| COMMUNICATION WORKERS OF | | | CASE NO. 862 |
| AMERICA, AFL-CIO, | | | REP. DOC. NO. 294 |
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| Petitioner, | | | |
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| v. | | | OPINION AND ORDER |
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| HALL COUNTY, NEBRASKA, | | | |
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| Respondent. | | |
Appearances:
For the Petitioner: Richard L. DeBacker
Attorney at Law
119 W. Koenig
P. O. Box 1545
Grand Island, NE 68802
For the Respondent: Jerry L. Pigsley
Harding and Ogborn
P. O. Box 82028
Lincoln, NE 68501-2028
Before: Judges Kratz, F. Moore, and Orr
KRATZ, J:
The Communication Workers of America, AFL-CIO (CWA or Petitioner), has filed a Representation Petition seeking to represent approximately 25 employees of Hall County (Hall County or Respondent) who are employed as Corrections Officers at the Hall County Jail. [1] The CWA currently represents employees in the Hall County Assessor's Office, Parks Department, and the Public Works Department and it will continue to represent the employees in these three departments, along with the employees in the Corrections Department, if the Corrections Department employees choose the CWA to represent them in the requested CIR election.
The evidence shows that a CWA representative would perform the same functions for the employees of the Corrections Department with regard to the negotiation of contracts, the handling of grievances, investigation of inter-union disputes and the development of bargaining strategy as he would for the employees in the three other departments. The employees of the Corrections Division would be governed by the same CWA Constitution as the employees in the other three departments and would be members of the same Local. Because of these connections and interrelationships, Respondent asks that this petition be dismissed on the ground that it is impermissible for guards and non-guards to be represented by the same union. The Petitioner, however, claims that the relationship between the Corrections Officers and the employees in the other three departments is not the traditional type of guard/non-guard relationship that produces the conflict of interest that makes it improper for the two groups to belong to the same labor organization.
The evidence shows that the employees in the three already represented departments have little, or no, contact with the Corrections Officers. The Corrections Officers don't "protect" the employees in the other three departments. The employees in the other three departments perform their job assignments in other areas and the Corrections Officers are confined in their guarding of property and employees to the jail.
While there is nothing specific in the Nebraska law which precludes guards from being represented by a union which also represents non-guards, the CIR has regularly followed the NLRB rule on this issue. The Labor Management Relations Act (LMRA), at Section 9(b)(3), [2] states specifically that
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;...
Before this language was inserted into the LMRA, the Sixth Circuit Court of Appeals had already ruled, in NLRB v. Jones & Laughlin Steel Corp. , 154 F. 2d 932, 17 LRRM 982 (1946), that guards should not be included in the same unit as non-guards. [3]
This is a sound rule, whether or not it is based on specific statutory language, and the CIR has regularly applied it.[4]
In the early case of McDonnell Aircraft Corp. , 109 NLRB No. 147, 34 LRRM 1489 (1954), the NLRB discussed the congressional intent behind the guard/non-guard prohibition as follows:
[I]t is apparent from the legislative history of the Act that, by requiring guards to be isolated from other employees in collective bargaining, Congress intended to insure to an employer that during strikes or labor unrest among his other employees, he would have a core of plant protection employees who could enforce the employer's rules for protection of his property and persons thereon without being confronted with a division of loyalty between the Employer and dissatisfied fellow union members.
The Corrections Officers perform the following duties: They guard, supervise and take care of the inmates, which includes making certain they do not escape. They protect the corrections facility from trespassers or from any disturbance or damage. They search visitors entering the facility and perform "shakedowns" of the inmates if considered necessary. They investigate any indication of damage to, or theft of, the correctional facility. They guard and accompany the inmates when they are scheduled for court appearances. In addition to their duties, the Corrections Officers are required to have 80 hours of training at the Grand Island Law Enforcement Training Center, and some continuing education thereafter. The question to be resolved is whether these job duties and responsibilities create the type of conflict that prohibits guards from being represented by a union which also represents non-guards. We have concluded that it does. The Hall County Corrections Officers clearly fit the literal language of the CIR adopted Federal exclusion (Section 9(b)(3)) in that they are "employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of employees on the employer's premises."
The Board has held that firefighters are guards where "an essential part of their duties and responsibility is the enforcement of the employer's other plant protection rules and regulations." Chance Vought Aircraft , 110 NLRB 1342, 1346, 35 LRRM 1338, 1339 (1954). The Board has also held that Plainclothesmen who investigate traffic accidents and, on occasion, theft are considered guards even though they lack the authority to restrain or arrest other employees. Burns Security Systems , 188 NLRB
No. 25, 76 LRRM 1267 (1971). The question in Burns was whether a unit of guards included the position of Complaints and Survey Sergeants (CS Sergeant). The CS Sergeant job description specifies that he should not perform any work that is assigned to, or routinely performed by, guards. He is dressed in civilian clothing and rides in unmarked vehicles. The Board held as follows (page 223):
[W]e find...that the duties of the Complaints and Survey Sergeants are part and parcel of the statutorily described function of enforcement of rules to protect property and safety of persons . Furthermore, the basic policy reasons for requiring guards to be represented in separate units and by separate unions are directly applicable to employees who perform duties of the nature here involved. (emphasis supplied)
The duties of the Corrections Officers in the case at hand include the "function of enforcement of rules to protect property and safety of persons."
Crossroads Community Corrections Center , 308 NLRB 558 (1992), is a case similar to ours which was decided by the NLRB Regional Director for the 13th Region. In this case the State of Illinois Department of Corrections contracted with a private employer to provide a work release program for inmates. The issue was whether the individuals employed as a Correction Residence Counselor I (CRC I) were guards. The petitioning union already represented non-guards and the employer claimed that the CRC I employees were guards and the petitioner, therefore, could not represent them. The job duties and training of the CRC I employees in this case are very similar to the job duties and training of the Corrections Officers in the instant case. The NLRB Regional Director held that the CRC I employees were guards under the definition in Section 9(b)(3) of the LMRA and the Board denied review of the Regional Director's decision.
Another applicable case is A. W. Schlesinger Geriatric Center , Inc. , 267 NLRB 1363, 114 LRRM 1221 (1983), where the Board held that maintenance employees were hired with the specific intent of meeting security needs and were guards as defined in the Act. In this case, the NLRB observed (p. 1364) that "[i]n performing their security functions they enforce against employees and other persons rules to protect the safety of persons on the Employer's premises, keep unauthorized persons off the property, and protect the premises." These same functions are performed by the Corrections Officers in the instant case.
The Hall County Corrections Officers enforce rules to secure and protect their employer's premises and they enforce rules for the safety of the persons who occupy or visit these premises. In Wells-Fargo Alarm Services v. NLRB , 92 LRRM 2009, 533 F. 2d 121 (1976), the Third Circuit Court of Appeals, at page 125, said as follows:
To determine whether an employee is a "guard," the Board's inquiry must focus on whether the potential conflict in loyalties which concern Congress is present. To be a guard, therefore, the employee must be obligated to enforce plant protection rules against employees and other persons...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"...
One of the applicable recurring rules in the NLRB cases (including the foregoing) is the rule that an employee is a guard if he enforces "protection rules against employees and other persons." The Hall County Corrections Officers enforce rules of their employer against "employees and other persons."
The CIR has decided two cases on the issue of whether jailers are guards and should therefore be excluded from a non-guard unit, CWA v. County of Scottsbluff , 11 CIR 60 (1990), and FOP, Lodge 16 v. Platte County , 6 CIR 161 (1982). In both of these cases the CIR determined that jailers were guards based on the definition established by the NLRB.
The Nebraska Supreme Court's only reference to this issue is Lincoln City Employees Union, National Association of Government Employees, Appellee, v. City of Lincoln, a Municipal Corporation, et al., Appellants , 210 Neb. 751, 317 N.W. 2d 63, (March 12, 1982), where the guards and non-guards were affiliated with the same International Union, but were members of separate local unions. The Supreme Court held there was no conflict because the International Union exercised little control over the two local unions. That decision has little application to the instant case where the guards and non-guards would belong to the same local union.
The Petition is dismissed.
All Judges assigned to the panel in this case join in the entry of this Opinion and Order.
Entered April 13, 1994.
(1) These Corrections Officers were previously represented in collective bargaining by the Fraternal Order of Police, Lodge No. 10 (FOP), but at that time the bargaining unit included deputy sheriff's and certain other personnel in the Hall County Sheriff's Department. When the Hall County Board of Supervisors transferred the Corrections Officers to the Hall County Board of Corrections, the FOP filed a notice stating that it no longer wished to represent these employees. FOP was then decertified by the Commission of Industrial Relations (CIR) as the representative of the Corrections Officer.
(2) 29 U.S.C. ยง159(b)(3).
(3) Senator Robert Taft, one of the principal authors of the Labor Management Relations Act (also called Taft-Hartley), stated that Section 9(b)(3) of the Act was inserted because the conferees were impressed with the reasoning of the Court of Appeals for the Sixth Circuit in NLRB v. Jones & Laughlin Steel Corp. , wherein the Court decided that guards could not be represented by the same union as reperesented the production and maintenance employees at their plant because otherwise they would be confronted with conflicting loyalties during periods of industrial unrest and strikes. (See 93 Congressional Record, 6444).
(4) University Police Officers Association, Local 567 v. University of Nebraska , 3 CIR 335 (1977); Retail and Professional Employees Union, Local 1015 v. Metropolitan Technical Community College Area , 3 CIR 512 (1978); Supervisory, Managerial, and Professional Employees Bargaining Association v. City of Bellevue , 11 CIR 48(1991); and CWA v. County of Scottsbluff , 11 CIR 60 (1980).
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