Pony Express Courier Corp.

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- 103 PONY 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