Pony Express Courier Corp.

National Labor Relations Board - Board Decisions

Jul 14, 1993

311 N.L.R.B. 1157 (N.L.R.B. 1993)

1157
311 NLRB No. 138
PONY EXPRESS COURIER CORP.
1 We note in this regard that the Respondent failed to request re-
view of the Regional Director’s determination in his January 27,
1993 Decision and Direction of Election that the unit employees are
not guards. In these circumstances, Respondent is precluded from
raising the same issue in the instant proceeding. See Sec. 102.67(f)
of the Board’s Rules and Regulations. See also A. S. Horner, Inc.,
246 NLRB 393 (1979); and Walnut Mountain Care Center, 236
NLRB 284 (1978).
Pony Express Courier Corp. and Teamsters 327, af-
filiated with International Brotherhood of
Teamsters, AFL–CIO. Case 26–CA–15554
July 14, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 4, 1993, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain following the
Union’s certification in Case 26–RC–7512. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an an-
swer admitting in part and denying in part the allega-
tions in the complaint.
On May 28, 1993, the General Counsel filed a Mo-
tion for Summary Judgment. On June 3, 1993, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a re-
sponse.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain, but attacks the validity of the certification on
the ground that the employees in the certified unit are
guards within the meaning of Section 9(b)(3) of the
Act, and that, as the Union admits nonguards into
membership, it cannot be certified as representative of
the unit.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding.1 The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with offices and
places of business in Nashville and Cookeville, Ten-
nessee, has been engaged in the interstate transpor-
tation of commodities.
During the 12-month period ending March 31, 1993,
the Respondent, in conducting its business operations,
derived gross revenues in excess of $50,000 for the
transportation of freight and commodities from the
State of Tennessee directly to points outside the State
of Tennessee.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following an election conducted by mail between
February 15 and 26, 1993, the Union was certified on
March 8, 1993, as the collective-bargaining representa-
tive of the employees in the following appropriate unit:
All full time and regular part time courier guards
employed by Respondent at its Nashville and
Cookeville, Tennessee, facilities, including lead
courier guards, relief courier guards and sorter
courier guards; and excluding all office clerical
employees, sales employees, dispatchers, profes-
sional employees, guards and supervisors as de-
fined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
On March 6 and 18, 1993, by letter, the Union re-
quested the Respondent to bargain, and, on April 13,
1993, the Respondent refused. We find that this refusal
constitutes an unlawful refusal to bargain in violation
of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after March 8, 1993, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-
Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Pony Express Courier Corp., Nashville
and Cookeville, Tennessee, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters 327, affili-
ated with International Brotherhood of Teamsters,
AFL–CIO as the exclusive bargaining representative of
the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full time and regular part time courier guards
employed by Respondent at its Nashville and
Cookeville, Tennessee, facilities, including lead
courier guards, relief courier guards and sorter
courier guards; and excluding all office clerical
employees, sales employees, dispatchers, profes-
sional employees, guards and supervisors as de-
fined in the Act.
(b) Post at its facilities in Nashville and Cookeville,
Tennessee, copies of the attached notice marked ‘‘Ap-
pendix.’’2 Copies of the notice, on forms provided by
the Regional Director for Region 26, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Teamsters 327,
affiliated with International Brotherhood of Teamsters,
AFL–CIO as the exclusive representative of the em-
ployees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full time and regular part time courier guards
employed at our Nashville and Cookeville, Ten-
nessee, facilities, including lead courier guards,
relief courier guards and sorter courier guards;
and excluding all office clerical employees, sales
employees, dispatchers, professional employees,
guards and supervisors as defined in the Act.
PONY EXPRESS COURIER CORP.