University of Tulsa

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 773 (N.L.R.B. 1991)

773
304 NLRB No. 101
UNIVERSITY OF TULSA
1 None of the full-time security officers is a municipal police officer.
2 Unless otherwise indicated, ‘‘part-time officers’’ is used hereafter as short
hand for ‘‘part-time security officers/policemen.’’
3 The director of personnel and business services, William Goodwin, testi-
fied that the Employer is trying ‘‘to project an image that there’s plenty of
assistance around and . . . some of it may be armed.’’
4 Full-time security officers have been advised not to endanger their lives
if confronted with a violent situation.
5 Troll testified that the ‘‘main reason why the full-time people [keep daily
logs is] since they handle the opening and closing, it gives us a log on what
time buildings were opened and when they were closed.’’
The University of Tulsa and Security Officer’s Co-
operative, Petitioner. Case 17–RC–10524
August 27, 1991
DECISION ON REVIEW AND ORDER
REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On July 16, 1990, the Regional Director for Region
17 issued a Decision and Direction of Election in
which he determined that the appropriate unit consists
of the Employer’s full-time and regular part-time secu-
rity officers, excluding, inter alia, those part-time secu-
rity officers who are also employed as municipal po-
lice officers. The Employer filed a timely request for
review of the Regional Director’s determination and,
on August 14, 1990, the Board, by unpublished order,
granted that request.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
For the following reasons, we have determined that
the excluded part-time officers share a community of
interest with the other unit members, and that there are
no adequate grounds for departing from precedent that
calls for placing all of an employer’s guards in a single
guard unit. We accordingly find that the unit in which
the election was directed is not an appropriate unit,
and we reverse the Regional Director’s unit determina-
tion with respect to exclusion of these employees.
I. FACTUAL FINDINGS
As the Regional Director found, the Employer is a
private, nonprofit institution of higher learning located
in Tulsa, Oklahoma. It provides year-round, around-
the-clock campus security through its Department of
Safety and Security and employs 13 individuals as reg-
ular full-time security officers and 19 individuals as
regular part-time security officers. All the part-time se-
curity officers are municipal police officers for the city
of Tulsa, Oklahoma.1
The security officers are responsible for the safety of
all faculty, staff, and students and the safekeeping of
all physical property of the Employer. To this end,
full-time and part-time security officers2 patrol various
segments of the 400-acre campus, doing so individ-
ually rather than in teams. Although all security offi-
cers perform foot patrols, full-time officers typically
use motorized golf carts that allow them to proceed
through the heart of the campus and part-time officers
use university automobiles. The latter drive cars be-
cause they patrol peripheral areas of the campus and
property that the Employer owns up to 5 miles away.3
At least one area of the campus, the North Campus,
is regularly patrolled by both groups.
Full-time and part-time officers use a two-way radio
communications system to communicate with one an-
other and with Director of Safety and Security Arthur
Troll or the assistant director during the 7 a.m. to 3
p.m. day shift, or with the shift supervisors during the
3 p.m. to 11 p.m. and 11 p.m. to 7 a.m. shifts. An offi-
cer is expected to respond to a call in his particular
zone and to assist officers in other zones. Both groups
respond to calls that have a potential for confrontation.
When a backup is needed to handle a particular situa-
tion, a part-time officer, who as a Tulsa police officer
carries a nightstick and firearm and can make an ar-
rest, generally is called.4 Full-time security officers, al-
though not policemen, may make citizens’ arrests.
They do not carry firearms, although an unspecified
number of department personnel possess the proper
state license to do so.
With the two exceptions indicated below, full-time
and part-time officers perform the same duties. All of-
ficers are required to complete incident reports; how-
ever, only full-time security officers lock and unlock
campus buildings and fill out daily logs.5 Full-time of-
ficers wear badges and uniforms issued and maintained
by the Employer, while part-time officers wear their
Tulsa police officers’ badges and uniforms. Both are
hourly paid. The pay scale for full-time officers ranges
from $5.65 to $9 an hour; they also are entitled to life
and health insurance, and long-term disability, retire-
ment, and pension benefits. Part-time officers receive
a flat rate of $12 an hour and do not receive these ben-
efits. Part-time officers receive certain benefits that all
regular employees of the Employer receive, such as
vacation pay. Full-time officers work 8-hour shifts, and
part-time officers work 5-hour shifts.
II. ANALYSIS
The Regional Director excluded the part-time offi-
cers from the unit on the basis of what he deemed to
be ‘‘significant differences in the authority and respon-
sibilities of the two groups, together with the substan-
tial differences in their rates of compensation and
fringe benefits.’’ In analyzing community-of-interest
factors, he reasoned that part-time officers serve in a
dual capacity while working for the Employer. He ob-
served that in the event of a strike, the part-time offi-
cers could ‘‘find themselves in the conflicting position
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Regional Director did not expressly pass on the status of the part-time
officers as guards. No one has questioned their status, however, and we find
that they qualify as guards within the meaning of Sec. 9(b)(3) of the Act.
7 At its extreme, the Regional Director’s conflict-of-interest analysis would
not just require a separate unit of moonlighting police officers; it would pre-
clude them from inclusion in any bargaining unit whose employees could en-
gage in strike activity.
8 In view of our decision in Children’s Hospital of Michigan, 299 NLRB
430 (1990), we note that the inclusion of the part-time officers in the unit
would not jeopardize the guard union status of the Petitioner under Sec.
9(b)(3), as the Petitioner fears. In Children’s Hospital, the Board held that be-
cause public employees are not employees within the meaning of Sec. 2(3)
of the Act, their membership in a guard union does not bar that union’s certifi-
cation as the representative of a unit of guards under Sec. 9(b)(3) of the Act.
In any event, it would appear that the officers’ duties for their full-time public
employer are equivalent to those of guards as defined in the Act.
We also find, contrary to our dissenting colleague, that certifying the Peti-
tioner organization does not contravene the Act. Elite Protective & Security
Services, 300 NLRB 832 (l990) (also involving the Petitioner). See also Burns
of policing the strike conduct of fellow unit mem-
bers.’’
At the outset, we note that it is undisputed that all
the Employer’s security officers are properly classified
as guards.6 As such, they belong in a single unit unless
it can be said that there is a subgroup with a separate
community of interest that warrants separate represen-
tation. Broadway, 215 NLRB 46 (1974) (finding that
fitting room checkers are guards and must be included
in unit with store security inspectors and watchmen).
Contrary to the Regional Director, we find that the
part-time officers share a community of interest with
full-time security officers sufficient to require their in-
clusion in the unit. The record establishes that full-time
security officers and part-time officers have similar re-
sponsibilities and duties, that their functions are inte-
grated, and that they interact with each other to the ex-
tent that can be expected of one-person patrols of 400
acres. Thus, both groups are charged with the safety
and security of persons on campus and Employer-
owned property. Although the two groups wear dif-
ferent uniforms, and only the part-time officers are
armed, officers in both groups respond basically to the
same types of calls, maintain contact with each other
through a campus two-way radio system, and back up
one another in the course of their campus protection
duties. Officers in each group are expected to complete
‘‘incident reports’’ when appropriate. The fact, noted
by the Regional Director, that only the full-time offi-
cers have keys to lock and unlock buildings and are
charged with the duty of maintaining daily logs, bears
a logical relationship to their full-time status. It does
not diminish the strong community of interest estab-
lished by other factors.
Both groups are commonly supervised by depart-
ment managers and shift supervisors. Both are paid on
an hourly basis, and the higher pay scale for the part-
time officers is largely offset by the fact that full-time
security officers receive greater fringe benefits.
The principal basis relied on by the Regional Direc-
tor in approving a unit made up solely of the full-time
officers is the fact that the part-time officers, as moon-
lighting municipal police officers, serve in a ‘‘dual ca-
pacity’’ insofar as they are always on duty to protect
the property and lives of local citizens and would have
a potential conflict of interest with other unit members
if they were called on to enforce local criminal laws
in the event of a strike by that unit. For the following
reasons, we find this an insufficient basis for fragment-
ing a guard unit.
In the first place, the part-time officers’ obligation
to enforce local laws for the protection of citizens sub-
stantially parallels the duties which they are called on
by the Employer to perform in the course of patrolling
the campus.
With respect to the conflict-of-interest claim, the Pe-
titioner’s contention and the Regional Director’s con-
clusion prove too much. The duty to enforce laws and
ordinances, owed by police officers to their public em-
ployer, is a duty that would be possessed by any
moonlighting police officer doing any kind of part-
time work in the private sector. If this factor called for
representation in separate units here, it presumably
would result in placing moonlighting police officers in
separate units regardless of whether their jobs for the
private employer were identical in every respect to
those of other nonpolice employees of the employer.7
If there is a potential conflict between the duty to up-
hold state and local laws and a policeman’s interest as
a unit member during a strike, it is no greater than the
conflict which might exist between a police officer’s
interest in pleasing the private employer who pays the
officer and the officer’s duty to enforce laws against
that employer if any violations are observable on the
premises. The best judge of whether such conflicts are
significant is the public employer, which, if it per-
ceives any danger, is free to prohibit or limit such out-
side employment, or to avoid assigning police officers
who work for a struck employer to police any strike.
For all of the foregoing reasons, we find that the ap-
propriate unit should include the part-time officers, as
follows:
All full-time and regular part-time security offi-
cers, including guards who are also employed as
municipal police officers, employed by the Uni-
versity of Tulsa at its Tulsa, Oklahoma facilities,
but excluding all office clerical employees, pro-
fessional employees, and supervisors as defined in
the Act.
Inasmuch as the Petitioner indicated at the hearing
in these proceedings that it desired to represent all se-
curity officers, but also indicated that it did not want
to represent the part-time officers because it believed
their other employment as municipal police officers
would put it in contravention of the Act,8 we shall re-
775UNIVERSITY OF TULSA
Security Services, 278 NLRB 565, 568 (1986) (requirement of ‘‘definitive
showing’’ of noncertifiability of union seeking to represent guards).
mand this proceeding to the Regional Director for fur-
ther proceedings consistent with this decision, includ-
ing ascertaining whether the Petitioner desires to rep-
resent the unit found appropriate herein.
ORDER
IT IS ORDERED that the above-entitled matter is re-
manded to the Regional Director for Region 17 for ac-
tion consistent with this decision.
MEMBER OVIATT, dissenting.
As set forth in my dissent in Elite Protective & Se-
curity Services, 300 NLRB 832 (1990), I would find
that the Security Officer’s Cooperative is not a labor
organization that limits membership to guards. Its cer-
tification as a representative of the guard unit therefore
is barred under Section 9(b)(3). As a result, I would
find that the Regional Director erred in not dismissing
the petition.