Representational Rights of Security Guards Under the National Labor Relations Act: The Need for a Balancing of Interests

The private security industry is experiencing great prosperity. Despite the job opportunities in the industry, however, there are various problems endemic to employment as a security guard. Wages are usually low and risks can be high. While union membership has increased among security guards, collective bargaining has been unsuccessful in alleviating the occupation\u27s problems. Section 9(b)(3) of the National Labor Relations Act specifically prevents the Board from finding a unit appropriate if it includes both guards and non-guards. This section cannot be applied properly without first considering the Act\u27s overall policies and Congress\u27 specific intention in passing this section. Meanwhile, voluntary recognition has also been an important factor in the security industry. Section 9(b)(3) does not state how, or if, it affects bargaining relationships commenced voluntarily by employers and non-qualified unions. Thus, Congress should clarify the statutory rule regarding the withdrawal of voluntary recognition of non-qualified unions. Congress could either add a proviso to the section stating that it should not be construed to affect bargaining relationships voluntarily commenced by employers and non-qualified unions, or it could prohibit voluntary recognition altogether. The Board should modify the Bally\u27s rule (where the Board adopted a broad rule allowing all unions, qualified and non-qualified, incumbent and non-incumbent, to appear on the ballot, provided the petition was filed by a qualified union) by recognizing a thirty percent showing of interest by non-qualified unions which seek to intervene. The Board should also affirm the Wells Fargo decision (saying the Board has discretion to allow non-qualified unions to participate in its election processes) as it would not be inconsistent to continue to hold voluntary recognition of non-qualified unions permissible while allowing employers to end the bargaining relationship unilaterally