The William J. Burns International Detective Agency, Inc.

National Labor Relations Board - Board Decisions

Sep 5, 1962

138 N.L.R.B. 449 (N.L.R.B. 1962)

WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 449
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
All full-time guards employed by the Employer at its Boston,
Massachusetts, branch office, including regular part-time guards
and sergeants, but excluding all other employees, office clerical
employees, investigators, inspectors, dispatchers, irregular part-
time guards, and supervisors as defined in the Act.
5. The Intervenor requests and the Union objects to a mail ballot.
In accord with our general practice, we leave this determination to
the discretion of the Regional Director.
[Text of Direction of Election omitted from publication.]
The William J. Burns International Detective Agency, Inc.' and
International Union of Police and Protection Employees-
Independent Watchmen 's Association, Petitioner . Case No.
2-RC-11954. September 5, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert E. Harding, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed .2
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three mem-
ber panel [Chairman McCulloch and Members Rodgers and Fanning].
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 organizations involved claim to represent certain em-
ployees of the Employer. At the hearing Intervenor Local 238,3 which
I The Employer 's name appears as amended at the hearing.
'The hearing officer referred to the Board various motions as follows* a motion to con-
solidate this proceeding with a decertification proceeding involving employees of this
Employer in the First Region (Case No. 1-RD-376) which is hereby denied because the
same parties are not involved in both proceedings , a motion to request the Board to take
judicial or administrative notice of the record in the decertification proceeding , which is
hereby granted , and a motion that the Board enforce a subpena for a Massachusetts
resident, Collins , who is an officer of Local 14 of the Boston Union, which is hereby denied
inasmuch as the testimony sought from this witness concerning merger is not relevant in
view of our determination in paragraph 2 of this Decision.
s Security and Protective Employees Union, Local 238, Building Service Employees
International Union , AFL-CIO, herein referred to as Intervenor Local 238, was allowed
to intervene based upon its contract interest . International Guards' and Watchmen's
Union, Independent , was allowed to intervene based upon its showing of interest . Special
Officers and Guards Union , Local 177, Building Service Employees International Union,
138 NLRB No. 52.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has long been the bargaining agent of the employees involved, and
the Employer urged the dismissal of this proceeding on the ground
that the Petitioner is not a labor organization within the; meaning of
the Act because it improperly used the name of another union in
organizing. The letterhead of the Independent Union of Plant Pro-
tection Employees, with international headquarters in Boston, was
used by its officers to circularize Burns guards in New York City.
The letter in evidence, dated February 21, 1962, stated that the "In-
ternational" was "in the process of joining forces with" the Independ-
ent Watchmen's Association of New York City, from whose office the
campaign would be continued, and suggested that the "IUPPE-IWA
organizing committee" could be reached for information by telephone
in New York. The letter also referred to preparations for filing "a
new petition" with the Board and asked the recipients to sign the en-
closed authorization cards and return to "the" New York office. At
the bottom of the letter, following the individual signatures of the
International IUPPE president, secretary, and treasurer, each desig-
nated as such, were the words : "and New York Organizing Committee
International Union of Police and Protection Employees, I.W.A."
The authorization cards enclosed were headed with the words just
underlined and the envelope was similarly addressed, but the body
of the authorization-printed over the same pale blue shield of the
Boston Union appearing on the letterhead-used simply the initials
IUPPE which are also the initials of the Boston Union.
On these facts there can be little doubt that the intent of Petitioner
was to enlist the participation of guards who had supported the Boston
Union in organizing the Employer's New York City guards the year
before by creating the impression that this was the same union newly
affiliated with the Independent Watchmen's Association 4 However,
the statutory test of a labor organization, simply stated, is concerned
with employee participation and a purpose of dealing with employers
concerning wages and working conditions. In this connection we
note that the president of the Independent Watchmen's Association
testified that a charter was issued by the IWA to the International
Union of Police and Protection Employees about February 1, 1962;
that the International Union of Police and Protection Employees was
chartered for the purpose of dealing with employers concerning wages,
hours, and other terms and conditions of employment of guards and
is an organization in which employees participate; and that IWA
AFL-.CIO, herein referred to as Local 177, appeared at the hearing at the request of the
hearing officer after testimony was adduced showing that Burns guards at the New York
City Coliseum were supplied by that Local as well as by Local 238 . In view of that fact,
and despite the fact that Local 177 did not formally intervene , we are placing Local 177
on the ballot and if it wishes it may withdraw upon timely notice to the Regional Director
before the election
' See The William J. Burns Internatidnal Detective Agency , Inc., 134 NLRB 451, where
the petition of the Independent Union of Plant Protection Employees was dismissed be-
cause the contract of Local 238, Intervenor herein, was found a bar.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 451
locals govern themselves and that the Petitioner here "will" do so after
certification. Concerning the, IWVA itself its president testified that it
is an organization in which employees participate and that it exists
for the purpose of dealing with employers concerning wages and
working conditions,5 and has contracts with named employers. In
addition the record shows that Burns employees participated in the
organizational activities of the Petitioner and discussed improving
their working conditions. On this record, therefore, we find that
Petitioner is a labor organization within the meaning of Section 2(5)
of the Act. Although we do not approve the tactics of those who
spearheaded the new group using a name which seems calculated to
confuse, it is our view that the statutory scheme does not warrant, in
the circumstances of this case, our denying the resulting labor or-
ganization the Board's machinery.6 As we said in Alto Plastics,7 the
Board provides the machinery whereby the desires of employees may
be ascertained and it is presupposed that employees will intelligently
exercise their right to select their bargaining representative.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of Sec-
tion 9(c) (1) and Section 2(6) and (7) of the Act. Inasmuch as the
anniversary date of Local 238's contract is June 30, 1962, and the
petition herein was filed March 27, 1962, we find that it was timely
filed with respect to existing Board policy. The recent amendment of
this policy to the effect that petitions to be timely should be filed no
more than 90 days before the anniversary date of the contract is ap-
plicable to petitions filed on and after May 1, 1962. See Leonard
Wholesale Meats, Inc., 136 NLRB 1000. There is no contention by
Local 177 or other parties that Local 177's contract covering some of
the employees working at the Coliseum, which is not in evidence, is
a bar.
4. The parties agree that the appropriate unit consists of all em-
ployees doing guard and protection work and employed by the Em-
ployer's New York City office to work in New York City, including
regular part-time guards. They do not, however, agree on the de-
finition of a regular part-time guard and the Petitioner would ex-
clude as casual employees those guards represented by Local 177 who
work at the Coliseum, New York Trade Building, and State armories.
As it appears from the record that half of the guards supplied for spe-
5 We note that the constitution and rules of order of the IWA, as amended and ap-
proved June 16, 1960 , is in evidence in the decertification proceeding of which we are
here taking administrative notice.
6 A collateral investigation as to the sufficiency of the showing of interest has resulted
in a finding by the Regional Director that the Board 's administrative requirements are
satisfied Intervenor Local 238 has since requested a review of this determination but
offers no evidence not already considered The request for review is therefore denied
° See Alto Plastics Manufacturing Corporation, 136 NLRB 850
662353-63-vol 138-30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cial shows at said locations are supplied by Local 177 and half by
Local 238, and that all of them do the same work, we see no reason to
exclude from the unit, as a group, those represented by Local 177. As
a group they are not casual employees.
It appears that all parties agree that those part-time guards who
have worked 1 day a week in the 90 days before the eligibility date
for the election are regular part-time employees entitled to vote. We
find that such guards are regular part-time employees. Guards on
the Employer's availability list who have worked less frequently than
that, may vote subject to challenge as to regular part-time status.
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
All employees doing guard and protection work, employed by
the Employer's New York City office to work in New York City,
including regular part-time guards, corporals, sergeants, and cap-
tains, excluding casual, temporary, seasonal, professional, con-
fidential, and nonguard employees and all supervisors as defined
in the Act.
5. Consistent with our decision of last November finding that the
contract between the Employer and Local 238, Intervenor herein, was
a bar to an election at that time (see footnote 4, above), we hold that
the statutory proscription in Section 9 (b) (3) against certifying af-
filiated labor organizations as representing "guard units" does not
prevent putting such labor organizations on the ballot, and certifying
the arithmetical results when such an election is won by such organiza-
tion. Accordingly, we shall place Locals 238 and 177 on the ballot,
despite the fact that they are affiliated with a union which admits other
than guards to membership, but in the event either should be success-
ful, we shall certify only the arithmetical results. However, we find
no merit in the further contention of the Employer and Intervenor
238 that the proscription of Section 9 (b) (3) has no application to
situations such as this involving units of employees who guard ex-
clusively property other than that of their own employer.8
Petitioner requests a mail ballot because of the widespread locations
at which these guards work and the varied hours of employment. In
accord with our usual practice, we leave this determination to the
discretion of the Regional Director.
[Text of Direction of Election omitted from publication.]
"See Armored Motor Service Company, Inc., 106 NLRB 1139; see also N L.R.B. v.
Amerecda District Telegraph Co of Pa, 205 F. 2d 86 (C.A. 3)