The University Of Chicago

National Labor Relations Board - Board Decisions

Oct 22, 1984

272 N.L.R.B. 873 (N.L.R.B. 1984)

UNIVERSITY OF CHICAGO 873
The University of Chicago and Samuel V Evans,
Jr, Petitioner, and International Union of
Police Associations, Illinois State Council Local
200, affiliated with Illinois Confederation of
Police Case 13-RD-1458
22 October 1984
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN, HUNTER AND DENNIS
On 22 December 1982 the Regional Director for
Region 13 issued a Decision and Direction of Elec
tion in the above entitled proceeding in which he
allowed the Intervenor, Highway Drivers, Dock
men, Spotters, Rampmen, Meat Packing House and
Allied Products Drivers and Helpers, Office Work
ers and Miscellaneous Employees, Local 710, Inter
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
after called Local 710 which had demonstrated the
requisite showing of interest to intervene in this
proceeding for the sole purpose of being accorded
a place on the ballot Since Section 9(b)(3) of the
Act disqualifies Local 710 from certification as the
bargaining representative of the guard unit in
volved in this case, the Regional Director empha
sized, citing Bally s Park Place, 257 NLRB 777
(1981) that he would certify only the arithmetical
results if Local 710 won the election
On 29 December 1982 the Employer filed a re
quest for review of the Regional Director's deci
sion on the grounds that no conceivable legitimate
purpose can be served by permitting employees to
vote for a union which is unable to compel recog
mtion 'The Employer thus requested that in light
of the facts in the instant case the Board reconsid
er and modify its decision in Bally s Park Place,
supra By telegraphic order dated 25 January 1983
the Employer s request for review was denied and
the Regional Director s decision affirmed because
there was a lack of majority for granting review 1
On 25 January 1983 an election by secret ballot
was conducted At the conclusion of the election
the parties were furnished with a tally of ballots
which showed that, of approximately 63 eligible
voters 32 cast ballots for Local 710 17 cast ballots
for International Union of Police Associations, Illi
nois State Council Local 200, and 1 cast a ballot
against the participating labor organizations There
was one challenged ballot
1 Former Chairman Miller and Member Hunter voted for and
Member Zimmerman and former Member Jenkins against granting
review
On 1 February 1983 the Employer filed timely
objections to conduct affecting the results of the
election Pursuant to Section 102 69 of the Board s
Rules and Regulations, the Regional Director con
ducted an investigation of the objections and issued
his report which recommended that the Employ
er's objections be overruled and that a certification
of the arithmetical results be issued Thereafter, on
11 March 1983, the Employer filed timely excep
tions to the Regional Director's report
In its Objection 1, the Employer contends that
by permitting Local 710 to appear on the ballot,
the Regional Director created the impression that,
if selected, the Intervenor would have the legal
right to secure recognition from this Employer as
the bargaining representative of its employees The
Regional Director, relying on Bally s Park Place
supra, as well as the denial of review, recommend
ed that this objection be overruled We disagree
The crux of the problem in the instant case, and
indeed in all guard nonguard union cases, 2 is the
construction of Section 9(b)(3) of the Act, which
provides in pertinent part
[T]hat the Board shall not (3) decide that
any unit is appropriate if it includes, to
gether with other employees, any individual
employed as a guard to enforce against em
ployees and other persons rules to protect
property of the employer or to protect the
safety of persons on the employer's premises,
but no labor organization shall be certified as
the representative of employees in a bargaining
unit of guards if such organization admits to
membership or is affiliated directly or indi
rectly with an organization which admits to
membership, employees other than guards
Although the statute explicitly prohibits certifica
lion of organizations such as Local 710, which
admits nonguards into its membership and which is
affiliated with a guard nonguard union nowhere
does the statute specify the consequences of this
prohibition The Board has therefore been obliged
to resolve a variety of questions raised by this stat
utory void, 3 including that posed in the instant
2 A guard nonguard union is one which like Local 710 represents
guards and also admits to its membership or is affiliated directly or Ind'
rectly with an organization which admits to membership nonguards We
today adopt the more accurate expression guard nonguard union in
place of mixed guard union
3 As a result of this statutory void the Board has addressed three ques
tions other than that under consideration in the instant case first wheth
er to entertain an election petition filed by a union barred from certifica
tion See Schenley Distilleries 77 NLRB 468 (1948) General Motors Corp
77 NLRB 1029 (1948) Armored Motor Service Co 106 NLRB 1139
(1953) Wackenhut Corp 169 NLRB 398 (1968) Second whether an em
ployer can lawfully refuse to recognize a union barred from certification
See City National Bank Co 76 NLRB 213 (1948) Mack Mfg Corp 107
Continued
272 NLRB No 126
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case i e, whether a union disqualified from certifi
cation should be permitted to intervene in a Board
conducted election 4
The Board first addressed this issue in Burns De
tective Agency 138 NLRB 449 (1962), referred to
herein as Burns II The Board held in Burns II that
'the statutory proscription in Section 9(b)(3)
against certifying affiliated labor organizations as
representing guard units does not prevent putting
such labor organizations on the ballot and certify
ing the arithmetical results when such an election is
won by such organization " 5 The Board's holding
in Burns II was apparently based on its earlier
holding in Burns Detective Agency, 134 NLRB 451
(1961) (Member Leedom dissenting), that 'the stat
utory proscription in Section 9(b)(3) does not
preclude the application of the Board s contract bar
rules to contracts covering such units 6 Both
Burns cases involved incumbent guard nonguard
unions Thus, in Wackenhut Corp 7 a majority of
the Boarn sought to limit the scope of the holding
in Burns II Noting that in Burns II the intervening
union was the incumbent, the Board in Wackenhut
declined to permit a nomncumbent nonguard union
to intervene and to appear on the ballot on the
grounds that the purpose of Section 9(b)(3) would
not be served by such an action The Board ob
served
Whatever may be the rationale with respect to
placing incumbents on the ballot, 1 e, that the
Board may not wish to disturb unduly what
may historically have been a voluntary bar
gaining relationship such rationale has no ap
plicability to an unqualified stranger labor or
ganization 8
NLRB 209 (1953) Wells Fargo Corp 270 NLRB 787 (1984) Third
whether a contract with a guard nonguard union acts as a bar to an elec
tion petition Compare Columbia Southern Chemical Corp 110 NLRB
1189 (1954) and Burns Detective Agency 134 NLRB 451 (1961)
4 As noted in Service Employees Local 73 v NLRB 578 F 2d 361 371
(D C Cir 1978) What the Board has occasionally allowed a non certifi
able union to participate in a certified election and receive an arithmetical
certification of the results does not mean that the union has any right to
participate Accord Teamsters Local 71 v NLRB 553 F 2d 1368 1376
(D C Cir 1977) and Teamsters Local 344 v NLRB 568 F 2d 12 (7th Cir
1977)
5 138 NLRB at 452
6 134 NLRB at 453 In Burns I the Board reasoned that Congress
could readily have declared a guard unit inappropriate if the represents
nye of that unit admitted nonguards to membership Congress did
not so declare and the preceding statutory language covering the mixed
guard unit compels the conclusion that this omission in the latter situa
non was deliberate For reasons set forth infra we reject this analysis
We express no opinion on the result reached in Burns I since the facts of
the instant case do not raise the Issue addressed therein
' 223 NLRB 83 (1976)
8 Id at 83-84 In light of our decision herein we like the majority in
Wackenhut do not accept the reasoning in Rock Hill Uris Inc v
McLeod 236 F Supp 395 (DC N Y 1964) affd 344 F 2d 697 (2d Cir
1965) to the extent it is inconsistent herewith Moreover we note that
the decision of the district court in that case merely affirmed the Board s
exercise of discretion in this area and is therefore not binding on us in
In Bally's Park Place supra, however, the Board
rejected the majority holding in Wackenhut Corp
supra and expanded the Burns II holding to in
elude even nonincumbent nonguard unions In light
of today s decision in Brink s Inc , 272 NLRB 868
(1984), we have reevaluated our policy regarding
intervention by noncertifiable unions in Board con
ducted elections We have carefully considered the
language and the history of Section 9(b)(3) and
conclude that its purpose was to prevent a guard
nonguard union from participating in a Board con
ducted election as either a petitioner or an interve
nor 9
In Brink's we dismissed a unit clarification peti
tion which had been filed by a union barred from
certification by Section 9(b)(3) 10 In so doing, we
observed that, although Section 9(b)(3), read liter
ally, proscribes only the Board's authority to cer
tify a guard nonguard union
[T]o allow such a labor organization to clarify
a unit of guards which it represents would
assist it in accomplishing that which the statute
expressly seeks to avoid, i e, the representa
lion of guard employees by a union which
admits to membership employees other than
guards [272 NLRB at 870]
We concluded that, while an employer is not pro
hibited from voluntarily recognizing a guard non
guard union, we will not permit the Board's proc
esses to be utilized in furtherance of that end "
To do otherwise we noted, would place an unduly
narrow interpretation on the legislative intent ex
pressed by Section 9(b)(3) 12
Section 9(b)(3) was enacted by Congress in re
sponse to the Supreme Court s decision in NLRB v
Jones & Laughlin Steel Corp 331 US 416
deciding this case See NLRB v Iron Workers Local 103 434 U S 335
350 (1978) The determination of whether or not to place a noncertifiable
union on a ballot in a Board conducted election is clearly a discretionary
Board action See fn 4 supra
9 Our dissenting colleague states that nothing in the legislative history
of Sec 9(b)(3) supports a total ban on the use of the Board s processes
by a guard nonguard union In so doing our dissenting colleague mis
states the issue raised by the instant case Even our dissenting colleague
cannot dispute that Sec 9(b)(3) precludes the processing of a petition by
a guard nonguard union See Member Zimmerman s dissent in Brink s
272 NLRB at 872 fn 14 Wackenhut Corp 169 NLRB 398 (1968) Thus
the issue presented herein is reduced to whether Sec 9(b)(3) was intend
ed to prevent a guard nonguard union from availing itself of the Board s
election processes when it intervenes in a Board conducted election
In Brink s the union sought to add employees whom we found to
be guards to an existing guard unit That union however also represent
ed nonguard employees and was therefore precluded from certification
" 272 NLRB at 870
i2 For the proposition that Sec 9(b)(3) should be read broadly rather
than narrowly per Bally s Park Place supra see Columbia Southern Chem
ical Corp supra and NLRB v American District Telegraph Co 205 F 2d
86 (3d Cir 1953)
UNIVERSITY OF CHICAGO 875
(1947)," which allowed an employer s guards and
its production and maintenance employees to be
members of the same union In Jones & Laughlin,
the Supreme Court reversed the decision of the
Sixth Circuit 14 which had denied enforcement of
the Board s order requiring the employer to bar
gain with a guard nonguard union The circuit
court based its decision on its conclusion that
In case of industrial unrest and strikes on the
part of the production employees, the obliga
tions of the plant guards to the municipality
and state would be incompatible with their ob
ligations to the Union which, since it repre
sents production employees authorizes and di
rects the strike 13
Impressed by the reasoning of the Sixth Circuit"
and itself wary of the potential dangers arising
from the conflict of loyalties when a guard is
called on to enforce his employer s rules against a
fellow union member," Congress sought via the
provisions of Section 9(b)(3) to eliminate such con
filets, without denying guards the protection of the
Act Thus, commenting on his amendments, Sena
tor Taft remarked that 'as to plant guards we pro
vided that they could have the protection of the
Wagner Act only if they had a union separate and
apart from the union of the general employees '18
(Emphasis added ) Moreover, as the Board noted in
International Harvester Co , 19 Section 9(b)(3)
is not limited to the divided loyalty situation
but is broader 20 (Emphasis added ) Section 9(b)(3)
proscribes certification of a guard union if it is
even indirectly affiliated with a nonguard union
without regard to the situation at the particular
plant involved 21 The purpose and intent of Sec
tion 9(b)(3) was as the Board has consistently
maintained 22 to discourage representation by a
13 The legislative history of Sec 9(b)(3) clearly demonstrates that the
Supreme Court s decision triggered its drafting and enactment See 93
Cong Rec 6601 and 6658
14 154 F 2d 932 (1946)
13 Id at 935
16 2 Leg Hist 1541 (LMRA 1947)
" Local 710 is affiliated with the International Brotherhood of Team
sters Chauffeurs Warehousemen and Helpers of America The Employ
er s clerical and service unit employees as well as the employees of the
University of Chicago Press are also represented by Teamsters affiliated
unions In the event of a strike the Employer has assigned the responsi
Nifty for monitoring strike activities of other university employees to
members of the unit which Local 710 seeks to represent Thus we note
that allowing Local 710 a place on the ballot invites the very divided
loyalty scenario which Congress intended to avert by its enactment of
Sec 9(b)(3)
18 2 Leg Hist 1544 (LMRA 1947)
13 145 NLRB 1747 (1964)
20 Id at 1750
21 Id at 1750-1751
22 For example in Mack Mfg Corp supra at 212 the Board observed
that Congress clearly intended by Section 9(b)(3) that the union repre
senting guards should be completely divorced from that representing
single union of guards and nonguards and to ensure
that an employer is not compelled by Board action
to bargain with such an organization 23
As enacted, Section 9(b)(3) applies both to mixed
units of guards and other employees and to guard
nonguard unions The statute renders the former
inherently inappropriate and proscribes the Board
from certifying the latter Although the provision
addresses two different situations, we conclude
that, given the purpose underlying its enactment,
Section 9(b)(3) was intended to achieve a uniform
result 24 Thus, we find no basis for distinguishing
nonguard employees See also Monsanto Chemical Corp 108 NLRB 870
(1954)
23 See e g NLRB v White Superior Division 404 F 2d 1100 (6th Cir
1968) Teamsters Local 71 v NLRB supra Teamsters Local 344 v NLRB
supra and NLRB v Bel Air Mart 497 F 2d 322 (4th Cir 1974)
Contrary to our dissenting colleague s contention as set forth in Bally s
and again herein we find no incongruity between the language of Sec
9(b)(3) and its legislative history Sec 9(b)(3) s prohibition against Board
certification of a guard nonguard union precludes the processing of an
election petition filed by such a union and thereby denies It access to the
Board s election processes By denying guard nonguard unions access to
the Board s election processes as well as the other benefits flowing from
Board certification Congress effectively placed its legislative imprimatur
on the decision of the Sixth Circuit in Jones & Laughlin and the dissent of
Member Reynolds (see fn 24) that had disapproved of ordering employ
ers of guards to recognize and bargain with a guard nonguard union The
legislative history clearly demonstrates that this was Congress purpose in
enacting Sec 9(b)(3) It is fundamentally at odds with these principles to
include a guard nonguard union in a Board conducted election as an in
tervenor For our dissenting colleague to create an exception to Sec
9(b)(3) simply because a guard nonguard union seeks access to a Board
conducted election as an intervenor rather than as petitioner is unwar
ranted The capacity in which a guard nonguard union seeks to partici
pate is irrelevant to the policy concern underlying Congress enactment
of Sec 9(b)(3) in no way does it diminish the threat of a divided loyalty
scenario Indeed it would be incongruous to find that despite its legisla
tive history Sec 9(b)(3) denies a guard nonguard union access to a
Board conducted election as a petitioner but not as an Intervenor Ac
cordingly we reject the approach set forth in Bally s that the statute
should be so construed
24 Although our dissenting colleague intimates otherwise today s deci
sion does not result from the discernment of a new purpose in Sec
9(b)(3) On the contrary even a cursory review of the cases cited herein
reveals that our interpretation of the purpose underlying the enactment of
Sec 9(b)(3) is hardly novel In this connection we note Member Reyn
olds dissent in Monsanto Chemical Co 71 NLRB 11 (1946) wherein the
majority expressed doubt that the Board under the Act as then written
had the authonty to limit guards choice of bargaining representative
Member Reynolds wrote
I hold to the conviction that in the administration of the Act It is
the affirmative duty of this Board to avoid encouraging the creation
of relationships which are Inherently unsound Industrial relations
practice While I construe It to be the duty of the Board to provide
the processes whereby workers may designate collective bargaining
representatives of their own choosing I believe it to be the col
lateral duty of the Board in effectuating the purposes of the Act to
consider with great care the Impact upon labor management relations
of any collective bargaining procedure upon which we place the im
pnmatur of the Board
While I agree with my colleagues that these guards are employees
within the meaning of the Ac and while I believe they may proper
ly be represented by a labor organization I do not agree that the
Board lacks authority to decline to use its proceesses where they
would so patently effectuate results incompatible with the policies of
the Act [Monsanto 71 NLRB at 13-141
Senator Taft referred to this view of Member Reynolds as set forth in
Monsanto and elsewhere (e g Bethlehem Steel Co 73 NLRB 277 282
(1947) and A S Campbell Co 71 NLRB 753 756 (1946) during the
Senate debates leading up to the enactment of Sec 9(b)(3) See 93 Cong
Rec 6601 2 Leg Hist 1541 (LMRA 1947)
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the degree of exclusion to be applied to a
mixed unit and that to be applied to a guard non
guard union Such a distinction is at odds with the
fundamental purpose of Section 9(b)(3) Inasmuch as
it permits a guard nonguard union to attain indi
rectly that which it cannot attain directly that is, a
place on the ballot in the Board conducted elec
tion 25 Moreover, it can scarcely be gainsaid that
placing a guard nonguard union on the ballot con
tributes to a result antithetical to the legislative his
tory of Section 9(b)(3) Clearly, this practice cre
ates the false impression that the guard nonguard
union is equally as capable of securing the protec
lions of the Act as other candidates on the same
ballot As we noted in Brink s, supra we shall not,
indeed cannot, sanction a practice which utilizes
Board processes in furtherance of an end which a
specific provision of the Act was plainly intended
to discourage
Thus, we construe Section 9(b)(3) not only to
bar the formality of certification, but also to pre
dude a disqualified labor organization from taking
25 See Schenley Distilleries supra General Motors Corp supra Armored
Motor Service Co supra and Wackenhut Corp 169 NLRB 398 (1968)
Although our dissenting colleague admonishes us that it is fundamental
to sound statutory interpretation that the Act be read as a coherent piece
of legislation and that Its various provisons be reconciled he fails to rec
oncile Sec 9(b)(3) s provision rendering inappropriate a mixed guard unit
with its provision prohibiting the Board from certifying a guard non
guard union We read these two provisions as complementary In declar
mg mixed units of guards and other employees inherently inappropriate
Congress denied such units access to the Board s election processes and
thereby discouraged their formation This was the intent of the statute
See Senator Taft s remarks in text accompanying fn 18 However as the
facts in Jones & Laughlin and Indeed the instant case illustrate the
guard nonguard union offers the same potential for the divided loyalty
problem as does the mixed unit See fn 17 Moreover standing alone the
mixed unit provision of Sec 9(b)(3) did not ensure that only guard unions
separate and apart from those of the general employees would have re
course to the Act Nor contra Burns I was the situation to be remedied
by declaring a unit inappropriate because of its affiliation A unit is ren
dered inappropriate by its makeup not its affiliation Therefore to avoid
the end run Congress in Sec 9(b)(3) denied a guard nonguard union
the benefit of Board certification Consequently as our dissenting col
league concedes a guard nonguard union may not invoke the Board s
processes to raise a question concerning representation Thus although
the provision of Sec 9(b)(3) prohibiting Board certification of a guard
nonguard union addresses a different factual setting it yields the same
result as the provision rendering inherently inappropriate a mixed unit of
guards and other employees Accordingly contrary to Burns I we find
no omission in Sec 9(b)(3) regarding the situation Involving a guard non
guard union Furthermore we find that to allow a guard nonguard union
to participate as an intervenor in a Board conducted election clearly is to
allow a variation of the end run which Sec 9(b)(3) was Intended to pre
vent It would undercut the comprehensive exclusion effected by Sec
9(b)(3) and elevate form over substance Our Interpretation of Sec
9(b)(3) by contrast renders that provision Internally consistent
Under our interpretation of Sec 9(b)(3) guards retain their Sec 7 right
to select a union of their choice including a guard nonguard union but
the Board will not encourage such a selection by affording a guard non
guard union—in the capacity of an intervenor—access to a Board con
ducted election This is the obvious design of Senator Taft s amendment
Indeed although It preserved guards status as employees Congress by
the plain language of the status imposed restrictions on their means of
selecting a guard nonguard union and consequences for making that se
lection Accordingly we find no basis for our dissenting colleague s cnti
cism that our decision deprives those who may wish to be represented by
a guard nonguard union of their Sec 7 rights
advantage of the Board s election processes includ
ing the privilege of being placed on the ballot as an
Intervenor with an accompanying certification of
the arithmetical results 26 Therefore, we hereby
overrule Burns II, Bally's Park Place, and their
progeny
Accordingly inasmuch as we conclude that Sec
tion 9(b)(3) forecloses intervention by Local 710
we find that the election must be set aside and a
new election held from which Local 710 will be
barred 27
[Direction of Second Election omitted from pub
lication ]
MEMBER ZIMMERMAN, dissenting
In their decision today my colleagues complete
the process which they began in Wells Fargo Corp,
270 NLRB 787 (1984), and continued in Brink s
Inc 272 NLRB 868 (1984), 1 of unequivocally de
nying to labor organizations which admit both
guards and nonguards into membership access to
the Board s processes in all situations involving the
26 Contrary to our dissenting colleague s characterization of our dee,
mon we do not interpret Sec 9(b)(3) to deprive employees of their right
to bargain collectively through a representative of their own choosing
As noted above guards remain free to choose a guard nonguard union as
their representative Thus Member Zimmerman s reliance on NLRB v
Mme Workers District 50 (Bowman Transportation) 355 U S 453 (1958) is
misplaced Bowman Transportation arose under former Secs 9(f) (g) and
(h) which provided that no investigation shall be made by the Board
and no complaint of unfair labor practice charges shall be Issued to a
charge made by a labor organization unless non Communist affidavits
were filed and various reporting requirements were met Bowman Trans
portation involved the Board s authority under Sec 10(c) of the Act to
fashion an appropriate remedy for a violation of Sec 8(a)(2) In that case
the Board had Issued an order directing the company to withdraw and
withhold recognition from the union that the employer had unlawfully
assisted unless and until the union received the Board s certification as
the employees exclusive representative Since the union had not corn
plied with Secs 9(f) (g) and (h) the Board s order effectively deprived
the company s employees of the opportunity to select the union The Su
preme Court held in Bowman Transportation that the Board abused its dis
cretion when it deprived employees of their right to choose a noncom
plying union and precluded a union from obtaining voluntary recognition
Thus the propriety of the Board s remedy for an 8(a)(2) violation is the
sole subject which the court addresses in the language quoted by our dis
sentmg colleague Therefore we find no support in Bowman Transporta
tion for Member Zimmerman s proposition that outside the 8(a)(2) con
text It would be appropriate to include a noncomplying union in a Board
conducted representation election In fact the language of the Court im
mediately preceding that quoted by our dissenting colleague lends sup
port for the result which obtains herein
The prohibitions of Section 9(1) and (h) against investigation of rep
resentatives the requirement of Section 9(c) of Board conducted
elections connected with such investigations and the prohibition of
Section 9(g) against certification of a noncomplying union are con
cerned not with remedial orders under Section 10(c) but with ques
lions of representation and unfair labor practices raised by a labor
organization The single objective of Section 9(1) (g) and (h) was
to stop the use of the Labor Board by noncomplying unions
Labor Board v Dant 344 US 375 385
27 As a result of our decision we need not reach the merits of the Em
ployer s other objection
' Also issued this day I dissented in both Wells Fargo and Brink s as I
do here on the ground that Sec 9(b)(3) is concerned with certification
of not representation by a union which admits to membership employees
other than guards
UNIVERSITY OF CHICAGO 877
representation of guards In Wells Fargo they held
that since Section 9(b)(3) of the Act prohibits the
Board from certifying a mixed union of guards and
nonguards, the withdrawal of voluntary recogni
tion accorded to such a union by an employer at
the end of a contract term would not violate the
Act even if the same conduct might be construed
as unlawful if directed at a certifiable labor organi
zation In Brink's they hold that a guard nonguard
union which has been voluntarily recognized by an
employer as the representative of its guard employ
ees is nevertheless precluded by Section 9(b)(3)
from filing a unit clarification petition with the
Board In this case, they overrule the Board's well
established policy as announced in Burns Detective
Agency 138 NLRB 449 (1962) (hereinafter Burns
II), and reaffirmed in Bally s Park Place, 257 NLRB
777 (1980, 2 to hold that Section 9(b)(3) precludes
the Board from allowing such a labor organization
to be placed on the ballot in a Board conducted
election and certifying the arithmetical results In
all three cases they base these conclusions on what
they perceive to be the purpose and intent of Sec
ton 9(b)(3) 'to discourage representation by a
single union of guards and nonguards and to ensure
that an employer is not compelled by Board action
to bargain with an unqualified union
As I have explained in my dissents in Wells
Fargo and Brink s, and further elaborate on here,
my colleagues view of Section 9(b)(3) is premised
on a flawed interpretation of the language and his
tory of Section 9(b)(3) Through misinterpretation
of the language and history of that provision they
have discerned a purpose that they claim is not
served by allowing a guard nonguard union to in
tervene and appear on a Board ballot, as in this
case to file a unit clarification petition as in
Brink's and to find a refusal to bargain in violation
of Section 8(a)(5) by withdrawing recognition from
a union voluntarily recognized as in Wells Fargo
where there was no good faith doubt of loss of ma
jonty status shown By these decisions and the far
reaching rationale on which each case is based,3
they have essentially removed the exercise of Sec
tion 7 rights from employees who might wish to
consider representation by a guard nonguard union,
2 In Bally s the Board overruled its decision in Wackenhut Corp 223
NLRB 83 (1976) and returned to the sound principle first announced in
Burns II of allowing a guard nonguard union to appear on the ballot in a
Board election and certifying the arithmetical results In Burns II the
Board relied in part on its decision in Burns Detective Agency 134 NLRB
451 (hereinafter Burns I)
3 A rationale whose breadth and scope seriously calls Into question
whether they would find an employer s withdrawal of bargaining during
a contract s term—the question left open in their Wells Fargo decision—to
be covered by the Act Indeed It is difficult to imagine their finding any
situation concerning representation by a mixed union to be within the
Act s coverage
rather than one that takes only guards as members
and is unaffiliated with a nonguard labor organiza
tion In their scheme of things therefore, Section 7
becomes of secondary importance to Section
9(b)(3)
It is fundamental to sound statutory interpreta
tion that the Act be read as a coherent piece of
legislation and that its various provisions be recon
ciled rather than viewed as serving opposite ends
This holds true with respect to Section 7 vis a vis
Section 9(b)(3) no less than it does with respect to
Section 7 read in conjunction with any other sec
tion of the Act It therefore behooves the Board to
interpret the Act so as to avoid rendering its van
ous sections inconsistent
Undoubtedly the cornerstone of our Act is Sec
tion 7 which guarantees to employees certain basic
rights Section 7, in part, provides that Employees
shall have the right to self organization, to form,
join, or assist labor organizations [and] to bargain
collectively through representatives of their own
choosing (emphasis added) It is quite apparent
from the plain language of Section 7 as set forth
above that Congress viewed the unencumbered
right of employees to select the representative of
their choice be it a certifiable or noncertifiable
union to be of paramount importance
Section 9(b)(3), on the other hand does not con
cern itself with employee rights Rather, it deals
exclusively with the appropriateness of a bargain
ing unit, bargaining representatives, and elections
Thus, Section 9(b)(3) states that the Board is pro
hibited from certifying any labor organization as
the representative of employees in a bargaining unit
of guards if such organization admits to member
ship, or is affiliated directly or indirectly with an
organization which admits to membership employ
ees other than guards That is all it does and was
designed to do There is nothing in the plain Ian
guage of that provision that, in any way prohibits
the Board from allowing its processes to be used to
the extent possible to assist employees in selecting
or retaining the collective bargaining representative
of their choice whether it be a certifiable or non
certifiable union 4 All Section 9(b)(3) does is pro
4 The prohibition against certification of a guard nonguard union has
no application to the prohibition of finding a mixed unit of guards and
other employees appropriate Allowing an unqualified union to partici
pate in a Board election in no way circumvents the prohibition against a
guard nonguard unit as my colleagues claim
A unit of guards will remain appropriate without regard to whether an
unqualified union is allowed on the ballot or to whether such a union
wins or loses the election Accordingly I see no basis for my colleagues
claim to the contrary Indeed their view which represents a conflation
of two separate parts of Sec 9(b)(3) would have the opposite effect of
their assertion—with which I have no quarrel—that a unit is appropriate
based on its composition rather than its affiliation
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hibit the Board from placing its imprimatur on the
choice of representative if it involves the selection
of a guard nonguard union by a unit of guard em
ployees Clearly then, Section 7 and Section 9(b)(3)
rather than being at odds with each other are read
ily reconciliable Yet in this and the other decisions
mentioned, my colleagues have created a conflict
in these two statutory provisions that did not previ
ously and should not now, exist
Although my colleagues concede that employees
have a Section 7 right to select the representative
of their choice, even a noncertifiable one their de
cisions in these cases will have the effect of pre
eluding the selection and retention of a noncertifia
ble bargaining representative through Board proc
esses By denying Board access to noncertifiable
unions, my colleagues have diminished the employ
ees Section 7 rights to choose or reject collective
bargaining representation—the cardinal tenet which
the Act mandates and which the Board is assigned
to effectuate in administering the Act By holding
here that a guard nonguard union cannot even
have its name placed on a Board ballot, the majori
ty has not only limited the number of candidates
that might be available for the guards to choose
from it has more importantly, denied those em
ployees a possible choice of representative a
choice for which they may already have indicated
a preference 5
Claiming that the statute nowhere specifies the
consequences of its prohibition my colleagues
seek refuge in the legislative history of Section
9(b)(3) to support their position As pointed out in
my Wells Fargo and Brink's dissents however
nothing in the legislative history of Section 9(b)(3)
supports their conclusion that the prohibition
against certification of a guard nonguard union by
the Board imposes a total ban on the use of the
Board s processes by such a labor organization 6
5 Indeed a majority of the employees in this case expressed through
their vote in the first election their desire to be represented by Local 710
However when these same employees enter the voting booth a second
time for the rerun of this election there will be only two not three
names on the ballot Conspicuously absent from that ballot will be the
labor organization which the employees first selected as their representa
tive but which the majority now holds cannot appear on the ballot be
cause of a statutory provision which neither proscribes such a union from
representing guards nor bars it from access to all Board processes
6 My colleagues suggest that I misstate the issue here in stating that the
legislative history of Sec 9(b)(3) does not support a total ban on the use
of the Board s processes by a guard nonguard union But my comments
in this regard only are designed to reflect the end result of the majority s
decision they are not intended as a statement of the issue in this case
which admittedly is whether the language of Sec 9(b)(3) precludes a
guard nonguard union from participating in a Board election It clearly
does not To reiterate all that language does is prevent the certification
of such a labor organization This is not to suggest that an unqualified
union is therefore at liberty to invoke the Board s election processes
through the filing of a certification petition Rather as pointed out in my
Brink s dissent under the Bally s decision an unqualified union would not
be permitted to invoke Board processes to raise a question concerning
Without delving again into the history of that pro
vision 7 suffice it to say that before enacting Sec
tion 9(b)(3) Congress considered various alterna
lives to the problem perceived to be posed by the
Supreme Court's decision in NLRB v Jones &
Laughlin Steel Corp 8 One such proposal was to in
dude guards in the definition of supervisors and
thereby exclude them from the Act s coverage
Congress rejected this proposal Having rejected a
total exclusion Congress still had the option in
Section 9(b)(3) of prohibiting guards from selecting
a mixed union and thus denying such a union
access to the Board's processes It chose not to do
so Instead, Congress opted to prohibit only certifi
cation of such a labor organization In doing so,
Congress recognized that a total bar of the type
which the majority extrapolates from Section
9(b)(3), would impinge on the guards Section 7
rights the withdrawal of which rights Congress
had just rejected
My colleagues attempt to fault this analysis by
pointing out that in Bally s, I acknowledged that
Congress primary concern in enacting Section
9(b)(3) was that guards not be represented by the
same union that represents other employees at the
premises they protect that my position today now
encourages a result which is inconsistent with that
concern But as I made clear in my separate post
tion in Bally s the language of Section 9(b)(3) is in
part contrary to the intent of Congress as ex
pressed in its own legislative history' Thus in
Bally s, 257 NLRB 777, 779-780 fn 12, I stated
that
representation Bally s only allows an uncertifiable union to appear on
the ballot as an Intervenor not as a petitioner However where a peti
lion for certification has been properly filed by a qualified labor organiza
non seeking representation or as in this case a decertification petition is
filed by unit employees seeking to oust a particular union as their repre
sentative neither the Intent nor the lanugage of Sec 9(b)(3) is contra
vened or frustrated by permitting an unqualified labor organization to
appear on the ballot To the contrary by permitting a guard nonguard
union to participate in an election under these circumstances we afford
employees the opportunity to exercise their Sec 7 right to select the bar
gaining representative of their choice while upholding the spirit and
letter of Sec 9(b)(3)
7 The majority claims that I cite no legislative history to refute their
holding today As indicated I see no need to repeat a discussion of the
legislative history of Sec 9(b)(3) having already done so in my dissent in
Wells Fargo and having concluded that nothing therein can be construed
as supporting the majority s interpretation of that provision Indeed inas
much as the language of Sec 9(b)(3) is clear and unambiguous on its face
there is no need to search the history of that provision for any other
meaning It was only because of the majority s refusal in their Wells
Fargo decision to accept the plain language of that provision that it
became necessary to make reference to the legislative history As in Wells
Fargo the majority in the Instant case in order to achieve the desired
result and having found nothing in the clear language of Sec 9(b)(3) to
support its view creates an ambiguity in the statutory language where
none exists and then feels compelled to search the history of that provi
mon for some supporting rationale
8 331 US 416 (1947)
UNIVERSITY OF CHICAGO 879
Congress primary concern was that guards
not be represented by the same union that rep
resents other employees at the premises they
protect The plain language of Section 9(b)(3)
is however simultaneously broader and nar
rower than the issue raised by Jones & Laugh
hn That Section 9(b)(3) bars us from certify
ing as representative of a guard unit a union
that admits nonguard employees to member
ship even if it represents no other employees
at the site At the same time, nothing in the
Act bars a guard from joining a union that
represents other employees at the plant or
prohibits that union from simultaneously repre
senting guard and nonguard employees, as
long as the Board s processes are not invoked
to certify that union as the guard s representa
tive These results cannot be reconciled with
the legislative history
If we were to be consistent with that histo
ry rather than with the language of the stat
ute we might draw a distinction between the
treatment to be accorded contract guards
units, such as those involved in Wackenhut
and on premises guard units as presented in
this case
In Wackenhut the union sought a unit of all
guards employed by the Employer in the State
of Hawaii Wackenhut provided guards to a
variety of employers, some of whose em
poyees presumably were represented by differ
ent unions Further, it is likely that any union
active in the State might, in the future, repre
sent nonguard employees of an employer
whose premises are protected by Wackenhut
even if it did not then do so Consistent with
the legislative history we might decline to
permit any union representing other employees
in the State to participate in such an election
in a contract guard unit conducted under our
auspices In effect, this is what our Wackenhut
decision accomplished
Here by contrast the guards work only for
Bally and protect only the premises of the
casino There is no evidence to suggest that
the Atlantic, Cape May and part of Burling
ton, Ocean and Cumberland Counties Building
Trades Council represents any other Bally
casino employees, or that it might seek to do
so in the future Thus, pursuant to the legisla
tive history we could permit Intervenor to
participate in a Board election, certify it as the
representative if it wins the election and still
vindicate the congressional intent of Section
9(b)(3)
At the same time, we could well be justified
in distinguishing between contract and non
contract (on premises) guard situations by find
ing the former so fraught with the potential
conflict the statute seeks to avoid that we
should not in any way lend to it our election
process
In light of the above I concluded in Bally's as I
do here that the language of Section 9(b)(3) itself
does not permit such a construction, regardless of
the congressional intent, and that given the moon
gruity between Section 9(b)(3) s language and its
purpose, the language of Section 9(b)(3) should be
narrowly rather than broadly construed I went on
to find that
Nothing in the terms of Section 9(b)(3) pro
hibts the Board from its pre Wackenhut prac
tice of permitting nonguard unions to partici
pate in representation elections conducted
among guard employees and of certifying the
arithmetical election results when such unions
are victorious The William J Burns Interna
tional Detective Agency Inc , 138 NLRB 449,
452 (1962) That practice does accord with the
Act s general purpose to facilitate the identifi
cation of a collective bargaining representative
which is the choice of a majority of unit em
ployees
Accordingly, as I stated previously Congress
was fully aware of the problems underlying the en
actment of Section 9(b)(3) and had the opportunity,
if it wished to do so to prohibit not only the certi
fication of a guard nonguard union but also its
status as the potential collective bargaining repre
sentative of a unit of guard employees It chose not
to do so opting only to prohibit the Board from
finding a unit of guard and nonguard employees to
be appropriate and from certifying a guard non
guard union
In Burns I the Board was asked to reconsider its
decision in Columbia Southern Chemical Corp 110
NLRB 1189 (1954) which held that a contract for
a unit of guards would not at any time during its
term bar a petition for representation if the con
tracting union admitted to membership employees
other than guards In reversing its decision in Co
lumbia Southern the Board stated
Section 9(b)(3) of the Act ' perform' s two
functions First, it precludes the Board from
finding any unit appropriate for the purposes
of collective bargaining if that unit contains
both guard and nonguard employees second,
it precludes the Board from certifying a labor
organization as the representative of employ
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in a guard unit if such labor organization
admits to membership or is affiliated directly
or indirectly with an organization which
admits to membership, employees other than
guards
The distinction implicit in the language
bears careful note A unit containing both
guard and nonguard employees is inappropn
ate for any purpose Conversely, a unit corn
posed excusively of guard employees is appro
priate The only limitation in the latter in
stance is that the labor organization represent
mg such employees cannot be certified if in
other aspects of its operations it admits non
guard employees to membership or is affiliated
directly or indirectly with an organization
which does so [134 NLRB at 542]
In addressing itself to the legislative history of Sec
tion 9(b)(3), the Board in Burns I stated
Congress could readily have declared a guard
unit inappropriate if the representative of that
unit admitted nonguards to membership or was
a direct or indirect affiliate of a labor organiza
tion which did so Congress did not so declare,
and the preceding statutory language covering
the mixed guard unit' compels the conclusion
that this omission in the latter situation was de
liberate It follows in our view, that a contract
unit comprised exclusively of guards is not in
validated merely because the representative of
that unit admits to membership or is affiliated
with an organization which admits to member
ship nonguard employees [134 NLRB at 452 ]
The Board in Burns I then went on to hold that
the statutory proscription in Section 9(b)(3)
against certification of certain guard units does not
preclude the application of the Board s contract bar
rules to contracts covering such units
While it is readily apparent that the majority
here does not approve of the Board s decisions in
Burns I, Burns II, and Bally's, for unexplained rea
sons it has chosen to expressly overrule only the
Burns II and Bally's decisions but not Burns I It is
now quite apparent from their decisions in Wells
Fargo Brink s, and the instant case, and from their
frequent citing of Columbia Southern supra which
Burns I overruled, that the holding of Burns I is at
best in grave doubt and that its official demise
awaits only the arrival of a case on point 9
9 Despite my colleagues claim that they express no opinion on the
result reached in Burns I since the facts of the present case do not raise
the Issue addressed therein their explicit rejection of the Board s analysis
in that case belies their claim The majority s decision in this case even
casts doubt on the continued validity of certain statements of the Board
in Wackenhut In Wackenhut the Board indicating excepted status for an
Contrary to my colleagues I find that a noncer
tifiable union on the Board ballot for the sole pur
pose of certifying the arithmetical results permits
employees to fully exercise their Section 7 rights
without circumventing the intent and purpose un
derlying the enactment of Section 9(b)(3) that,
consequently the Board correctly decided Bally s
and Burns I and Burns II Judicial analysis of
and of similar provisions of the Act supports this
position
In discussing the objections of former Sections
9(f) (g), and (h), of the Act, the Supreme Court in
NLRB v Mine Workers District 50 (Bowman Trans
portation) 355 U S 453, 461 (1959), stated that
These subsections contain nothing compelling
the Board to insist upon a Board certification
and thus to deny the employees the right at an
election held under proper safeguards to select
the noncomplying assisted union for their rep
resentative Nothing in the subsections for ex
ample is a barrier to the conduct by the Board
of an election not followed by a certification
Clearly an election under such circum
stances will also achieve the Board's prime oh
jective in these cases
Subsections (f) (g) and (h) of Section
9 merely described advantages that may be
gained by compliance with their conditions
The very specificity of the advantages to be
gained and the express provision for the loss of
these advantages imply that no consequences
other than those so listed shall result from non
compliance United Mine Workers v Arkansas
Oak Flooring Co, 351 U S 62 73 Congress
did not in Section 9(f) (g), and (h) make the
filing required by those subsections compulso
ry or a condition precedent to the right of a
noncomplying union to be recognized as the
incumbent noncertifiable union in refusing to permit a nonincumbent
nonguard union to be on the ballot stated
In our opinion the purpose of Section 9(b)(3) is not served by
allowing a nonguard union to Intervene and appear on a ballot in an
election among guards at least where as here such nonguard union
is not the incumbent Whatever may be the rationale with respect to
placing Incumbents on the ballot i e that the Board may not wish
to disturb unduly what may historically have been a voluntary bar
gaining relationship such rationale has no applicability to an unquali
fled stranger labor organization [223 NLRB at 83-84 ]
Thus while the Board in Wackenhut did not reject the Idea that an in
cumbent noncertifiable labor organization may be free to utilize the
Board s election processes the majority today appears to reject even this
limited exception by stating that under Sec 9(b)(3) a disqualified labor
organization is precluded from taking advantage of the Board s election
processes even as an intervenor
1 ° The Board s interpretation of Sec 9(b)(3) as stated in Bally s and
Burns has expressly been approved by a court in Rock Hill Uns v
McLeod 236 F Supp 395 (D C N Y 1964) affd 344 F 2d 697 (2d Cir
1965) My colleagues rejection of the court s decision on the ground that
it is not binding on the Board is Irrelevant to the logic of the decision s
holding and rationale
UNIVERSITY OF CHICAGO 881
exclusive representative of the employees
United Mine Workers v Arkansas Oak Flooring
Co supra Similarly, the Board cannot,
through the requirement of a Board certifica
ton, make noncompliance a reason for deny
ing the employees the right to choose the as
sisted union at an election which can readily
serve its designed purpose without such certifi
cation [Emphasis added ]
Clearly, the Court's reasoning is also applicable to
Section 9(b)(3) which like former Sections 9(f),
(g), and (h), is a compliance statute ii Thus al
11 The majority suggests that the Court s comment in Bowman Trans
portauon 355 U S 453—that the single objective of Secs 9(f) (g) and (h)
was to stop the use of the Labor Board by a noncomplying union—actu
ally supports their view that the 9(b)(3) proscription against certification
by this Board of a guard nonguard union precludes the participation of
such a labor organization in a Board conducted election Although It is
true that the Court in Bowman did state that the object of Secs 9(1) (g)
and (h) was to prevent a noncomplying union from making use of the
Board its comment in this regard was premised on the fact that the
actual language of those provisions prevented the Board from entertain
ing a complaint (but not a charge) and certifying a union which had not
complied with those provisions However the fact that a noncomplying
union was expressly prohibited from utilizing the Board s processes under
those provisions did not as the Court went on to note preclude the
Board from conducting an election involving such a union Indeed the
Court cited with approval the Board s suggestion that it might conduct
an election among the employees and certify the union if it wins the elec
tion provided it is in compliance but otherwise certify only the arithmetical
results (355 U S at 462 emphasis added ) Thus despite the express pro
hibition of Secs 9(t) (g) and (h) the Court did sanction the use of the
Board s election processes by a noncomplying union Clearly then if the
expressed prohibition in Secs 9(1) (g) and (h) against the use of the
though Section 9(b)(3) forecloses Board certifica
tion of a nonconforming union i e one that admits
both guards and nonguards into membership, it
does not deprive guards of the right granted under
Section 7 to bargain collectively through a repre
sentative of their own choosing, including a non
certifiable union Indeed to exclude the noncerti
fiable union will serve only to distort the selection
process Inasmuch as guards, like other employees
have an unrestricted right to choose their repre
sentative, the use of the Board's processes to ascer
tam majority will promotes the interest of stable
labor relations
In sum, I adhere to the principle announced in
Bally s and Burns of allowing a noncertifiable union
to appear on the ballot in an election involving
guard employees Consistent with those decisions, I
conclude that the Board's original decision in this
case to allow Local 710 to intervene and appear on
the ballot with the Petitioner was correct, and I
would, therefore certify the arithmetical results
This procedure fully conforms with the language
and history of Section 9(b)(3) and contributes to
sound labor relations by permitting the employees
to express fully their wishes as to their choice of a
representative for collective bargaining purposes
Board by a noncomplying union did not prevent use of the Board s elec
lion processes by such a labor organization then Sec 9(b)(3) which con
tains no such prohibition must certainly be construed as similarly permit
ting use of the Board s election processes by a guard nonguard union