Northside Center for Child Development

National Labor Relations Board - Board Decisions

Jan 14, 1993

310 N.L.R.B. 105 (N.L.R.B. 1993)

105
310 NLRB No. 20
NORTHSIDE CENTER FOR CHILD DEVELOPMENT
1 On August 7, 1991, Administrative Law Judge D. Barry Morris
issued the attached decision. The General Counsel filed exceptions
and a supporting brief. The Respondent filed a brief in support of
the judge’s decision.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 Johnson-Bateman Co., 295 NLRB 180, 182 (1989), quoting Ford
Motor Co. v. NLRB, 441 U.S. 488 at 489 (1979).
Northside Center for Child Development, Inc. and
Brotherhood of Security Personnel Officers
and Guards. Case 2–CA–24030
January 14, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions to the judge’s decision in this case re-
quire the Board to determine whether the Respondent
failed to meet its bargaining obligation when it
changed, without bargaining, the past practice of pro-
viding guns to its guards and requiring the guards to
carry the guns while on duty.1 The Board has consid-
ered the decision and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings, findings, and conclusions only to the extent
consistent with this Decision and Order.
The General Counsel excepts to the judge’s finding
that the Respondent’s unilateral decision to remove the
guns from the guards’ possession did not result in a
material, substantial, and significant change. The Gen-
eral Counsel also excepts to the judge’s failure to find
that the decision to disarm the guards involved a man-
datory subject of bargaining. We find merit in the
General Counsel’s exceptions.
The question of whether a security guard will carry
a weapon is a mandatory subject of bargaining. This
subject is ‘‘plainly germane to the ‘working environ-
ment’’’ and ‘‘not among those ‘managerial decisions,
which lie at the core of entrepreneurial control.’’’2 In
addition, the question of whether the guards will carry
guns is a very substantial and significant one. It can
affect the safety, and indeed the life, of the guard in-
volved. Questions concerning the safety and the lives
of unit employees are not insignificant matters. Ac-
cordingly, we find that the Respondent has violated the
Act as alleged.
Our dissenting colleague argues that the Respond-
ent’s change had no effect on the guards’ duties or
safety. We disagree. If the term ‘‘duties’’ is narrowly
defined to mean job functions, we would agree that the
employees in this case perform precisely the same
functions as they did before. However, the require-
ments of the job have clearly changed. The record es-
tablishes that the ‘‘special requirement’’ section of the
job description for guards requires them to carry guns.
The Respondent’s change prohibited them from doing
so.
In addition, one of the incidents which triggered the
unilateral change in this case involved an altercation in
which a client reportedly brandished a knife in the
presence of a guard. Although the Respondent was
concerned about the safety of the clients and therefore
acted to take away guns from the guards, the Union,
assessing the same incident, would legitimately be con-
cerned about the safety of the guards and would want
to retain the guns of the guards.
Our dissenting colleague observes that there is no
record evidence that the guards in this case were in
fact safer when they were armed. However, in 8(a)(5)
cases, the Board does not seek to make an assessment
as to whether a given change would make the work-
place ‘‘safer’’ or otherwise ‘‘better.’’ The issue in such
cases is whether the change is of legitimate concern to
the union as the representative of employees, such that
the union would be entitled to bargain about the matter
on behalf of the employees. For the reasons indicated
above, we believe that the subject of gun possession
is such a matter of concern.
We note that our holding in no way disregards the
Respondent’s concerns over the safety of its clients.
All that the Respondent was required to do was give
the Union notice and an opportunity to bargain over
the proposed removal of the guns. If, during good-faith
bargaining, the Union was unable to suggest any safe-
guards for the guards’ continued possession of the
guns that satisfied the Respondent and the parties
reached impasse, the Respondent’s subsequent removal
of the guns would in no way violate the Act. Further-
more, the Board takes account of any emergency cir-
cumstances in determining how extended bargaining
need be before the parties can be deemed at impasse.
In the present case, however, the incidents which the
Respondent asserts prompted it to demand removal of
the guns allegedly occurred in November 1988, May
1989, and November 22, 1989. The Respondent did
not make its demand to the guards to return the guns
until December 19, 1989. Obviously, even under the
Respondent’s assessment of the urgency of the need to
take action, there was ample time to notify the Union
and give it a chance to respond to the proposed course
of action.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 3 in
Administrative Law Judge Morris’ decision:
‘‘3. By unilaterally discontinuing the practice of pro-
viding guards with guns and requiring the guards to
carry guns while on duty, the Respondent has failed
and refused to bargain collectively with the representa-
tive of its employees in violation of Section 8(a)(5)
and (1) of the Act.’’
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If this 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.’’
1 See, e.g., Murphy Oil USA, 286 NLRB 1039, 1041 (1987); Peer-
less Food Products, 236 NLRB 161 (1977).
2 I do not, however, rely on the judge’s discussion (in sec. II,B,3
of his decision) of the Respondent’s reasons for unilaterally chang-
ing its policy. The lawfulness of this unilateral change is determined
by whether it was a material, substantial, and significant one, not
whether the Respondent had a good business reason for wanting to
make it.
3 There are, in fact, no exceptions to the judge’s express findings
(in sec. II,B,2 and 3 of his decision, respectively) that ‘‘[t]here is
no indication in the record that the duties of Clark and Coxall
changed in any respect after their guns were removed’’ and that
‘‘[t]here has been no showing that the duties of the two employees
were changed in any way.’’ In his brief in support of exceptions,
the General Counsel expressly notes these findings, and raises no
factual challenge to them.
However, in taking a tack not taken by the General Counsel, my
colleagues contend that the new prohibition against; carrying guns
has had an effect on the duties of the security guards, referring to
the ‘‘Special Requirements’’ section of Respondent’s job description
for security guards, which required them to be armed while on duty.
In fact, there is no mention of carrying a gun in the four specific
duties set forth in the ‘‘Duties’’ section of the job description (i.e.,
checking credentials; logging in visitors; checking stairways; and
performing other assignments as directed). Thus, the job description
relied on by my colleagues does not set forth any security guard du-
ties requiring the carrying of a gun, and, as the judge found without
exception, the record does not show that any security guard duties
have been changed as a result of not carrying a gun.
4 Indeed, the judge stated (in sec. II,B,2 of his decision) that the
General Counsel conceded in his brief to the judge that there is no
evidence in the record that the guards in this case were in fact safer
for being armed. And the General Counsel does not except to that
statement. Nevertheless, although the record does not say, one could
speculate that the Respondent might have initially implemented its
former policy requiring security guards to carry guns out of concern
for the safety not only of the Respondent’s clients, staff, and visitors,
but also of the security guards themselves. But I note that in the
only instance in the record in which one of the security guards even
allegedly displayed his gun, in response to a visitor allegedly dis-
playing a knife, the Respondent’s immediate and only concern was
for the safety of its clients, not the guards. Indeed, it was this inci-
dent which led directly to the Respondent’s change in policy prohib-
iting guards from carrying guns. In any event, the record does not
show that the Respondent’s new policy has had any effect on the
guards’ safety.
ORDER
The National Labor Relations Board orders that the
Respondent, Northside Center for Child Development,
Inc., New York, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively
with Brotherhood of Security Personnel Officers and
Guards, as the exclusive bargaining representative of
its employees in the appropriate unit by changing the
terms and conditions of employment without bar-
gaining collectively with the Union in accordance with
Section 8(a)(5) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind, on request, the unilateral change in the
practice of providing guards with guns and requiring
that the guards carry the guns while on duty.
(b) Post at its New York, New York facility copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 2, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER DEVANEY, dissenting.
I disagree with my colleagues’ conclusion that the
Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally implementing a new policy prohibiting
its security guards from carrying guns, without pro-
viding the Union with advance notice of and an oppor-
tunity to bargain about the change. More specifically,
I disagree with my colleagues’ finding, contrary to the
judge, that this unilateral change in policy constituted
a material, substantial, and significant change in the
terms and conditions of employment of the Respond-
ent’s two security guards, so as to require the Re-
spondent to bargain about this change.
My colleagues and I agree that an employer is obli-
gated to bargain about a change in terms and condi-
tions of employment when it is a ‘‘material, substan-
tial, and significant’’ change.1 We differ, however, on
the result reached in applying that standard to the facts
in this case.
I agree with and adopt, for the most part, the judge’s
analysis leading to his conclusion that the change in
policy did not constitute a material, substantial, and
significant change in the terms and conditions of the
guards’ employment.2 In doing so, I note particularly
that there is no evidence that the Respondent’s unilat-
eral change in policy to now prohibit its security
guards from carrying guns had any actual effect on the
guards’ wages, duties,3 or safety.4
Thus, my colleagues’ speculation about the new pol-
icy’s possible adverse effect on the guards’ safety is
just that—speculation. In the absence of any record
evidence on which to base a finding that the guards’
safety was in any way endangered by the Respondent’s
107NORTHSIDE CENTER FOR CHILD DEVELOPMENT
1 All dates refer to 1989 unless otherwise specified.
change in policy, I simply decline to join my col-
leagues.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain col-
lectively with Brotherhood of Security Personnel Offi-
cers and Guards, as the exclusive bargaining represent-
ative of our employees in the appropriate unit by
changing the terms and conditions of employment
without bargaining collectively with the Union in ac-
cordance with Section 8(a)(5) of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind, on request, the unilateral change
in the practice of providing guards with guns and re-
quiring that the guards carry the guns while on duty.
NORTHSIDE CENTER FOR CHILD DEVEL-
OPMENT, INC.
Leah Z. Jaffe, Esq., for the General Counsel.
Richard Schoolman, Esq. (Eikenberry, Futterman, &
Schoolman), of New York, New York, for the Respondent.
Haywood Banks, Esq., of Flushing, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York City on November 26,
1990. Upon a charge filed on December 22, 1989,1 a com-
plaint was issued on March 26, 1990, alleging that Northside
Center for Child Development, Inc. (Respondent) violated
Section 8(a)(1) and (5) of the National Labor Relations Act
(the Act), by unilaterally removing guns from its two secu-
rity guards. Respondent filed an answer denying the commis-
sion of the alleged unfair labor practice.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by the Respondent.
On the entire record of the case including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with an office and
place of business in New York City, has been engaged in the
operation of a mental health center, providing medical care
to the public. It annually derives gross revenues in excess of
$250,000 and receives at its facility goods and services val-
ued in excess of $10,000 directly from points located outside
the State of New York. Respondent admits, and I so find,
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and is a health
care institution within the meaning of Section 2(14) of the
Act. In addition, it has been admitted, and I find, that Broth-
erhood of Security Personnel Officers and Guards (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
The Respondent is a nonprofit agency which provides
therapeutic and educational remedial services to families and
children in the Harlem and East Harlem areas of New York
City. In addition, Respondent provides an early childhood
program which services preschool children with learning dis-
abilities. Respondent is a tenant of Shomberg Plaza, which
is a housing development located at 1301 Fifth Avenue. To
gain access to Respondent’s facility one must walk through
Shomberg Plaza’s security area where Shomberg Plaza secu-
rity guards are posted.
On July 20, 1989, the Board certified the Union as the ex-
clusive bargaining agent in an appropriate bargaining unit of
all full-time and regular part-time security guards employed
by Respondent at its 1301 Fifth Avenue facility. During 1989
Respondent employed two security guards, Bernard Clark
and Compton Levi-Coxall. Clark had been employed by Re-
spondent as a security guard since September 1986. In 1988
he started to carry a weapon. Coxall was employed by Re-
spondent since 1983. The record does not indicate when he
began carrying a weapon, however, he did carry a weapon
during 1989.
Khadijah Abdullah, Respondent’s director of operations
and personnel, testified that in May 1989 she had an alterca-
tion with Coxall in which he said that he was angry and that
if she said anything that made him angry ‘‘he would do
something to my face.’’ In addition, Abdullah testified con-
cerning an incident in which Coxall was involved on No-
vember 22, 1989. The mother of one of Respondent’s clients
was involved in an altercation with Coxall and she alleged
that Coxall pulled a gun on her. Abdullah testified that
Coxall told her that the client’s mother drew a knife, at
which time he displayed his gun. Lisa Paisley-Cleveland,
deputy director of Respondent, testified that after the incident
she and the executive director met. She credibly testified,
‘‘we were extremely concerned about the welfare of our cli-
ents following this incident. We didn’t feel we had any other
recourse but to take back the guns.’’ On December 19 Re-
spondent requested that Clark and Coxall return their weap-
ons. Clark turned in his weapon on December 19 and Coxall
turned in his weapon on December 20. The parties stipulated
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Respondent did not contact the Union prior to its request
that the two security guards return their weapons.
B. Discussion
1. Applicable legal principles
An employer violates Section 8(a)(1) and (5) of the Act
when it evades its duty to bargain by making unilateral
changes in wages, hours, or other terms and conditions of
employment. NLRB v. Katz, 369 U.S. 736, 743 (1962). How-
ever, not every unilateral change constitutes a breech of the
bargaining obligation. The change must amount to ‘‘a mate-
rial, substantial and a signigicant’’ one. Peerless Food Prod-
ucts, 236 NLRB 161 (1978); Murphy Oil USA, 286 NLRB
1039, 1041 (1987). See generally San Antonio Portland Ce-
ment Co., 277 NLRB 309, 313 (1985).
2. Recall of weapons
The complaint alleges that by requesting Clark and Coxall
to return their weapons without prior notice to the Union,
Respondent unilaterally changed a term and condition of em-
ployment, in violation of Section 8(a)(1) and (5) of the Act.
In a thoughtful and well-written brief, counsel for the Gen-
eral Counsel contends, citing United Technologies Corp., 286
NLRB 693, 694 fn. 1 (1987), that a weapon constitutes part
of the guard’s ‘‘uniform’’ and, therefore, any unilateral
change without bargaining with the Union with respect to
uniforms violates the Act. I believe, however, that General
Counsel’s argument is misplaced. The term ‘‘uniform’’ nor-
mally connotes articles of clothing. In United Technologies
Corp., supra, the uniforms consisted of pants, shirts, and
jackets. General Counsel has cited no case which indicates
that a gun is considered as part of a ‘‘uniform.’’ Indeed, the
job description for the position of security guard at Respond-
ent, which was introduced as an exhibit by General Counsel,
states only the following under the category of ‘‘uniforms’’:
‘‘Grey slacks, blue blazer, black shoes and socks, white or
light blue shirt, appropriate tie. Guard patch or badge will be
worn on left breast pocket in addition to nameplate.’’ The re-
quirement to carry a weapon is stated under a separate cat-
egory of ‘‘special requirements,’’ which provides that ‘‘fire-
arms must be concealed at at all times beneath jacket.’’
When asked how he carried his weapon, Clark testified that
he carried it in a shoulder holster under his coat. He further
testified, ‘‘I kept on my jacket at all times.’’
General Counsel also contends that whether or not guards
are armed has ‘‘substantial implications for their wages.’’
Curtis Trueheart, the Union’s business representative, testi-
fied that in the industry, armed guards normally receive high-
er salaries than unarmed guards. However, there is no indica-
tion in the record that this would be the case with respect
to Respondent. To the contrary, counsel for Respondent ar-
gued at the hearing that a relief guard at Respondent’s facil-
ity who was unarmed was paid at a higher salary than were
the armed guards. There is no indication in the record that
the duties of Clark and Coxall changed in any respect after
their guns were removed.
General Counsel also argues that decisions which impact
on employee safety are subjects about which parties are
obliged to bargain. However, in her brief, General Counsel
concedes that ‘‘there is no evidence in the record that the
guards in this case were in fact safer for being armed.’’ The
record indicates that access to Respondent’s facility is
through the entrance of Shomberg Plaza, where Shomberg
Plaza security guards are stationed. Indeed, Respondent con-
tacted the police department to survey its security needs and
Abdullah credibly testified that they were informed by the
police that, while the police could not tell them whether their
guards should be armed or unarmed, ‘‘given the nature of the
security of Northside Center the preference was that they
were not armed.’’
Conclusions
I conclude that General Counsel has not shown that Re-
spondent, by recalling the guns carried by Clark and Coxall,
evaded its duty to bargain. After Respondent perceived that
it was having problems with one of its guards because he
carried a weapon, in view of the fact that Respondent’s secu-
rity needs were being adequately met and in view of the po-
lice department’s preference that its guards not be armed, on
December 19 Respondent requested that the two security
guards return their weapons. There has been no showing that
the duties of the two employees were changed in any way.
In addition, there has been no showing that the wages of the
two employees were reduced. While General Counsel con-
tends that in the future the wages may be reduced because
the guards no longer carry weapons, as stated in Peerless
Food Products, supra, 236 NLRB 161 ‘‘not every unilateral
change . . . constitutes a breach of the bargaining obligation.
The change unilaterally imposed must, initially, amount to ’a
material, substantial, and a significant’ one . . . .’’ With re-
spect to wages, no change was made. While there may be
a change in the future, such a change is merely speculative.
Accordingly, the allegation is dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor practice
alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]