Pony Express Courier Corp.

National Labor Relations Board - Board Decisions

Jan 13, 1993

310 N.L.R.B. 102 (N.L.R.B. 1993)

102
310 NLRB No. 15
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The only issue on which the Employer seeks review is whether
the Regional Director erred in finding that the Employer’s courier-
guards were not guards within the meaning of Sec. 9(b)(3) of the
Act.
2 In denying review, the Board notes that the Court of Appeals for
the Eighth Circuit recently affirmed the Board’s finding that this
Employer’s courier-guards at another location (New Brighton, Min-
nesota) were not statutory guards under the Act. See Pony Express
Courier Corp. v. NLRB (No. 92-1292, 8th Cir., Dec. 10, 1992), enfg.
306 NLRB No. 22 (Jan. 21, 1992) (not reported in Board volumes).
1 Although Petitioner petitioned to represent ‘‘driver/couriers,’’ the
job title utilized by the Employer for the individuals sought is cou-
rier-guard.
2 The Employer explained that it transports commodities not nec-
essarily intrinsically valuable, but of extremely high value to its cus-
tomers.
3 Executive Vice President Naber testified that in direct solicitation
of targeted customers by its sales force, the Employer represents
itself as a carrier of valuable commodities offering a protective and
time-critical service.
4 According to Executive Vice President Naber, at least 50 percent
of the Employer’s customers require employer access to their prem-
ises during nonbusiness hours. For any given route, the number of
calls a courier-guard must make outside regular business hours var-
ies, and some courier-guards make few or none such calls.
5 Employee Northrop testified that in 14 years he personally had
never had to deactivate an alarm system, but he did not dispute that
other courier-guards on different routes may have done so.
Pony Express Courier Corp. and Joint Council of
Teamsters No. 28 on behalf of Teamsters
Locals 38, 117 and 378, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO,
Petitioner. Case 19–RC–12627
January 13, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Regional Director’s Decision and Direc-
tion of Election (pertinent portions are attached).1 The
request for review is denied as it raises no substantial
issues warranting review.2
APPENDIX
DECISION AND DIRECTION OF ELECTION
3 The Employer, a Delaware corporation with branch oper-
ations in several States, is engaged in providing ‘‘protective’’
transportation services of time-critical commodities and other
items. Petitioner seeks a unit of courier-guards1 employed
out of the Employer’s Seattle, Washington branch and its sat-
ellite offices in Everett and Olympia, Washington. The Em-
ployer contends that a question concerning representation
does not exist because its courier-guards are guards within
the meaning of Section 9(b)(3) of the Act whom Petitioner
may not be certified to represent because it is a labor organi-
zation which admits to membership employees other than
guards. The Employer agrees that should it be determined
that courier-guards are not guards under Section 9(b)(3), then
the unit is appropriate.
The Employer characterizes its service as the protective
transportation of time-critical and other valuable commod-
ities.2 The Employer’s Seattle branch area principal cus-
tomers are the Federal Reserve Bank, commercial banks,
savings and loans, and mortgage companies. Seventy to 75
percent of the Employer’s business in the Seattle area is the
transportation of checks for collection. It also transports a
wide variety of additional items, including interoffice cor-
respondence, accounting media, pharmaceuticals, blood, med-
ical specimens, X-rays, and similar materials. The Employer
does not hold itself out as a transporter of cash or negotiable
securities, although a customer may occasionally include
such materials without advising the Employer.
In general, the commodities transported require a definite
pickup and delivery time because their value to the customer
decreases should deadlines not be met. In the Everett and Se-
attle yellow pages telephone directories, the Employer lists
itself under ‘‘Delivery Service.’’ The Seattle listing notes the
Employer offers overnight service nationwide and same-day
service to many Washington cities, but makes no mention of
offering guard or protective services.3
Courier-guards are responsible for the pickup, transpor-
tation, and delivery of customers’ items. They wear distinc-
tive uniforms, with a sleeve patch designating the Employer
and the notation ‘‘courier guard.’’ Employees also must wear
a picture identification badge outside their uniform, with the
employee’s name, descriptive physical information, and the
notation ‘‘courier guard.’’
Daily, courier-guards report to their terminals, where they
are issued a route log, any necessary special instructions,
keys to those customer facilities requiring key access,4 and
vehicle keys. If certain stops so require, security access cards
and codes also are issued. Prior to departing from the ter-
minal, courier-guards pick up packages for delivery and in-
spect their vans. On completing their routes, courier-guards
return to the terminal to drop off packages, keys, security
cards, and paperwork.
The location at a customer’s facility where items are deliv-
ered or picked up apparently is specified by the customer;
courier-guards do not make this decision. During on-the-job
route training, courier-guards are informed of all relevant
procedures involving the route, including the location for de-
livery and pickup. Generally, delivery locations appear to be
in areas accessible to the general public during ordinary busi-
ness hours, for instance in a hallway, foyer, or public area,
and not in a locked private office or vault. Approximately 10
percent of pickups and deliveries in the area are to lock
boxes located outside a customer’s premises. The commod-
ities themselves generally are in sealed or locked containers.
According to the Employer, when making afterhour stops,
courier-guards may be required to disarm and reactivate a
customer’s alarm system.5 Employee Northrop, the sole em-
ployee who testified, estimated that about 95 percent of his
time was spent driving, and that he allowed himself about 2
minutes to perform each pickup or delivery.
Newly hired courier-guards undergo a formal training and
orientation program. The program includes classroom instruc-
103PONY EXPRESS COURIER CORP.
6 Northrop dild not specify when these audits occurred; under these
circumstances, I believe it appropriate to assume they occurred under
the present Employer’s operations of the Company. Therefore, these
two audits would have occurred within a period of approximately 10
years.
tion regarding all aspects of the job, viewing a videotape,
and individual training with a dispatcher, supervisor, or oper-
ations manager. A portion of this training and orientation
program is devoted to security matters and approximately
one-half of the orientation video is devoted to this topic.
Each new hire receives an employee handbook which de-
votes approximately 2 pages out of a total of 25 to ‘‘Secu-
rity.’’ In addition, courier-guards receive a doublesided docu-
ment entitled ‘‘Security Instructions for Courier Guards,’’
which must be acknowledged and dated by individual em-
ployees. Finally, new hires are provided on-the-job training
by another courier-guard familiar with the route. The Em-
ployer conducts field audits to ascertain employee compli-
ance with its operating, safety, and security policies. Included
in the audit are the following security aspects: whether the
courier-guard secures the vehicle at each stop; whether the
customer facility keys are kept locked in the vehicle or in
the personal custody of the courier-guard; and whether the
courier-guard secures the customers’ doors when entering
and leaving. Employee Northrop testified he had two such
audits in 14 years of employment with the Employer and its
predecessors.6
Courier-guards are unarmed and forbidden by the Em-
ployer to carry weapons. Courier-guards are informed, and
the Employer’s written materials specifically state, that their
‘‘primary security functions are limited to ‘deter, detect, and
report,’’’ and that they are ‘‘neither expected nor authorized
to use force against suspects except as absolutely necessary
for self-defense.’’ They are instructed to safeguard cus-
tomers’ property by such means as maintaining alertness;
wearing their uniforms properly; keeping their vans locked
when unattended; taking care with customers’ keys; and se-
curing customers’ facilities: that is, in the case of key access
stops, ascertaining that it is appropriate to enter the facility
before attempting to do so, securing the facility while inside,
refusing to admit others, and leaving the facility locked or
otherwise secured as it was found.
If accosted, courier-guards are instructed not to take offen-
sive action, but rather are to take ‘‘evasive’’ action, such as
removing themselves and, if possible, the customer’s prop-
erty, from the situation. If threatened with physical harm,
they are to surrender the customer’s property. They are in-
structed that they may not permit unauthorized third parties
to enter a customer’s premises, but their means of discour-
aging such entry is limited to such defensive action as not
unlocking a building door in the presence of suspicious indi-
viduals and locking building doors behind them as they enter
a facility. If preventive security measures fail to deter theft,
vandalism, or other illegal activity, courier-guards’ duty is to
observe the problem or loss and report it immediately to the
police and a supervisor. They are not to apprehend perpetra-
tors. Should courier-guards discover a customer’s location to
be unlocked, when it should have been locked, they are not
to enter, but rather are to contact their supervisor or the po-
lice.
Prior to hiring courier-guard applicants, the Employer does
a motor vehicle record check and a prior employer back-
ground check. Prior involvement in an incident involving
moral turpitude is grounds for refusing to hire an applicant.
The Employer does not routinely do a criminal record check
of applicants. The interview and screening process takes a
couple days and courier-guards may not commence work
until this process, including the driving and past employment
background checks, is completed. Courier-guards are not
fingerprinted for the job. They are not required to obtain in-
dividual bonds, but are covered by a group bond carried by
the Employer. The only license which courier-guards must
hold for the job is a driver’s license.
Analysis
In Purolator Courier Corp., 300 NLRB 812 (1990), the
Board considered whether unarmed couriers were statutory
guards. The Board there stated that the issue was ‘‘whether
the basic duties of the . . . courier-guards focus on the pro-
tection of customer property so as to make these employees
classifiable as guards under Section 9(b)(3).’’ If the employ-
ees are not engaged ‘‘directly and substantially’’ in the pro-
tection of customer property, they are not guards under the
Act.
In the instant case, the record establishes that the courier-
guards are not engaged directly and substantially in the pro-
tection of customer property, but rather function essentially
as delivery drivers. Although courier-guards receive some
training and instruction regarding the safety of customer
property, the protective measures they are directed to use in-
clude only such commonsense practices as locking their vans
when unattended, turning in customer keys at shift’s end,
scanning an area for suspicious individuals prior to unlocking
a secured area, and locking doors behind them as they enter
and leave facilities. Moreover, courier-guards are neither
trained nor authorized to use weapons or force. They are un-
armed and not expected by the Employer to use any force
to secure property in their possession or to protect the cus-
tomers’ premises. In fact, their directions, when faced with
a perilous situation, are to ‘‘remove’’ themselves. Should
they detect suspicious activity, they are instructed merely to
call the police and/or a supervisor. Although afterhours ac-
cess to customer facilities may require the use of customer
keys, the pickup/delivery location typically is located in an
area open to the public during normal business hours. While
courier-guards wear uniforms and identification badges, this
is not dispositive of statutory guard status, as the Board
noted in Purolator, supra. In sum, the record establishes that
courier-guards’ job duties essentially are comprised of the
pickup, transport, and delivery of customer property, ordi-
narily of no particular intrinsic value to the world at large.
In fact, the Employer holds itself out to the public as a deliv-
ery service.
Although the facts here are not identical to those in
Purolator, supra, the evidence is strikingly similar. Analyz-
ing these facts in light of the Purolator framework, it cannot
be concluded that the basic function of courier-guards here
involves, directly and substantially, the protection of valuable
property of the Employer’s customers. At best, the security
functions of courier-guards are incidental to the basic func-
tion of transporting property. Although some courier-guards
may have afterhour access to customer premises, and thus
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The supervisory status of the following individuals was stipulated
to and is not at issue: District Manager Chris Christen; Branch Man-
ager Rick Owens; Operations Manager Vince Martinez; Supervisors
Lamont Rice, Zeb Campbell, and Pat Larkin. The parties further
stipulated that lead courier-guards in Everett and Olympia and dis-
patchers in Seattle were supervisors, and accordingly excluded from
the unit. Lead drivers in Seattle, if any, are by agreement of the par-
ties, included in the unit.
may be required to use keys for entry or to deactivate and
reactivate customer security devices, the Board has made
clear that such duties are merely one factor to consider in as-
sessing the entire range of actual employee duties. Purolator,
supra at 815 fn. 9. In view of the fact that such access to
customer premises is not invariably required of courier-
guards in the actual performance of their duties and is in any
event only incidental to the basic pickup, transportation, and
delivery functions of courier-guards, I find these factors in-
sufficient to mandate a conclusion that courier-guards are
guards within the meaning of Section 9(b)(3) of the Act.
Therefore, I conclude that courier-guards are not statutory
guards. Accordingly, Petitioner is not barred under Section
9(b)(3) of the Act from being certified as the bargaining rep-
resentative of these employees.
There are approximately 175 employees in the unit.7