Unit. Respondent withdrew recognition based on Board precedent that permits
withdrawal of recognition of a labor organization that represents both guards and non-guards
upon the expiration of the relevant collective-bargaining agreement.
Since at least 1963, Local 542 has been the exclusive collective-bargaining
representative of a unit of Respondent’s employees in San Diego, California. The most recent
collective-bargaining agreement between the parties is effective by its terms from March 1,
2010 to February 28, 2011. The bargaining unit covered by the agreement is:
All full-time and regular part-time employees employed by Respondent out of its San
Diego branch as custodians, drivers and guards; excluding all other employees, vault
employees, turret employees, office clerical employees , professional employees and
supervisors as defined in the Act.
The employees in the bargaining unit are all guards within the meaning of Section 9 (b)(3)of the
Act.
On December 20, 2010, Respondent withdrew recognition, effective February 28, 2011,
of Local 542 as the exclusive bargaining representative of the employees in the San Diego
Unit. Respondent withdrew recognition based on Board precedent that permits withdrawal of
recognition of a labor organization that represents both guards and non-guards upon the
expiration of the relevant collective-bargaining agreement.
Since at least 1981, Local 396 has been the exclusive collective-bargaining
representative of a unit of Respondent’s employees in Los Angeles, California. The most
recent collective-bargaining agreement between the parties is effective by its terms from
February 1, 2010 to January 31, 2011. The bargaining unit covered by the agreement is:
All regular full-time and part-time custodians, drivers, guards and vault employees
working out of the Respondent’s City of Los Angeles, California (Pico) branch.
The employees in the bargaining unit are all guards within the meaning of Section9 (b)(3)of the
Act.
On November 23, 2010, Respondent withdrew recognition, effective January 31, 2011,
of Local 396 as the exclusive bargaining representative of the employees in the Los Angeles
Unit. Respondent withdrew recognition based on Board precedent that permits withdrawal of
recognition of a labor organization that represents both guards and non-guards upon the
expiration of the relevant collective-bargaining agreement.
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Local 150, Local 542 and Local 396 all admit into membership guards and non-guards.
Statement of the issue presented
The legal issue presented is whether an employer that has voluntarily recognized a
labor organization that represents both guards and non-guards as the designated exclusive
collective –bargaining representative of a unit of the employer’s guards, violates Section 8(a)(5)
when it withdraws recognition upon expiration of the collective-bargaining agreement because
that labor organization is a mixed-guard labor organization that is not certifiable by the Board
under Section 9(b)(3) of the Act.
III. Analysis
Section 9(b)(3) of the Act provides in relevant 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 . . . . employees other than guards. Even though the Board may not
certify a mixed-guard union as the bargaining representative of a unit comprised of guards, an
employer may voluntarily recognize a mixed-guard union as a bargaining representative of
guards and enter into a collective bargaining agreement applicable to those guards. See e.g.,
Northwest Protective Service Inc.,342 NLRB 1201, 1202-03 (2004).
In Wells Fargo Corp.,270 NLRB 787 (1984), the Board held that an employer has the
right to unilaterally end its voluntary recognition of the mixed-guard union upon the expiration of
the collective bargaining agreement. The Board held:
There is no basis for the Board drawing a distinction between initial certification and, as
here, the compulsory maintenance of a bargaining relationship through the use of a
bargaining order. In either case, saddling the employer with an obligation to bargain
presents it with the same set of difficulties and the same potential conflict of loyalties
that Section 9(b)(3) was designed to avoid. At 789.
In Temple Security Inc., 328 NLRB 663 (1999), the General Counsel argued that the
Board should reverse its Wells Fargo decision. However, the Board held in reliance on Wells
Fargo, that the employer acted lawfully when, on the termination of the collective-bargaining
agreement, it withdrew recognition of a mixed-guard union.
In the instant case, the General Counsel and the Charging Parties, urge that I (and
ultimately the Board) reverse the Wells Fargo rule. That argument must be made to the Board.
I am bound by current Board law. Accordingly, I recommend dismissal of the complaints.
Conclusions of Law
1. Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) of the Act. .
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Upon the foregoing findings of fact and conclusions of law, and upon the entire record,
and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:1
ORDER
The complaints are dismissed in their entirety.
Dated, January 11, 2012.
_____________________
Jay R. Pollack
Administrative Law Judge

1 All motions inconsistent with this recommended order are hereby denied. In the event no
exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.