The Wackenhut Corp.

National Labor Relations Board - Board Decisions

Apr 23, 1973

203 N.L.R.B. 86 (N.L.R.B. 1973)

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Wackenhut Corp . and Local 2, International Un-
ion of Police and Protection Employees , Indepen-
dent Watchmen 's Association, Petitioner. Case
2-RC-15935
April 23, 1973
DECISION ON REVIEW
BY MEMBERS JENKINS , KENNEDY , AND PENELLO
On September 28, 1972 , the Acting Regional Direc-
tor for Region 2 issued a Decision and Order in the
above-entitled proceeding , in which he dismissed the
petition for an election among the employees per-
forming guard and security services under the
Employer's contract with City College of New York
on the ground that , with respect to those services, the
Employer shares City College's exemption from the
Board 's jurisdiction . Thereafter, in accordance with
Section 102 .67 of the National Labor Relations
Board's Rules and Regulations , Series 8, as amended,
the Petitioner and the Intervenor , Local 238, Security
and Protective Employees, affiliated with Service In-
ternational Union , AFL-CIO, filed timely requests
for review and supporting briefs in which they assert
that the Acting Regional Director erred in his findings
that the services provided by the Employer are inti-
mately related to the administration of City College,
and that the latter retains a substantial degree of con-
trol over the employment relations of the guards in-
volved . On November 6, 1972 , by telegraphic order,
the requests for review were granted.
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 here-
by affirms the Acting Regional Director's Decision
and Order for the following reasons:
We find, in accord with the Acting Regional Direc-
tor, on the basis of his findings of fact , excerpted from
his Decision and attached hereto as an appendix, that
the guard services provided by the Employer under its
contract with City College are intimately related to
the latter's administration and educational purposes.
For this reason , we agree that , with regard to the
guards employed by it to perform these services, the
Employer shares City College's exemption from the
Board 's jurisdiction under the provisions of Section
2(2) of the Act.'
1 Slater Corporation, 197 NLRB No . 183, Horn & Hardart, 154 NLRB
1368; The Prophet Co, 150 NLRB 1559, Crotty Brothers, N Y, Inc, 146
NLRB 755. Cf. Herbert Harvey, Inc, 171 NLRB 238 We therefore find it
unnecessary to decide whether or not the degree of control retained by City
College concerning such services would constitute a separate basis for declin-
ing to assert jurisdiction over the Employer herein
APPENDIX
The Employer, which is not exempt from the
Board's jurisdiction under the provisions of Section
2(2) of the Act, is a Florida corporation, with its prin-
cipal office and place of business located in Coral
Gables, Florida. It is engaged in providing guard and
security services to institutions and companies
throughout the United States. During the normal
course of its business in the past year it received reve-
nues in excess of $50,000 from customers outside the
state in which it is located. Its contract, with the insti-
tution involved herein for security services , is in ex-
cess of $500,000.
The City College of New York, herein called City
College, which is directly under the trusteeship of the
Board of Higher Education, is an accredited educa-
tional institution in the State of New York and is
governed by the rules and regulations of the State
Education Act. Its budget is received from the City of
New York with half of the funds contributed by the
State. On the basis of the above facts I find City
College itself is excluded from the Board's jurisdiction
under the provisions of Section 2(2) of the Act.
The Petitioner seeks an election in a unit of employ-
ees of the Employer performing guard and security
services at City College. The Employer contends that
the Board should decline to assert jurisdiction in the
instant situation because City College retains a sub-
stantial degree of control over the operations of the
Employer herein involved and because the operations
of the Employer and City College are intimately relat-
ed.
The record reveals that there has been some history
of collective bargaining for employees performing se-
curity duties at City College. It appears that on De-
cember 16, 1970, the Regional Director, Region 2,
issued a Decision and Direction of Election in Case
2-RC-15510 wherein, inter alia, he directed an elec-
tion amongst employees of this employer who per-
formed guard and plant protection duties at City
College, the facility involved in this proceeding. In
that case the Employer did not raise the issue of juris-
diction now raised by it, as set forth above. In fact the
record was basically a stipulated one. The Petitioner
in Case 2-RC-15510 was Local 53, International
Union of Police and Protection Employees, IWA,
herein called Local 53 and on May 10, 1971 the Re-
gional Director issued a certification of results where-
in he found that a majority of valid votes had not been
cast for Local 53.
203 NLRB No. 3
THE WACKENHUT CORP.
Although the record is unclear it appears that prior
to 1970 the contract at City College for security serv-
ices was with the William J. Burns International De-
tective Agency, herein called Burns. In 1962, in Case
2-RC-11954 this Petitioner was certified as the collec-
tive-bargaining representative for all Burns employ-
ees in a citywide unit. It does not appear that the issue
of jurisdiction was raised in that proceeding.'
In the instant case the issue of jurisdiction has been
raised and for the reasons set forth below it is de-
termined that it will not effectuate the policies of the
Act to assert jurisdiction herein.
This Employer, Wackenhut, bid for the job of pro-
viding guard and security services for City College
according to certain regulations of the City of New
York governing bids for work performed for the
Board of Education. The contract, which it received
effective July 1, 1972, through June 30, 1973, is with
the Board of Higher Education and provides that the
Employer, as contractor, is to "provide uniformed
guards for outdoor and indoor assignments as re-
quired by the Director of Security of The City College
to protect and police the buildings and campus areas
of The City College." The contract sets forth require-
ments, inter alia, that the Employer shall provide
guards who are able to speak and write English fluent-
ly and who are in the same physical condition as that
required of a small police force personnel. Further,
the contract requires these guards to wear similar
uniforms marked as City College Security, punch time
clocks as provided by City College, and carry daily
log books and report forms to record every incident
that occurs in connection with their duties . These re-
ports are then furnished to City College for its rec-
ords. Supervision is to be maintained by the Employer
subject to modifying orders from the Office of the
Dean of Students and/or the Director of Security of
City College. The College reserves the right to reject
any guard found unsatisfactory. Guards assigned by
the Employer to City College are to be permanently
assigned with a minimum of turnover. The College is
to supply to the guards lists of personnel to be reached
in cases of emergency, lists of identification to be
accepted, schedules of daily activities with special in-
structions. In addition, the College will decide where
armed guards are necessary and it retains the right to
increase or decrease the number of personnel to be
assigned on any given date. The Employer supplies
equipment such as walkie-talkies, radio equipment,
etc., but City College decides how they will be utilized.
The Employer also supplies two cars, one unmarked,
the other marked "City College Security," two motor
scooters similarly identified, as well as two marked
3 William J. Burns International Detective Agency, Inc., 138 NLRB 449.
87
three-wheeled scooters, equipped with rotating bea-
cons. Further, the Employer's personnel assigned to
the College are to be directly responsible to the Direc-
tor of Security of City College who will outline the
specific tours and duties of the personnel and all in-
structions, notices, memoranda, etc., relating to the
work will carry his signature or that of the assistant
director for purposes of authorization.
The Employer is required by the terms of the con-
tract to follow the requirements of the New York
State Labor Law and New York Administrative Code
in hiring personnel for the job at City College. It
cannot hire anyone who is not a citizen of the State
of New York and must give preference in employment
to those citizens who have been residents for at least
six consecutive months immediately prior to com-
mencement of their employment. The contract also
states that although the New York City minimum
wage is not applicable to contracts with the Board of
Higher Education, the Employer must comply with
the New York State Minimum Wage Law. In other
respects the Employer is free to hire its employees and
it sets their pay scale and benefits, pays their salaries,
promotes, disciplines, trains and provides their imme-
diate supervision. The record is clear that the guards
are employees of the Employer and not of City Col-
lege and no party contends that this is not the case .4
The Board has held that the assertion of jurisdiction
over a contractor providing services for an institution
exempted from the process of the Act is dependent
upon the relationship of the services performed to the
exempted functions of the institution.' Where the
services are intimately connected with the exempted
operations of the institution or the institution retains
a substantial degree of control over the employees, the
Board has found that the contractor shares the ex-
emption.6 On the other hand, where the services are
not essential and not intimately connected with the
operations or the Employer exercises effective control
of its employees the Board will assert jurisdiction'
Based on the facts set forth above, the services per-
formed by the guards meet the Board's tests for de-
clining jurisdiction. The guard's duties are intimately
related to the administration of the College. They pro-
vide the security and safety not only of the campus
but of all the students and faculty who study and
teach there. Further it is clear that City College retains
° Both Petitioner and Intervenor point to a clause in the contract which
allows the College to cancel the contract in case of a strike. They emphasize
that this infers that Wackenhut employees are not prohibited from striking
as are New York City employees . However, there is no contention by any
party that the employer of these security guards is the City of New York.
3 Herbert Harvey, Inc, 171 NLRB 238.
6 Slater Corporation, 197 NLRB 1282; Horn & Hardart, 154 NLRB 1368;
The Prophet Co, 150 NLRB 1559; Crotty Brothers N. Y., Inc., 146 NLRB 755.
7 Herbert Harvey Inc., supra; Bay Ran Maintenance Corp., 161 NLRB 820.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a substantial degree of control over the precise duties
and conditions of employment of these employees of
the Employer . Every incident occurring on the cam-
pus is reported to College officials , daily logs are kept
by each guard and given to the College, and the
uniformed personnel labelled as City College Security
are held out as an arm of the College for the purpose
of protecting the students and faculty, the campus
buildings, and College property. Further, the security
personnel are called upon to act on behalf of the
and demonstration.
Under all these circumstances it is found that the
guard and security services provided to this educa-
tional institution are intimately connected with the
administration of such institution and as City College
is itself exempt from the Board 's jurisdiction, the Em-
ployer herein shares this exemption and it would not
effectuate the purposes of the Act to assert jurisdic-
tion herein .8 Accordingly, I shall dismiss the petition.
College administration in situations of student protest ' Slater Corporation. supra