Pinkerton's National Detective Agency, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1955

114 N.L.R.B. 1363 (N.L.R.B. 1955)

PINKERTON'S NATIONAL DETECTIVE AGENCY, INC . 1363
In view of this ambiguity, it seems to me permissible to resort to
parol evidence as to the meaning of the foregoing contract provisions.
Such evidence seems to support a finding either that the parties failed
to agree that the disputed work should be assigned to the Respondent,
or that they did not intend such assignment. In either case, I would
'find that there was no contractual assignment to the Respondent and
that the Respondent was, therefore, not entitled to the disputed work.
MEMBERS RODGERS and BEAN took no part in the consideration of
the above Decision and Determination of Dispute.
Pinkerton's National Detective Agency, Inc. and Yonkers Uni-
formed Guards and Protective Association, Local 1. Case No.
RC--7360. December 14, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, an original hearing was held in the present case
on April 14 and May 9, 1955, before I. L. Broadwin, hearing officer.
At this hearing,' Building Service Employees International Union
Local 32, herein called the Intervenor, was permitted to intervene
in order to contest the Petitioner's claim that the Board should assert
jurisdiction over the operations involved herein. The Intervenor's
offer of proof with respect to jurisdiction was rejected by the hearing
officer upon the ground that the prior decision was res adjudicata;oll
the issue of jurisdiction. Upon consideration of this matter, the
Board remanded the case for further evidence, inter alia,' upon the
Intervenor's offer of proof concerning jurisdiction. Thereafter, a
reopened hearing was held before the hearing officer on September
12 and 13, 1955. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. Both the
Intervenor and the Petitioner filed original and supplemental briefs,
all of which have been fully considered by the Board. Upon the
entire record in the case, the Board has decided, for reasons herein-
after set forth, that it will not assert jurisdiction over the particular
operations involved herein.
1 The present case arose upon the Board's dismissal of a prior proceeding brought by a
predecessor in interest of the Petitioner and dismissed by the Board because the unit,
sought therein was inappropriate. See Pinkerton's National Detective Agency, 111
NLRB 504
2 The remand also sought further evidence upon the functions and duties of an usher,
one of the employee classifications involved herein In view of our present decision on
the issue of jurisdiction, we find it unnecessary to consider any issue relating to the
appropriateness of the unit sought.
114 NLRB No. 215.
387644-56-vol. 114 87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Petitioner in the instant proceeding seeks an election among
certain employees 3 of Pinkerton's National Detective Agency, Inc.,
herein called the Employer, and employed by the Employer solely
on the premises of the Empire Raceway, a harness racing track op-
erated at Yonkers, New York, by the Yonkers Trotting Association,'
herein called the Association. The record shows that, while the em-
ployees concerned are those of the Employer, these employees are han-
dled by a separate autonomous division of the Employer and are, to
an unusual degree, closely identified with the work and interests of
the Association. Thus, the labor relations of the instant employees
are, like those of the Association's employees, equally the subject of
special laws' enacted by the State of New York for the regulation
of employment at race tracks and for the representation of race track
employees by labor organizations. In addition, the evidence discloses
that the Employer, by agreement with the Association, has permitted
the Association to assume the direct supervision of these employees.'
The effect of this practice has been to make such employees of the
Employer part and parcel of the Association's race track operations.
The Board has not generally been concerned with the type of opera-
tion conducted by the customer of a service contractor where the
latter was otherwise within the Board's jurisdictional plan. How-
ever , this is an atypical situation in which the service contractor has,
in effect, compartmentalized one phase of his operation so that, un-
like his main operations , his employees have been very closely inte-
grated and virtually included in an industry over which the Board,
as a matter of policy, does not assert jurisdiction. Consequently to
assert jurisdiction here would, in effect, contravene our policy as to that
industry. Accordingly, upon the basis of the particular circum-
stances of this case, we believe that the assertion of jurisdiction over
* These employees are in the classification of usher and patrolman.
* The Pari-Dlutuel Revenue Law of 1940 , Chapter 254 as amended , governing harness
horse racing in the State of New York provides in part as follows :
Section 41 ( a) provides for the licensing by the State harness commission of "all
persons exercising their occupation or employed at harness race meets."
Section 44 ( a) provides for the filing with the State harness commission of a copy of
all agreements made by any racing association and concerning among other matters labor
management relations and the hiring of designated classes of officers , employees , or con-
tractors specified by the commission , oc any such other contract as the racing commission
may from time to time prescribe.
Section 52 ( a) prohibits the making of union -security agreements covering the employ-
ment of any person at a pari-mutuel track for harness racing , unless such agreement is
with a labor organization which has been certified as bargaining representative after an
election pursuant to the provisions of the New York State Labor Relations Act Any
party who wilfully violates this section is subject upon conviction to a fine of not more
than $5 , 000, or to imprisonment for not more than 1 year, or both
The Emplovet's sei %ice couti act with I he, .association, as amended in April 1951,
specifically provides for direct supervision by the general manager and president of the
Association over all of the employees of the Employer situated at^tbe Yonkers track The
rcm.oid reveals that such supervision is in fact exercised by Association officials.
R & R EQUIPMENT & MANUFACTURING COMPANY 1365
this portion of the Employer's employees would not effectuate the pur-
poses of the Act. We shall therefore dismiss the petition.
[The Board dismissed the petition.]
MEMBER PETERSON, dissenting :
I would assert jurisdiction in this proceeding. As pointed out in the
majority opinion, "the Board has not generally been concerned with
the type of operation conducted by the customer of a service con-
tractor where the latter is otherwise within the Board' s jurisdictional
plan." In this case, it is undisputed that the Employer's overall opera-
tions are nationwide in scope and are clearly sufficient for the asser-
tion of jurisdiction.6 The only reason suggested for declining jurisdic-
tion is that the Employer's operation here is "compartmentalized" and
that the employees engaged therein have been "closely integrated and
virtually included in an industry over which the Board, as a matter of
policy, does not assert jurisdiction." The record clearly shows, how-
ever, that the services here performed are those of the Employer's own
employees without interchange with those of the Employer's customer.
I can see, therefore, no basis for departing from the broad principle
which admittedly should govern in the generality of cases. Under
the circumstances, I believe that it is error not to apply the Board's,
jurisdictional plan, and that the creation of an exception in the present
instance is unwarranted.
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Decision and Order.
6 See' Prnkerto-n's National Detechue Agency. inc. 90 NLRB 532 , Burn.. Detective
Agency, 110 NLRB 995
R & R Equipment & Manufacturing Company and Sheet Metal
Workers International Association , Local Union No . 93, AFL-
CIO and United Brotherhood of Carpenters and Joiners of
America, AFL, District Council of St. Louis and Vicinity,'-
Petitioners . Cases Nos. 14-RC-2809 wed 141-RC-2857. Decen?.--
ber 14,1955
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Walter Werner, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
v Hereinafter called Carpenter s
s United Steelworkers of America , AFL-CIO, International Associatidn of Machinists,
AFI-CIO ; and Inteinational Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Local 833, intervened in this proceeding.
114 NLRB No. 205.