Brink's Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1976

226 N.L.R.B. 1182 (N.L.R.B. 1976)

1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brink's Incorporated and Richard W. Zuidema
Ice, Oil , Construction and Supply Drivers and Allied
Workers, Teamsters Local Union No. 398 , affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica and Richard W . Zuidema. Cases 3-CA-6087
and 3-CB-2513
November 26, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On November 5, 1975, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondents filed
answering briefs.
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 record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order.
The consolidated complaint alleges that Respon-
dent Brink's violated Section 8(a)(1), (2), and (3) of
the Act, and that Respondent Teamsters Local 398
violated Section 8(b)(1)(A) and (2) of the Act, by
maintaining and enforcing a union-security clause in
a contract which, the complaint alleges, covers a unit
consisting of guards and other employees. General
Counsel contends that the clause is unlawful under
Section 8(a)(3) of the Act because the contract unit is
inappropriate under Section 9(b)(3) of the Act.
The Administrative Law Judge found that while
Section 9(b)(3) of the Act prohibits the Board from
directing an election in, or certifying, a mixed unit of
guards and nonguards, neither that section nor Sec-
tion 8(a)(3) prohibits the voluntary recognition of
such a unit. He reasoned that inasmuch as the alleg-
edly mixed unit here was voluntarily recognized by
the parties, it was unnecessary to decide the factual
issue of whether the "couriers" covered by the con-
tract are guards. Accordingly, he recommended that
the complaint be dismissed.
General Counsel contends, inter alia, that the Ad-
ministrative Law Judge erred in failing to find that
the "couriers" covered by Respondents' collective-
bargaining agreement are not guards within the
m caning of the Act; that the contract therefore cov-
ers a mixed guard and nonguard unit which is inap-
propriate under Section 9(b)(3); and, that the union-
se. urity clause in such contract is therefore invalid
and unenforceable under Section 8(a)(3) of the Act.'
Respondents, on the other hand, contend that the
Administrative Law Judge's Decision is correct and
should be adopted. Alternatively, they argue that the
couriers are guards within the meaning of the Act
and that, therefore, the unit is not improper under
Section 9(b)(3). Respondent Brink's additionally ar-
gues, as a further alternative, that none of its employ-
ees should be considered guards within the meaning
of Section 9(b)(3) and that the holding in Armored
Motor Service Company, Inc., 106 NLRB 1139 (1953),
should be reconsidered and overruled.
The material facts are not in dispute and may be
summarized as follows: Respondent Brink 's (also
called Brink's, the Company, or the Employer) oper-
ates in several States and is engaged in transporting
money, valuables, canceled checks, correspondence,
and related items for customers. One of its places of
business is in Rochester, New York, the only facility
here involved. At this facility, the Company employs
approximately 21 employees who are classified as
messengers , drivers, guards, and couriers. In Septem-
ber 1973, Brink's recognized Respondent Teamsters
Local 398 (herein also called the Union) as the exclu-
sive bargaining representative of Brink' s messengers,
drivers, guards, tellers, paymasters, and couriers.2
The parties executed a collective-bargaining agree-
ment in June 1974 which, upon its expiration in Oc-
tober of that year, was replaced by the current agree-
ment effective from October 1974 to October 1977.
The present contract, as did the prior one, contains a
standard union-security provision, requiring mem-
bership in the Union after 30 days of employment as
a condition for continued employment. This contract
also contains a dues-checkoff authorization provi-
sion.
The Charging Party, Richard Zuidema, was hired
by Respondent Brink's as a regular part-time courier
in January 1972. He was a member of Respondent
Union from March 1974 until May 1975. On March
7, 1975, Zuidema revoked his checkoff authorization
and resigned from Respondent Union. On April 11,
1975, Respondent Union informed Zuidema of his
obligations under the union-security provision and
1 The complaint does not allege, and General Counsel does not contend,
that the contract itself is defective because Teamsters Local 398 represents
or is affiliated with a labor organization that represents employees other
than guards
2 The parties stipulated that from March 3, 1974, to the date of the hear-
ing the Employer has not had any employees permanently classified as
tellers , paymasters , or assistant cashiers The latter classification , however,
was included in the contract effective from October 1974 to October 1977
226 NLRB No. 163
BRINK 'S, INCORPORATED 1183
consequences for failure to pay dues. Zuidema there-
after paid dues to Respondent Union through May
1975 and has paid no dues since that time.
As stated, the contract unit covers Respondent
Brink's employees classified as messengers, drivers,
guards, and couriers. General Counsel concedes that
under established Board precedent 3 the first three
classifications are guards within the meaning of the
Act but contends that the couriers are not. Respon-
dents, on the other hand, primarily contend that all
of the classifications are statutory guards. We agree
with Respondents' contention.
Respondent Brink's performs its transportation
and delivery services for customers with two types of
vehicles: armored cars and vans.4 The former are
used to carry cash and other valuables from commer-
cial establishments to banks, while the latter are used
to transport nonnegotiable items such as canceled
checks and correspondence between banks or bank
branches. Both types of vehicles bear the Brink's
name and emblem and are kept at the same garage.
Unlike the armored cars, however, most of the vans
also bear the legend, "This vehicle carries canceled
checks and non-negotiable instruments." The ar-
mored cars are normally operated by at least two,
and sometimes three, employees: a driver, a messen-
ger, and/or a guard. These employees are always uni-
formed and carry guns. The vans, on the other hand,
are generally operated by a single courier who is un-
armed. Couriers, like other employees, are issued and
required to wear idential uniforms bearing the
Brink's name.5 All employees are subject to the same
prehire investigation by the Company for trustwor-
thiness and honesty. All are equally bonded and all
are expected to protect the property entrusted to
them.' Similarly, all employees are subject to the
same supervision and the same rules and regulations
contained in the employee "Handbook." When cour-
iers obtain their gun permits, as Zuidema did in Oc-
tober 1972, they are used by the Company to work
interchangeably on armored vehicles and vans as the
need arises. Indeed, Zuidema testified that he regu-
larly works one-third of the time as a driver, messen-
ger, or guard, and the remaining two-thirds as a cour-
ier. The record also discloses that some couriers have
3 From Armored Motor Service Company, inc, 106 NLRB 1139 (1953). to
Drivers, Chauffeurs & Helpers, Local Union 639 affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Dunbar Armored Express, Inc), 211 NLRB 687 (1974)
4 The Employer has three armored cars and eight or nine vans or panel
trucks
5 Zuidema testified that he and others frequently did not wear a uniform
while working as a courier although always doing so while working on an
armored car He also testified, however, that he was aware of the Com-
pany's rule requiring that all employees wear the uniform while on duty
6 Unarmed couriers apparently are not required to resist theft with the
same vigor as armed employees
gone to full-time armored car work. At the time of
the hearing, Respondent Brink's employed some five
or six part-time employees who worked exclusively as
couriers. These couriers apparently had not yet se-
cured gun permits.
Zuidema's duties as a courier, which are appar-
ently typical of all couriers, consist primarily of pick-
ing up locked bags or pouches at the customer's
premises and transporting them to their assigned des-
tinations. Much of the work involves transporting
canceled checks and other nonnegotiable bank in-
struments or correspondence between the main bank
office and its various branch offices. In performing
this work, couriers are sometimes required to enter a
bank after hours to make a delivery or pickup. When
this occurs, the courier has a key to the bank and is
responsible not only for the safety of his cargo, but
also for securing the bank as he enters and leaves it.
Couriers are also used to carry "cash letters" for
bank customers in Rochester to the Federal Reserve
Bank in Buffalo, New York. These cash letters must
arrive no later than 7 a.m. on the morning they are to
be delivered. Lateness would result in interest penal-
ties.
As a part-time employee, Zuidema generally re-
ceives his work schedule a week in advance at which
time he learns in what capacity he will be working on
what days. Full-time employees who are classified as
couriers may work part of each day as couriers and
part as messengers, drivers, or guards. When working
in any of the latter three classifications, the employee
picks up his gun at the Employer's premises before
going to work and returns the gun at the end of the
shift.
In arguing that the couriers herein are mere deliv-
erymen, rather than statutory guards, General Coun-
sel relies primarily on the facts that they work
unarmed and transport only nonnegotiable
instruments. We believe General Counsel takes an
overly narrow view of the meaning of the word
"guard."
Section 9(b)(3) of the Act defines a "guard" as
"any individual employed . . . to enforce against
employees and other persons rules to protect prop-
erty of the employer or to protect the safety of per-
sons on the employer's premises . . . ." The Board
had long held, with court approval, that the fore-
going definition applies equally to persons engaged
in protecting property of an employer's customers.'
Thus, the only issue presented is whether the couriers
here protect property of the Employer's customers.
In our judgment, they clearly do. The couriers are
entrusted with locked bags or pouches containing the
7 Armored Motor Service Company. supra, Dunbar Armored Express, Inc.
supra
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customer's valuable property for their safe and time-
ly delivery to designated destinations. The courier is
thus required not only to protect the Employer's ve-
hicle but also to protect the pouches and to resist
their theft. In performing their functions, couriers are
sometimes required to enter banks after closing
hours and make their deliveries or pickups. When
this occurs, the couriers alone are responsible for se-
curing the bank when they enter and leave it. The
fact that the couriers transport only nonnegotiable
papers and that there is a legend on the sides of the
vans so stating is irrelevant. The property, although
nonnegotiable, is clearly of considerable value to the
Employer's customer who engages the Employer's
services for its safe and timely delivery.
In addition, other factors support our finding that
the couriers here are guards. Thus, the couriers, like
the drivers, messengers, and guards, undergo the
same prehire investigation for trustworthiness and
honesty; are subject to the same bonding require-
ments; are required to wear identical uniforms and
badges while on duty;' drive vehicles bearing the
Brink's name and logo; are required to adhere to the
same work rules and regulations published in the em-
ployee "Handbook"; work under the same supervi-
sion; and share the same employee benefits. Further-
more, once couriers obtain their gun permits, they
are used interchangeably in all job classifications,
working part of the time as couriers and part of the
time as guards, messengers, and drivers. Some couri-
ers have transferred to full-time guard work while
others rotate between the various job classifications.
Zuidema himself spends about one-third of his time
on armored cars either as driver, messenger, or guard
and the rest of this time as courier. Although the
Employer, at the time of the hearing, had five or six
part-time employees doing only courier work, there is
no evidence that these employees will not also be
used interchangeably in the other classifications once
they have obtained their gun permits.
In her concurrence, Chairman Murphy argues that
the employees involved herein are not guards within
the meaning of Section 9(b)(3) because they "are re-
sponsible for protecting the property-not of their
own employer-but of their employer's customers,"
and because Senator Taft's references to plant
guards and the absence of reference to armored truck
guards in the legislative history of the section demon-
strate congressional intention to so restrict the cover-
age of the section. These arguments, which the Board
found persuasive in its initial construction of the stat-
ute, as the cases cited by the Chairman disclose, were
8 The fact that some of the couriers sometime fail to wear uniforms on
duty does not detract from their guard status Cf Defender Security & Inves-
tigation Services, Inc, 212 NLRB 407 (1974)
rejected by the Court of Appeals in N. L. R. B. v.
American District Telegraph Co. of Pa., 205 F.2d 86,
89 (C.A. 3, 1953):
It is difficult to obtain that result from the lan-
guage of the statute which states that the guard
to whom it refers is one who enforces rules to
protect the property of the employer-not his
employer, as the Board would have it read.
These rules are enforced "against employees and
other persons," not against fellow employees.
Furthermore, the duties of a guard who comes
within 9(b)(3) include the protection of "the
safety of persons on the [not his] employer's
premises." . . . Significantly in this connection
section 2(3) of the Act states that "The term
`employee' shall include any employee, and shall
not be limited to the employees of a particular
employee, unless the Act explicitly states other-
wise."
The Board accepted the decision of the court and
on the basis of the rationale therein consistently has
rejected the view that Senator Taft's repeated refer-
ence to plant guards shows that Congress was con-
cerned only with the status of plant guards and their
possible divided loyalties should they be represented
by a union representing other employees of their em-
ployer.9 The problem of confict of loyalties exists as
well with respect to the armored truck guards and
couriers involved in this case, as the Chairman con-
cedes. Although, as she suggests, that problem per-
haps could be solved by a contract in which the
guards would give up their right to cross their union's
picket line at a customer's premises, "could" is not
"would," and the Board is without power to require
agreement upon such a provision. Congress chose to
solve the problem by imposing the restrictions found
in Section 9(b)(3) upon the rights of guards to choose
a representative of their choice, and it is Congress to
whom the Chairman's argument for a restrictive in-
terpretation of the rather plain meaning of the statute
should be addressed.1°
Based on all of the foregoing and the entire record
herein, we find that the Employer's employees who
are classified as couriers are guards within the mean-
ing of Section 9(b)(3) of the Act. Accordingly, we
further find that, since the bargaining unit described
9 American District Telegraph Company of the Cleveland Company, 160
NLRB 1130 (1966), Armored Motor Service Company, 106 NLRB 1139
(1953), and A D T Company, 112 NLRb 80 (1955)
10 That the decision in Armored Motor Service should stand is further
indicated by its 23-year history under which organization, certification, and
bargaining in the armored car industry have taken place To reverse now
would only serve to confuse the collective-bargaining relationship between
guard unions which represent both units of plant guards and units of ar-
mored car guards and employers
BRINK 'S, INCORPORATED 1185
in Respondent's current collective-bargaining agree-
ment It is an all guard unit, there can be no question
concerning its appropriateness under any section of
the Act. A fortiori we conclude that the union-securi-
ty clause in Respondents' bargaining agreement is
valid and lawful under Section 8(a)(3) of the Act.
Accordingly, we shall dismiss the complaint herein in
its entirety.12
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
CHAIRMAN MURPHY, concurring:
I agree with my colleagues that the complaint
herein should be dismissed, but do so only because,
in my opinion, none of the Employer's employees
should be considered guards within the meaning and
legislative intent of Section 9(b)(3) of the Act. It
seems to me that the Board correctly analyzed the
scope and intent of Section 9(b)(3) in Brink's, Incor-
porated, 77 NLRB 1182 (1948), where it held that the
term "guard" applied only to an employer's own
plant protection employees. In my judgment the
Board erred when it reversed that decision in Ar-
mored Motor Service Company, 106 NLRB 1139
(1953), and held that the statutory definition of
"guard" also includes employees employed by an ar-
mored truck company engaged in protecting the
property of an employer's customers. Based upon the
language of Section 9(b)(3) and its legislative history,
I would reverse Armored Motor Service and revert to
the more logical reading of that section as expressed
in Brink's.
Section 9(b)(3) was added to the Act by the Na-
tional Labor Relations Act amendments of 1947. The
legislative history of that section convincingly estab-
lishes that it was added in direct response to certain
Board and court decisions which discounted the pos-
11 Although the current contract unit also includes tellers , paymasters,
and assistant cashiers , the parties stipulated that the Employer does not
have any employees in those classifications No evidence was adduced and
no contention made that these job classifications , if filled, would involve
nonguard duties
12 As indicated at In I, supra, the complaint does not allege, and General
Counsel does not contend , that the contract itself is defective because
Teamsters Local 398 represents , or is affiliated with a labor organization
that represents, employees other than guards Accordingly, we find it unnec-
essary to decide that issue here And, in light of our finding that the couriers
herein are guards within the meaning of Sec 9(b)(3) of the Act, we also do
not rule on the question of whether a voluntarily recognized unit of guards
and non guards is appropriate under the union-security proviso of Sec
8(a)(3) of the Act
sable conflict of interest which might arise if an em-
ployer's plant protection employees were represented
by the same labor organization that represented the
employer's production and maintenance employees.
Thus, prior to the enactment of Section 9(b)(3), the
Board had consistently permitted militarized plant
guards to be represented, albeit in a separate bar-
gaining unit, by the same labor organizations which
also represented the employer's production employ-
ees.13
Although militarized plant guards were excluded
from units of production and maintenance employ-
ees 14 for the duration of their militarized status,15 de-
militarized guards were permitted a self-determina-
tion election to express their desire for collective
bargaining in a production and maintenance unit.16
Watchmen having no monitorial duties, on the other
hand, were regularly included in the production
unit 11 even though they were armed and deputized.18
In Jones & Laughlin 19 and E. C. Atkins,20 the
Board found units of militarized plant guards appro-
priate notwithstanding that the labor organizations
seeking to represent them also represented the em-
ployers' production and maintenance employees.
The Sixth and Seventh Circuit Courts of Appeals,
respectively, denied enforcement of the Board's sub-
sequent bargaining orders.21 The court of appeals in
the Jones & Laughlin case held that, although the mi-
litarized plant guards were employees of the em-
ployer and entitled to the benefits of collective-bar-
gaining, the Board failed to give adequate
consideration to the public interest-and hence
abused its discretion when it certified as their collec-
13 Phelps-Dodge Copper Products Corporation, 41 NLRB 973, (1942),
Chrysler Corporation, Highland Park Plant, 44 NLRB 881 (1942), The Cu-
dahy Packing Co, 67 NLRB 150, 152 (1946); Carbide and Carbon Chemicals
Corporation, 73 NLRB 134 (1947), Armour and Company, 63 NLRB 1200,
1208 (1945), Harvester War Depot, Inc, 63 NLRB 249 (1945), Bethlehem
Steel Company, 73 NLRB 277 (1947); Westinghouse Electric Corporation, 72
NLRB 60 (1947), Dravo Corporation, 52 NLRB 322 (1943)
14 Julius Peterson, 46 NLRB 1049 (1943), Kentucky Fluorspar Company, 52
NLRB 227 (1943), Foote Brothers Gear and Machinery Corporation, 52
NLRB 861 (1943), Pittsburgh Limestone Corporation (Subsidiary of US
Steel Corporation), 53 NLRB 810 (1943), P H Hanes Knitting Company, 52
NLRB 746 (1943), Gibbs Gas Engine Company, 55 NLRB 180 (1944)
13 Continental Can Company, 55 NLRB 180 (1944)
16 Pittsburgh Equitable Meter Company, 61 NLRB 880 (1945 ), Inman
Mills, 63 NLRB 198 (1945)
17 George F Brasfield and Company, Incorporated ( Blanket Division), 72
NLRB 944 (1947 ); Engineering & Research Corporation, 72 NLRB 1471
(1947), Virginia-Carolina Chemical Corporation, 72 NLRB 504 (1947),
Northwest Engineering Company, 73 NLRB 40 (1947)
18 Alabama Marble Company, 71 NLRB 275 (1946), John Deere Dubuque
Tractor Company, 72 NLRB 656 (1947)
19Jones & Laughlin Steel Corporation, 53 NLRB 1046 (1943), 52 NLRB
975 (1943)
20 E C Atkins & Company, 56 NLRB 1056 (1944)
21 N L R B v Jones & Laughlin Steel Corporation, 146 F 2d 718 (C A 6,
1944, 1945), remanded 325 U S 838 (1945), decision on remand 154 F 2d
932 (C A 6, 1946), reversed 331 U S 416 (1947) NLRB v E C Atkins &
Company, 147 F 2d 730 (C A 7, 1945), reversed 331 U S 398 ( 1947), rehear-
ing denied 331 U S 868 (1947)
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive-bargaining representative the same labor organi-
zation that also represented the employer's produc-
tion workers. The court reasoned that
[w]hen these particular Unions were selected as
bargaining agents for the plant production em-
ployees, these employees might in an effort to
discharge their duty to their employer find
themselves in conflict with other members of
their Union over enforcement of some rule or
regulation they were hired to enforce . . . . We
think that the imposition of such strains upon
personal allegiance and personal interest would
undoubtedly be detrimental to the public inter-
est and to the free flow of commerce 22
The Supreme Court decisions overruling both of
the circuit court opinions and affirming the Board
decisions were handed down while Congress was de-
bating the 1947 amendments to the Act. The legisla-
tive history of those amendments clearly shows that
in agreeing to Section 9(b)(3) the House and Senate
conferees were displeased with the Supreme Court's
ruling. Indeed, they gave considerable weight to the
circuit court's rationale reversing the Board in the
Jones & Laughlin case, supra. Senator Taft, pointing
out the principal differences between the conference
agreement and the bill which originally passed the
Senate , stated:
Section 9(b) is also the same as section 9(b) of
the Senate amendment with the exception of an
addition of a third clause relating to plant
guards. As has been previously stated, the Sen-
ate rejected a provision in the House bill which
would have excluded plant guards as employees
protected by the act. The conferees on both
sides, however, have been impressed with the
reasoning of the Circuit Court of Appeals for the
sixth circuit in the Jones and Laughlin case in
which an order of the Board certifying as a bar-
gaining representative of guards, the same union
representing the production employees was set
aside. Although this case was recently reversed
by the Supreme Court on the ground that the
Board has it within its power to make such a
holding, four of the Justices agreed with the Cir-
cuit Court of Appeals holding that this was an
abuse of the discretion permitted to the Board
under the act. . . . Under the language of
clause (3), guards still retain their rights as em-
ployees under the National Labor Relations
Act, but the Board is instructed not to place
them in the same bargaining unit with other em-
ployees, or to certify as bargaining representa-
tives for the guards a union which admits other
employees to membership or is affiliated directly
or indirectly with labor organizations admitting
employees other than guards to membership.23
It is patent from the above, as well as from other
portions of the legislative history cited in Brink's, su-
pra, that Congress in enacting Section 9(b)(3) was
concerned with the problem of divided loyalty which
might occur if an employer's plant protection employ-
ees were represented by the same union that repre-
sented its production employees whose derelictions
the guards were expected to report. There is nothing
in the legislative history of that section to suggest
that Congress intended the definition of "guard" to
encompass employees of companies who are engaged
in providing armored car or protective services for
customers. These employees are responsible for pro-
tecting the property-not of their own employer-
but of their employer's customers. The potential con-
flict of interest with which Congress was concerned
does not exist where employees of armored truck
companies are represented by a union which also
represents the nonguard employees of other em-
ployers.
Although it could be argued that a conflict of in-
terest might arise if the employees of the armored car
company were represented by the same union that
represents the customer's production employees, I
consider this possibility too speculative to deprive the
armored car employees of their statutory right to be
represented by a bargaining representative of their
choice. Moreover, the parties could enter into a con-
tract which would require the armored car employees
to cross the union's picket line at the premises of
their employer's customers 24
Finally, I would give a strict reading to the lan-
guage of Section 9(b)(3). For it is a basic precept of
legislative interpretation that laws which are re-
strictive in nature, as Section 9(b)(3) clearly is, shall
be strictly interpreted, while those which are permis-
sive in nature shall be loosely interpreted.25 Accord-
ingly, I would find that none of Respondent Brink's
employees are "guards" within the meaning of Sec-
tion 9(b)(3) of the Act.
22 146 F 2d at 722-723
2311 Leg Hist 1541 (1947)
24 The majority appears to equate "could" with "would" In my opinion,
the majority here "should" stop speculating and accord to Respondent's
emcloyees their statutory rights
See sec 5815 and 5818, Sutherland Statutory Construction, 3d ed
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge : On Sep-
tember 11, 1975, a hearing was held in this proceeding at
BRINK'S, INCORPORATED
Rochester. New York, on complaint of the General Coun-
sel against two Respondents, Ice, Oil, Construction and
Supply Drivers and Allied Workers, Teamsters Local
Union No 398, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, here called the Teamsters or the
Union Respondent, and Brink's Incorporated, here called
the Company Respondent. The complaint issued on June
16, 1975, and rests upon consolidation of two separate
charges filed by Richard W. Zuidema, one filed on April
17, 1975, against the Union and the other filed on May 28,
1975, against the Company. Each of the Respondents is
charged with multiple violations of the statute solely in
consequence of having voluntarily entered into a collec-
tive-bargaining agreement joining in a single bargaining
unit guard and nonguard employees. Briefs were filed after
the close of the hearing by the Respondent and the Union.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Brink's, Incorporated, with its principal place of business
in Chicago, Illinois, operates in a number of States, and is
engaged in the business of transporting money, valuables,
and securities for customers . One of its places of business is
in Rochester, New York, the only facility involved in this
proceeding. During the past 12 months, at this one loca-
tion, it received revenue in excess of $100,000, $50,000 of
which was received from companies, including the Security
Trust Company of Rochester, for transporting valuables.
Its customers in Rochester annually receive goods and ma-
terials valuded in excess of $50,000 shipped to them direct-
ly from locations outside the State of New York. I find that
the Respondent Company is engaged in commerce within
the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
I find that Ice, Oil, Construction and Supply Drivers and
Allied Workers, Teamsters Local Union No. 398, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue Presented
The Brink's operation in Rochester, New York, has
about 21 employees, generally classified messengers, driv-
ers, guards, and couriers. To cover them all, Brink's and
the Teamsters Union Local since 1974 have had in effect a
comprehensive collective-bargaining contract including the
usual 30-day union-security clause. There is both a factual
and legal disagreement between the parties here. They
agree that Brink 's messengers , drivers, and guards are all
1187
guards within the meaning of the Act, but the Respondents
dispute the General Counsel's assertion that the couriers
are not guards in the statutory sense. As to the legal issue,
the complaint alleges that voluntary joinder by the em-
ployer and union of both guards and nonguards in a single
contract bargaining unit is unlawful under the statute, and
that by such act in this instance Brink's violated Section
8(a)(1), (2), and (3) of the Act, and the Teamsters violated
Section 8(b)(1)(A) and (b)(2). There is an ambiguity in the
theory of complaint, both as precisely set out in the plead-
ings and as purportedly explicated in the General Coun-
sel's brief . At one point the complaint relies on the fact that
the contract in effect contains a union membership re-
quirement. At another point it relies upon the simple fact
that the unit joins both guard and nonguard classifications.
If the mere inclusion of nonguards in a guard unit makes
the contract illegal, whether or not one of the contract
clauses makes union membership a condition of employ-
ment is an irrelevancy. The brief repeats the confusion by
again stressing that Zuidema, the employee who filed both
charges, was threatened with discharge for nonpayment of
union dues under the contract, yet asking, in remedy, that
the entire contract must be scrapped by the parties. If it is
the union-security clause that taints the contract, there is
no need for condemning the entire nature of the basic
agreement.
In defense the Respondents argue that there is nothing
in the statute, or in any decisional precedent, which pro-
hibits anyone, apart from resort to Board procedures, from
voluntarily entering into a contract that combines both cat-
egories of employees.
The relevant clauses of the statute that must be consid-
ered, therefore, are the following.
Section 9(b):
The Board shall decide in each case whether, in or-
der to assure to employees the fullest freedom in exer-
cising the rights guaranteed by this Act, the unit ap-
propriate for the purposes of collective bargaining
shall be the employer unit, craft unit, plant unit, or
subdivision thereof: Provided, That the Board shall not
(1) decide that any unit is appropriate for such pur-
poses if such unit includes both professional employ-
ees and employees who are not professional employ-
ees unless a majority of such professional employees
vote for inclusion in such unit; or (2) decide that any
craft unit is inappropriate for such purposes on the
ground that a different unit has been established by a
prior Board deternunation, unless a majority of the
employees in the proposed craft unit vote against sep-
arate representation or (3) decide that any unit is ap-
propriate 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 representa-
tive of employees in a bargaining unit of guards if
such organization admits to membership, or is affiliat-
ed directly or indirectly with an organization which
admits to membership, employees other than guards.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a):
It shall be an unfair labor practice for an em-
ployer- . . . (3) by discrimination in regard to hire or
tenure of employment or any term or condition of em-
ployment to encourage or discourage membership in
any labor organization: Provided, That nothing in this
Act, or in any other statute of the United States, shall
preclude an employer from making an agreement with
a labor organization . . . to require as a condition of
employment membership therein on or after the thirti-
eth day following the beginning of such employment
... if such labor organization is the representative of
the employees as provided in Section 9(a), in the ap-
propriate collective-bargaining unit covered by such
agreement when made ... .
If these sections of the Act do not make it unlawful for
parties to bargain collectively for both guards and non-
guards in a single bargaining unit, the issue of whether or
not the couriers here in question are or are not guards is
mooted.
B. Analysis and Conclusion
I find, even assuming that the Brink's couriers on its
vans and trucks are not guards, that there is nothing in the
statute making it illegal for the parties to enter upon a
contract like the one here attacked by the complaint. I shall
therefore recommend dismissal of the complaint and not
burden this Decision with the evidence relating to the work
performed by the couriers.
Like all others, this complaint, too, simply sets forth the
facts of the contract, followed by the conclusionary state-
ment that it constitutes all these diversified unfair labor
practices. The prosecution brief, which is supposed to say
why the complaint conclusion follows from the undisputed
facts, or to cite Board holding saying that such conclusion
is warranted, in this case does no more than repeat the
opinion of the General Counsel that the conclusion does
follow. Relying upon no more than a descriptive phrase in
a Board Decision reading-"a unit combining both guards
and nonguard employees is inappropriate for any pur-
pose"-the General Counsel closes with "nothing I can say
can add to that." The brief points to no proscriptive lan-
guage of the Act which says this sort of contract is out-
lawed and cites no case precedent even obliquely support-
ing the legal argument underlying the complaint. It does
refer to several Board Decisions finding illegal assistance
to a union on the ground that groups of employees who
had not authorized the Union (not accretions, according to
Board law) had been improperly included into the contract
units; in the process the Board Decisions speak of the re-
sultant units in those situations as inappropriate. The cases
are absolutely inapposite, for none deals with merger of job
classifications at all-guards or not guards-but only with
whether or not the employees involved had been denied
their statutory right to select a bargaining agent of their
own choice . No question in the case at bar about whether
the Brink's employees had or had not wished to be repre-
sented by the Teamsters.
Section 9(b), set out above, lists strictures upon the
Board 's activities in administering the Act ; it says nothing
about limitations upon anybody else's activities . The pro-
scriptions listed against employers and unions are all de-
tailed in Section 8(a) and 8 (b), respectively . Where Section
9(b) speaks of the Board deciding "in each case ," it is refer-
ring to representation proceedings brought before it as the
"cases." It cautions the Board as to what it may not do
when placing professionals in bargaining units, when rely-
ing upon prior Board Decisions in craft employee cases,
when dealing with unit placement of guards , and when cer-
tifying unions to represent guards.
In the 27 years since its enactment , no General Counsel
has even suggested that because the Board may not put
professionals into nonprofessional units absent a separate
voting by the professionals , the parties may not of their
own accord choose to do so. Indeed , the discharge of a
professional for nonpayment of union dues under a com-
bined unit contract made voluntarily by the parties has
been held perfectly lawful by the Board . Retail Clerks
Union Local 324, 144 NLRB 1207 (1963 ). The unit there
was appropriate and there was no question about it.
In this very case , the General Counsel conceded at the
hearing that the instant contract is not defective merely
because the Teamsters Union could not be certified by the
Board , although Section 9(b) says the Board may not certi-
fy the Teamsters for Brink's guards regardless of whether
or not it covers a pure or mixed unit . William J. Burns
International Detective Agency, 134 NLRB 451 (1961). Ad-
ministrative restraints imposed by the statute upon the
Board 's procedures are not to be confused with congres-
sional enactments of what is illegal conduct by the private
participants in industrial life.
Decision on why the Respondents' conduct is not illegal
could go on at length into a regular academic discourse on
Board law. But under the scheme of the statute complaint
proceedings do not advance with the General Counsel
merely asserting certain conduct is illegal , and then with
the respondent , or the Judge , obligated to persuade him, or
anyone else , that the acts are not prohibited by law.
The Board could not have decided the issue of this case
more clearly than it has. In Radio Corporation of America,
173 NLRB 440 ( 1968), a craft severance representation
case, the Board considered what weight to give to a bar-
gaining history in which the craftsmen-nonguards-had
been represented in a single bargaining unit together with
guards; it decided to leave them in the old unit , despite its
mixed character . In its Decision the Board found occasion
to say- "The parties are not forbidden by the statute to
agree voluntarily to a mixed unit of employees and guards
. ." See also, Local Union No. 1332, International Long-
shoremen 's Association, 215 NLRB 150 ( 1974): "Section
9(b)(3) of the Act does not prohibit voluntary recognition
of either a mixed guard and other employee unit or of a
BRINK'S, INCORPORATED
labor organization which represents both kinds of employ-
ees."
Upon the basis of the foregoing findings of fact, conclu-
sions, and the entire record in this proceeding, and pur-
suant to Section 10(c) of the Act, I hereby issue the follow-
ing recommended:
1189
ORDER'
It is hereby recommended that the complaint be, and
that it hereby is, dismissed.
i In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
10248 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes