Pony Express Courier Corp.

National Labor Relations Board - Board Decisions

Oct 27, 1989

297 N.L.R.B. 171 (N.L.R.B. 1989)

PONY EXPRESS COURIER CORP 171
Pony Express Courier Corporation and Southeast
Service Specialists Employees Union and South-
east Service Specialists Employees Union, Cen-
tral Florida Chapter. Cases 12-CA-11391, 12-
CA-11392, 12-CA-11393, and 12-CA-11433
October 27, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On February 12, 1986, Administrative Law
Judge Lawrence W Cullen issued an Order' in
which he dismissed the complaints in their entirety
and revoked the underlying certifications Charging
Party Southeast Service Specialists Employees
Union, Central Florida Chapter filed exceptions,
the General Counsel filed limited exceptions, and
the Respondent filed an answering brief
On August 15, 1986, the Board found that the
judge had improperly revoked the certifications
and issued an order remanding proceeding to the
administrative law judge for the purpose of reopen-
ing the hearing to take further evidence on the
issue of whether the Charging Parties should be
disqualified from representing the employees in the
certified units and to issue a supplemental decision
The judge thereafter issued the attached supple-
mental decision on May 11, 1988 The Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering brief and a
cross-exception
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the supplemental deci-
sion in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
'The Order was pursuant to an Order to Show Cause issued by the
judge on January 2, 1986, and an Amended Order to Show Cause Issued
on January 16, 1986 The General Counsel, the Respondent, and the
Charging Parties filed responses
2 The judge, in taking official notice of the representation cases under
lying the four certifications at Issue in this proceeding, Inadvertently
failed to state that he had also taken official notice of the record in Case
12-RC-6634 That case involved a local of the Charging Party not here
Involved and Wells Fargo Armored Service Corporation The testimony
of Cecil Zimmer concerning his association with S S S Consultants, Inc
and his consulting activities for various banks and other financial Institu-
tions was developed in Case 12-RC-6634 rather than, as found by the
judge, in the underlying Cases 12-RC-6503, 12-RC-6518, 12-RC-6533,
and 12-RC-6540
The judge also erred in finding that the issue of Zimmer s conflict of
interest had been resolved at the underlying representation hearing" As
indicated above, Case 12-RC-6634 is not an "underlying" case in this
unfair labor practice proceeding and, in any event, the petition was with-
drawn at the close of the heanng Finally, the Respondent s lawsuit
against Zimmer for violation of the noncompete clause of their former
employment contract was filed because of Zimmer s having started a
competing courier company not as suggested by the judge, because he
attempted to obtain a postemployment consulting contract with the Re-
spondent itself
conclusions 3 only to the extent consistent with this
Decision and Order
As set forth in detail by the judge, the com-
plaints allege (1) that the North Florida, South
Florida, Central Florida, and Tampa Bay chapters
of the Southeast Service Specialists Employees
Union (SSSEU) were duly certified by the Board
on various dates in 1984, (2) that immediately
thereafter each chapter requested that the Re-
spondent, Pony Express Courier Corporation, rec-
ognize and bargain with it, (3) that the North,
South, and Central Florida chapters also requested
that the Respondent provide them with certain rel-
evant information necessary for collective bargain-
ing, and (4) that the Respondent refused in all these
instances to honor the requests and thereby violat-
ed Section 8(a)(5) and (1) of the Act
The Respondent admits all these factual allega-
tions, and thus we agree with the judge that the
General Counsel has presented a prima facie case
that the Respondent has violated the Act as al-
leged The Respondent, however, defends against
the refusal-to-bargain allegations on the ground
that the Charging Party locals are disqualified from
representing its employees because of numerous ac-
tivities and involvements constituting conflicts of
interest on the part of Cecil Zimmer, the founder
in 1984 of the SSSEU and each of its locals and
the business agent of each local 4
A brief chronology is necessary to set the back-
ground against which to evaluate the Respondent's
contentions The four certifications were issued
from August through October 1984 and the locals'
individual requests for bargaining and information
occurred during the same period The complaints
issued in November 1984 and January 1985 The
subsequent hearing in a collateral representation
proceeding, Case 12-RC-6634, was held in July
1985 It was in this proceeding that Zimmer first
testified about the activities that form the basis of
the Respondent's claim of a disqualifying conflict
of interest We find, in agreement with the Re-
spondent, that this evidence, elicited subsequent to
the certifications and entered into this record by
-
3 The General Counsel excepts to the judge s recommendation that the
Board permanently bar Cecil Zimmer from ever again serving in a repre-
sentation capacity in a Board proceeding We agree with the General
Counsel that this recommendation is not in accord with the Board s
Rules and Regulations, which provide, in Sec 102 44, that misconduct at
an unfair labor practice hearing shall be ground for suspension or dis-
barment by the Board from further practice before It after due nonce and
hearing" Since prior to the issuance of the judge s decision Zimmer was
not put on notice that his suspension or disbarment was being considered
and no hearing has been held on this matter, we will not adopt the
judge's recommendation
4 Zimmer promulgated the constitution and bylaws for each chapter,
Issued the local charters and was responsible for all reporting require-
ments He also filed all the Instant charges on behalf of the chapters and
represented them before the Board at various times in these proceedings
297 NLRB No 19
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stipulation of the parties, is "newly discovered and
previously unavailable" within the meaning of
Pittsburgh Plate Glass Co v NLRB, 313 U S 146,
162 (1941), and Sections 102 67(f) and 102 69(c) of
the Board's Rules and Regulations See Ohio Plate
Glass Go, 271 NLRB 694 (1984) 5
According to Zimmer's testimony, he is the
owner and president of S S S Consultants, a firm
incorporated by him in 1979 or 1980 S S S has ad-
vised various banks and other financial institutions
in Florida about which armored service company
would best meet their security needs These institu-
tions have all been either customers or potential
customers of both the Respondent and Wells
Fargo 6 Zimmer, as the principal of S S 5, also has
consulted on labor relations matters for Loomis
Armored Car Company, which is a competitor in
Florida of Wells Fargo Zimmer stated that he
would continue to act as a management consultant
to Loomis when called upon, if he is available
We find, for the reasons set forth below, that the
Respondent has proved its affirmative defense The
evidence shows that at the time the Respondent
was alleged to have initially violated Section
8(a)(5) Zimmer was a key official of each local
chapter and his personal business relationships with
customers of the Respondent, as well as with one
of its competitors, constituted conflicts of interest
such that good-faith bargaining between the local
chapters and the Respondent could have been jeop-
ardized
As the Board stated in Harlem River Consumers
Cooperative, 191 NLRB 314, 319 (1971)
[I]t is improper for a union agent to have fi-
nancial interests which require him to deal
with the Employer in a capacity other than as
union agent The employees he represents are
entitled to his undivided loyalty and the em-
ployer is entitled to know that in his dealings
with the representative of his employees the
' relationship will be governed by the legitimate
concerns of collective bargaining and not spe-
cial concerns unrelated thereto
Here there is an inherent danger that Zimmer, as
business agent for each of the locals, may make
bargaining demands or be willing to grant conces-
sions that would subordinate the employees' inter-
ests to those of his personal consulting business in
the security industry For example, information ob-
5 The General Counsel in her answering brief to the Respondent's ex
-ceptions essentially concedes this point She asserts however, without ar-
gument, that the evidence is not sufficient to warrant finding the certifi-
cations invalid
° These two companies are both wholly owned by Baker Industries,
Inc , which Itself is owned by Borg-Warner Corporation Both the Re-
spondent and Wells Fargo operate extensively in Florida with the former
providing courier services and the latter providing armored services
tamed from the Respondent concerning trade oper-
ations or secrets may be relayed by Zimmer to the
Respondent's customers and competitors, thereby
creating a situation of mistrust inhibiting to the bar-
gaining process 7 Also, Zimmer's consulting career
may be advanced by his tailoring employee de-
mands in collective bargaining to ingratiate himself
with the Respondent's competitors 8
The Respondent has established that Zimmer's
conflicts of interest precluded free and fair collec-
tive bargaining Notwithstanding the complaint al-
legations that the Respondent's initial refusals to
bargain in 1984 were continuing ones, the burden is
on the General Counsel to show that the locals'
disabilities, based on Zimmer's personal conflicts of
interest, have been cured In other words, in order
for the Respondent's suspended duty to bargain g to
be reinstated and an 8(a)(5) violation to occur, two
sets of conditions must be met First, either the
SSSEU locals must divest themselves of Zimmer
and thus become autonomous, or Zimmer—if re-
taining his key position in each local—must divest
himself of his disqualifying outside activities 10
Second, given a successful rebuttal of Zimmer's
disability, the General Counsel must then show
notice to the Respondent of the disability's termina-
tion, new demands by the locals for bargaining and
information, and subsequent refusals by the Re-
spondent
We find that the General Counsel has failed to
meet the preliminary requirement of showing that
the disability has ended There is no evidence con-
cerning Zimmer's divestiture of his consulting ac-
tivities, and the record is insufficient to demon-
strate that the locals, in their bargaining capacities,
are now independent of Zimmer's influence
As the judge found, Zimmer informed the
Region on December 17, 1985, that he had re-
signed as business agent of all four locals and that
he would no longer represent them before the
Board Additionally, H E Williams, secretary of
the Central Florida Local, testified on October 15,
1986, that the Local had formally discharged
Zimmer as business agent on January 11, 1986
However, 2 weeks after this purported discharge,
on January 23, 1986, Zimmer again participated in
this proceeding by filing a response, specifically on
behalf of the locals, to the judge's Notice to Show
Cause
The Respondent had caused to be served on
Zimmer subpoenas requesting the production of
7 CBS Inc , 226 NLRB 537, 539 (1976)
9 McDonalds of Canoga Park Calif, 162 NLRB 367 (1966), and Natron-
a! Food Stores of Louisiana, 186 NLRB 127 (1970)
9 See Bausch el Lomb Optical Co, 108 NLRB 1555, 1562 (1954)
1° Garrison Nursing Home, 293 NLRB 122 (1989)
PONY EXPRESS COURIER CORP 173
various categories of documents The judge specifi-
cally refers to the request for Zimmer's personal
income tax records and their relationship to "possi-
ble business conflicts" The record shows that the
subpoenas additionally requested other information
bearing on both the conflicts themselves and the
continuity aspects of the Respondent's defense 11
On February 17, 1987, the United States District
Court for the Middle District of Florida enforced
the subpoenas At the Board hearing on November
16, 1987, Zimmer was called as a witness by the
Respondent and promptly stated that he could not
produce the required documents because he had
destroyed them in March 1987
The Respondent also sought to introduce evi-
dence in this proceeding, through the subpoenaed
documents, which would have reinforced Zimmer's
testimony in Case 12-RC-6634 The documents
were relevant to a determination regarding both (1)
the nature and extent of Zimmer's personal business
activities and their effect on the asserted conflicts
of interest, and (2) the status, 3 years after the Re-
spondent's initial refusals to bargain, of the Charg-
ing Party Locals' official relationships with
Zimmer
The evidence before us, consisting of the report
to the Region of Zimmer's resignations from the
locals in late 1985 and Williams' testimony that the
Central Florida Local discharged Zimmer in early
1986 is contradicted by Zimmer's later participa-
tion in this proceeding as the representative of the
locals There is thus a substantial doubt as to
whether the locals have divested themselves of
Zimmer and are now capable of autonomous par-
ticipation in collective bargaining with the Re-
spondent Because we are precluded by Zimmer's
conduct from resolving that doubt, we draw the in-
ference that the withheld documents, which we
find to be relevant to the issue of autonomy, would
not have rebutted the Respondent's evidence that
Zimmer's conflicts of interest precluded fair bar-
gaining Accordingly, we conclude that the Re-
spondent has not violated the Act in refusing to
" The subpoenas requested the production of (I) Zimmer's individual
tax returns and those of his company, S S S Consultants, Inc, for the
years 1981 through 1985 and all documents relating to services performed
by Zimmer and S S S Consultants for any armored service company,
courier company, or financial institution from 1981 through October 14,
1986, specifically including all documents showing income, (2) SSSEU's
tax returns for the years 1981 through 1985, all documents showing
Income received by Zimmer from SSSEU or any of its locals from 1981
through October 14, 1986, and for the same period, all documents relat-
ing to Zimmer's employment by SSSEU or any services performed by
him for the Union, and (3) all documents concerning any effort by
Zimmer individually, S S S Consultants, and SSSEU or any of its locals,
from 1981 through October 14, 1986 to purchase Wells Fargo Armored
Service Corporation or Pony Express Courier Corporation, specifically
including any contacts with individuals or financial institutions
bargain We shall dismiss the complaints and
revoke the certifications
ORDER
The complaints are dismissed
IT IS FURTHER ORDERED that the certifications
issued in Cases 12-RC-6503, 12-RC-6518, 12-RC-
6533, and 12-RC-6540 are revoked
Margaret J Diaz, Esq , for the General Counsel
Brent L Wilson and Robert L Thompson, Esqs (Elarbee,
Thompson, di Trapnell), of Atlanta, Georgia, for the
Respondent
Thomas J Pilachek, Esq , of Orlando, Florida, for Charg-
ing Party Southeast Service Specialists Employees
Union, Central Florida Chapter
Cecil A Zimmer, of Silver Springs, Florida, for Charging
Party Southeast Service Specialists Employees Union
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
LAWRENCE W CULLEN, Administrative Law Judge
This case was heard before me on separate days on 16
and 17 December 1985, 15 October 1986, and 16 Novem-
ber 1987, pursuant to a consolidated complaint filed by
the Regional Director for Region 12 of the National
Labor Relations Board on 19 November 1985, alleging
that Pony Express Courier Corporation (Pony Express
or Respondent) has refused to recognize and bargain
with the Charging Parties' Southeast Service Specialists
Employees Union (SSSEU) North Florida Chapter,
SSSEU, South Florida Chapter, SSSEU, Tampa Bay
Chapter, and SSSEU, Central Florida Chapter and that
Respondent failed to provide the SSSEU, South Florida
Chapter, SSSEU, Central Florida Chapter, and SSSEU,
North Florida Chapter with certain information' con-
cerning the respective units in order to enable them to
bargain with Respondent, all in violation of Section
8(a)(5) and (1) of the Act The c9nsolidated complaint in
Cases 12-CA-11391, 12-CA-11392, and 12-CA-11393
are based on charges filed in those cases on 18 October
1984, by SSSEU, North Florida Chapter, SSSEU, South
Florida Chapter, and SSSEU, Tampa Bay Chapter The
' The information requested by the SSSEU, North Flonda Chapter is
as follows (1) The full names, addresses, and telephone numbers of all
employees, (2) dates of hire of all employees, (3) current rates of pay of
all employees, (4) outlines of the employee group life and health Insur-
ance plans and costs of each, (5) outline of the employee pension plan
and cost of same, (6) outline of all other employee benefits, and (7) em-
ployee identification numbers of all employees
The information requested by the SSSEU South Florida Chapter is as
follows (1) The full names, addresses, and telephone numbers of all em-
ployees, (2) dates of hire and employee identification numbers of all em-
ployees, (3) current rates of pay of all employees, (4) outlines of the em-
ployee group life and health insurance plans and costs of each, and (5)
outline of the employee pension plan and the cost of same
The information requested by the SSSEU, Central Florida Chapter is
as follows (1) The full names, addresses, and telephone numbers of all
employees, (2) dates of hare and employee identification numbers of all
employees, (3) current rates of pay of all employees, (4) outlines of the
employee group life and health Insurance plans and cost of each, and (5)
outline of the employee pension plan and the cost of same
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
complaint in Case 12-CA-11433 is based on a charge
filed by SSSEU, Central Florida Chapter on 4 December
1984
A The Appropriate Units
Following the election held on 29 and 30 August 1984,
the Southeast Service Specialists Employees Union
(SSSEU) North Florida Chapter was certified on 12 Sep-
tember 1984, as the collective-bargaining representative
of the employees in the following appropriate unit
All full-time and regular part-time courier guards
employed by Respondent at its Jacksonville,
Gainesville, and Tallahassee, Florida locations, ex-
cluding office clerical employees, dispatchers, lead
courier guards and supervisors as defined in the
Act
Following the election held on 1 and 2 August 1984,
the Southeast Service Specialists Employees Union
(SSSEU) Tampa Bay Chapter unit was certified on 13
August 1984, as the collective-bargaining representative
of the employees in the following appropriate unit
All full-time and regular part-time courier guards
employed by Respondent at its Tampa, Fort Myers,
Sarasota, and Punta Gorda, Florida locations, but
excluding office clerical employees, dispatchers, me-
chanics, all other employees, and supervisors as de-
fined in the Act
Following the election held on 27 and 28 September
1984, the Southeast Service Specialists Employees Union
(SSSEU) South Florida Chapter unit was certified on 10
October 1984, as the collective-bargaining representative
of the employees in the following appropriate unit
All full-time and regular part-time courier guards
employed by Respondent at its Miami, Fort Lauder-
dale and West Palm Beach locations, excluding
office clerical employees, dispatchers, mechanics,
supervisors as defined in the Act, and all other em-
ployees
Following the election held on 26 October 1984, the
Southeast Service Specialists Employees Union (SSSEU)
Central Florida Chapter was certified on 6 November
1984, as the collective-bargaining representative of the
employees in the following appropriate unit
All full-time and regular part-time courier guards
employed by Respondent at its Orlando, Florida lo-
cation, but excluding office clerical employees, me-
chanics, dispatchers, lead courier guards and super-
visors as defined in the Act
B Background and Facts
On 7 January 1985, the General Counsel filed a
Motion for Summary Judgment in Cases 12-CA-11391,
12-CA-11392, and 12-CA-11393, and filed a Motion for
Summary Judgment in Case 12-CA-11493 on 4 Febru-
ary 1985
Following the filing of the Motion for Summary Judg-
ment by the General Counsel, the Respondent filed to
reopen the records in the underlying representation cases
and to submit "newly discovered and/or previously un-
available evidence" Pursuant to the General Counsel's
concurrence the Board remanded the four unfair labor
practices to the Regional Director for Region 12 and the
Regional Director issued a notice of hearing The hear-
ing was commenced before me on 16 December 1985 At
the request of the parties I took official notice of the un-
derlying representation Cases 12-RC-6003, 12-RC-6518,
12-RC-6533, and 12-RC-6540 2
In its answer and at the hearing Respondent admitted
its refusal to recognize and bargain with the Unions and
to furnish SSSEU, North Florida Chapter, SSSEU,
South Florida Chapter, SSSEU, Central Florida Chapter
with information to bargain, but attacks the validity of
the certifications and contends that the Unions are dis-
qualified from serving as the collective-bargaining repre-
sentative for the bargaining units on several grounds Ini-
tially the Respondent contends that the Unions admit
nonguards to a guard unit Secondly, Respondent con-
tends that the Unions were not appropriate bargaining
representatives at the times of the refusals to bargain and
should be disqualified as the result of their association
with Cecil Zimmer at the time of their refusal to bargain
Zimmer is a former employee and vice president of Re-
spondent who left its employment in 1984 and attempted
to negotiate a contract with Respondent as a consultant
in the courier business which business Respondent con-
tends violated a contract between Zimmer and Respond-
ent restraining Zimmer from engaging in a competing
business According to the testimony of Zimmer, Re-
spondent initially obtained an injunction against his en-
gaging in a competing business Respondent and Zimmer
have since been engaged in litigation according to the
testimony of Zimmer
In 1984 Zimmer initiated the organization of the
Charging Parties which were to be part of an Interna-
tional Union (Southeast Service Specialists Employees
Union) headed by Zimmer Zimmer also became a busi-
ness agent for the Charging Party Local Unions In the
underlying representation cases, it was developed by the
admitted testimony of Zimmer that he was the principle
officer and head of S S S Consultants, an organization
wherein Zimmer consults with banks and other entities
who do business with Respondent by utilizing Respond-
ent's courier service Zimmer's role, as he described it,
was to consult with these concerns by advising them on
the use of outside courier services (such as Respondent)
Zimmer also conceded at the hearing that he has ad-
vised a competitor of Respondent's on labor relations
matters Respondent contends that Zimmer's activities
constitute a conflict of Interest which disqualify the
Charging Parties from representing the employees in the
appropriate bargaining unit Respondent also cites letters
2 I also find that Respondent admits and is an employer within the
meaning of Sec 2(6) and (7) of the Act and that the Unions are labor
organizations within the meaning of Sec 2(5) of the Act on the basis of
the determinations made in the underlying certification hearing and on
the evidence before me in this case
PONY EXPRESS COURIER CORP 175
written by Zimmer to the president of Borg Warner
Company in which he makes anti-Semitic statements
against the president of Baker Industries which is a
wholly owned subsidiary of Borg Warner Corporation
and which is the holding company of Respondent In
these letters Zimmer has also contended that the Presi-
dent of Borg Warner does not know how to manage and
has also offered to buy Respondent Pony Express
On the initial date of the hearing on 16 December
1985, the General Counsel presented the certifications
and the underlying documentation and Respondent's ad-
mitted refusal to bargain and to furnish information to
the Charging Parties as alleged in the complaint and con-
tended that a prima facie case of refusal to bargain by
Respondent had been made Zimmer appeared as repre-
sentative of the SSSEU, the International Union of the
Charging Parties and as representative of the individual
Charging Party Chapters of SSSEU, eliciting testimony
from witnesses that they had engaged in activities as a
collective-bargaining representative, that the chapters ex-
isted to help employees gain better wages and improve-
ments in their terms and conditions of employment and
that officers were elected at meetings by a vote of the
membership, among other business of the chapters in aid
of their members
At the hearing of 16 December 1985, Respondent
caught the production of certain documents which had
been subpoenaed from Zimmer On the morning of the
next day, 17 December 1985, Zimmer telephoned the
General Counsel and stated that he was withdrawing as
representative of the Charging Parties and would not
further attend the hearing After an Order to Show
Cause was entered, I dismissed the complaints as the
result of Zimmer's noncooperation at the hearing The
Board reversed this decision and remanded the case to
me to take further evidence from the Charging Party and
to proceed with the adjudication of the unfair labor prac-
tice cases
Enforcement of Respondent's subpoenas of Zimmer
was obtained in Federal district court by the General
Counsel and after over a year of delays and postpone-
ments incurred as result of the inability to locate and
serve Zimmer with a copy of the district court's order,
service was finally obtained and Zimmer appeared at the
hearing on 16 November 1987 and took the stand during
which he peppered insults at Respondent and its repre-
sentatives and when called on to produce the records,
contended he had burned them in February 1987 At that
point the Respondent refused to proceed with cross-ex-
animation of Zimmer or to otherwise proceed in this
case The General Counsel has refused to proceed to in-
stitute contempt proceedings against Zimmer as request-
ed by Respondent At the hearing I urged the Respond-
ent to proceed and informed it that I would consider clo-
sure of the record in the event Respondent refused to go
forward The record was subsequently closed in this case
by my Order of 5 January 1988
C Analysis
The General Counsel contends that the Respondent
has failed to present newly discovered evidence and that
it has presented no new evidence which was not previ-
ously litigated at the original representation hearing and
that a finding of violations of Section 8(a)(5) and (1)
should be made against Respondent as a result of its re-
fusal to bargain with the four Charging Parties and to
furnish the information for bargaining requested by three
of them In support of its position the General Counsel
cites Pittsburgh Plate Glass Co v NLRB, 313 U S 146,
162 (1941), Ohio Plate Glass Go, 271 NLRB 694 (1984),
and Section 102 67(f) of the Board's Rules and Regula-
tions
I find that the authorities cited by the General Counsel
fully support its position Thus, in Ohio Plate Glass Go,
supra, the Board in citing Pittsburgh Glass Co v NLRB,
stated
It is well settled that in the absence of newly dis-
covered and previously unavailable evidence or spe-
cial circumstances, a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled to
rehtigate issues that were or could have been litigat-
ed in a prior representation proceeding
The Board found in Ohio Plate Glass Go, supra, that
all issues raised by the respondent in that case were or
could have been litigated in the prior representation pro-
ceeding Similarly, in the instant case before me I find
that all of the issues raised by Respondent at the unfair
lhbor practice proceeding were or could have been
raised by Respondent at the hearing Further, notwith-
standing the conduct of Zimmer at the hearing and his
refusal to comply with the subpoenaed material, I find
that Respondent had a duty to proceed with any newly
discovered evidence that it had but chose to refuse to do
so pending the institution of contempt proceedings
against Zimmer From all that I can glean from the
record in this case, the record in the underlying repre-
sentation cases and Respondent's briefs in support of its
motion to dismiss the complaint, Respondent has not
shown or demonstrated what the alleged newly discov-
ered evidence was which would excuse its refusal to bar-
gain with the Charging Parties Rather, its attempts to
obtain the income tax records of Zimmer would only
have shown possible business conflicts of Zimmer with
his role as the representative of the Unions involved
herein, an issue that was resolved at the underlying rep-
resentation hearing
I thus find that the General Counsel has made a prima
facie case that the Charging Parties were properly certi-
fied as the collective-bargaining representative of the em-
ployees in the appropriate bargaining units I find that
Respondent has failed to rebut the prima facie case I
thus find that Respondent violated Section 8(a)(5) and (1)
of the Act by its refusal to bargain with the Charging
Parties and by its refusal to provide information for bar-
gaining to Charging Parties SSSEU, South Florida
Chapter, SSSEU, North Florida Chapter, and SSSEU,
Central Florida Chapter which information I find to be
necessary for the Unions to bargain on behalf of their
members
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D The Conduct of Cecil A Zimmer
Initially the cases before me had resulted from a filing
of a charge by Cecil A Zimmer in a representative ca-
pacity on behalf of the Charging Parties Subsequently,
Zimmer participated in the hearing as a representative of
the Charging Parties and questioned witnesses at the
hearing and participated in conferences between counsel
and me Zimmer had been subpoenaed by Respondent as
had his records After the first day of the hearing,
Zimmer called the General Counsel and informed her he
was withdrawing as representative for the Charging Par-
ties and would not further attend the heanng Zimmer
thereupon failed to comply with subpoenas found by me
to have been validly served on him, and to produce doc-
uments determined to be relevant Subsequently, the
General Counsel sought compliance in Federal district
court and an order was entered by United States District
Judge Hodges, ordering Zimmer to appear and testify
and comply with the subpoenas issued to him at a time
and place to be designated by me Additional hearing
dates were scheduled by me and then canceled as a
result of an inability to find and serve Zimmer with
notice thereof until 16 November 1987, the hearing date
which Zimmer attended and at which he denied that he
had received notice of the hearing but asserted that he
was there only as a result of a telephone call informing
him of the hearing by the General Counsel I find, how-
ever, that a return receipt of service for the 16 Novem-
ber 1987 hearing was signed by Zimmer and discredit his
assertion that he was not duly served with the riotice
thereof Zimmer took the stand on 16 November 1987,
and as the record will bear out steadfastly refused to
comply with the subpoenas and testified that he had
burned his income tax records in 1987 which had been
the subject of the subpoena of December 1985 He also
persisted in issuing derogatory remarks toward Respond-
ent's counsel and officers or representatives of Respond-
ent despite protestations by Respondent's counsel and
direct orders by me to refrain from so doing His con-
duct was out of order The General Counsel has an-
nounced that it has determined not to seek contempt pro-
ceedings as a result of Zimmer's refusal to comply with
the subpoenas
I find that Zimmer's conduct in this proceeding had
the effect of making a mockery of this proceeding, wast-
ing the time and resources of all involved, precluding the
making of a complete record in this case or at a mini-
mum obstructing the same and causing unwarranted
delay of the final outcome of this case I, accordingly,
recommend that Cecil A Zimmer be permanently barred
from again serving in a representation capacity in any
proceedings before this Board
CONCLUSIONS OF LAW
1 The Respondent, Pony Express Courier Corpora-
tion, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
2 Southeast Service Specialists Employees Union
(SSSEU) North Florida Chapter, Southeast Service Spe-
cialists Employees Union (SSSEU) South Florida Chap-
ter, Southeast Service Specialists Employees Union
(SSSEU) Central Florida Chapter, and Southeast Service
Specialists Employees Union (SSSEU) Tampa Bay
Chapter are each and were each at all times material
herein labor organizations within the meaning of Section
2(5) of the Act
3 At all times material herein the Southeast Service
Specialists Employees Union (SSSEU) North Florida
Chapter has been and continues to be the exclusive rep-
resentative of the employees in the following appropriate
unit under Section 9(a) of the Act
All full-time and regular part-time courier guards
employed by Respondent at its Jacksonville,
Gainesville, and Tallahassee, Florida locations, ex-
cluding office clerical employees, dispatchers, lead
courier guards and supervisors as defined in the
Act
4 At all times material herein the Southeast Service
Specialists Employees Union (SSSEU) South Florida
Chapter has been and continues to be the exclusive rep-
resentative of the employees in the following appropriate
unit under Section 9(a) of the Act
All full-time and regular part-time courier guards
employed by Respondent at its Miami, Fort Lauder-
dale and West Palm Beach locations, excluding
office clerical employees, dispatchers, mechanics,
supervisors as defined in the Act, and all other em-
ployees
5 At all times material herein the Southeast Service
Specialists Employees Union (SSSEU) Tampa Bay
Chapter has been and continues to be the exclusive rep-
resentative of the employees in the following appropriate
unit under Section 9(a) of the Act
All full-time and regular part-time courier guards
employed by Respondent at its Tampa, Fort Myers,
Sarasota, and Punta Gorda, Florida locations, but
excluding office clerical employees, dispatchers, me-
chanics, all other employees, and supervisors as de-
fined in the Act
6 At all times material herein the Southeast Service
Specialists Employees Uniori (SSSEU) Central Florida
Chapter has been and continues to be the exclusive rep-
resentative of the employees in the following appropriate
unit under Section 9(a) of the Act
All full-time and regular part-time courier guards
employed by Respondent at its Orlando, Florida lo-
cation, but excluding office clerical employees, me-
chanics, dispatchers, lead courier guards, and super-
visors as defined in the Act .
7 By its refusal to recognize and bargain with the
Southeast Service Specialists Employees Union (SSSEU)
North Florida Chapter since on or about 17 September
1984, Southeast Service Specialists Employees Union
(SSSEU) South Florida Chapter, since on or about 28
September 1984, Southeast Service Specialists Employ-
ees Union (SSSEU) Central Florida Chapter since on or
PONY EXPRESS COURIER CORP 177
about 27 October 1984, and Southeast Service Specialists
Employees Union (SSSEU) Tampa Bay Chapter since on
or about 17 September 1984 as requested by said Unions,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act
8 By its refusal to furnish Southeast Service Special-
ists Employees Union (SSSEU) South Florida Chapter
since on or about 28 September 1984, Southeast Service
Specialists Employees Union (SSSEU) North Florida
Chapter since on or about 17 September 1984, Southeast
Service Specialists Employees Union (SSSEU) Central
Florida Chapter since on or about 27 October 1984 with
necessary information requested by said Unions for bar-
gaining Respondent has violated Section 8(a)(5) and (1)
of the Act
9 The unfair labor practices set out above are unfair
labor practices affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act
THE REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act, I find it necessary to order
them to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act
I recommend that in order to ensure that the employ-
ees are accorded the services of their selected bargaining
agent for the period provided by law, that the initial
period of the certification be construed as beginning on
the date the Respondent begins to bargain in good faith
with the Union Mar-Jac Poultry Go, 136 NLRB 785
(1962), Lamar Hotel, 140 NLRB 226, 229 (1962), enfd
328 F 2d 600 (5th Cir 1984), cert denied 379 U S 817
(1964), Burnett Construction Go, 149 NLRB 1419, 1421
(1964), enfd 350 F 2d 57 (10th Cir 1965), Ohio Plate
Glass Go, supra I recommend that the Respondent on
request bargain with the Unions and furnish them with
the necessary information requested for bargaining as
specifically set out above and as required by the Act
[Recommended Order omitted from publication ]