N.L.R.B. v. Brinks, Inc. of Florida

• Decision Date: 26 April 1988
• Docket Number: No. 87-5525,87-5525
• Citation: 843 F.2d 448
• Parties: 128 L.R.R.M. (BNA) 2145, 56 USLW 2663, 108 Lab.Cas. P 10,454 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRINKS, INCORPORATED OF FLORIDA, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 448

843 F.2d 448

128 L.R.R.M. (BNA) 2145, 56 USLW 2663,

108 Lab.Cas. P 10,454

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRINKS, INCORPORATED OF FLORIDA, Respondent.

No. 87-5525.

United States Court of Appeals Eleventh Circuit.

April 26, 1988.

Elliot Moore, Deputy Associate General Counsel, N.L.R.B., William M. Bernstein, Paul J. Spielberg, Washington, D.C., for petitioner.

Jeffrey W. Pagano, Epstein, Becker, Borsody & Green, New York City, for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before KRAVITCH, Circuit Judge, HENDERSON ^*, and HENLEY ^**, Senior Circuit Judges.

KRAVITCH, Circuit Judge:

I.

Brinks, Inc. of Florida petitions this court for review of a National Labor Relations Board order directing it to bargain collectively with Local 555 of the International Union of Police and Protection Employees. See Brinks, Inc., 283 N.L.R.B. No. 110 (Apr. 23, 1987). The Board certified Local 555 as the bargaining representative of Brinks' employees at its Fort Lauderdale, Florida facility. For several years prior to the events leading to this petition, Brinks' employees at two other facilities, in West Palm Beach and Miami, were represented by Local 390 of the International Brotherhood of Teamsters. From time to time, Local 390 demanded Brinks' recognition as the bargaining representative of the Fort Lauderdale employees as well, but Brinks resisted these demands.

A new attempt to organize Brinks' Fort Lauderdale employees began in 1981 through the efforts of Kenneth Jordan, a tractor-trailer driver employed by Consolidated Freightways at its West Palm Beach terminal. The West Palm Beach employees of Consolidated Freightways were represented by Local 390. Jordan was a member of Local 390 and served as union steward at the West Palm Beach terminal.

Jordan met Frank Mancini, the Secretary-Treasurer of the International Union of Police and Protection Employees, on a visit to New York City. Mancini suggested that Jordan assume the responsibility of organizing a local labor organization of security guards in Florida. After considering the suggestion, Jordan met again with Mancini and agreed to organize a local organization. Jordan obtained a charter for the local organization that was subsequently designated as Local 555 of the International Union of Police and Protection Employees.

The first meeting of Local 555's organizers took place in June 1981; Jordan was elected President. Local 555 thereafter filed a petition with the National Labor Relations Board, seeking certification as bargaining representative for Brinks' Fort Lauderdale employees. On June 3, 1982, the Board held an election at the Fort Lauderdale facility, at which Local 555 failed to receive a majority of the valid votes cast. The Board set aside the results of the election and directed that a second election be held. ¹ Local 555 received a majority of the votes cast at the second election, and the Board certified Local 555 as the bargaining representative of Brinks' Fort Lauderdale employees.

Brinks refused to bargain with Local 555, so Local 555 filed a charge with the Board alleging that Brinks' refusal to bargain violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. Secs. 158(a)(1), (a)(5). The Board issued a complaint on the charge. In its answer, Brinks asserted inter alia that the Board had illegally certified Local 555 as the bargaining representative in violation of section 9(b)(3) of the NLRA, 29 U.S.C. Sec. 159(b)(3):

[N]o labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.

It is undisputed that Brinks' Fort Lauderdale employees are "guards" within the meaning of the statute and that Local 390 is "an organization which admits to membership[ ] employees other than guards." The only significant question for our purposes is whether Local 555 "is affiliated directly or indirectly" with Local 390. If so, then the statute prohibits the Board from certifying Local 555 as the representative of the Fort Lauderdale guards.

An administrative law judge determined that Local 555 was not affiliated directly or indirectly with Local 390. In so concluding, the ALJ rejected Brinks' primary contention that Jordan's dual service as president of Local 555 and steward of Local 390 created an indirect affiliation between the two organizations. The ALJ first dismissed Brinks' argument that the mere existence of common officers could constitute an affiliation in violation of the NLRA. Rather, the ALJ believed that to establish its claim of affiliation, Brinks was required to show that Local 555 "was not free to formulate its own policies and courses of action." The ALJ found no "affirmative evidence" that Local 390 had attempted to control Local 555 through Jordan and other common officers. ² The ALJ also distinguished a line of National Labor Relations Board decisions in which the Board concluded that concurrent service as an officer of both a guard union and a non-guard union had created an indirect affiliation. In those cases, according to the ALJ, the officers in question held policy-making positions of high responsibility in the non-guard union. By contrast, Jordan held office as steward of Local 390 at the pleasure of the president of Local 390, received no pay for his service as a steward, played no part in Local 390's collective bargaining sessions, and exerted no influence on Local 390's policy decisions. Moreover, the ALJ believed that even in the "common officer" cases, the Board had not based its findings of affiliation solely on the commonality of officers but also on a showing that the guard union was under the control of the non-guard union. As the ALJ found no evidence of such control, he ordered Brinks to bargain with Local 555. A three-member panel of the Board adopted the ALJ's order.

II.

A.

To understand the issues in the case, it is necessary to review the origin and purposes of section 9(b)(3). That section is a statutory exception to the Board's otherwise broad discretion in determining appropriate bargaining units. Congress added section 9(b)(3) as an amendment to the NLRA largely to overrule the Supreme Court's decision in NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947). In Jones & Laughlin, the Supreme Court reversed a decision by the Sixth Circuit denying enforcement of a Board order directing the employer to bargain with the United Steelworkers of America. See NLRB v. Jones & Laughlin Steel Corp., 146 F.2d 718 (6th Cir.1944), vacated and remanded for consideration of mootness, 325 U.S. 838, 65 S.Ct. 1413, 89 L.Ed. 1965 (1945), adhered to on remand, 154 F.2d 932 (6th Cir.1946), rev'd, 331 U.S. 416, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947).

The Steelworkers had represented Jones & Laughlin's production and maintenance employees for many years and had recently sought certification as bargaining representative of Jones & Laughlin's plant guards as well. The Board certified Jones & Laughlin's "patrolmen, watchmen, firemen, and dump laborers" as a bargaining unit represented by the Steelworkers. In reviewing the Board's decision, the Sixth Circuit stressed the obligation of the plant guards to protect their employers' property (as well as to keep the peace, for the guards were deputized as municipal police officers). The court concluded that when the plant guards "were inducted into the Unions and became subject to their orders, rules and decisions, the plant protection employees assumed obligations to the Unions and their fellow workers, which might well in given circumstances bring them in conflict with their obligation to their employers." 146 F.2d at 722; accord 154 F.2d at 935 (stressing guards' obligation, as deputized peace officers, to keep the peace). The possibility that the guards would be subject to a division of loyalties--between the general fidelity to which they as members would owe to the Steelworkers' Union, and the particular duty which they as guards would owe to their employer--rendered the Board's decision to permit the Steelworkers to represent both the guards and the other production employees insupportable.

The Supreme Court reversed the Sixth Circuit, but a House-Senate conference committee considering amendments to the NLRA endorsed the Sixth Circuit's reasoning. In amendments to the NLRA designed to separate guard unions from other bargaining units, Congress prohibited not only the certification of any unit representing both guards and non-guards but also the certification of a unit of guards affiliated "directly or indirectly" with a unit representing non-guards. "Congress clearly intended by Section 9(b)(3) that the union representing guards should be completely divorced from that representing nonguard employees." Mack Manufacturing Corp., 107 N.L.R.B. 209, 212 (1953). In separating guard and non-guard unions, Congress sought to assure employers of a core of faithful employees that would not be subject to a possible conflict of loyalties during a dispute between an employer and a union representing non-guards. Wells Fargo Armored Service Corp., 270 N.L.R.B. 787, 789 (1984).

Decisions by courts and by the Board since the enactment of section 9(b)(3) have made clear that the statutory term "guards" includes not only plant guards protecting the employers' own property but also persons, such as armed couriers, employed to protect the property of an employer's customers. See Drivers Local No. 71 v. NLRB, 553 F.2d 1368 (D.C.Cir.1977); NLRB v. American District Telegraph Co., 205 F.2d 86 (3d Cir.1953); Armored Motor Service Co., 106 N.L.R.B. 1139 (1953). Under the rationale of these decisions, guards employed for the protection or safe transport of another...