Drivers, Chauffeurs & Helpers Local 639

National Labor Relations Board - Board Decisions

Jun 18, 1974

211 N.L.R.B. 687 (N.L.R.B. 1974)

DRIVERS, CHAUFFEURS & HELPERS LOCAL 639
Drivers, Chauffeurs & Helpers, Local Union 639
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and Dunbar Armored Express, Inc. Case
5-CP-94
June 18, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed December 6, 1973, by Dunbar
Armored Express, Inc., the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 5, issued a complaint on January
2, 1974, against Drivers, Chauffeurs & Helpers, Local
Union 639 affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Respondent herein, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(b)(7)(C) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
On February 6, 1974, the Respondent and the
Charging Party entered into a stipulation, subse-
quently agreed to by the General Counsel on
February 11, 1974, in which they agreed that the
formal papers filed in this proceeding and the
stipulation of the parties shall constitute the entire
record in this case. The parties agreed that no oral
testimony was therefore necessary or desired. They
waived their right to a hearing before an Administra-
tive Law Judge, the making of findings of fact and
conclusions of law by an Administrative Law Judge,
and the issuance of an Administrative Law Judge's
Decision and recommended Order, and asked that
the case be transferred directly to the Board for
decision. The stipulation also provided for the filing
of briefs with the Board.
On February 20, 1974, the Board issued its Order
approving the stipulation and transferring the pro-
ceeding to the Board. Thereafter, the General
Counsel, the Charging Party, and the Respondent
filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the briefs of the parties. For the
The Respondent 's request for oral argument is denied since the record
and briefs adequately present the issues and positions of the parties.
687
reasons hereinafter indicated , the Board finds that
the Respondent has violated Section 8 (b)(7)(C) of the
Act as alleged by the complaint.'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Dunbar, a Maryland corporation, is and has been
at all times material herein, engaged in Maryland,
the District of Columbia, and the State of Virginia, in
providing armored car carrier service for the trans-
port of moneys and other valuable items.
During the past year, in the course and conduct of
its business operations, Dunbar received in interstate
commerce in excess of $50,000 for services per-
formed outside of the State of Maryland.
We find that Dunbar is and, at all times material
herein, has been an employer engaged in commerce
and an operation affecting commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the purposes of the Act to assert
jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree, and we find, that the Respon-
dent is and, at all times material herein, has been a
labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. The Relevant Stipulated Facts
Dunbar, at its Riverdale, Maryland, facility em-
ploys approximately 38 employees and operates
approximately 12 armored trucks; 32 of the employ-
ees, viz, 23 full-time driver-helpers, 1 driver, 2
vaultmen, and 6 part-time driver-helpers, are the
employees with which this case is concerned.
Dunbar's trucks are usually operated by two-man
teams with one man picking up valuable items from
Dunbar's customers and placing them in the armored
truck. This individual is engaged in an operation
known as "hopping" and, accordingly, is called a
"hopper." The two men on a given team alternate, so
that one man drives half the day while the other acts
as a "hopper." The two men in this team are
responsible for protecting the items entrusted to
them by customers while they are in their possession.
Dunbar is liable for its customers' items from the
time that the "hoppers" sign a receipt indicating that
the items have been picked up until the items are
delivered to their destination and are signed over to
the appropriate recipient.
211 NLRB No. 78
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two employees function as vaultmen. These two
employees' functions are to receive items picked up
by the armored truck, but which had not been
delivered, and to stuff individual pay envelopes
which are delivered by Dunbar driver-hoppers to
customers' locations. Dunbar is liable for these
stored items during the entire period that they are in
Dunbar's vault. One of the vaultmen works primarily
as a vaultman, but also drives an armored truck
when needed. The other vaultman regularly spends
about half of each day functioning as a vaultman
and spends the remainder of time as a driver-hopper.
All of the foregoing employees, while functioning
as drivers, hoppers, or vaultmen, wear uniforms and
carry loaded weapons. They are bonded, are licensed
to carry weapons, and are tested and certified on an
annual basis in the use of their weapons. These
employees, on a daily basis, handle, and are charged
with responsibility for, money, checks, credit cards,
nonnegotiable instruments, and other items of great
value. Dunbar has approximately 150 customers who
are engaged in a variety of enterprises, including
banking and the operation of public schools.
On November 16, 1973, Respondent filed a
petition for representation with Region 5 of the
Board in which it requested that it be certified as the
collective-bargaining representative for a unit con-
sisting of the following employees of Dunbar:
Drivers, helpers, hoppers, guards, messengers,
vaultmen, and routemen, excluding clerical per-
sonnel , salesmen , office supervisors, and all others
excluded by the Act.
Concurrently, the Respondent demanded, and has
continued to demand, that Dunbar recognize and
bargain with it as the representative of Dunbar's
employees.
After an administrative investigation, the Regional
Director for Region 5 of the Board concluded that
the employees petitioned for were guards within the
meaning of Section 9(b)(3) of the Act, and because
Respondent admitted to membership employees
other than guards, it could not be certified under the
Act in an election as the collective-bargaining
representative of the employees it sought to repre-
sent . After being advised that its petition would be
2 The pickets carved signs beanng the following legend:
DUNBAR
ON STRIKE
LOCAL UNION 639
dismissed, the Respondent submitted a withdrawal
request on or about November 29, 1973, which was
approved on November 30, 1973. By letter dated
December 3, 1973, the Respondent and Dunbar were
notified by the Regional Director that the withdraw-
al request had been approved.
Subsequent to its withdrawal of its petition, on or
about December 3, 1973, the Respondent established
a picket line at Dunbar's Riverdale, Maryland,
facility, and maintained that picket line until Decem-
ber 18, 1973. The picketing was conducted by a
majority of Dunbar's employees, as well as by
business agents and/or representatives of the Re-
Ispondent.2
On December 18, 1973, the Respondent voluntarily
terminated its picketing in response to a petition for
injunction pursuant to Section 10(1) of the Act filed
in United States District Court for the District of
Maryland. On that same day, the Respondent filed
with Region 5 of the Board a second representation
petition, wherein it sought to be certified as a
representative of the same employees of Dunbar as it
had sought in its first petition. On December 20,
1973, the Regional Director dismissed this second
petition and no appeal of the dismissal of that
petition was filed. On January 28, 1974, the United
States District Court for the District of Maryland
issued an injunction against further picketing by the
Respondent.
In the stipulation, the parties agreed that an object
of the Respondent's picketing was to force or require
Dunbar to recognize or bargain with the Respondent
as the representative of certain of Dunbar's employ-
ees.
B. Contentions of the Parties and Findings
In the complaint, the General Counsel alleges that
although the picketing between December 3 and 18
did not exceed 30 days, it was nevertheless conduct-
ed beyond a reasonable period of time since the
Respondent could not be certified as the collective-
bargaining representative for Dunbar's employees in
the unit sought and, consequently, any petition for
an election pursuant to Section 9(c) filed by the
Respondent would not be processed by the Board.,,
The General Counsel thus alleges that the Respon-
dent violated Section 8(b)(7)(C) of the Act by
picketing the Employer for recognition while Re-
spondent was precluded by Section 9(b)(3) of the Act
from being certified as the representative of those
employees.
Respondent's answer denies the commission of anyl
DRIVERS,
CHAUFFEURS
AND HELPERS
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
DRIVERS, CHAUFFEURS & HELPERS LOCAL 639
unfair labor practice on two grounds. First, the
Respondent averred that the employees it seeks to
represent are not guards within the meaning of
Section 9(b)(3). Secondly, the Respondent maintains
that, even if the employees it seeks to represent are
guards, its picketing was not beyond a reasonable
period of time.
The issues thus presented are (1) whether the
employees sought are "guards" within the meaning
of Section 9(b)(3); (2) whether the filing of the two
representation petitions which did not raise a
question concerning representation under the Act
can serve as a bar to the finding of a violation of
Section 8(b)(7)(C); and (3) whether an inability to
obtain certification as representative of a particular
group of employees constitutes a defense to a charge
that Section 8(b)(7)(C) has been violated.
1. Employees' status as guards
The Respondent argues that the service provided
by Dunbar is no different than that of a regular
trucking operation, and that Dunbar's drivers and
"hoppers" are merely "truckdrivers with guns." It
points out that Dunbar's employees enforce no rules
against the employees of its customers, and it states
that any potential conflict of interest that might
occur if a customer of Dunbar was struck by a
Teamsters local could be dealt with by a clause
requiring Dunbar's employees to cross picket lines
when necessary. Indicating its awareness of the
Board's decision in Armored Motor Service Company,
Inc., 106 NLRB 1139, in which the Board held that
employees performing essentially the same duties as
the employees involved in the instant proceeding
were guards, the Respondent argues that continued
adherence to that precedent effectively disenfran-
chises a significant number of employees in the
absence of express congressional intent. Finally, the
Respondent argues that the prohibition within
Section 9(b)(3) of the Act runs only to plant guards,
rather than to individuals who perform functions
similar to those involved in the instant case. We are
not persuaded by these arguments.
Dunbar's operations are significantly different
from that of a regular trucking operation, and it is a
facile oversimplication to argue that the employees
sought by the Respondent are merely "truckdrivers
with guns." Dunbar is engaged in the transportation
of valuable items owned by others and, in order to
insure the safe transportation of these items, its
employees are trained, certified, and licensed with
respect to the possible use of lethal weapons against
3 N. L. R. B. v. American District Telegraph Company, 205 F.2d 86, 89-90
(C.A. 3, 1953); American District Telegraph Company, 160 NLRB 1130, 1136
( 1966). See also The Wackenhut Corporation, 196 NLRB 278 (1972).
689
those who would steal those items. Furthermore, the
fact that the employees sought are primarily charged
with the protection of property of Dunbar's custom-
ers, rather than Dunbar's own property, makes no
difference. In performing their primary duties, they
must protect property entrusted to Dunbar as well as
to protect Dunbar's armored trucks and vault.
Certainly, our decisions as well as court decisions
have adhered to the principle that it makes no
difference that the property to be protected is that of
a customer of the employer rather than that of the
employer .3
The argument that the conflict-of-interest problem
could be resolved in negotiations is a wholly
irrelevant one. It disregards the fact that Section
9(b)(3) precludes the grant of bargaining rights by
this Board to any union which, like the Petitioner,
admits to membership employees other than guards.
Lastly, although these employees cannot be repre-
sented by a union which represents nonguard
employees, they can choose a representative that
exclusively represents guard employees, and thus
obtain representation by a labor organization which
fulfills the statutory requirements for certification
under Section 9(b)(3). In sum, we conclude that the
employees sought by the Respondent are guards.
2. The effect of the two petitions
To reiterate, the record shows that the Respondent
filed a representation petition on November 16, 1973,
that its withdrawal of that petition was approved on
November 30, 1973, and that the Respondent was
advised by the Regional Director of his approval of
said withdrawal request on December 3, 1973. Thus,
the record shows that the Respondent began its
picketing after it had filed a representation petition.
However, because the Respondent sought to repre-
sent a unit of guards and because Respondent admits
to membership employees other than guards, the
Regional Director for Region 5 of the Board
correctly observed that the Respondent could not be
certified in an election as the collective-bargaining
representative of the guards it sought to represent
because of the restrictions contained in Section
9(b)(3) of the Act.4 The Regional Director was
correct in informing the Respondent that, in the
absence of a withdrawal of its petition, its petition
would be dismissed.
The record is devoid of any indication as to why, in
effect, the Respondent sought to obtain an election
in a unit for which it could not be certified as the
representative. Due to its disability, i.e., the fact that
4 Rock-Hill-Uris, Inc. d/b/a The New York Hilton at Rockefeller Center,
193 NLRB 313, fn. 3, and Sentry Investigation Corp., 198 NLRB No. 152.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it admitted to membership employees other than
guards, its petition, in our opinion, raised no
question concerning representation . Absent a valid
question concerning representation a petition cannot
be entertained pursuant to Section 9(c)(1) of the Act,
and thus the petition would be a nullity.
In light of the foregoing, the question thus posed is
whether a petition which does not raise a question
concerning representation under the Act can serve as
a bar to the finding of a violation under Section
8(b)(7)(C). There is no legislative history with regard
to this question, and it is quite possible that this rare
instance was one that was not foreseen by Congress.
Nevertheless, our consideration of Section 8(b)(7)(A)
and (B) leads us to the conclusion that those two
sections preclude recognitional picketing when a
question concerning representation cannot be prop-
erly raised in the circumstances set forth in each
section. Consequently, we conclude that a petition
which does not raise a valid question concerning
representation does not preclude the finding of a
violation under Section 8(b)(7)(C) of the Act. Thus,
the Respondent violated Section 8(b)(7)(C) by its
picketing of Dunbar on December 3 and thereafter
for a proscribed object because the two petitions
which Respondent filed did not raise a valid question
concerning representation under the Act.
3. Picketing by a union unable to obtain
certification
This last consideration is one which is analogous to
the situation where a union has lost a representation
election held pursuant to the provisions of Section
9(c) of the Act. Under Section 9(c)(3), a union which
loses a valid election cannot seek another representa-
tion election in the same unit for a 12-month period
from the date of the prior valid election. In that type
of situation, the union would obviously be barred
from obtaining a Board certification during that 12-
month period. Moreover, were that union to picket,
cause to be picketed, or threaten to picket the
employer of the employees who voted against it, with
an object of forcing or requiring the employer to
recognize it as a representative of said employees,
that union would violate Section 8(b)(7)(B). In short,
the losing union would be unable to file a petition
that raised a valid question concerning representa-
tion and thereby obtain Board certification through
an election.
In the present case, the Respondent is likewise
unable to obtain a Board certification in this guard
unit, but its inability to obtain a certification arises
from its own voluntary choice ; i.e., a decision on its
part to admit nonguard employees to membership.
Since Respondent's inability to obtain a Board
certification in this guard unit results from its own
action and not from any policy of the Board, this
case is distinguishable from Teamsters Local Union
No. 115 (Vila-Barr Company), 157 NLRB 588, which
involved picketing where there was only a one-man
unit . Thus, in Vila-Barr the Board recognized that
the union there was "disabled through no fault of its
own from invoking the Board's election processes"
because the Board would not entertain a representa-
tion petition for a one-man unit. In this case, the
Union's inability to utilize the Board 's election
processes in this guard unit does result from
Respondent's practice of admitting nonguards to
membership . Furthermore , unlike the one-man unit
in Vila-Barr, the unit here can be petitioned for and
an election held if the petition is filed by a labor
organization which admits only guards to member-
ship.
CONCLUSION OF LAW
We therefore conclude that the Respondent has
engaged in picketing in violation of Section
8(b)(7)(C) of the Act, as alleged in the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Drivers, Chauffeurs & Helpers, Local Union 639
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, and representatives,
shall:
1. Cease and desist from picketing, or causing to
be picketed, Dunbar Armored Express, Inc., where
an object thereof is forcing or requiring said
Employer to recognize or bargain with Respondent
as the collective-bargaining representative of employ-
ees who function as guards, or forcing or requiring
employees who function as guards for such Employ-
er to accept or select Respondent as their collective-
bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business office copies of the attached
notice marked "Appendix."6 Copies of said notice,
on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's
authorized representative, shall be posted by Re -
6 In the event that this Order is enforced by a Judgment of a United Judgment of the United States Court of Appeals Enforcing an Order of the
States Court of Appeals , the words in the notice reading "Posted by Order National Labor Relations Board."
of the National Labor Relations Board " shall read "Posted Pursuant to a
DRIVERS , CHAUFFEURS & HELPERS LOCAL 639
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places , including all places where
notices to members are customarily posted . Reasona-
ble steps shall be taken by Respondent to insure that
said notices are not altered , defaced , or covered by
any other material.
(b) Furnish the Regional Director for Region 5
signed copies of said notice for posting by Dunbar
Armored Express, Inc., if willing , in places where
notices to employees are customarily posted.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER JENKINS , concurring:
I concur in the result.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket , or cause to be picketed,
Dunbar Armored Express , Inc., where an object
thereof is forcing or requiring said Employer to
recognize or bargain with us as a collective-
691
bargaining representative of its guard employees,
or forcing or requiring guard employees of such
Employer to accept or select us as their collective-
bargaining representative.
DRIVERS , CHAUFFEURS &
HELPERS , LOCAL UNION
639 AFFILIATED WITH
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , Federal Building, Room 1019,
Charles Center , Baltimore, Maryland 21201, Tele-
phone 301-962-2822.