Pony Express Courier Corp.

1286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pony Express Courier Corporation and Montana Union of Guards. Case 19-CA-18877 30 November 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 17 July 1987 Administrative Law Judge Jer- rold H. Shapiro issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Pony Ex- press Courier Corporation, Helena and Billings, Montana, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I would dismiss the complaint inasmuch as I dissented and would not have certified the Union in the underlying repre- sentation case. Stephanie Cottrell, for the General Counsel. Thomas Franklin , for the Respondent. James Stiffler, for the Charging Party. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. The hearing in this case held on 12 May 1987 is based on an unfair labor practice charge and an amended charge filed by the Montana Union of Guards (Union) on 20 January 1987 and 2 March 1987, respectively, and a complaint and an amendment to the complaint issued by the Gener- al Counsel of the National Labor Relations Board on 27 February 1987 and 7 May 1987 respectively, alleging that Pony Express Courier Corporation (Respondent) has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act (Act). The complaint as amended alleges in sub- stance that on 25 November 1986 the Union was certi- fied by the National Labor Relations Board (Board) to represent an appropriate bargaining unit of the Respond- ent's employees as their exclusive collective -bargaining representative , and that since 18 December 1986 Re- spondent has refused to supply the Union with informa- tion requested by the Union that is necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining representative of the unit employees, and that by engaging in this conduct Re- spondent has refused to bargain with the Union within the meaning of Section 8(a)(5) of the Act. Respondent filed an answer and an amended answer denying the commision of the alleged unfair labor practices. On the entire record, from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a State of Delaware corporation with an office and place of busines in Helena , Montana, where it is engaged in the business of providing courier services. The complaint alleges and Respondent's answer admits that during the 12-month period immediately before the issuance of the complaint Respondent had gross sales of goods and services valued at in excess of $500,000 and sold and shipped goods or provided services from its fa- cilities within the State of Montana , to customers outside the State, or sold and shipped goods or provided services to customers within the State, which customers them- selves were engaged in interstate commerce by other than indirect means, of a total value of in excess of $50,000. The complaint further alleges, and Respondent's answer admits, that Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNION'S STATUS AS A LABOR ORGANIZATION Respondent in its answer denies the complaint allega- tion that the Union is a labor organization within the meaning of Section 2(5) of the Act. The General Counsel takes the position that the question of the Union' s status as a statutory labor organization was resolved by the Board in the underlying representation case. In the underlying representation case, Case 19-RC- 10477, the Board on 25 November 1986 certified the Union as the exclusive collective-bargaining representa- tive of Respondent's employees in an appropriate unit. Pony Express Courier Corp., 282 NLRB 265 (1986). In the representation proceeding Respondent took the position the Union was not a labor organization within the mean- ing of Section 2(5) of the Act, and the issue was litigated at a hearing conducted by the Board's Regional Direc- tor. After considering the evidence, the Regional Direc- tor issued a Decision and Direction of Election on 13 May 1982 in which he rejected Respondent's contention and specifically found that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. Re- spondent did not appeal the Regional Director's decision by filing "a request for review" with the Board, and in the instant unfair labor practice proceeding did not present additional evidence in support of its contention 286 NLRB No. 120 PONY EXPRESS COURIER CORP. that the Union is not a labor organization within the meaning of Section 2(5) of the Act.' In view of these circumstances I find the Regional Director's 13 May 1982 decision in the underlying representation case as to the Union's status as a statutory labor organization is binding in this proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. I there- fore find the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence On 23 June 1982, pursuant to a 13 May 1982 Decision and Direction of Election issued in Case 19-RC-10477 by the Board's Regional Director for Region 19, an elec- tion was conducted by the Regional Director among the following appropriate bargaining unit of Respondent's employees: All full time and regular part time courier drivers employed by [Respondent] in Helena, Missoula, Bil- lings, and Great Falls, Montana, but excluding con- fidential employees and supervisors as defined in the Act. The tally of ballots shows nine for and six against the Union, with two challenged ballots, an insufficient number to affect the results. The formal certification of the Union by the Board was delayed until 25 November 1986 because Respondent filed objections. On 25 Novem- ber 1986 the Board in Case 19-RC-10477 issued a Deci- sion on Review and Certification of Representative in which it overruled Respondent's objections and certified the Union as the exclusive collective-bargaining repre- sentative of the employees in the above-described appro- priate unit. Pony Express Courier Corp., 282 NLRB (Chairman Dotson dissenting). 'On 18 December 1986 Respondent received a letter from Union Business Agent James Stifller informing it that the Union would communicate with it in the near future about commencing negotiations for a contract covering the employees in the appropriate unit certified by the Board, but stated that before commencing the ne- gotiations "the Union is requesting the following infor- mation necessary to adequately represent these employ- ees" and asked for the following information: 1. The full name, mailing address, and telephone number of all covered employees in the State of Montana. 2. The current wages, work schedules, and date of hire of all covered employees in the State of Montana. 3. The current vacation, holiday, and sick leave benefits of all covered employees in the State of Montana. 1 The evidence presented by Respondent in support of its further con- tention that the Union has become a defunct labor organization is set forth and evaluated hereinafter 1287 4. The current retirement plan applicable to all covered employees in the State of Montana. 5. The current health insurance plan applicable to all covered employees in the State of Montana. 6. The current employment status of all covered employees in the State of Montana-full or part- time-and the number of hours per week worked for all covered employees in the State of Montana. 7. The current personnel policies and procedures applicable to all covered employees in the State of Montana. 8. The current organizational chart for the Mon- tana branch of Pony Express Courier Corporation. Respondent admittedly failed and refused to provide the Union the requested information. In defense of its refusal to give the Union the request- ed information, Respondent takes the position that in view of changed circumstance since the 23 June 1982 representation election, the Union has lost its representa- tive status, therefore Respondent was relieved of its obli- gation to recognize and bargain with it. The following evidence, relevant to an evaluation of this contention, was presented by the parties. On 23 June 1982, the date of the representation elec- tion in Case 19-RC-10477, Respondent operated four fa- cilities in Montana in Helena, Missoula, Billings, and Great Falls. It employed approximately 20 employees in those facilities, 2 of whom were employed at Missoula, 5 at Great Falls, with the remainder at Helena and Bil- lings. Respondent closed its Missoula and Great Falls fa- cilities in May 1985 and November 1986, respectively. The employees employed in the Helena and Billings fa- cilities now service the customers formerly serviced by the employees employed in the facilities that were closed. There is no evidence of the number of employees em- ployed at the Helena and Billings facilities on 18 Decem- ber 1986, the date of the Union's request for information. However, the record reveals that on 12 May 1987, the date of the hearing here, Respondent employed nine em- ployees in those facilities, only one of whom was em- ployed at the time of the 23 June 1982 representation election. The record also shows that during the approxi- mately 5-year period from date of the representation election until the hearing in this casehat approximately 60 different employees have been employed within the certified unit, and the turnover of employees during that period was comparable to the turnover during the previ- ous 5-year period. Early in 1982 the Union was established by Respond- ent's employees to represent them for the purpose of en- gaging in collective bargaining on their behalf with Re- spondent, and to represent them before governmental agencies on matters affecting their employment. The Union, however, has had no officers since sometime in 1983, when Respondent terminated the last of the em- ployees who were the Union's officers. Likewise, while initially 17 of the approximately 20 unit employees em- ployed by Respondent were dues-paying members of the Union, it has had no members and not held membership meetings since sometime in 1983 when Respondent ter- 1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD minated the last of the employees who were union mem- bers. As found by the Regional Director in the Decision and Direction of Election issued in the underlying repre- sentation case, Respondent's employee, James Stiffler, was the Union's founder, as well as chairman of the Union's organizational committee, its business agent and secretary. On 18 February 1982 Stiffler was discharged by Respondent because of union activities in violation of Section 8(a)(3) and (1) of the Act. Pony Express Courier Corp., 267 NLRB 733 (1983). Since then Stiffler contin- ues to occupy his position as the Union's business agent. The Union receives its mail at Stiffler's personal post office box. In the fall of 1986 Stiffler, in his capacity as union business agent, conduct an unsuccessful campaign to or- ganize the employees of another company in Missoula, Montana. During 1982 and 1983, in his capacity as union busi- ness agent, Stiffler met with Respondent's employees at union membership meetings and represented Respond- ent's employees at state unemployment compensation hearings and before the State Public Utility Commission. Also during that period, and as recent as the spring of 1987, Stiffler lobbied the State's legislators, on behalf of Respondent's employees, in his capacity as union busi- ness agent, for changes in the State's law as governing motor vehicle safety regulations. Since 1983 Stiffler, in his capacity as union business agent, has had only two contacts with Respondent's em- ployees. On a date not specified in the record, one of Re- spondent's employees asked him what was happening with respect to the Union. Stiffler replied that the Union was waiting to be certified by the Board. Also in April 1987 Stiffier contacted one of Respondent's employees and asked what the other employees felt about union representation and asked whether the other employees still wanted union representation. The record does not reveal the employee's response. As described supra, in December 1986, in his capacity as union business agent, Stiffler wrote Respondent in- forming it the Union would communicate with Respond- ent in the near future about commencing negotiations for a contract covering the employees in the certified unit, but stated that before starting negotiations the Union was requesting certain information, specified in the letter, which it needed to intelligently represent the employees. Stiffler, who filed the charges here on behalf of the Union and appeared at the hearing on behalf of the Union, testified he was prepared, in his capacity as union business agent, to represent the unit employees for pur- poses of collective bargaining, on receipt of the request- ed information. B. Discussion and Conclusions On 18 December 1986 Respondent received a letter from Union Business Agent Stiffler informing it that in the near future the Union desired to begin collective-bar- gaining negotiations with Respondent for a contract cov- ering the unit certified by the Board on 26 November 1986, but that before starting the negotiations the Union was requesting certain information, specified in the letter, which it needed to intelligently represent the unit em- ployees. It is undisputed that the information requested by the Union, which has been described in detail supra, is necessary for and relevant to the Union's performance of its function as the exclusive collective-bargaining rep- resentative of the unit employees . Accordingly, if Re- spondent is obligated to honor the Board's 26 November 1986 certification and to recognize and bargain with the Union as the employees' exclusive bargaining representa- tive, Respondent's refusal to provide this information violated Section 8(a)(5) and (1) of the Act.2 The question presented for decision is whether the changed circumstances, which occurred since the elec- tion in the underlying representation case are sufficient to take this case out of the general scope of Brooks v. NLRB, 348 U.S. 96 (1954). The issue is not whether a new election can or should be held, but whether the Board's certification of the Union must be honored or whether there are "unusual circumstances " (348 U.S. at 98-99) justifying Respondent's disregard of the certifica- tion. See Atlantic International Corp., 246 NLRB 291, 295 (1979); Crocker Saw Co ., 186 NLRB 893, 896 (1970). The Board, with the Supreme Court's approval in Brooks, "has long held that absent unusual circumstances, a union's continued majority status is irrebuttably and con- clusively presumed to exist for 1 year following certifica- tion." Carter-Glogau Laboratories, 265 NLRB 116, 117 (1982). As the Court of Appeals for the Third Circuit ex- plained in NLRB v. Paper Mfrs. Co., 786 F.2d 163, 166 (1986): The Board's 1-year-after-certification rule, approved by the Supreme Court in Brooks, is consistent with the policy of encouraging stability in collective-bar- gaining relationships [as] any other rule would permit employers to delay a final certification by filing objections to an election, while at the same time taking self-help steps . . . in hopes of destroy- ing a union's majority status. Respondent takes the position that the following "un- usual circumstances" occurred so as to warrant the con- clusion the Union has lost its representative status: (1) The size of the certified unit has been reduced from four to two facilities by the closure of Respondent's Missoula and Great Falls facilities, the number of unit employees has been reduced from 20 to 9, there has been almost a 100-percent turnover among the unit employees inas- much as only 1 of the 9 employees currently employed was employed at the time of the election, and there has been a 4-1/2-year interval between the representation election and Respondent's refusal to bargain; or (2) the Union has become defunct because since 1983 it has had no members, no officers, no membership meetings, and has not collected membership dues. For the reasons set forth hereinafter, I reject Respondent's contention that the circumstances have changed sufficiently to justify its disregard of the Board's certification of the Union. 2 If it is obligated to recognize and bargain with the Union, Respond- ent admits it violated the Act by refusing to provide the Union the re- quested information (Tr 13(a)-14) PONY EXPRESS COURIER CORP. 1289 The reduction in the size of the bargaining unit from four to two facilities, the decrease in the number of the employees from 20 to 9, and the employee turnover, when viewed in their totality, do not constitute "unusual circumstances" within the meaning of Brooks, for, as the Board in Georgetown Dress Corp., 217 NLRB 41, 42 (1975), in dealing with a similar contention, explained:3 0, Respondent now raises the defense that, because of changed circumstances arising out of employee turnover and substantial changes in operational facts in connection with its business since the February 1973 election, the results of that election are not representative of employee sentiment at the time of the Union's request to bargain on November 8, 1974. In support of this position Respondent alleges a drop in the number of employees and economic reasons causing substantial reduction in business. It is well established that since the Union was selected by majority employee choice, Respondent's obliga- tion to bargain extends for 1 year from the date of the Union's certification here on November 6, 1974, and employee turnover, diminished employment, or reduced operation does not constitute "unusual cir- cumstances" within the Supreme Court decision in Ray Brooks v NLRB ... . To entertain this de- fense, moreover, would produce the anomalour result of permitting the Respondent to benefit be- cause of a lapse of time occasioned from affording the Respondent the opportunity to fully participate in an adversary manner thereby abrogating the im- portance of the Board's election. Nor does the delay in the issuance of the Union 's certifi- cation by the Board excuse the Respondent's refusal to bargain, for the law is settled : "[T]he Board is not re- quired to place the consequences of its own delay, even if inordinate, upon wronged employees ." NLRB v. J. H. Rutter Rex Mfg. Co., 396 U.S. 258, 265 (1969). See also NLRB v. Iron Workers Local 4819, 466 U.S. 720 (1984). This is especially true when, as here, there is no conten- tion or evidence Respondent was in any way prejudiced by the delay. Regarding Respondent's contention that the Union is defunct, the proper standard for determining whether a labor organization is defunct is set forth in Hershey Choc- olate Corp., 121 NLRB 901, 911 (1958):4 A representative is defunct . . . if it is unable or un- willing to represent the employees. However, mere temporary inability to function does not constitute defunctness; nor is the loss of all members in the a See also Atlantic International Corp., 246 NLRB 291, 295 (1979) (dim- inution of production space and decrease in number of employees from 455 to 150 does not constitue "unusual circumstances"), S. Prawaer & Co., 232 NLRB 495, 496 (1977) ("employee turnover does not constitute 'un- usual circumstance' within the meaning lof Ray Brooks]" for "it is pre- sumed that new employees desire representation in the same proportion as other employees"), Baldwin League of Independent Schools, 281 NLRB 981 (1986) (closure of one of three facilities does not constitute "unusual circumstances") 4 See also Kent Corp., 272 NLRB 735 (1984), in which the Board re- cently reaffirmed its use of the Hershey Chocolate standard for determin- ing whether a union is defunct unit the equivalent of defunctness if the representa- tive continues in existence and is willing and able to represent the employees. Applying this test to the instant case, the record reveals Respondent has failed to prove the Union is defunct. Although the Union for at least 3 years has had no members or officers and has not conducted membership meetings or collected membership dues, it is able and willing to represent the unit employees. This is evi- denced by the following: Immediately after the Union's certification by the Board, the Union's first opportunity to demonstrate its willingness and ability to represent the unit employees, Union Business Agent Stiffler wrote Re- spondent that the Union would communicate with it in the near future about starting negotiations for a contract covering the employees in the certified unit, but before starting negotiations wanted certain information which it needed to intelligently represent the employees; Stiffler, in his capacity as union business agent, filed the unfair labor practice charge in this case and appeared on behalf of the Union at the hearing in this case; Stiffler testified that as the union business agent he was able and willing to represent the unit employees on behalf of the Union for purposes of collective bargaining;5 Stiffler, in his ca- pacity as union business agent, in the fall of 1986, con- ducted a campaign on behalf of the Union to organize the employees of another company and in the spring of 1987, in his capacity as union business agent, lobbied the State's legislators on behalf of Respondent's employees for changes in the State's laws governing motor vehicle safety regulations. In view of these circumstances, Re- spondent has failed to establish, within the meaning of Hershey Chocolate, that the Union is defunct. See Kent Corp., 272 NLRB 735 (1984) (union held not to be de- funct even though it had no members, no membership applications, no initiation fees, no dues, no treasury, no bank account, no books and records, no meetings, no recent election of officers, and no information available to unit employees about contract negotiations or at- tempts to enforce the most recent bargaining contract). CONCLUSIONS OF LAW By failing and refusing to provide the Union with the information requested in a letter received by Respondent on 18 December 1986, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. THE REMEDY Having found that the Repondent has violated Section 8(a)(5) and (1) of the Act, I shall recommend it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understand- 5 Respondent does not contend and did not present evidence which es- tablished that Stuffier was not authorized to act on behalf of the Union. Rather the record reveals that Stuffier was the Union's founder, the chair- man of its organizational committee, and its business agent and secretary, and that after his unlawful termination by Respondent continued to occupy the position of union business agent. 1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing in a signed agreement ; and to provide the Union with the information requested in the letter received by Re- spondent on 18 December 1986. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the 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 Construc- tion Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eda ORDER The Respondent, Pony Express Courier Corporation, Helena and Billings, Montana, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Montana Union of Guards as the exclusive bargaining representative of the employees in the bargaining unit. (b) Refusing to provide the Montana Union of Guards with the information requested by that Union in the letter received 18 December 1986. (c) In any like or related manner interfering with, re- straining, 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 Montana Union of Guards as the exclusive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full time and regular part time courier drivers employed by [Respondent] in Helena, Missoula, Bil- lings, and Great Falls, Montana, but excluding con- fidential employees and supervisors as defined in the Act. (b) Provide the Montana Union of Guards with the in- formation requested by that Union in the letter received 18 December 1986. (c) Post at its facilities in Helena and Billings, Mon- tana, copies of the attached notice marked "Appendix." Copies 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 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 Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order what steps the Re- spondent has taken to comply. al 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." 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 the Montana Union of Guards as the exclusive representative of the employees in the bargaining unit. WE WILL NOT refuse to provide the Montana Union t* Guards with the information requested by that Union in the letter received 18 December 1986. WE WILL NOT in any like or related manner interfer with, restrain, or coerce you in the exercise of the rights guranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Montana Union of Guards and put in writing and sign any agree- ment reached on terms and conditions of employment for our employees in the bargaining unit: All full time and regular part time courier drivers employed by us in Helena, Missoula, Billings, and Great Falls, Montana, but excluding confidential employees and supervisors as defined in the Nation- al Labor Relations Act. 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 .48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. I 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 Nation- WE WILL provide the Montana Union of Guards with the information requested by that Union in the letter re- ceived 18 December 1986. PONY EXPRESS COURIER CORPORATION