Deluxe General Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1979

241 N.L.R.B. 229 (N.L.R.B. 1979)

DELUXE GENERAL INCORPORATED
Deluxe General Incorporated and National Security
Association-Studio Security Association, Peti-
tioner. Case 31-RC-4294
March 19. 1979
DECISION ON REVIEW AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
Petitioner seeks to represent a unit of the Employ-
er's security guards and watchmen. On November 30,
1978, the Regional Director for Region 31 issued a
Decision and Direction of Election in the above-enti-
tled proceeding, finding that Petitioner is qualified
under Section 9(b)(3) of the Act to represent a unit of
guards, and directing an election in a unit consisting
of "all full-time and regular part-time security guards
and watchmen employed by the Employer at its Ser-
rano and Argyle facilities in Hollywood, California."
Thereafter, in accordance with Section 102.69 of the
National Labor Relations Board's Rules and Regula-
tions, Series 8, as amended, the Employer filed a re-
quest for review of the Regional Director's decision
asserting, inter alia, that Petitioner is ineligible to rep-
resent the requested unit of guards because it admits
into membership employees other than statutory
guards. Specifically, the Employer argues that part-
time whistlemen and flagmen, two of the job classifi-
cations currently represented by Petitioner, are
clearly not guards within the meaning of the Act and
that the Regional Director's findings that they per-
form guard functions as a significant portion of their
job responsibilities and interchange with admitted
guards are unsupported by the record evidence. The
Petitioner filed a brief in support of the Regional Di-
rector's decision.
On December 26, 1978, the Board telegraphically
granted the Employer's request for 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 reviewed the rulings of the Hearing
Officer made at the hearing held on November 6,
1978, and finds that they are free from prejudicial
error. They are hereby affirmed.
We have carefully reviewed the record herein and
find no basis for the Regional Director's findings of
fact. The record shows that the sole task assigned to
part-time whistlemen and flagmen is to regulate the
flow of traffic during the Employer's filming of a mov-
ie, thereby minimizing extraneous sound interference.
Contrary to the Regional Director's findings, there is
no evidence that part-time whistlemen and flagmen
interchange with admitted guards or that they are
vested with or exercise any authority to enforce rules
against employees or other persons to protect the Em-
ployer's property. Indeed, we note that Petitioner, in
its brief, neither alludes to nor relies on the Regional
Director's findings in this regard. Rather, Petitioner
takes the position that part-time whistlemen and flag-
men, by virtue of their undisputed authority to stop
traffic, are guards within the meaning of Section
9(b)(3) of the Act. For the reasons set forth below, we
cannot agree with such a strained view of the mean-
ing of "guard" within Section 9(b)(3).
Review of the legislative history Section 9(b)(3) re-
veals that Congress drafted that provision in order to
minimize the danger of divided loyalty that may arise
when a guard is called upon to enforce the rules of his
employer against a fellow union member.' Although
the Board has construed Section 9(b)(3) to encompass
nonplant guards,2 it has not departed from that sec-
tion's strict requirements that employees found to be
guards are those who "enforce against employees and
other persons rules to protect property of the em-
ployer or to protect the safety of persons on the em-
ployer's premises." In the instant case, it is clear that
part-time whistlemen and flagmen are neither en-
trusted with the protection of the Employer's prop-
erty nor with the safety of persons on its premises.
An employee engaged in traffic control, albeit fa-
cilitating the Employer's film production, bears little
resemblance to employees historically found to be
guards.3 Indeed, we perceive the functions performed
by part-time whistlemen and flagmen to be an inte-
gral part of the Employer's production process. Thus,
quiet on a movie set is as important to the film's pro-
duction as the sound crew. Yet employees tradition-
ally found to be guards perform a role apart from the
L See Walterboro Manufacturing Corporation, 106 NLRB 1383. 1384
(1953).
2 Since 1953 the Board and courts have held that the special provisions of
Sec. 9(bX3) also apply to armored car guards. See, e.g., Armored Motor
Service Company, Inc., 106 NLRB 1139 (1953); Brink's, Incorporated 226
NLRB 1182 (1976). Like plant guards and unlike other employees, the prin-
cipal function of armored car guards is to physically protect the property
entrusted to their care. By applying the provisions of Sec. 9(bX3) to such
employees, the Board is serving the congressional purpose underlying that
section of insulating all guard employees from conflicting loyalties to non-
guard labor organizations. For the reasons stated in her concurrence in
Brink's Incorporated, supra, Member Murphy does not subscribe to the view
that the statutory definition of "guard" also includes employees employed by
an armored truck company or companies providing protective services for
customers However, that issue is not presented here, as the question is
whether the Employer's own employees in question protect the property of
their Employer's and the safety of persons thereon, and thereby qualify as
guards within the statutory definition of the term.
S] ee, e.g., George Junior Republic, 224 NLRB 1581 (1976) (secunty em-
ployees who patrol grounds of employer's institution to prevent fire, theft,
illegal entry, and trespassing); Texas Electric Cooperatives, Inc., 160 NLRB
440 (1966) (watchmen responsible for enforcing employer's rules for protec-
tion of plant property and who are authonzed to apprehend unauthorized
persons); Columbia Pictures Corporation, 152 NLRB 899 (1965) (individuals
guarding entrances to building who are uniformed, wear special police
badges, and are instructed to use force in restincting unauthorized entries);
Weyerhauser Cornpany, 132 N.RB 84 (1961) (watchman who wears uniform,
carries a gun, protects propert) from theft, and prevents trespassing).
241 NLRB No. 33
229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actual production process and are often most active
when production has ceased. More akin to regular
production employees, part-time whistlemen and
flagmen are no more responsible for the protection of
the Employer's property than any other regular pro-
duction employee, including sound crewmen. Thus,
were we to find part-time whistlemen and flagmen to
be guards, we would not only ignore the congres-
sional intent behind Section 9(b)(3) but would ignore
the literal requirements of that section. Accordingly,
although urged to do so by Petitioner, we decline to
infer a statutory guard function solely from the au-
thority to regulate the flow of traffic. Rather, the du-
ties of part-time whistlemen and flagmen appear to be
analogous to those of gatemen found not to be guards
in Lion Country Safari, 225 NLRB 969 (1976).
After careful review of the record herein and cogni-
zant of the legislative purposes behind Section
9(b)(3), we find that part-time whistlemen and flag-
men are not guards within the meaning of Section
9(b)(3) of the Act. Since Petitioner admits into mem-
bership these employees who are not guards, it is, as a
consequence, barred from invoking the Board's statu-
tory election processes. 4 Accordingly, we find that no
question concerning representation exists within the
meaning of the Act and shall dismiss the petition
herein.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
4 The WackenhuI Corporation, 169 NLRB 398 (196%8).
230