Pony Express Courier Corp.

National Labor Relations Board - Board Decisions

Feb 5, 1993

310 N.L.R.B. 354 (N.L.R.B. 1993)

354
310 NLRB No. 46
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel’s motion to sever Case 19–CA–22094 was
grounded on the contention that there are no issues which warrant
a hearing in this case and thus it can be more expeditiously proc-
essed in a summary judgment proceeding. Case 19–CA–22124 pre-
sents issues which must be considered at a hearing. Accordingly,
after due consideration we reaffirm the decision to sever the cases
and deny Respondent’s motion for reconsideration. We also deny
Respondent’s alternative motion to stay in Case 19–CA–22124.
2 On March 3, 1992, the Regional Director issued a Decision and
Direction of Election. The Respondent filed a request for review of
the Regional Director’s Decision and Direction of Election and mo-
tion to stay election. On April 20, 1992, the Board denied the Re-
spondent’s request for review and motion to stay the election.
Pony Express Courier Corporation and Inter-
national Brotherhood of Teamsters, Local 690,
affiliated with International Brotherhood of
Teamsters, AFL–CIO. Case 19–CA–22094
February 5, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 16, 1992, the General Counsel of the
National Labor Relations Board issued a consolidated
amended complaint and notice of hearing in Cases 19–
CA–22094 and 19–CA–22124 alleging that the Re-
spondent has violated Section 8(a)(1), (3), and (5) of
the National Labor Relations Act by refusing the
Union’s request to bargain following the Union’s cer-
tification in Case 19–RC–12505. (Official notice is
taken of the ‘‘record’’ in the representation proceeding
as defined in the Board’s Rules and Regulations, Secs.
102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed its answer admitting in
part and denying in part the allegations in the com-
plaint.
On January 4, 1993, the General Counsel filed a
Motion to Sever Case 19–CA–22094, Motion to Trans-
fer Case 19–CA–22094, and Motion for Summary
Judgment in Case 19–CA–22094. On January 6, 1993,
the Board issued an order severing Case 19–CA–22094
and transferring that proceeding to the Board and a
Notice to Show Cause why the motion should not be
granted. The Respondent separately filed a response to
the Motion for Summary Judgment. The General
Counsel filed an opposition thereto.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.1
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 basis of the Board’s unit determination in the rep-
resentation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. 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 is a State of Delaware corporation
with an office and place of business in Spokane,
Washington, where it is engaged in the business of
transporting time-critical commodities. During the past
12-month period, the Respondent, in the course and
conduct of its business operations, had gross sales of
goods and services valued at in excess of $500,000.
During the past 12-month period, the Respondent sold
and shipped goods or provided services from its facili-
ties within the State of Washington, to customers out-
side the State, or sold and shipped goods or provided
services to customers within the State, which cus-
tomers were themselves engaged in interstate com-
merce by other than indirect means, of a total value of
in excess of $50,000. 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 organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
On or about April 20, 1992, a majority of employees
in the unit described below selected the Union as their
collective-bargaining representative and the Union was
certified on April 28, 1992,2 as the collective-bar-
gaining representative of the employees in the fol-
lowing appropriate unit:
All courier guards employed by Pony Express
Courier Corp. in Spokane, Pasco, Yakima,
Wenatchee, and Ephrata, Washington; Lewiston
and Coeur d’Alene, Idaho; Hermiston, LaGrande,
and Pendleton, Oregon; and Missoula, Montana,
but excluding all other employees, supervisors and
guards as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
355PONY EXPRESS COURIER CORP.
3 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.’’
B. Refusal to Bargain
Since May 6, 1992, the Union has requested the Re-
spondent to bargain and, since May 22, 1992, the Re-
spondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(1) and (5) of the Act.
CONCLUSION OF LAW
By refusing on and after May 22, 1992, 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)(1) and (5) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1) and (5) 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 Corporation, Spo-
kane, Washington, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Brother-
hood of Teamsters, Local 690, affiliated with Inter-
national 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 courier guards employed by Pony Express
Courier Corp. in Spokane, Pasco, Yakima,
Wenatchee, and Ephrata, Washington; Lewiston
and Coeur d’Alene, Idaho; Hermiston, LaGrande,
and Pendleton, Oregon; and Missoula, Montana,
but excluding all other employees, supervisors and
guards as defined in the Act.
(b) Post at its facility in Spokane, Washington, cop-
ies of the attached notice marked ‘‘Appendix.’’3 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 19 after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, 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 International
Brotherhood of Teamsters, Local 690, affiliated with
International Brotherhood of Teamsters, AFL–CIO as
the exclusive representative of the employees 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:
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All courier guards employed by us in Spokane,
Pasco, Yakima, Wenatchee, and Ephrata, Wash-
ington; Lewiston and Coeur d’Alene, Idaho;
Hermiston, LaGrande, and Pendleton, Oregon; and
Missoula, Montana, but excluding all other em-
ployees, supervisors and guards as defined in the
Act.
PONY EXPRESS COURIER CORPORATION