Sentry Investigation Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1972

198 N.L.R.B. 1074 (N.L.R.B. 1972)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sentry Investigation Corp . and Allied Crafts Security
Union of North America, Petitioner. Case
2-RC-15744
August 25, 1972
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY MEMBERS FANNING, KENNEDY AND
PENELLO
On January 24, 1972, the Regional Director for
Region 2 issued his Decision and Order in the above-
entitled proceeding, in which he dismissed the
petition for a unit of guards on the ground that
Petitioner, a guard union, failed to establish that it
admits only guards to membership.' A question was
also raised concerning Petitioner's direct or indirect
affiliation with Railroad, Maintenance and Industri-
al Employees District 5, AFL-CIO, and Affiliated
Unions-in particular Local 801. As to this question
the Regional Director found that there was insuffi-
cient evidence to support this assertion. Thereafter,
Petitioner timely filed a request for review of the
Regional Director's decision, contending that the
Regional Director erred in finding Petitioner had
failed to establish that it admitted only guards to
membership.
On February 16, 1972, the Board granted the
Request for Review and remanded this proceeding
for further hearing concerning Petitioner's qualifica-
tions, particularly whether "investigators or any
other category of employee eligible for membership
under Petitioner's constitution are guards within the
meaning of the Act." On May 17, following the
supplemental hearing, the Regional Director trans-
ferred the case to the Board for decision. Thereafter,
Petitioner made a motion to reopen the record to
admit new evidence that its constitution had been
revised (i.e., the word "investigator" had been
deleted) and that all employees of the Petitioner who
were members of Petitioner had resigned. Intervenor
filed a letter in opposition to the motion.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
i The Regional Director did not reach the issue of contract bar raised by
Intervenor , Local 803 , Security Guards and Watchmen Union , Internation-
al Brotherhood of Teamsters Petitioner contends that Intervenor 's existing
contract with Employer is no bar because it contains an illegal union-
security clause The clause reads "The Employer will require each
employee , immediately upon being hired , to sign a Union membership
application to become effective thirty (30) days after the date of hiring " On
its face, this provision denies to employees the 30-day grace period during
which they may consider the matter of joining the Union We view this
clause as patently illegal and thus the contract is not a bar to the
proceeding Paragon Products, 134 NLRB 662 Similar clauses, when
implemented by an employer , have been held to constitute unfair labor
practices See Zidell Explorations, Inc, 175 NLRB 887, and Western
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case the Board finds:
We agree with the Regional Director's conclusion
that Petitioner is not disqualified from certification
due to any indirect affiliation with a nonguard union.
The record indicates that Petitioner's president,
Patrick Sottile, was formerly president of Local 801
and, in addition, other officers of Petitioner were
officers of District 5 and Local 801. However, since
the inception of Petitioner in March 1969, all have
ceased being officers of District 5 or Local 801 and,
since then, none has been a member of or held a
position in another labor organization. In relation to
this, there is uncontroverted testimony that Petition-
er alone administers its collective-bargaining agree-
ments with various employers, without advice or
assistance from District 5 or Local 801, that it has its
own clerical and organizing employees, and that no
officers or employees of other labor organizations
organize on its behalf or attempt to guide its
operations.3 Intervenor contends that Petitioner's
participation in District 5's health and welfare fund
constitutes indirect affiliation within the meaning of
Section 9(b)(3) of the Act. The employers of
approximately 70 percent of employees covered by
Petitioner's bargaining agreements contribute to the
fund, which is administered by a board of trustees.
These trustees have never interfered with the affairs
of Petitioner, though some trustees are, or have been,
officials of District 5.4 Other trustees of the fund are
employers with whom District 5 has contracts. No
representative of Petitioner nor any employer with
which it has a contract is a trustee of the fund and
Petitioner is free to negotiate health and welfare
benefits other than those available under the District
5 fund. From a financial standpoint, it appears that
Petitioner has been involved with District 5 only in
the following respects: a $3,500 loan from District 5
to Petitioner repaid before March 31, 1971; 5 a $1,000
contribution to a testimonial dinner for the adminis-
trator of the District 5 fund made during the year
preceding March 31, 1970; and regular contributions
on behalf of Petitioner's own employees. These
factors, as the Regional Director has determined, are
insufficient to create an indirect affiliation.
Building Maintenance Co, 162 N LRB 778
2 In its motion to reopen, Petitioner also requested consolidation of this
proceeding with two other proceedings now pending, King's Plaza Shopping
Center, Case 29-RC-1978, and Waldbaum's Inc, Case 29-RC-1979 The
motion was opposed by the Intervenor and by one of the Employers
Involved, Waldbaum's Inc As the issues , other than Petitioner 's qualifica-
tions, differ , we deny the motion to consolidate Included in the motion to
reopen was an alternative request for additional time to file a brief, which
the Board granted No brief has been received
3 See The Magnavox Company, 97 NLRB 1 111.
+ See Rock-Hd-Uris, Inc, 193 NLRB No 47
5 See Bonded Armored Carrier Inc, 195 N LRB No 68
198 NLRB No. 152
SENTRY INVESTIGATION CORP.
From all of the foregoing we conclude that the
Petitioner has not been deprived of its ability to act
independently in negotiating health and welfare
benefits for the employees it represents, and that it
acts independently in administering its contracts
with employers.
With regard to the question of membership in the
Union, the evidence now before the Board indicates
that Petitioner has never admitted to membership
investigators who are not guards, and that those
members represented by it, who may have occupied
positions such as checkers, investigators, and recep-
tionists, were, in fact, acting in a guard capacity.6 In
actual practice it appears that only guards are
members of the Union, except for four of Petitioner's
own employees discussed below. Unlike the Regional
Director, we do not read the Petitioner's constitution
as differentiating between guards and investigators.?
Consequently, we see no need to reopen the record to
admit evidence concerning the asserted deletion of
the word "investigators" from the Petitioner's consti-
tution and bylaws.
Likewise, for the reasons that follow, we shall not
reopen the record to admit evidence that "all
employees of the Petitioner formerly holding mem-
bership" have resigned as members. The record
before us shows that at the time of the supplemental
hearing Petitioner had, four such members in its
employ, three organizers and a secretary. They, as
their job classifications indicate, do not act as guards.
Clearly, however, the Petitioner, as to its own
6 See Tulsa Hotel Management Corp, 135 NLRB 968, and Chance
Vaught Aircraft, Inc, 110 NLRB 1342
7 Article 11 of Petitioner 's constitution reads "Thejurisdictions of Allied
Crafts Security Union of North America shall include guards, security
officers, watchmen , captains , sergeants , investigators, and policemen in the
1075
employees, could not be certified to act as a
representative for collective bargaining. Though
Section 9(b)(3) may literally be read to disqualify
Petitioner because it accepts any nonguards as
members, the purpose of the statutory provision is to
prevent a guard union, such as Petitioner, from
bargaining on behalf of nonguard members. Whether
Petitioner has or has had employees of its own who
were also members should, we believe, have no
bearing on its qualifications to act for guards
employed by other employers.
Having found, in agreement with the Regional
Director, that Petitioner is not directly or indirectly
affiliated with a nonguard union , and having found
additionally that it accepts only guards into member-
ship (with the exception of its own employees), we
shall direct an election inasmuch as Petitioner is
qualified for certification should it receive a majority
vote.
Accordingly, we find that the following employees
of the employer constitute a unit appropriate for
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All house officers, security officers, guards,
patrolmen and watchmen employed by the
Employer of 375 E. Fordham Road, Bronx, New
York, excluding all other employees and supervi-
sors as defined in the Act.
[Direction of Election8 and Excelsior footnote
omitted from publication.]
United States, Puerto Rico, Canada, and the Virgin Islands, and such other
areas as the Executive Board shall, from time to time , include therein "
(Emphasis supplied)
8 In 'the event the Intervenor wins the election , we shall certify only the
arithmetical results of the election.