Armored Motor Service Co., Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1953

106 N.L.R.B. 1139 (N.L.R.B. 1953)

ARMORED MOTOR SERVICE COMPANY, INC. 1 139
ARMORED MOTOR SERVICE COMPANY, INC. and LOCAL
NO. 667, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, AFL, Petitioner. Case No. 32-RC-656. September
18, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 {c) of the National
Labor Relations Act, a hearing was held before Seymour X.
Alsher, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. No question affecting commerce exists concerning the re-
presentation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act for the
following reasons:
The Petitioner seeks to represent a unit consisting largely
of full- and part-time armored-car guard-drivers. The Em-
ployer contends that these employees are guards within the
meaning of Section 9 (b) (3) of the Act,' and, if this is true,
Petitioner cannot be certified under the statute to represent
them because Petitioner admits to membership, "or is af-
filiated directly or indirectly with an organization which admits
to membership, employees other than guards."
The Employer is engaged in the armored-car business. It
operates armored trucks to transport money and valuables for
clients who request such services. The guards are uniformed,
bonded, deputized, and armed. They spend 75 percent of their
time at work on the armored trucks, picking up, transporting,
guarding, and delivering money and valuables belonging to the
Employer's customers. They spend their remaining time
placing money in pay envelopes on the Employer' s premises,
or standing guard on the premises of customers while pay
envelopes are being distributed to employees.
The appropriateness of this proposed unit must first be
tested against Section 9 (b) (3) of the Act. In 1948, in the
I This section provides:
That the Board shall not ... decide that any unit is appropriate for such purposes if it
includes, together with other employees, any individual employed as a guard to enforce
against employees 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 indirectly with an
organization which admits to membership employees other than guards
106 NLRB No. 181.
-322615 0 - 54 - 73
1 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brink's case ,: the majority of the Board , based on its in-
terpretation of the legislative history of this provision,
concluded that armored - car guards were not "guards " within
the meaning of the Act. The Board majority held that the term
"guard" as used in that section applied to plant guards and
not "to men employed to guard, while transporting property
belonging --not to their employer --but to customers of their
employer." The majority in the Brink ' s case reasoned that
Congress was concerned with the problem of divided loyalty
which was inherent in the situation where an employer's
own plant guards were members of the same union as re-
presented fellow employees whose derelictions the guards
were expected to report. In view of this, the majority held
that Section 9 (b) (3) did not apply to guards of any sort other
than those employed to enforce rules to protect the property of
their own employer , or to protect on the premises of their
own employer the safety of persons . This, in effect , restricted
the application of Section 9 (b) (3) to plant guards.
We do not believe that Congress intended to limit the pro-
hibition of Section 9 (b) (3) to plant guards. The statutory
language contains no such restriction , and we see no basis
for giving it so narrow a construction . The danger of divided
loyalty which Congress sought to eliminate may not be quite
so far-reaching in the case of armored-car guards, but it
is, nevertheless , present . A conflict of loyalty could arise,
for example , if the guards should be called upon to deliver
money or valuables to one of their customers whose employees
were represented by the same union as represented the
armored-car guards and the employees of the customer were
on strike and picketing the premises of the customer.
Accordingly , we overrule the decision in the Brink's case,
supra, and hold that armored - car guards are guards within
the meaning of Section 9 (b) (3). These guards are obviously
employed to protect property within the meaning of the statute,
and, in view of the statutory language , we do not consider it
controlling that the money and valuables which they protect
belong not to their own employer but to a customer of their
employer. 3
We therefore hold that the guards here involved are "guards"
within the meaning of Section 9 (b) (3) of the Act, and, since
Petitioner admits to membership and is affiliated with an
2 Brink's, Incorporated . 77 NLRB 1182.
3 Our holding is consistent with the recent decision of the Third Circuit Court of Appeals in
N L. R B. v. American District Telegraph Company, 205 F. 2d 86 (C A. 3), setting aside
100 NLRB 155, in which the court held that Section 9 (b) (3) is not limited to guards employed
to protect property belonging to their own employer nor to guards who protect against con-
duct of fellow employees . We accept and agree with this decision as correctly interpreting
the statute. We also overrule the prior Board decision in American District Telegraph
Company , 89 NLRB 1228 , since guards of the kind there involved also constitute guards
within the meaning of Section 9 (b) (3).
GRAND LEADER DRY GOODS COMPANY 1 141
organization which admits to membership employees other than
guards, we shall dismiss the petition.
[The Board dismissed the petition.]
Member, Murdock, concurring:
I have always felt that the majority decision in Brink's
Incorporated, 77 NLRB 1182, and American District Telegraph
Company, 8 9 NLRB 1228, were wrong. Accordingly, for the
reasons set forth in my dissenting opinions in those two cases,
I concur in the result reached by my colleagues in this case
and gladly join with them in reversing those two earlier de-
cisions.
GRAND LEADER DRY GOODS COMPANY OF SOUTH BEND,
INDIANA and RETAIL CLERKS INTERNATIONAL ASSO-
CIATION, LOCAL NO. 37, AFL, Petitioner. Case No.
13-RC-3320. September 18, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert H.
Cowdrill, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The Petitioner and United Retail, Wholesale and Depart-
ment Store Employees of America, Local 188, CIO, which
intervened on the basis of its contractual interest, claim to
represent employees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act for the
following reasons:
On May 15, 1951, the Employer and the Intervenor executed
a contract effective for a period of 2 years from May 11, 1951,
with a 30-day automatic renewal provision. On January 29,
1952, the contracting parties modified the contract and, among
other provisions, extended its term to May 11, 1954, with the
same renewal provision. The Intervenor came into compliance
with Section 9 (f), (g), and (h) of the Act on or about March 27,
1952. The instant petition was filed on April 21, 1953, about
15 days after the Petitioner advised the Employer of its claim
for recognition.
The contract contains the following union- security provision:
106 NLRB No. 183.