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Wells Fargo Alarm Services v. National Labor Relations Board


April 7, 1976



Kalodner, Van Dusen and Weis, Circuit Judges.

Author: Van Dusen


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 working order. Nor are the servicemen usually armed. Accordingly, I shall include them in the unit."

App. at 154a-155a.

We have found no error in the Board's interpretation of the term "guard" as used in § 9(b)(3). It seems clear that the Board recognized the fundamental proposition that § 9(b)(3) "is not limited to guards employed to protect property belonging to their own employer or to guards who protect against the conduct of fellow employees." American Dist. Tel. Co. of the Cleveland Co., 160 NLRB 1130, 1136 (1966) (emphasis in original). As we said more than 20 years ago, "what Congress was seriously concerned with at the time was to prevent guards from joining a production workers union and in that way creating possible split allegiance." NLRB v. American Dist. Tel. Co. of Pa., 205 F.2d 86, 89 (3d Cir. 1953).

We agree with Wells Fargo that the determination of whether an employee is a "guard" cannot be based on a mechanical checklist. We part company with the petitioner where it asserts that the determination must be made on the basis of the functional role of the employee utilizing modern technology. An employee may have an integral role in a protective system but not function as a "guard" as that term is used in § 9(b)(3).*fn6 See American Dist. Tel. Co. of the Cleveland Co., supra at 1138.

The legislative history makes plain that the content of § 9(b)(3) owes much to the reasoning of the Sixth Circuit in NLRB v. Jones & Laughlin Steel Corp., 154 F.2d 932 (1946), reversed, 331 U.S. 416, 91 L. Ed. 1575, 67 S. Ct. 1274 (1947). See II Legislative History of the Labor Management Relations Act, 1947, at 1541 (1948) (remarks of Senator Taft). In the Jones & Laughlin case, the court was greatly concerned about the danger of guards having conflicting obligations to their union and to their employer in the event that (1) guards were permitted to join a production workers union, and (2) there should be a strike. This same type of concern was reflected in our case of NLRB v. American Dist. Tel. Co. of Pa., supra at 90:

"In the event of an alarm from a strike bound subscribing plant [the company'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. . . . The union representative indicated that if the particular union directed respondent's guards to observe the picket line it would expect compliance with that order."

To determine whether an employee is a "guard," the Board's inquiry must focus on whether the potential conflict in loyalties which concerned Congress is present. To be a guard, therefore, the employee must be obligated to enforce plant protection rules against employees and other persons. See United States Gypsum Co., 152 NLRB 624, 627-28 (1965). Only when this element of potential personal confrontation is present in the employee's duty to protect the employer's property is that employee a "guard." This determination requires a weighing of relevant factors and is essentially a factual one, see NLRB v. Paper Art Co., 430 F.2d 82, 84 (7th Cir. 1970), and there is substantial evidence to support the Board's findings on this issue. See slip opinion page 8 below.

In light of these considerations, the findings made in the representation proceeding adequately support the conclusion that the servicemen are not guards. We read the decision in the representation proceeding as holding that police, rather than the servicemen, are used "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. . . ." 29 U.S.C. § 159(b)(3).*fn7

Wells Fargo contends that several of the findings made in the representation proceeding are not supported by substantial evidence in the record as a whole. It was found that the primary function of the servicemen is to repair and service the alarm systems of subscribers. Wells Fargo contends that this finding ignores the fact that a substantial portion of calls in the second and third shifts were alarm calls. There is evidence in the record, however, indicating that approximately 99% of burglar alarms do not involve actual entry to the protected premises. App. at 91a-93a. See also App. at 95a-96a. It was also found that it is not a serviceman's duty to search for intruders nor restrain persons from entering the subscriber's premises.

We have concluded that substantial evidence on the record amply supports these findings. See App. at 34a-37a, 45a-47a, 90a. Moreover, in over 90% of the cases, the police arrive at the premises before the serviceman reaches this destination (93a-94a, 154a).

The petition for review will be denied, and the order of the National Labor Relations Board will be enforced.


The petition for review will be denied, and the order of the National Labor Relations Board will be enforced.

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