MDS Courier Service, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1980

248 N.L.R.B. 1320 (N.L.R.B. 1980)

1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MDS Courier Service, Inc. and Teamsters Local No.
150, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Petitioner. Case 20-RC-14900
April 21, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer James F.
Myers. Following the close of the hearing on Sep-
tember 27, 1979, and pursuant to Section 102.67 of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Regional Di-
rector for Region 20, on October 30, 1979, trans-
ferred this case to the Board for decision. There-
after, the Employer filed with the Board a brief
which had previously been filed with the Regional
Director.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board, having duly considered the Hearing
Officer's rulings made at the hearing, finds they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the the entire record in this proceeding, in-
cluding the Employer's brief, the Board finds:
1. The Employer, a California corporation, is en-
gaged in freight forwarding and message delivery.
The parties stipulated that during the calendar year
1978 the Employer had gross revenues in excess of
$500,000, of which in excess of $50,000 was re-
ceived from customers who are themselves directly
engaged in interstate commerce. We find that the
Employer is engaged in commerce within the
meaning of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The parties stipulated that the Petitioner is a
labor organization within the meaning of Section
2(5) of the Act, and we find that the labor organi-
zation involved claims to represent certain employ-
ees of the Employer.
3. The Employer contends that the petition for a
unit of drivers herein fails to raise a question con-
cerning representation because it asserts the drivers
in question are employed as guards within the
meaning of Section 9(b)(3) of the Act, and because
Section 9(b)(3) prohibits the Board from certifying
any union as a bargaining representative which,
like the Petitioner, admits to membership employ-
ees other than guards. The Petitioner concedes that
248 NLRB No. 181
it admits nonguard employees to membership, but
disputes the Employer's position regarding the
drivers' status as statutory guards, which is the
issue before the Board.'
The undisputed evidence on the record discloses
that there are 8 outside-service drivers and 12 con-
tract drivers employed by the Employer to trans-
port packages or sealed pouches from its Sacra-
mento office or from remote drop points to client
companies located in Sacramento and other north-
ern California cities served by the Sacramento
office. The Employer's clients include banks, mort-
gage companies, retail establishments, manufactur-
ing and engineering firms, and the State of Califor-
nia. The types of items typically transported by the
Employer are nonnegotiable instruments such as in-
tercompany documents, mortgage papers, or engi-
neering specifications; however, sealed pouches
may also contain bank deposits, bearer bonds, and
even valuable jewelry.2
All of the drivers are bonded and must pass a
minimal security clearance before being hired.
They are not required to wear uniforms, do not
carry firearms, and make deliveries in their private-
ly owned automobiles, vans, or pickup trucks. As
most of the deliveries are made during nonbusiness
hours between 5 p.m. and 8 a.m., drivers are cus-
tomarily furnished with keys to client premises,
outside vaults, or metal depositories at banks and
other financial institutions. The drivers are held ac-
countable for safekeeping of packages in their vehi-
cles and for securing customer premises by locking
all doors before leaving. Further, they are required
to report anything out of the ordinary at a client's
facility, and they are trained not to enter any build-
ing found unlocked, but instead to contact persons
in authority or the local police and to remain on
the scene until their arrival.3
In Brink's Incorporated,4 the Board determined
that deliveries of nonnegotiable documents by un-
armed couriers to customer premises after closing
hours involved protection by them of the employ-
er's customers' property within the statutory defini-
tion of a "guard" in Section 9(b)(3) of the Act.
Inasmuch as the uncontradicted testimony on
this record establishes that the Employer's outside-
service drivers and contract drivers, like the couri-
' In view of our disposition of this issue, we find it unnecessary to pass
on the Employer's contention that some of the drivers, referred to as
contract drivers, sought to be included in the unit are independent con-
tractors rather than employees.
2 Sacramento Area Supervisor Moss testified that when the Employer
knows of a delivery of jewelry or other valuables it hires an armed secu-
rity service to accompany the driver.
3 Testimony indicates that by following the above-described proce-
dure, drivers have on numerous occasions interrupted burglaries in pro-
gress.
4 226 NLRB 1182 (1976).
MDS COURIER SERVICE, INC. 1321
ers in Brink's, are employed to protect the valuable
property of the Employer's customers, we find that
decision controlling and the drivers herein to be
guards. Accordingly, as the Petitioner concededly
admits employees other than guards to membership
it may not be certified as the representative of the
Employer's drivers.5 We shall therefore dismiss the
petition.
6 The Petitioner requested, at the hearing, that the Board take official
notice of two contemporaneous representation proceedings involving the
same Employer, in Cases 20-RC-14905 and 32-RC-345, wherein the Em-
ployer entered into stipulations for consent elections, involving similar
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
unit classifications, with labor organizations who represent employees
other than guards.
We are advised that the petition in the former case was withdrawn on
November 19, 1979, and that the election in the latter proceeding resulted
in the certification, on June 6, 1979, of Teamsters Local 287, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the representative of the Employer's full-time and regular
part-time in-house drivers and outside-service drivers We note that in
neither of the cases has the guard status of employees been litigated and
therefore those cases cannot have any bearing on the instant proceeding.