Bonded Armored Carrier, Inc.

National Labor Relations Board - Board Decisions

Feb 9, 1972

195 N.L.R.B. 346 (N.L.R.B. 1972)

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bonded Armored Carrier , Inc. and National Federa-
tion of Guards , Local Union No . 1, Petitioner. Case
5-RC-7729
February 9, 1972
DECISION ON REVIEW
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On September 10, 1971, the Regional Director for
Region 5 issued a Decision and Direction of Election
in which he rejected the Employer's contention that the
Petitioner is indirectly affiliated with United Independ-
ent Union, called UIU herein, which admits nonguards
to membership and is therefore ineligible to represent
the petitioned-for guards under the prohibitions of Sec-
tion 9(b)(3) of the Act. Thereafter, the Employer filed
a timely request for review of his Decision on the
grounds that, in rejecting its contention, he made
findings of fact which are clearly erroneous and de-
parted from precedent. By telegraphic order dated Oc-
tober 19, 1971, the National Labor Relations Board
granted review, and stayed the election pending deci-
sion on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and hereby
affirms the Regional Director's Decision.
Like the Regional Director, we conclude that the
Petitioner is not, directly or indirectly, affiliated with
UIU. The Board has said that mutual sympathy, com-
mon purpose, and assistance between a guard union
and a nonguard union is not, without more, indicative
of indirect affiliation within the meaning of Section 9(b)
of the Act.' Here, the assistance and advice given by
UIU, such as retention of an attorney to represent the
Employer's guards in forming the Petitioner and in
seeking a Board election, other acts of assistance and
advice for the same purposes, and the expenditure of
funds for which the Petitioner is to be billed at a later
date when it is in a more stable financial position, does
not, without more, add up to indirect affiliation of the
Petitioner with UIU. Moreover, the record indication
that UIU intends to continue to render assistance and
advice of an unspecified character to the Petitioner does
not, in our opinion, warrant withholding from the lat-
ter the opportunity to be certified as representative of
the Employer's guards through a Board-conducted
election.'
See International Harvester Company, Wisconsin Steel Works, 145
NLRB 1747, 1749, and cases cited therein
' In the event the Petitioner is certified herein and is shown to have
Accordingly, we shall remand the case to the Re-
gional Director in order that he may conduct an elec-
tion pursuant to his Decision and Direction of Election,
except that the eligibility payroll period therefor shall
be that immediately preceding the date of issuance.'
MEMBER KENNEDY, dissenting:
Contrary to my colleagues, I would find that the
Petitioner herein, a guard union, is indirectly affiliated
with the United Independent Union, which admits
nonguard employees to membership. In my view, Sec-
tion 9(b)(3) of the Act prohibits our certifying Peti-
tioner as the representative of the Employer's guards,
and I would dismiss the petition.
Under circumstances strikingly similar to those pre-
sented here, the Board has dismissed a petition where
it appeared that petitioner was dependent upon another
nonguard labor organization and that its officers lacked
"freedom and independence in formulating its own
policies and deciding its own course of action." The
Magnavox Company, 97 NLRB 1111, 1113.
The record establishes that prior to the filing of the
petition herein the UIU had obtained designation cards
from the employees involved in this proceeding and
demanded recognition by the Employer. The Employer
refused because of the prohibition of Section 9(b)(3) of
the Act. Thereafter, the president of the UIU, Chiap-
pardi, held a meeting on July 6 with the employees, at
which he proposed that they form their own union.
Chiappardi furnished the name for the new union. He
also distributed authorization cards for the new organi-
zation. Previous to this meeting, Chiappardi made ar-
rangements with an attorney to act as legal counsel for
the new organization. On July 7, the attorney filed the
petition herein. A conference on the petition was sched-
uled by the Regional Office for July 28. On July 23,
Chiappardi sent a letter to the members of the Peti-
tioner, on UIU letterhead, advising them of the confer-
ence and announcing a meeting for the night of July 27.
At this meeting, Chiappardi, accompanied by another
UIU official, discussed the status of the petition and
presented the members with the constitution which he
had drafted for the Petitioner. The constitution was
adopted. Chiappardi prepared the minutes of the meet-
accepted material assistance from UIU sufficient to constitute indirect affi-
liation, the Board, of course, will entertain a motion to revoke the certifica-
tion
' In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Underwear
Inc, 156 NLRB 1236; N . L . R . B . v Wyman-Gordon C o . , 394 U S 759
Accordingly, it is hereby directed that a corrected election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 5 within 7 days of
the date of this Decision on Review The Regional Director shall make the
list available to all parties to the election No extension of time to file this
list shall be granted by the Regional Director except in extraordinary cir-
cumstances Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed.
195 NLRB No. 68
BONDED ARMORED CARRIER, INC. 347
ing. The expenses incurred in connection with these
meetings were paid by the UIU. All expenses that have
been incurred have been paid by UIU and, as of the
date of the hearing on the petition herein , no bill had
been submitted to the Petitioner by the UIU.
In my opinion , satisfactory evidence is lacking in this
record to establish that the UIU 's sponsorship of Peti-
tioner , through President Chiappardi , has ceased. In-
deed, Chiappardi testified forthrightly that he will con-
tinue "to give them general help as far as union
procedures are concerned ," and that he would give
them assistance in setting up programs , meetings, and
agendas and by providing them general advice.
It seems clear to me that Section 9(b)(3) of the Act
requires dismissal of the petition.