ON PETITION FOR REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
Kalodner, Van Dusen and Weis, Circuit Judges.
VAN DUSEN, Circuit Judge.
This case is before us on a petition for review and cross-application for enforcement of an order of the National Labor Relations Board. By decision and order dated May 29, 1975, the Board found Wells Fargo Alarm Services, petitioner here, to be violating §§ 8(a)(5) and 8(a)(1) of the NLRA*fn1 by refusing to bargain with the United Electrical, Radio & Machine Workers of America (UE) as the exclusive bargaining representative of all employees in a unit determined to be "appropriate" within the meaning of § 9.*fn2 Wells Fargo Alarm Services, 218 NLRB No. 25 (1975). We grant the application for enforcement of the Board's order and deny the petition for review.
Wells Fargo challenges the Board's order on the ground that the unit represented by UE includes guards and, therefore, is not "appropriate" under the terms of the proviso to § 9(b):
". . . the Board shall not . . . (3) decide that any unit is appropriate for such purposes if it includes, together with other employees, 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; but no 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."
This contention was raised by Wells Fargo in a representation proceeding, Case 4-RC-11066, which culminated on September 30, 1974, in certification of UE as the sole collective bargaining agent for the employees in the challenged unit. During the unfair labor practice proceeding, the Board relied on its previous disposition of this contention made at the representation proceeding.*fn3 The unit found appropriate by the Board is "All production and maintenance employees including servicemen, installers and central office operators, but excluding salesmen, office clerical employees and supervisors as defined in the Act."*fn4 Since judicial review of the Board's unit determinations is not available, the instant case provides Wells Fargo with its first opportunity to present its contention to a court that the unit is inappropriate.*fn5
Wells Fargo is engaged in the business of providing protective services by maintaining and servicing fire, burglar and industrial process alarms to subscribers, including banks, warehouses, retail stores, and manufacturing plants. Wells Fargo does not contend that the installers, who are solely concerned with installing the electronic alarms on the premises of subscribers, are guards, but it does urge that the servicemen and the operators are and that, therefore, they should not be included in the same unit as the installers. Servicemen, who are on duty 24 hours a day, are responsible for the routine servicing of the alarm devices and are usually dispatched to the scene of an alarm. Central office operators monitor the signals coming into the central office from the alarm systems. When an alarm signal is received, it is the duty of the operators to summon the police or fire department to the scene, to notify the subscriber, and to dispatch a serviceman to the place from which the alarm originates.
We turn to an evaluation of the evidence in order to determine if the Board applied the appropriate legal standards and if its findings are supported by substantial evidence on the record considered as a whole. The heart of the findings made in the representation proceeding concerning the servicemen is as follows:
"In burglar or fire alarm situations, the police or fire departments are always dispatched to the scene first by the central office and then a serviceman is dispatched. In about 10% of all burglar alarms, the serviceman arrives before the police. When a serviceman arrives at the scene of a burglar alarm, he usually waits for the police to arrive before taking any action other than looking for signs of forcible entry. When the police arrive, he lets them into the premises and accompanies them on their search. The serviceman is not required to search for burglars himself. If a subscriber is coming to the premises, he waits for the subscriber and when the subscriber arrives, makes sure he has the proper Wells Fargo identification number before he is allowed entry. However, the serviceman is not required forcibly to restrain an individual from entering the premises if he lacks proper identification. Lastly, the serviceman makes whatever repairs are necessary to put the alarm back into working order.
"In fire alarm situations, the serviceman is dispatched to the scene but is not required to assist in putting out the fire if there is one. His job is to repair the alarm if it has malfunctioned, or put it back into service if there has actually been a fire.
"In considering the record as a whole, I am not persuaded that servicemen are guards within the meaning of the Act. Their primary function is the repair and servicing of alarm systems. Although they do respond to fire and burglar alarms, it is not their duty to search for intruders nor to restrain persons from entering the subscriber's premises, but to get the alarm back into ...