WHO WILL GUARD THE GUARDS? IS THE NLRB PRECLUDED FROM ISSUING A
BARGAINING ORDER IN A MIXED UNIT? (Wells Fargo and Temple Security)
A DEFENSE OF THE SECTION 7 RIGHTS OF GUARDS
2010 Midwinter Meeting
Committee on the Development of the Law Under the National Labor Relations Act
March 2, 2010
Melinda K. Holmes
O‘Donnell, Schwartz & Anderson, P.C.
1300 L Street, N.W., Suite 1200
Washington, D.C. 20005-4126
[email protected]
(202) 898-1707
I. INTRODUCTION
In passing the National Labor Relations Act of 1935 (―NLRA‖ or ―the Act‖), Congress
intended to eliminate strikes and industrial unrest that had been obstructing the free flow of
commerce. To that end, Congress declared it to be the policy of the United States to achieve this
aim by ―encouraging the practice and procedure of collective bargaining and by protecting the
exercise by workers of full freedom of association, self organization, and designation of
representatives of their own choosing…‖ 29 U.S.C. § 151. Indeed, Congress conferred broadranging and fundamental rights upon employees under Section 7 of the Act, 29 U.S.C. § 157,
which, among other things, grants employees the right to organize and to bargain collectively
through representatives of their own choosing.1
In seeming contradiction to those rights, Congress, as part of the Taft-Hartley Amendment of
1947, added Section 9 (b) (3) to the Act which expressly limits the organizational and
associational rights of ―guard‖ employees.2 Section 9 (b) (3) prohibits the National Labor
Relations Board (―the Board‖) from finding appropriate any bargaining unit that contains both
guard and non-guard employees and prohibits it from certifying any labor organization that
admits both guards and non-guards to membership. 29 U.S.C. § 159 (b) (3). Section 9 (b) (3) is
an exception, and notable departure, to the general rule set out in Section 9 (a) that bargaining
agents designated or selected by the majority of the employees in an appropriate unit shall be the
exclusive representative of all employees in that unit for the purpose of collective bargaining
with regard to wages, hours and working conditions. 29 U.S.C. § 159 (a).
The Section 9 (b) (3) proviso contains two separate and distinct clauses, the ―guard‖
definition and the Board certification provision. The first clause of Section 9 (b) (3) defines a
―guard‖ as ―any individual employed as a guard to enforce against employees and other persons
rules to protect property of the employer or to protect the safety of persons on the employer‘s
premises,‖ and forbids the Board from finding a unit consisting of both guards and non-guards
appropriate. 29 U.S.C. § 159 (b) (3). The second clause of Section 9 (b) (3) forbids the Board
from certifying as the exclusive representative of a bargaining unit of guards any organization
which also admits guards to membership or is directly or indirectly affiliated with an
organization that admits non-guards to membership. Id. Notwithstanding that Section 9 (b) (3)
forbids the Board from certifying a mixed-guard union, an employer may voluntarily recognize a
mixed-guard union and may voluntarily recognize a bargaining unit comprised of both guards
and non-guards. See e.g., NLRB v. White Superior Division White Motor Corp., 404 F.2d 1100,
1
Section 7 provides that ―Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to refrain from any or all such
activities except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized in [Section 8 (a)
(3)].‖ 29 U.S.C. § 157.
2
These amendments make up the Labor Management Relations Act of 1947, 29 U.S.C.
§§ 141-197 (the ―Taft-Hartley Act‖).
1103 (6th Cir. 1968) (employer may recognize a mixed-guard union); Amoco Oil Co., 221
NLRB 1104, n.5 (1975) (employer may lawfully recognize union representing mixed-unit of
both guards and non-guards).
In his speech to the House of Representatives in 1947 explaining why he vetoed the TaftHartley Act (which was ultimately passed over his veto), President Harry S. Truman expressed
the opinion that the Taft-Hartley Act ―would contribute neither to individual peace nor to
economic stability and progress.‖ 93 Cong. Rec. 7485 (1947). President Truman went on to
declare that the Taft-Hartley Act ―…would be a dangerous stride in the direction of a totally
managed economy. It contains the seeds of discord which would plague this Nation for years to
come.‖ 93 Cong. Rec. 7485 (1947). At least with respect to Section 9 (b) (3), President
Truman‘s words were prophetic. The conflict between the broadly conferred employee rights set
out in Section 7 of the Act and the Board‘s recent expansive interpretation of Section 9 (b) (3) of
the Act has produced a substantial level of turmoil, uncertainty, and intellectual inconsistency in
the Board‘s decisions addressing the protection of the rights of employees who the NLRB
considers guards as well as those of their brothers and sisters in labor organizations of the
guards‘ choosing against the right of employers to protect their capital and real property in case
of a strike. Mindful of precedent and the impetus for Section 9 (b) (3), the Board should
reconsider its approach towards bargaining orders for mixed guard units.
II. THE BACKGROUND AND LEGISLATIVE HISTORY OF SECTION 9 (b) (3)
The legislative history and intent of Section 9 (b) (3) is closely bound to the historical context
of the Taft-Harley Act. During World War II, the federal government ―militarized‖ a large
number of this country‘s plant guards in response to the attack on Pearl Harbor. See Exec. Order
No. 8972, 6 Fed. Reg. 6420 (1941). The Board, in response to organizational efforts among the
militarized plant guard employees, found that the right of union representation for private plant
guards was nonetheless comparable to that of all other employees protected by the NLRA.
Consistent with this view, the Board, in Armour and Co., 63 NLRB 1200 (1945), found that
plant guards fell within the statutory definition of an ―employee‖ under the NLRA. See also
Dravo Corp., 52 NLRB 322 (1943); Chrysler Corp., 44 NLRB 881 (1942); Phelps Dodge
Copper Products Corp., 41 NLRB 973 (1942). Further, the Board, in Chrysler Corp., 44 NLRB
881 (1942), found that plant guards were, like other employees protected by the NLRA, free to
select a bargaining representative of their choice which would then be certified by the Board, so
long as plant guards were placed in units separate from those of non-guard employees. Id. at
886. As the Board explained its rationale in Chrysler Corp.:
We perceive no necessary conflict between self-organization for collective bargaining
and the faithful performance of duty. Freedom to choose a bargaining agent includes the
right to select a representative which has been chosen to represent other employees of the
employer in a different bargaining unit. We are mindful of the increased responsibilities
placed upon plant-protection employees in wartime, but the practices and procedures of
collective bargaining are flexible, and they may make full allowance for such added
responsibilities… In any event, the remedy for inefficiency of willful disregard or neglect
2
of duty on the part of the plant-protection employees lies implicitly in the power of the
Company to discipline or discharge them and in the power of the military authority to
take all necessary steps to protect the public interest.
Id. at 886. The Supreme Court affirmed the procedure and policy set out by the Board in
Chrysler Corp. in NLRB v. Jones and Laughlin Steel Corp., 331 U.S. 416 (1947). Congress‘
passage that same year of Section 9 (b) (3) of the Taft-Hartley Act was in direct reaction to the
Supreme Court‘s decision in the Jones and Laughlin case which reversed the contrary approach
and view of the Sixth Circuit.
Jones and Laughlin involved an attempt by an affiliate of the Steelworkers Union, which was
the exclusive bargaining agent for the company‘s production and maintenance employees, to
become certified as the collective bargaining representative of the company‘s plant guards.
Jones and Laughlin Steel Company, 49 NLRB 390, 391-392 (1943). In accordance with its
policy of allowing the same union to represent both guards and production workers if they were
organized into separate bargaining units, the Board rejected the company‘s attempt to exclude
the guards from the protections of the Act on the grounds that the guards were sworn auxiliary
military police, and ordered the company to bargain with the union. Id. at 392.
The Supreme Court affirmed the Board‘s position, finding that the Board‘s practice of
permitting plant guards to freely choose their bargaining representative and placing those guards
in units separate from other employees was consistent with both labor policy and war time
policy. Jones and Laughlin, 325 U.S. 825 (1945). The Supreme Court‘s decision reversed the
ruling from the Court of Appeals for the Sixth Circuit which had found the representation of a
unit of guards by a mixed-guard union was unlawful because it had the potential of dividing the
loyalties of the plant guards between the obligations they owed to the union and the obligations
they owed to the employer, and, in this case, to the federal government. In expressing its
apprehension of the potential for divided loyalties among the plant guards, the Sixth Circuit
stated that:
[T]hese employees might in an effort to discharge their duty to the employer find
themselves in conflict with other members of their Union over the enforcement of some
rule or regulation they were hired to enforce; or upon the other hand, in conflict with the
Federal Government because of fealty to the Union at the time of a dispute involving the
public interest. We think that the imposition of such strains upon personal allegiance and
personal interest would undoubtedly be detrimental to the public interest and to the free
flow of commerce.
Jones and Laughlin Steel Company v. NLRB, 146 F.2d 718, 722-23 (6th Cir. 1945). In part
because of the demilitarization of the plant guards in question subsequent to the Sixth Circuit‘s
decision, the Supreme Court remanded the matter back to the Sixth Circuit for further
consideration. 325 U.S. at 838.
3
On remand, the Sixth Circuit reiterated its original conclusion notwithstanding the
demilitarization of the plant guards, but continued to find a public policy consideration justified
its holding. 154 F.2d 932 (6th Cir. 1946). Taking judicial notice of the fact that, although now
demilitarized, the plant guards were also commissioned policemen who were members of
municipal police force and who had and exercised the legal powers of police officers which
included in 1945 making ―ordinary investigations of thefts, accidents, etc. on the [employer‘s]
premises‖ including making arrests for major felonies, id. at 934, the Sixth Circuit concluded
that:
The principles there [in New York, Chicago Y St. Louis R. Co. v. Fieback, 87 Ohio
St. 254, 100 N.E. 889, 43 L.R.A, N.S. 1164] laid down in respect to the functions
of police officers, which are controlling here compel the holding that these plant
guards are municipal officers. Their functions and obligations therefore are of a
dual character. They have a private obligation to their employer and an obligation
to the community as sworn, bonded and commissioned police officers. In case of
industrial unrest and strikes on the part of the production employees, the
obligations of the plant guards to the municipality and state would be
incompatible with their obligations to the Union which, since it represents
production employees, authorizes and directs the strike.
Id. at 935. The Sixth Circuit‘s penultimate conclusion was, therefore, that the Board was bound
to consider the ―public interest‖ when permitting mixed units that include police officers, and to
prohibit such units lest their existence would ―open wide the door to disorderly and criminal acts
because of the limitation which the Board‘s order places on the power of the Government to
furnish adequate police protection.‖ Id.
Again, the case returned to the Supreme Court which reversed the Sixth Circuit for a second
time, reinstating the Board‘s decision and specifically rejecting the ―divided loyalty‖ concern
expressed by the Sixth Circuit. The Supreme Court found, among other things, that even with
respect to police officer plant guards, the right to choose a bargaining representative ―must mean
complete freedom to choose any qualified representative unless limited by valid contrary policy
adopted by the Board.‖ 331 U.S. at 429.
Congress, in express reaction against the Supreme Court‘s decision in Jones and Laughlin,
sought to re-instate the overruled decision of the Sixth Circuit. The conference summary of the
Taft-Hartley Act reveals that while considering the enactment of Section 9 (b) (3), the conferees
were ―impressed‖ by the Sixth Circuit Court of Appeals decision in Jones and Laughlin. See
The House of Representatives Conference Report, H.R. Conf. Rep. No. 510, 80th Cong., 1st
Sess. 1 (1947), reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947 at 505-73 (1948). Indeed, the House of Representatives‘ report on its
version of the legislation noted, in agreement with the Sixth Circuit decision, that because plant
guards were hired to prevent disorder and report the misconduct of both employees and unions,
there was a real threat of a ―division of loyalty‖ on the part of plant guards. See H.R. Rep. No.
4
245, 80th Cong., 1st Sess. 16 (1947), reprinted in 1 NLRB, LEGISLATIVE HISTORY
LABOR MANAGEMENT RELATIONS ACT, 1947 at 307 (1948).
OF
THE
To respond to what it perceived as the problem of ―divided loyalty‖, the House at first
proposed to exclude plant guards completely from the protection of the Act by classifying them
as ―supervisors.‖ See H.R. Rep. No. 245, 80th Cong., 1st Sess. 49-50 (1947), reprinted in 1
NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 340-41
(1948). A compromise demanded by the Senate, however, guaranteed plant guards full coverage
as employees under the NLRA. See H.R. Rep. No. 510, 80th Cong., 1st Sess. 35 (1947),
reprinted in 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT,
1947, at 539 (1948). Thus, the Conference Committee rejected the House‘s extreme position
that plant guards should be denied all protection under the NLRA, but it did, citing approval of
the Sixth Circuit‘s statement of the ―divided loyalty‖ issue, place restrictions on the Board‘s
power to recognize and certify mixed-guard unions in the final draft of Section 9 (b) (3).
The first clause of Section 9 (b) (3) merely adopted what was the then-established Board
practice of finding that mixed units of guards and non-guards were inappropriate, but that guards
and non-guards represented by the same union in separate units was acceptable. The second
clause of Section 9 (b) (3), however, essentially eviscerated the Supreme Court‘s decision in
Jones and Laughlin in directing the Board not to certify a bargaining agent for a unit of guards if
that bargaining agent either admitted non-guards or was affiliated directly or indirectly with an
organization that represents non-guards. Though less radical than the original House version, the
final version of Section 9 (b) (3) still succeeded in responding to the Sixth Circuit‘s statement
about a ―divided loyalty‖ concern. Nowhere in the legislative history or the final version of
Section 9 (b) (3), however, did Congress explain that it understood – or did not understand – the
limited principle about guards who are also police officers on which the Sixth Circuit‘s divided
loyalty concern was based. In fact, all the legislative history indicates is that:
Section 9 (b) is also the same as section 9 (b) of the Senate amendment with the
exception of an addition of a third clause relating to plant guards. As has been
previously stated, the Senate rejected a provision in the House bill which would
have excluded plant guards as employees protected by the act. The conferees on
both sides, however, have been impressed with the reasoning of the Circuit court
of Appeals for the sixth circuit in the Jones and Laughlin case in which an order
of the Board certifying as a bargaining representative of guards, the same union
representing the production employees was set aside. Although this case was
recently reversed by the Supreme Court on the ground that the Board had it within
its power to make such a holding, four of the Justices agreed with the Circuit
Court of Appeals holding that this was an abuse of the discretion permitted to the
Board under the act. One of the members of the Board has also expressed this
view in a number of dissenting opinions. Under the language of clause (3),
guards still retain their rights as employees under the National Labor Relations
act, but the Board is instructed not to place them in the same bargaining unit with
other employees, or to certify as bargaining representatives for the guards a union
5
which admits other employees to membership or is affiliated directly or indirectly
with labor organizations admitting employees other than guards to membership.
Id.
In its final form, Section 9 (b) (3) seems intended to discourage the formation of both mixed
units and mixed unions. See University of Chicago, 272 NLRB 873, n.25 (1984). It was clear,
however, that the ―divided loyalty‖ concern as described by the Sixth Circuit was central to
Congress‘ formulation of the guard exclusion in Section 9 (b) (3).
III. THE BOARD’S EXPANSION AND CONTRACTION OF SECTION 9 (b) (3)
Two fundamental areas where the Board has, and should, reconsider its expansion and
contraction of the application of Section 9 (b) (3) as it relates to bargaining orders is the
application of the definition of who is a ―guard‖ and how broadly it applies the certification
restriction of Section 9 (b) (3).3
A. The Section 9 (b) (3) Definition of “Guard”
Congress saw fit to place the definition of the ―guard‖ covered by Section 9 (b) (3) within
that very section of the NLRA. Notwithstanding the inclusion of this seemingly complete
definition of the ―guard‖ intended to fall within the purview of Section 9 (b) (3), the Board has,
in the years since the passage of the Taft-Hartley Act, found and not found guard status under
Section 9 (b) (3) in widely varying circumstances.
In an early decision interpreting the ―guard‖ definition of Section 9 (b) (3), Brinks, Inc., 77
NLRB 1182 (1948), the Board found that armored truck guards should not be included within the
definition of ―guard‖ under Section 9 (b) (3). Relying on its reading of the Act‘s legislative
history, the Board reasoned that Congress‘ repeated use of the phrase ―plant guards‖ proved that
Congress intended to include only employees employed to guard the employer‘s premises within
the definition of ―guards‖ under Section 9 (b) (3), and not to include employees employed to
guard property of an employer‘s customers. Id. at 1185-86. Board Member Murdoch dissented
in Brinks, arguing that armored truck guards fit the literal definition of ―guard‖ in Section 9 (b)
(3). Id. at 1187-89. Member Murdoch pointed out that his interpretation of ―guard‖ status in
Brinks was in agreement with the Board‘s earlier decision in C.V. Hill and Co., 76 NLRB 158
(1948). In C.V. Hill, the Board had expanded the definition of ―guard‖ in finding that an
employer‘s watchmen, who performed few guard-like duties, were indeed ―guards‖ under the
Act. Thus, in the very year the Taft-Hartley Act was passed, the Board issued two contradictory
findings regarding who is ―guard‖ under Section 9 (b) (3).
3
This paper is not intended to address the direct/indirect affiliation clause of Section 9
(b) (3).
6
In American District Telegraph Co., 83 NLRB 517 (1949), the Board examined Section 9 (b)
(3) in relation to ―contract guards‖ employed by the American District Telegraph Co. (―ADT‖).
The Board found that the ―contract guards‖ who installed and maintained electronic alarms on
the property of ADT‘s customers were ―guards‖ under Section 9 (b) (3). Id. The Board
supported its finding by noting that the contract guards performed functions which were not
distinguishable from the functions performed by the ―plant guards‖ referred to by Congress when
it passed the Taft-Hartley Act.
A year later, the Board reversed itself on this issue in a case involving the same employer in
American District Telegraph Co., 89 NLRB 1221 (1950) (―ADT II‖). In ADT II, the Board
decided that the ―guard‖ definition of Section 9 (b) (3) was intended to apply to only employees
protecting the property of their own employer or employees performing their protective functions
on the premises of their own employer. Thus, the Board decided, contrary to its decision in the
earlier ADT case, that the ―contract guards‖ in question were not ―guards‖ under the terms of
Section 9 (b) (3).
The Board‘s conflicting decisions on the ―guard‖ status of ADT contract guards was
reconciled by the Third Circuit‘s decision in NLRB v. American District Telegraph Co., 205 F.2d
86 (3rd Cir. 1953). The Third Circuit denied enforcement of the Board‘s bargaining order in
ADT II where the Board had found that contract guards were not ―guards‖ under Section 9 (b)
(3). The Third Circuit found, rather, that the Congressional intent behind Section 9 (b) (3), as
expressed in the language of the Act, referred to a ―guard‖ as an employee who enforced rules to
protect the property of ―the employer — not his employer,‖ and that such rules were to be
enforced by guards against ―employees and other persons,‖ not just against ―fellow employees.‖
Id. at 89. Significantly, in rejecting the Board‘s position, the Third Circuit stated its belief that
the Congressional aim of Section 9 (b) (3) was to prevent guards at any workplace from joining
production workers‘ labor organizations and thereby dividing their loyalty between their
employer and other union members. As an example, the Court hypothesized that ―[i]n the event
of an alarm from a strike bound subscribing plant respondent‘s guards might be forced to cross a
picket line of their fellow unionists in order to fulfill the primary obligation of both their
employer and of themselves as guard employees.‖ Id. at 90. The Third Circuit, therefore,
asserted a broad ―divided loyalty‖ concern, mimicking, it believed, the main impetus for the
passage of Section 9 (b) (3).
In Armored Motor Service Co., 106 NLRB 1139 (1953), the Board reversed its earlier
decision in Brinks that Section 9 (b) (3) should be narrowly construed to apply only to plant
guards protecting their own employer‘s premises, and expanded the ―guard‖ definition to include
armored truck guards. The Board justified broadening the interpretation of Section 9 (b) (3) by
expressing the concern described by the Third Circuit in ADT that the armored truck guards
could suffer from a ―divided loyalty‖ if they were required to make deliveries to a struck
customer whose non-guard employees belonged to the same labor organization as the armored
truck guards. In asserting that Section 9 (b) (3) did not preclude this broad interpretation, the
Board stated that ―[w]e do not believe that Congress intended to limit the prohibition of Section
7
9 (b) (3) to plant guards. The statutory language contains no such restriction, and we see no basis
for giving it so narrow a construction.‖ Id. at 1140.
An examination of the Board‘s decision in Armored Motor Service reveals that the armored
truck guards in that case did not perform duties at all like those duties performed by traditional
plant guards, but instead spent a considerable amount of their time transporting cash and other
valuables. The likelihood of the armored car guards coming in contact with non-guard
employees to create the possibility of a ―divided loyalty‖ scenario was therefore minimal. The
Board‘s decision finding that armored car guards fit the status of ―guards‖ regardless of the fact
that they had no plant protection responsibilities was a significant expansion of the ―guard‖
definition over earlier cases. Indeed, the Board applied the Section 9 (b) (3) ―guard‖ definition
to non-plant guard employees in a situation which the Board itself confessed that the ―danger of
divided loyalty which Congress sought to eliminate might not be quite so far-reaching…‖ Id. at
1140.
The Board went on to apply its reasoning in Armored Motor Service in subsequent decisions
without further analysis or re-examination of the divided loyalty concern seemingly motivating
its generous definition of a ―guard.‖ Thus, the Board extended the Section 9 (b) (3) guard
definition to include equipment operator-watchmen in Biggs Antique Co., 85 NLRB 554 (1949),
and American Lawn Mower Co., 108 NLRB 1589 (1954); janitor-watchmen in Stratford
Furniture Corp., 115 NLRB 739 (1956); race track ushers in Pinkerton National Detective
Agency, 111 NLRB 504 (1955); and toll booth operators in Wackenhut Corp., 196 NLRB 278
(1972).
In Brinks, Inc., 226 NLRB 1182 (1976), the Board found that couriers of a guard service who
never came into contact with a customer‘s employees were ―guards‖ under Section 9 (b) (3).
The Board based this determination upon its finding that the couriers, although transporting only
non-negotiable items, were responsible for protecting the property of the employer‘s customers.
The Board noted that ―the fact that the couriers transport only non-negotiable papers, and that
there is a legend on the side of the van so stating, is irrelevant. The property, although nonnegotiable, is clearly of considerable value to the employer‘s customer who engages the
employer‘s services for its safe and timely delivery.‖ Id. The Board went on to note, without
much explanation, that the problem of divided loyalties existed with regard to the couriers as
much as it would with regard to armored truck guards. Id.
In Brink’s, Inc., 272 NLRB 868 (1984), the Board found that coin room employees of the
employer, who worked exclusively within the coin room and came into contact with neither
customers nor the employees of customers, were ―guards‖ within the meaning of Section 9 (b)
(3). Citing its earlier Brinks decision for the proposition that the Section 9 (b) (3) definition of
―guards‖ applies not only to employees who protect the property of their own employer but
applies ―equally to persons engaged in protecting properties of an employer‘s customers,‖ the
Board found that coin room employees protected the property of customers. The Board made no
findings whatsoever with regard to any apprehension of ―divided loyalty‖ created by the nature
8
of the functions performed by the coin room employees in question. Nevertheless, the Board
extended the Section 9 (b) (3) guard definition to include the coin room employees.
Although not concerning the definition of a guard, the Board‘s decision in Wells Fargo
Armored Service Corp., 270 NLRB 787 (1984)*, finally faced the incongruity between the Sixth
Circuit‘s divided loyalty concern for plant guards who were also municipal police officers, and
the Board‘s subsequent broad application of the definition of a ―guard‖. The Board indelibly
characterized the intent behind Section 9 (b) (3) in finding that:
While it is arguable that the sixth Circuit and Supreme Court decisions in Jones &
Laughlin focused on the narrower issues of the effect the guards‘ being deputized
had on the question of whether the union could be certified by the Board, it is
clear that Congress‘ focus on the status of guards was not nearly that narrow, and
that the favorable reference to the Sixth Circuit decision in the legislative history
was not premised on the basis that the plant guards at issue were also police
officers. Rather, Congress decided that because of the special status of guards
generally certain broad restrictions on their representation were necessary.
Reference to the full text of Senator Taft‘s remarks bears this out.
Id. at 788 n.9 (citing Schenley Distilleries, 77 NLRB 468 (1948) and International Harvester,
145 NLRB 1747, 1750 n.8 (1964). In the face of this broad interpretation of Section 9 (b) (3)
and the restriction it worked on representation rights, see infra, the Board‘s jurisprudence on who
is a guard was expansively refined again.
In Purolator Courier Corp., 300 NLRB 812 (1990), the Board began to reverse course and
found that ―couriers‖ and ―courier/guards‖ employed by security companies were not guards
within the meaning of Section 9 (b) (3). In comparing the job functions of the ―courier-guards‖
to that of UPS and Postal Service drivers who have never been considered guards, the Board
found that the ―courier-guards are not engaged directly and substantially in the protection of
customer property, and therefore are not statutory guards.‖ Id. The Board reasoned that:
In sum, we find that the duties of the Employer‘s courier-guards are not
characteristic of true guard status. The courier-guards receive only minimal
training and instruction regarding the protection and safety of customer property;
they are not trained or authorized to use physical force or weapons; they have job
duties that merely require the pick up, transport, and delivery of customer
property with minimal access to customer premises; they are minimally
accountable to the Employer for the property involved; and they are held out to
the public by the Employer as delivery persons and not guards.
Id., accord Pony Express Courier Corp., 310 NLRB 102 (1993); Arcus Data Security Systems,
324 NLRB No. 111 (1997). Because the Board ended its analysis with the conclusion that no
property of either the employer or customer was being protected, the Board did not make an
9
assessment of the issue whether there was a prospect of ―divided loyalty‖ as an outgrowth of the
nature of the job functions performed by the employees in question.
But in BPS Guard Services, Inc., 300 NLRB 298 (1990), the Board revisited the issue of
―divided loyalty‖ on the part of guard employees as a basis for deciding whether or not the
employees in question were statutory guards. The Board considered the status of firefighters
whose duties included the enforcement of the company‘s fire and safety rules. The company
itself provided security and fire protection to a plant of the Bethlehem Steel Company. The
Board found that the firefighters‘ enforcement of fire safety rules was not sufficient to bring
them within the statutory definition of guards because they enforced only the employer‘s fire and
safety rules and did so only incidentally to their other duties as firefighters on the plant premises.
The Board stated that in order for a finding of guard status under Section 9 (b) (3) to be
squared with Congress‘ purpose in enacting that provision, such a finding must take into
consideration Congress‘ concern about the plant guards‘ divided loyalty in times of industrial
unrest. The Board then found that the firefighters in question were never assigned to guard the
gates of the plant and that there was no evidence that Bethlehem Steel intended to use those
firefighters to patrol its facility in the event of a strike. The Board determined that the
enforcement of rules and regulations against other employees, sufficient in quality and amount to
raise the possibility of divided loyalty in times of industrial unrest, was not an essential part of
the firefighters duties and that they were therefore not guards within the meaning of Section 9 (b)
(3).
The Board made it clear in BPS Guard Services that in order to be found a guard under
Section 9 (b) (3), not only must an individual perform the function of enforcing against
employees and other persons rules to protect the property of an employer, but they must do so in
circumstances which raise the possibility of ―divided loyalties‖ which so concerned Congress.
Thus, the Board found that, ―[w]e interpret the legislative history not as indicating that Congress
considered all individuals who possess the powers enumerated in Section 9 (b) (3) to be guards,
but only that possession of those powers is a necessary, but not sufficient prerequisite to a
finding of guard status.‖ Id. at n.18; see also The Boeing Company, 328 NLRB 128 (1999) (―the
duties and functions undertaken by the Employer‘s firefighters during periods when other
members of the Employer‘s work force are on strike do not transform the firefighters‘ status into
that of statutory guards.‖).
The Board went on in 55 Liberty Owners Corp., 318 NLRB 308 (1995), to find that door
persons and elevator operators who performed certain guard-like functions were not guards
under Section 9 (b) (3). The Board found that, although door persons and elevator operators
performed guard-like functions such as viewing surveillance monitors and escorting individuals
to and from rental apartments, any guard-like functions they performed were only incidental to
their primary function of providing courtesy-oriented and receptionist type services to the tenants
of the various buildings where they worked. Implicitly, the Board found that the door persons
and elevator operators were not guards under Section 9 (b) (3) because the functions they
performed did not create the probability of a ―divided loyalty‖ scenario between their employer
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and other union members. See also, Madison Square Garden, 325 NLRB 971 (1998) (Board
rejects argument that entertainment event staff were guards based upon their performance of the
function of denying entrance or access to individuals to the events).
Another area that has tested the Board‘s resolve to apply the definition of ―guards‖ narrowly
concerns prison guards. In Crossroads Community Correctional Center, 308 NLRB 558 (1992),
the Board upheld a Region‘s determination that correctional residence counselors in a statecontracted half-way house were guards under Section 9 (b) (3). The Region had concluded that
the counselors performed security work such as watching over inmates and safeguarding the
employer‘s premises; transporting inmates from the department of corrections institutions and
delivering them to the employer‘s facility; reviewing the facility rules with inmates; protecting
employer‘s facility from trespassers and preventing disturbances and damage to the premises;
observing the employer‘s premises through monitors; searching persons and employees entering
the facility for contraband; performing head counts of residents; conducting ―shakedowns‖ of
residents; initiating investigations of damage to or theft of the employer‘s property; and
accompanying residents to the cafeteria and to court. The Board denied the petitioner‘s request
for review finding that ―the request for review is denied as it raises no substantial issues
warranting review.‖ Id.; see also Corrections Corporation of America, 327 NLRB 1 (1999)
(accepting Region‘s determination that correctional officers in a privatized prison are guards
under Section 9 (b) (3).)
B. Only “Certification”?
The Board‘s application of the prohibition on Board certification of mixed units under
Section 9 (b) (3) has also been mixed, but with a decided trend towards excluding mixed-guard
units from any of the protections arising from certification of a bargaining representative by the
Board.
In an early case, Monsanto Chemical Co., 108 NLRB 121 (1954), the Board, with Member
Murdoch dissenting, refused to apply its contract-bar doctrine to a voluntarily recognized mixed
unit. Finding that Congress, in enacting Section 9 (b) (3), intended ―that guards should not be
included in the same unit with other employees,‖ the Board decided that the collectivebargaining agreement between the employer and the voluntarily recognized union representing
both plant guards and non-plant guards, would not act as a bar to the petitioner‘s representation
petition. The Board did not respond to Member Murdoch‘s criticism that the statute did not call
upon the Board to ―… disrupt the numerous collective-bargaining contracts voluntarily
established by unions and management in an effort ‗to determine whether they have covered the
working conditions of individual employees whom the Board, if called upon to make a decision,
would exclude.‘‖
In contrast, and in a relatively narrow interpretation of the proscriptions of Section 9 (b) (3),
the Board in William J. Burns International Detective Agency, 134 NLRB 451 (1961) (―Burns
I‖), ruled that it would apply its traditional contract-bar rules to a mixed union despite the fact
that the union was not certifiable by the Board. In Burns I, two independent unions representing
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guards sought an election in a bargaining unit composed of only guards employed by the
employer. The employer already had a collective bargaining agreement covering the unit of
guards with another labor organization affiliated with an international union admitting nonguards to membership. The Burns I Board overruled the Board‘s earlier decision in ColumbiaSouthern Chemical Corporation, 110 NLRB 1189 (1954), which held that a collective
bargaining agreement for a unit of guards would not act as a contract-bar if the contracting union
also admitted to membership non-guards, or was directly or indirectly affiliated with a union
which admitted non-guard employees to membership.
In overruling Columbia-Southern, the Board decided that its earlier holding exceeded the
requirements of Section 9 (b) (3) and therefore frustrated the scheme of the Act. The Board
found, after comparing and contrasting the limitations in the first and second provisos of Section
9 (b) (3), that a unit comprised exclusively of guards is not invalidated just because its union
representative admits non-guards to membership or is directly or indirectly affiliated with a
union which does so. In reaching its conclusion, the Board stated that:
Accordingly, we perceive no basis in the instant case for withholding the
application of our normal contract-bar rules. The application of these rules is not
contingent on a prior certification. So long as there is a lawful exclusive
bargaining agreement covering employees in an appropriate unit, the Board‘s
contract-bar rules are applicable.
Burns I, 134 NLRB at 453. Because the application of the contract-bar rule in the circumstances
of Burns I did not directly implicate the use of Board processes, the Board was content that its
decision was consistent with the legislative history and intent of Section 9 (b) (3).
One year later, in William J. Burns International Detective Agency, 138 NLRB 449 (1962)
(―Burns II”), the Board, dealing with the same collective bargaining agreement involved in
Burns I, found that two local unions affiliated with unions admitting non-guards would be
allowed to participate in the NLRB hearing. The Board, narrowly construing Section 9 (b) (3)‘s
proscription against ―certifying‖ a mixed union, found that such proscription did not prevent its
putting such a labor organization on an election ballot and certifying the arithmetical results if
that union won the election. Id. at 452; accord Bally’s Park Place, Inc., 257 NLRB 777 (1981).
In a series of decisions issued in 1984, the Board reevaluated and reversed the earlier
somewhat liberal application of Section 9 (b) (3) reflected in Burns I and Burns II. Beginning
with one of our focus cases here, the Board in Wells Fargo Corp., 270 NLRB 787 (1984), aff’d
755 F.2d 5 (2d Cir. 1985), held that, because Section 9 (b) (3) of the Act prohibited the Board
from certifying a mixed union of guards and non-guards, the withdrawal of voluntary recognition
by an employer at the end of the contract term would not constitute a violation of the Act. This
was found to be so even though the same conduct would be unlawful if the labor union were
certifiable. The Board opined that to use the Board‘s processes to protect the parties‘ voluntary
recognition agreement ―gives the Union indirectly – by a bargaining order – what it could not
obtain directly – by certification – i.e., it compels the Respondent to bargain with the Union.‖ Id.
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at 787. Accordingly, the Board sought to give broad meaning to Section 9 (b) (3)‘s prohibitions
by finding that the limitation of Board processes applied not merely to ―certification‖ as stated in
Section 9 (b) (3), but to any like or related Board orders that could have a similar affect. Id. at
789 (―But it is axiomatic that the legislative history of a provision must be analyzed and
considered in applying the statute because the ‗circumstances of the enactment…may persuade a
court that Congress did not intend words of common meaning to have their literal effect.‘‖).
Whereas Member Zimmerman termed the Board‘s decision ―a novel but untenably expansive
construction of Section 9 (b) (3),‖ the Board nonetheless held that the company did not violate
Section 8 (a) (5) and (1) of the Act by withdrawing recognition from the union after the
collective bargaining agreement between the parties had expired. Id. at 790.
In University of Chicago, 272 NLRB 873 (1984), the Board reevaluated its policy regarding
intervention by non-certifiable unions in Board-conducted elections. Overruling its earlier
decision in Burns II (as well as Bally’s Park Place which affirmed the process of certifying
arithmetical results but not the winning mixed-guard union), the Board in University of Chicago
concluded, after an examination of the legislative history and case law interpreting Section 9 (b)
(3), that mixed unions were precluded from participation in Board elections, even as intervenors.
Central to the Board‘s decision was its conclusion that Congress passed Section 9 (b) (3) for the
purpose of discouraging representation by a single union of guards and non-guards and to ensure
that employers were not compelled by the Board to bargain with such a labor organization. Id. at
876. The decision does not make clear whether the ―divided loyalty‖ concern was particularly
motivating to the Board.
Finally, in Brinks, Inc., 272 NLRB 868 (1984), the Board, again with Member Zimmerman
dissenting, held that a voluntarily recognized guard/non-guard union is precluded by Section 9
(b) (3) from filing a unit clarification petition with the Board concerning the unit it represents. In
Brinks, the mixed union filed both a representation case petition and a unit clarification petition
seeking to add two coin room employees to its all-guard unit which had been voluntarily
recognized by Brinks. The Board‘s Regional Director decided that the coin room employees
were not Section 9 (b) (3) ―guards‖ and therefore dismissed the UC petition and ordered an
election on the RC petition. On request for review, the Board reversed the Regional Director and
found that the coin room employees were ―guards‖ under Section 9 (b) (3) because they
performed traditional guard-like functions and protected the property of their employer‘s
customers, as well as because the value of the coins they protected sometimes exceeded one
million dollars and because they controlled access to the coin room and had the authority to fire a
pistol if necessary to protect the property of customers. The Board therefore dismissed the RC
petition, concluding that it was proscribed by the statute from certifying the mixed union. The
Board also refused to reinstate the UC petition because, in its view, granting that petition would
implicate the Board in assisting the mixed union in ―accomplishing or perfecting that which the
statute expressly seeks to avoid, i.e., the representation of guard employees by a union which
admits to membership employees other than guards.‖ Id. at 870.
Fifteen years later, the Board affirmed its decision in Wells Fargo in Temple Security, Inc.,
328 NLRB 663 (1999), over the argument of the General Counsel and the Charging Party-Union
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that, because ―Section 9 (b) (3) is silent with regard to the voluntary creation, establishment, or
maintenance of bargaining relationships between employers and mixed guard unions…there is
no reason why such voluntary relationships should be treated any differently from any other
collective-bargaining relationship created by voluntary recognition.‖ Id. at 664. Members Fox
and Liebman noted in their dissent Member Zimmerman‘s dissent years earlier in which he noted
the distinction, set forth as it is in Section 9 (b) (3)‘s express terms, between creation of a
collective bargaining relationship with a mixed union and the maintenance of such a relationship.
Id. at 665. Harkening back in principle to President Truman‘s criticism of Section 9 (b) (3), the
dissenters commented that the majority had elevated the true narrow purpose of Section 9 (b) (3)
above ―the overall purpose of the Act to encourage stable labor relationships.‖ Id. at 666.
In marked contrast to an employer‘s flexibility in its bargaining relationship with a mixedguard union, the Board recently upheld its jurisprudence that a mixed-guard union violates
Section 8 (b) (7) (C) by picketing (and threatening to picket) an employer for recognition
because the picketing union is not certifiable. Northwest Protective Service, Inc., 342 NLRB
1201, (2004). The Board in Northwest affirmed its holdings in Wells Fargo and Temple
Security, although noting they were not directly applicable because the employer in Northwest
had not voluntarily recognized the union prior to the union‘s coercive conduct. Id. at 1203.
IV.
RECONSIDERATION OF THE BOARD’S JURISPRUDENCE UNDER SECTION
9 (b) (3) – GUARDING THE GUARDS
The same principles of statutory construction support a reconsideration of the Board‘s
jurisprudence under Section 9 (b) (3) both with regard to its application of the term ―guard‖ and
its interpretation of its prohibition to certify mixed-guard unions. The two issues are inextricably
combined, both because they arise out of the same Congressional justification and intent, and,
because, obviously, a restriction of who is a guard is necessarily a restriction on the overall
application of the currently restrictive interpretation of Section 9 (b) (3)‘s prohibition on
certifying mixed-guard unions.
In Wells Fargo, the Board relied on the U.S. Supreme Court‘s decision in Watt v. Alaska, 451
U.S. 259, 266 (1981) as instructive as to how it should interpret and apply Section 9 (b) (3).
What the Supreme Court fully instructed in Watt was that:
We agree with the Secretary that ‗[t]he starting point in every case involving
construction of a statute is the language itself.‘ But ascertainment of the meaning
apparent on the face of a single statute need not end the inquiry. This is because
the plain meaning rule is "rather an axiom of experience than a rule of law, and
does not preclude consideration of persuasive evidence if it exists." The
circumstances of the enactment of particular legislation may persuade a court that
Congress did not intend words of common meaning to have their literal effect.
Id. (citations omitted); see also Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 454-455
(1989) (―Even though, as Judge Learned Hand said, ‗the words used, even in their literal sense,
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are the primary, and ordinarily the most reliable, source of interpreting the meaning of any
writing,‘ nevertheless ‗it is one of the surest indexes of a mature and developed jurisprudence not
to make a fortress out of the dictionary; but to remember that statutes always have some purpose
or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their
meaning.‘ Looking beyond the naked text for guidance is perfectly proper when the result it
apparently decrees is difficult to fathom or where it seems inconsistent with Congress' intention,
since the plain-meaning rule is ‗rather an axiom of experience than a rule of law, and does not
preclude consideration of persuasive evidence if it exists.‘‖) (citations omitted).
If the Board thoroughly examines the circumstances giving rise to the enactment of Section 9
(b) (3), principally Congress‘ reliance on the Sixth Circuit‘s decision in Jones and Laughlin and
its express intent not to deprive plant guards of representational rights, a narrow interpretation of
who is a ―guard‖ and the prohibition on the Board‘s authority to certify a mixed-guard union is
both defensible and intellectually honest. As the Sixth Circuit explained at length in Jones and
Laughlin, the public policy requiring the Board to protect against the divided loyalties of plant
guards arises only in circumstances where the guards have actual police duties, the exercise of
which during a strike is mandated not only by their employment by the company but their duties
to the general public. Except for those guards with true ―divided loyalties‖, any other guards
with security responsibilities should be treated like other employees under the Act. Whether a
correctional officer, an armored car driver, or a production employee, in the event of a strike the
same rights and consequences should attach to each and all classifications of employees
regardless of their duties. To do otherwise elevates the employer‘s interest in protecting its real
property with its regular employees over the Section 7 rights of those regular employees to
choose their own representative. While, admittedly there is some tension inherent in the
apparent contradiction between the rights granted in Section 7 of the Act and the proscription of
those rights in Section 9 (b) (3), Congress settled on a compromise that the Board had already
applied without significant complaint in requiring that true guards have their own bargaining
unit, but not bargaining representative. The Board‘s subsequent unwarranted expansion of the
―guard‖ definition creates an unintended conflict between Section 7 and Section 9 (b) (3) which
has resulted in the loss of statutory rights for certain employees. A narrower construction of
―guard‖ is both consistent with and necessary to reconcile the Board‘s decisions giving wide
application to Section 9 (b) (3)‘s restriction on certifying mixed unions, by narrowing the
existence of such unions. This way the Board will both rediscover, and begin to apply as it was
intended, the ―divided loyalty‖ concern which impelled Congress to pass Section 9 (b) (3) in the
first place.
Similarly, the dissents of a number of Board Members that the Board should hold closely to
the one restriction on certifying mixed unions is also the supportable result under the plain
language of Section 9 (b) (3) and its underlying intent to preserve the collective bargaining rights
of plant guards. The Board‘s expansion of Section 9 (b) (3) to obviate any other representational
right is an unjustifiable departure from this language and intent. In light of the negative impact
on promoting peaceful and constructive labor relations, not to mention nullifying a constructive
roll for the Board in the maintenance of those relationships, of a broad interpretation of Section 9
(b) (3)‘s prohibition on the certification of mixed-guard unions, the Board should reevaluate its
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more-recent precedent under Section 9 (b) (3). Returning to earlier precedent in which the Board
fulfilled a roll in representation matters for mixed-guard unions except where expressly limited
by Congress satisfies the principles of statutory construction. Otherwise, continuing on its more
contemporary path might on the one hand be an abrogation of the Board‘s duty and exclusive
jurisdiction in representation matters; on the other, perhaps, it is a welcome exit of the Board
from the representation arena, leaving the parties to exercise their relative strength over one
another through means other than Board-run elections and representation proceedings. It is
doubtful, however, that either scenario is what Congress intended; rather, bargaining orders for
guards and a reversal of the Wells Fargo line of decisions is a more true application of the
Section 7 rights of employees properly found to be ―guards‖ under Section 9 (b) (3) that is
consistent with the legislative intent and purpose of Section 9 (b) (3) itself.*
___________________________________
* Many thanks to the research of my colleagues Lee W. Jackson and Dan B. Smith whose earlier work on this
issue contributed significantly to this paper.
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