Watkins Security Agency of DC, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 2010

356 N.L.R.B. 31 (N.L.R.B. 2010)

WATKINS SECURITY AGENCY 31
Watkins Security Agency of D.C., Inc. and Federal
Contract Guards of America (FCGOA), Peti-
tioner. Case 5–RC–16491
October 28, 2010
ORDER
MEMBERS BECKER, PEARCE, AND HAYES
Service Employees International Union Local 32BJ’s
(Local 32BJ) request for special permission to appeal the
Regional Director’s order denying Local 32BJ’s motion
to intervene in these proceedings is granted. Having
carefully considered the motion, we have decided to re-
mand this case for a hearing to determine whether the
petitioned-for unit employees enforce rules to protect
property of a statutory employer or to protect the safety
of persons on the premises of a statutory employer, and
any other issues that the Regional Director may deem
appropriate for determination. Our dissenting colleague
raises an important policy concern he believes arises out
of the construction of Section 9(b)(3) of the Act urged by
Local 32BJ. However, the concern he identifies was not
addressed in the papers filed in connection with the re-
quest for special permission to appeal and we prefer to
address it based on an evidentiary record and after full
briefing. Accordingly, this case is remanded to the Re-
gional Director to conduct a hearing and to issue a deci-
sion.

MEMBER HAYES, dissenting.
I would grant the request for special permission to ap-
peal and deny the appeal on the merits. There is no need
to remand this case for a hearing unless the facts to be
determined are relevant to a meritorious legal theory. In
my view, they are not.
The theory upon which the remand here is based es-
sentially holds that Section 9(b)(3) of the Act should be
construed to mean that guards who in fact perform guard
duties at the premises of employers that are not covered
by the Act are nonguards as a matter of law. That such a
tortured reading would lead to an untenable result should
come as little surprise, and is amply illustrated by the
obvious result in the present case. Here, the Petitioner, a
union which admits to membership only guards, sought
to represent a unit of guards. However, if the Interve-
nor’s semantic slight of hand passes muster with my col-
leagues, such guards have become nonguards. Then the
Petitioner faces a substantial challenge to the purpose for
which it was founded. It could continue to participate in
this election proceeding, but a victory in that election
would be most Pyrrhic. The Petitioner would then admit
to membership nonguards, barring it from thereafter par-
ticipating in elections to represent statutory guards and
placing its representation of other statutory guard units at
risk.
Thus, unions that exclusively represent guard units
whose members protect the property of private sector
entities would effectively be barred from representing
guards who are, or may be, assigned to protect the prop-
erty of a public or other nonstatutory employer. On the
other hand, unions that clearly admit nonguards to mem-
bership could be certified to also represent guards based
solely on the happenstance of whose premises they hap-
pened to be assigned to protect. I do not believe that
Section 9(b)(3) was enacted either to effectively bar tra-
ditional guard unions from representing those employed
as guards on the premises of nonstatutory employers; or,
to insure that such guards can be represented solely by
unions which admit to membership only nonguards.

356 NLRB No. 12