Section 9(b)(3) National Labor Relations Act
REPRESENTATIONAL RIGHTS OF SECURITY
GUARDS UNDER THE NATIONAL LABOR
RELATIONS ACT: THE NEED FOR A
BALANCING OF INTERESTS
The private security industry is enjoying a period of great prosperity and growth.' Particularly in large urban areas, there is a growing belief that understaffed and overworked municipal police forces cannot adequately respond to and deter crime. Throughout the United States, uniformed guards now patrol many locations, including schools, banks, hospitals and apartment buildings, protecting both life and property. Residents of some urban areas even have found it necessary to supplement the municipal police force. They have hired private security companies to provide twenty-four hour vehicle patrols of their neighborhoods. In addition, the large casinos of Atlantic City, New Jersey have created unprecedented job opportunities for security guards. Accordingly, protective services is the third fastest growing occupation in the United States. Some studies estimate that over one million people earn their living in the private security industry. This figure greatly exceeds the total number of public law enforcement employees."
Notwithstanding the availability of job opportunities in the industry, there are numerous problems endemic to employment as a security guard. Wages typically are low'0 and risks can be high, especially if the guard is armed.II Although union membership among security guards has increased, collective bargaining has been unsuccessful in alleviating the occupation's problems.' This failure of collective bargaining is an unsettling fact, given the staggering damages that could result from a major labor dispute in this industry.
This Note explains and analyzes the unique provision of the National Labor Relations Act (the Act) that governs unionization of guards, and proposes a consistent approach for the courts and the National Labor Relations Board (the Board)", to follow in cases conicerning security guards. The adoption of this approach should improve the quality of collective bargaining in the industry by creating greater stability in bargaining relationships.
II. Limits on the Board's Authority Set Forth in Section 9(b)(3) of the Act
Section 9 of the Act grants the Board broad powers in processing
representation cases. Section 9(a) states: "Representatives designated
or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such unit .... ." In section 9(b), the Board is given broad discretion to determine the appropriate unit for collective bargaining, with a mandate to "assure to employees the fullest freedom in exercising the rights guaranteed by this [Act] .... ." But security guards are accorded an unusual status under the Act; "guard" is the only specific job classification menttioned, and it is governed by its own separate rules concerning representation.
In contrast to the broad authority generally granted to the Board in section 9, section 9(b)(3) specifically prevents the Board from finding a unit appropriate if it includes both guards and nonguards. The section further states that "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 provision allows the Board to certify only a "pure" guard union as a representative of guards. Guard unions which are affiliated with nonguard unions may not be certified to represent a unit of guards, and nonguard unions may not be certified to represent a guard unit.