Petition for Writ of Certiorari — United Parcel Service, Inc. v. National Labor Relations Board

ince * Supreme Court, U.S.

83-2115 yi FILED

JUN 35 1004

No.

ALEXANDER STEVAS.

CLERK

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1984

UNITED PARCEL SERVICE, INC.,

Petitioner

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

BERNARD G. SEGAL*

JAMES D. CRAWFORD

FRANK C. SABATINO

Attorneys for Petitioner

SCHNADER, HARRISON, SEGAL & LEWIS

Suite 3600

1600 Market Street

Philadelphia, Pennsylvania 19103

Of Counsel.

*Counsel of Record

Oe

QUESTIONS PRESENTED

1. When courts of appeals are in conflict over the

duty of the National Labor Relations Board to defer to

grievance determinations under collective bargaining

agreements and the Board itself continues to take con-

flicting positions on the question, should not the Court

resolve this important issue of national labor policy?

2. When the court of appeals adopted a policy against

deferral except in extremely limited circumstances, did

not its ruling clash with the federal labor policy which

requires that grievance procedures established by collec-

tive bargaining agreements be expenditious, immune from

deliberate bypass, and insulated from collateral attack?

3. Even if this Court does not resolve the underly-

ing deferral issues, should not this specific case be

remanded to the Board for reconsideration in light of its

intervening decision in the Olin case?

(1)

TABLE OF CONTENTS

QUESTIONS PRESENTED ...4........ cece cece eeeees

CHPINBOING BELOW qn. nonce certain eee as cares seins

JURISDICTION

STATUTORY PROVISIONS INVOLVED ...........-.

STATEMENT OF THE CASE ..........-.. cess eeeees

REASONS FOR GRANTING THE WRIT ..........--

1. AN AUTHORITATIVE DECISION OF THIS

COURT IS INCREASINGLY NECESSARY TO

RESOLVE A SERIOUS CONFLICT OF

Pld: ¢ 3) i eer es errr rt

A. The Vacillation in NLRB Decisions ...........

B. The Split Among the Circuits ...............--

Il. BOTH THE RULING OF THE COURT OF

APPEALS IN THIS CASE AND THE NLRB'S

SUBSEQUENT FORMULATION OF

DEFERRAL STANDARDS IN OLIN CLASH

WITH FEDERAL LABOR POLICY ............

Ill. AT THE VERY LEAST, THIS CASE SHOULD

BE REMANDED TO THE NLRB FOR

RECONSIDERATION IN LIGHT OF OLIN ....

CONCLUSION

(11)

13

18

19

TABLE OF CITATIONS

Page No.

Court DECISIONS:

Bakery, Confectionery & Tobacco Workers International

Union 25, No. 83-1416 (March 27, 1984) .............. 12

Bloom v. NLRB, 603 F.2d 1015 (D.C. Cir. 1979) ......... i)

Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398

ee PRG k Waa hace hk Ab 6s a sis0 54s 16, 17

Liquor Salesmen’s Union Local 2 v. NLRB, 664 F.2d 318

(2d Cir. 1981), cert. denied, 456 U.S. 973 (1982) ....... 9, 10, 13

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ....... 10, 16

NLRB v. Magnetics International, Inc., 699 F.2d 806 (6th

gh RESTS «AC 12

NLRB v. Pincus Brothers, Inc.-Maxwell, 620 F.2d 367 (3d

Ci ta gite ka chien akahbi seis kancdac 9, 13

NLRB v. The Motor Convoy, Inc., 673 F.2d 734 (4th Cir.

eC Bees hes cia db kes o5.4 a Na cu seensanss passim

NLRB v. Transportation Management Corp., 103 S.Ct. 2469

I ae ree Gy AAMC Sc Os KR AN seca wee yc ens 7

NLRB vy. Yeshiva University, 444 U.S. 672 (1980) ......... 13, 16

Republic Steel Corp. v. Maddox, 379 U.S. 650 (1964) .....

14,15,17

Richmond Tank Car Co. v. NLRB, 721 F.2d 499, (Sth Cir.

MCCUE SU TAC Sb hay Aca tn sak eacdasiewss 9, 13

Stephenson v. NLRB, 550 F.2d 535 (9th Cir. 1977) ........ 13

United Steelworkers v. American Manufacturing Co., 363

ee PLT hb aew hss ans vows dyes 14

United Steelworkers v. Enterprise Wheel & Car Corp., 363

ee aa Cia iu phew saad ce nae ances 14

United Steelworkers v. Warrior & Gulf Navigation Co., 363

EE ee 14

TABLE OF CITATIONS (Continued)

Page No.

William E. Arnold Co. v. Carpenters District Counsel, 417

Sir CEE cc ocn sah 4a be SR EKER COOTACEN ETC RAEEELS 8

Woodkraft Division v. NLRB, 52 U.S.L.W. 3700 (March 19,

ree rere ee eye eh eae 18

W. R. Grace & Co. v. Local 759, International Union of

Rubber Workers, 103 S.Ct. 2177 (1983) ............... 14

NLRB DECISIONS:

Clear Pine Mouldings, Inc., 268 N.L.R.B. No. 173 (Febru-

eR er ee Te es ee ye ee 18

Electronic Reproduction Service Corp., 213 N.L.R.B. 758

(1974) 10, 11, 12, 15

International Harvester Co., 138 N.L.R.B. 923 (1962), aff'd,

327 F.2d 784 (7th Cir. 1964), cert. denied, 377 U.S. 1003

(ESA Gs are res oes 2 eee rye ee )

Olin Corp., 268 N.L.R.B. No. 86 (1984) ................ passim

Professional Porter & Window Cleaning Co., 263 N.L.R.B.

No. 34 (1982) 10, 11, 12

Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied

on other grounds, 326 F.2d 471 (Ist Cir. 1964) ......... 8

Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955) .. passim

Suburban Motor Freight, 247 N.L.R.B. 146 (1980) .......

10,11,12

United Parcel Service, 270 N.L.R.B. No. 50 (1984) ....... Y

Yourga Trucking, Inc., 197 N.L.R.B. 928 (1972) ......... 10, 11

(iv)

TABLE OF CITATIONS (Continued)

STATUTES:

Judicial Code:

PGs ao oak Sic Fi Wn sha oe te oe ek 2

Labor-Management Relations Act:

SP EN sc ones ere e tx cd olan vxde ein cae

14.16.17

National Labor Relations Act:

29 U.S.C. §158(a)(1)(3) and (4) .. 2.20.0... eee. 2,6

ee es CI Gace Vc Coes Kaki wens baknkeevuees 2, 15

(v)

No.

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1984

UNITED PARCEL SERVICE, INC..,

Petitioner

Ve

NATIONAL LABOR RELATIONS BOARD,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

United Parcel Service, Inc. petitions for a Writ of

Certiorari to review the judgment of the United States

Court of Appeals for the Third Circuit, entered on March

15, 1984."

1. United Parcel Service is a wholly-owned subsidiary of United

Parcel Service of America, Inc. Other than wholly-owned subsidi-

aries, United Parcel Service of America, Inc. has no affiliates or

subsidiaries except for Service Plants Corporation, the stock of which

is held in trust for the benefit of the shareowners of United Parcel

Service of America, Inc. Additionally, in accordance with Canadian

law, qualifying shares of stock in petitioner’s Canadian subsidiaries

are held by individuals who are Canadian citizens.

(1)

i)

Petition for Writ of Certiorari

OPINIONS BELOW

The Order of the National Labor Relations Board

and Opinion of the Administrative Law Judge (A35-A79)°

has been officially reported at 261 N.L.R.B. No. 134.

The Opinion of the court of appeals, enforcing in part

and remanding in part the Order of the National Labor

Relations Board (A4-A30) is officially reported at 706

F.2d 972 (3d Cir. 1983). The judgment of the Court of

Appeals on remand from this Court and the Order of the

Court of Appeals denying rehearing (Al-A3) are unre-

ported.

JURISDICTION

The judgment of the United States Court of Appeals

for the Third Circuit (A2-A3) was entered on January

19, 1984. The order denying rehearing was entered on

March 15, 1984. On June 14, 1984, Justice Brennan

extended the time for filing this petition for certiorari

until June 23, 1984. United Parcel Service, Inc. is filing

this petition within that time.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §2350.

STATUTORY PROVISIONS INVOLVED

Section 8(a)(1), (3) and (4) of the National Labor

Relations Act, 29 U.S.C. §158(a)(1), (3) and (4), pro-

vides:

It shall be an unfair labor practice for an em-

ployer —

(1) to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed

in section 157 of this title;

* * * *

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of employ-

2. References herein to “A” pages are to pages in the appendix

to this petition.

Petition for Writ of Certiorari 3

ment to encourage or discourage membership in any

labor organization: Provided, That nothing in this

subchapter, or in any other statute of the United

States, shall preclude an employer from making an

agreement with a labor organization (not estab-

lished, maintained, or assisted by any action defined

in this subsection as an unfair labor practice) to require

as a condition of employment membership therein

on or after the thirtieth day following the beginning

of such employment or the effective date of such

agreement, whichever is the later, (i) if such labor

organization is the representative of the employees

as provided in section 159(a) of this title, in the

appropriate collective-bargaining unit covered by such

agreement when made, and (ii) unless following an

election held as provided in section 159(e) of this

title within one year preceding the effective date of

such agreement, the Board shall have certified that

at least a majority of the employees eligible to vote

in such election have voted to rescind the authority

of such labor organization to make such an agree-

ment: Provided further, That no employer shall justify

any discrimination against an employee for non-

embership in a labor organization (A) if he has

reasonable grounds for believing that such member-

ship was not available to the employee on the same

terms and conditions generally applicable to other

members, or (B) if he has reasonable grounds for

believing that membership was denied or terminated

for reasons other than the failure of the employee to

tender the periodic dues and the initiation fees uni-

formly required as a condition of acquiring or retaining

membership;

(4) to discharge or otherwise discriminate against

an employee because he has filed charges or given

testimony under this subchapter;

* * * *

4 Petition for Writ of Certiorari

Section 203(d) of the Labor-Management Relations

Act, 29 U.S.C. §173(d), provides:

Final adjustment by a method agreed upon by

the parties is declared to be the desirable 1iethod for

settlement of grievance disputes arising over the

application or interpretation of an existing collective-

bargaining agreement. The Service is directed to make

its conciliation and mediation services available in

the settlement of such grievance disputes only as a

last resort and in exceptional cases.

Section 10(a) of the National Labor Relations Act,

29 U.S.C. §160(a) states in relevant part:

The Board is empowered, as here and after pro-

vided, to prevent any person from engaging in any

unfair labor practice (listed in Section 158 of this

title) affecting commerce. This power shall not be

affected by any other means of adjustment or pre-

vention that has been or may be established by

agreement, law, or otherwise. . .

STATEMENT OF THE CASE

On July 15, 1983, United Parcel Service (“UPS”)

asked this Court to review the decision of the United

States Court of Appeals for the Third Circuit holding

that the National Labor Relations Board (“NLRB” or

“Board”) had properly refused to defer to contractual

grievance determinations that two UPS employees had

been disciplined for just cause. At that time, UPS warned

that a conflict in circuits and uncertainty on the part of

the Board threatened the stability and effectiveness of

contractual grievance procedures as a means of settling

labor disputes.

Since that time, UPS’ warning has become a state-

ment of fact. While this case was on remand to the Court

of Appeals in response to the Board’s cross-petition for

Petition for Writ of Certiorari 5

certiorari, the Board itself repudiated as inimical to fed-

eral labor policy the rule upon which it decided this case.

In Olin Corp., 268 N.L.R.B. No. 86 (1984), the Board

instead adopted an entirely novel rule, repudiating at least

two previous Board positions and leading to at least a

three-way split in the circuits. At this point, the only hope

for a coherent labor policy lies with this Court. For that

reason, UPS has taken the extraordinary step of filing

this second petition for certiorari.

The instant case began in September 1979, when

Robert W. Bowlds and David E. Perkins filed unfair

labor practice charges with the NLRB against UPS. Bowlds

and Perkins were former UPS employees who had been

discharged ia August 1979 for falsifying their timecards

to conceal the fact that they had over-extended their break

periods.

Approximately one week before they filed charges

with the NLRB, Bowlds and Perkins had initiated griev-

ances under the collective bargaining agreement between

UPS and their union, Local 89 of the International

Brotherhood of Teamsters. Articles 21 and 36 of that

agreement prohibit discrimination against employees on

the basis of concerted activities protected by the National

Labor Relations Act (the “Act’’). Bowlds’ grievance

explicitly alleged that he liad been discharged in retalia-

tion for “union activities” and participation in litigation

against UPS.

The grievances were processed under Article 5 of the

collective bargaining agreement, which establishes an ex-

clusive remedy for “any grievance, complaint, or dispute

on the part of any employee.” On September 11, 1979, a

joint local-level grievance committee consisting of union

and management representatives convened in Owens-

boro, Kentucky. Both grievants appeared persorally, had

the assistance of a union representative to present their

cases, and were given the opportunity to present evidence

6 Petition for Writ of Certiorari

and argument on their own behalf. Bowlds’ grievance was

read into the record. After hearing conflicting evidence

concerning the reason for the discharges, the local com-

mittee deadlocked on their validity. Pursuant to the

collective bargaining agreement, the matter was referred

to the state joint committee.

The state joint committee met in Louisville on the

following October 9, and adhered to the same basic pro-

cedure as the local committee. Bowlds’ grievance was

again read into the record. The grievants appeared with

a union representation and presented evidence. The state

committee voted to reinstate Perkins without back pay,

and he returned to work the next day. The state commit-

tee deadlocked on Bowlds’ discharge and submitted the

issue to a Joint Area Conference Committee (“JAC”).

On October 30, 1979, the JAC convened in Chicago.

Bowlds appeared, again received the assistance of a union

representative, testified personally, and had his grievance

read into the record. The JAC also deadlocked. Finally,

the matter was referred to a special Deadlock Commit-

tee, which met in Chicago on the ensuing November 20.

Once more, Bowlds’ grievance was read aloud, and the

grievant was given a full opportunity to offer evidence.

The Deadlock Committee sustained the discharge.

In the proceedings before the NLRB, the General

Counsel alleged that Bowlds and Perkins had been dis-

charged in retaliation for protected concerted activities.

The Administrative Law Judge (the “ALJ”) rejected UPS’

contention that he should defer to arbitration. Rather,

the ALJ permitted the General Counsel to relitigate many

facts previously determined by the grievance committees,

including whether Bowlds and Perkins had falsified their

timecards. The ALJ justified his refusal to defer to the

grievance determinations on the ground that the joint

committees were never confronted with “the relevant facts

pertaining to union and concerted activities of Bowlds

Petition for Writ of Certiorari 7

and Perkins... .” On November 30, 1980, the ALJ issued

an opinion which found that UPS had violated §§8(a)(1),

(3), and (4) of the Act by terminating Bowlds and Per-

kins. On May 21, 1982, the NLRB adopted the ALJ's

opinion with minor amendments and endorsed his rea-

soning on the deferral issue.

The court of appeals also rejected UPS’ argument

that the NLRB should have deferred to the grievance

committees which upheld the disciplining of Bowlds and

Perkins. Agreeing with the ALJ, the Court of Appeals

held that the record did not contain evidence that the

“statutory issue” of discrimination had been “fully pre-

sented to or considered by the grievance panels.” On the

merits, however, the Court of Appeals refused to enforce

the Board’s Order concerning the discharges of Bowlds

and Perkins on the ground that the NLRB had misap-

plied the burden of proof.

UPS and the NLRB filed cross-petitions for certio-

rari. UPS’ petition was denied. On November 14, the

NLR&B’s petition was granted and the case was remanded

to the Court of Appeals for reconsideration in light of

NLRB v. Transportation Management Corp., 103 S.Ct.

2469 (1983). The Court of Appeals enforced the Board’s

Order on January 19, 1984. On the very day that the

Court of Appeals enforced the Board’s Order, the NLRB

issued its opinion in Olin Corp., supra, 268 N.L.R.B.

No. 86, which reversed existing precedents on the defer-

ral issue, including those on which the Court of Appeals

had relied in the instant case. UPS filed a timely petition

with the Court of Appeals for reconsideration in light of

Olin. The petition was denied without explanation on

March 15, 1984. On June 14, 1984, Justice William J.

Brennan extended the time for filing this petition for cer-

tiorari to June 23, 1984.

8 Petition for Writ of Certiorari

REASONS FOR GRANTING THE WRIT

The Court should grant this writ for two reasons.

First, there is a serious conflict of authority among the

various courts of appeals on the issue of when the NLRB

should defer to arbitration, and the Board’s own deci-

sions amount to a history of utter inconsistency. Only a

decisive opinion by this Court can settle this longstanding

and much-litigated issue.

Second, both the decision of the Court of Appeals

and the standard adopted by NLRB in Olin clash with

the congressional policy, codified in 29 U.S.C. $173(d),

that encourages resolution of labor disputes through arbi-

tration and similar procedures established by collective

bargaining. To safeguard the integrity of these proce-

dures, this Court has long held that grievants must be

prevented from bypassing such remedies in order to win

a de novo hearing in another forum. Both the opinion of

the Court of Appeals and the NLRB’s latest pronounce-

ment in Olin permit an employee to circumvent the

remedies established by a collective bargaining agreement

in order to obtain a de novo trial of grievances in the

NLRB. That result flouts the federal labor policy in favor

of private dispute resolution mechanisms.

At the very least, if the Court decides not to grant a

full hearing in this case, then the matter should be

remanded to the Board for reconsideration in light of

Olin.

1. AN AUTHORITATIVE DECISION OF THIS

COURT IS INCREASINGLY NECESSARY TO

RESOLVE A SERIOUS CONFLICT OF

AUTHORITY.

In Spielberg Manufacturing Co., 112 N.L.R.B. 1080,

iJ82 (1955), the NLRB announces that it would defer to

decisions of private grievance procedures provided that:

(1) the proceedings were “fair and regular,” (2) all parties

Petition for Writ of Certiorari 9

had agreed to be bound, and (3) the results were not

“clearly repugnant to the Act.” Eight years later, the

NLRB created the additional requirement that: (4) the

arbitration has decided the statutory issue currently under

review. Raytheon Co., 140 N.L.R.B. 883, 884-85 (1963),

enforcement denied on other grounds, 326 F.2d 471 (Ist

Cir. 1964). This Court has mentioned Spielberg deferral

with approval. William E. Arnold Co. v. Carpenters Dis-

trict Counsel, 417 U.S. 12, 16-17 (1974). Furthermore,

both the NLRB and the courts have applied the principle

to the very grievance procedure contained in the collec-

tive bargaining agreement between UPS and the

Teamsters. Bloom v. NLRB, 603 F.2d 1015 (D.C. Cir.

1979); United Parcel Service, 270 N.L.R.B. No. 50 (1984).

The Spielberg doctrine has two purposes. First, it

vindicates the intention of labor and management to resolve

disputes under the procedure designated in the collective

bargaining agreement. Second, it avoids the time and

expense of duplicative proceedings. NLRB v. Pincus

Brothers, Inc.-Maxwel!, 620 F.2d 367, 374 (3d Cir. 1980);

International Harvester Co., 138 N.L.R.B. 923, 926-29,

aff'd, 327 F.2d 784 (7th Cir. 1964), cert. denied, 377 U.S.

1003 (1964); Spielberg Manufacturing Co., supra, 112

N.L.R.B. at 1082.

Although the NLRB originally adopted the Spiel-

berg doctrine as an act of discretion, once it had done so

courts have uniformly held that the NLRB must defer to

grievance procedures when the relevant criteria are sat-

isfied. See, e.g., Richmond Tank Car Co. v. NLRB, 721

F.2d 499, 501-03 (Sth Cir. 1983); NLRB v. The Motor

Convoy, 673 F.2d 734, 736 (4th Cir. 1982); Liguor Sales-

men’s Union Local 2 v. NLRB, 664 F.2d 318, 326 (2d Cir.

1981), cert. denied, 456 U.S. 973 (1982); NLRB v. Pincus

Brothers, Inc.- Maxwell, supra, 620 F.2d at 374.

Nevertheless, a review of the cases which have applied

Spielberg reveals a split of authority among the courts of

10 Petition for Writ of Certiorari

appeals as to when deferral is appropriate and complete

confusion in the Board’s opinions. The time is ripe for

this Court to act.

A. The Vacillation in NLRB Decisions

Although this Court’s concern in exercising its cer-

tiorari jurisdiction is far more often intercircuit conflicts

rather than agency inconsistency, the intercircuit conflicts

here can only be understood within the framework of the

NLRB’s repeated changes of its own policy.

This Court has held that the Board may not apply

its discretion inconsistently. NLRB v. Bell Aerospace Co.,

416 U.S. 267, 289 (1974). Yet as former Chairman Van

de Water wrote in his dissenting opinion in Professional

Porter & Window Cleaning Co., 263 N.L.R.B. No. 34,

slip op. at 20 (1982), the NLRB “has waxed and waned

in application of broad deferral standards almost as reg-

ularly as the appointment of new Board members.”

This inconsistency has been especially prevalent in

cases concerning the primary issue in this case, i.e., whether

an underlying unfair labor practice charge was “clearly

decided” during the ruling on the grievance. Indeed, the

United States Court of Appeals for the Second Circuit

has described the fourth prong of the Spielberg test as an

“on-again, off-again” requirement. Liquor Salesmen’s

Union Local No. 2 v. NLRB, supra, 664 F.2d at 324.

The NLRB originally refused to defer unless the

underlying statutory issues were actually litigated during

the arbitration process. Yourga Trucking, Inc., 197

N.L.R.B. 928 (1972). In Electronic Reproduction Service

Corp., 213 N.L.R.B. 758 (1974), however, the Board

reversed course and announced that henceforth it would

generally defer to the results of grievance procedures if

the employee had had an opportunity to litigate the unfair

labor practice issue during the processing of the griev-

ance, regardless of whether he had actually done so. 213

Petition for Writ of Certiorari 1]

N.L.R.B. at 762. The NLRB explained that this new rule

was necessary to promote voluntary arbitration mecha-

nisms and to discourage piecemeal litigation. 213 N.L.R.B.

at 761-64.

Electronic Reproduction remained the law until dis-

piaced by Suburban Motor Freight, 247 N.L.R.B. 146

(1980), in which the Board declared once again that it

would not “honor the results of an arbitration proceeding

under Spielberg unless the unfair labor practice issue was

both presented to and considered by the arbitrator.” 247

N.L.R.B. at 146-47. In the instant case, both the NLRB

and the Court of Appeals relied on Suburban Motor

Freight in ruling against UPS.

. Finally, the recent decision in Olin has overruled

Suburban Motor Freight and instituted an entirely new

set of criteria for deferral. The Board now states that:

. . . We would find that an arbitrator has adequately

considered the unfair labor practice if (1) the con-

tractual issue is factually parallel to the unfair labor

practice issue, and (2) the arbitrator was presented

generally with the facts relevant to resolving the unfair

labor practice.

268 N.L.R.B. No. 86 at 5. The Board in Olin reasoned

that this new standard, designed to encourage deferral,

was more consistent with the goals of national labor pol-

icy. The Olin opinion also contained the admission that

“the Board’s past Spielberg policy was not so much policy

as it was whim.” 268 N.L.R.B. at 9.

Significantly, the Board’s new position does not sig-

nal a return to Electronic Reproduction. The Olin opinion

emphasized that “we do not resurrect that part of Elec-

tronic Reproduction which required no more than an

‘opportunity’ to present the unfair labor practice issue to

the arbitrator to warrant deferral.” 268 N.L.R.B. No. 86

at 7-8 n.10. Thus, Olin permits a grievant to obtain a de

novo hearing from the NLRB by foregoing collective bar-

12 Petition for Writ of Certiorari

gaining remedies entirely or by withholding from the

arbitration “parallel issues” or “relevant” facts that bear

on alleged discrimination under the Act.

In short, the NLRB has proven unable to steer any

type of consistent course on the deferral issue. Unless

this Court intervenes and issues an authoritative opinion,

the Board’s fidelity to deferral will continue to “wax and

wane” as its membership changes. Olin, the NLRB’s third

standard for deferral in one decade, could well be scrapped

by a simple change in administrations. The instant case

offers an excellent vehicie to resolve the issue perma-

nently.

B. The Split Among the Circuits

Not surprisingly, the Board’s whimsical approach to

deferral has engendered a serious split among the courts

of appeals. The United States Court of Appeals for the

District of Columbia Circuit recently upheld Olin as a

legitimate exercise of the NLRB’s discretion. Bakery,

Confectionery & Tobacco Workers International Union

25, No. 83-1416 (March 27, 1984).

The United States Court of Appeals for the Fourth

Circuit, conversely, has adopted a standard similar to the

Board’s practice under Electronic Reproduction. Accord-

ing to NLRB v. The Motor Convoy, supra, 673 F.2d at

734, if (as in the instant case) a collective bargaining

agreement prohibits discrimination on the basis of pro-

tected concerted activities under the Act, then any ruling

by an arbitrator that an employee was terminated for

“just cause” necessarily concludes that the discharge did

not constitute an unfair labor practice. This is so, regard-

less of the issues or evidence actually presented during

the processing of the grievance. 673 F.2d at 736. This rule

is designed to protect the “federal labor policy which

strongly favors peaceful resolution of labor disputes

through arbitration.” Jd. The Motor Convoy court

explained that if employees could freely bypass remedies

Petition for Writ of Certiorari 13

established through collective bargaining, then the rela-

tive value of such procedures would diminish, thereby

causing them to be included in “fewer collective bargain-

ing agreements expanding unnecessarily the caseloads of

the federal courts and the National Labor Relations

Board.” /d. at 737. Accord, NLRB v. Magnetics Interna-

tional, Inc., 699 F.2d 806 (6th Cir. 1983) (Meritt, J.

dissenting).

A third court has taken a view totally inhospitable to

deferral. In Stephenson v. NLRB, 550 F.2d 535, 538 (9th

Cir. 1977), the Ninth Circuit stated that even if the nor-

mal Spielberg requirements are satisfied, the NLRB may

not defer unless the grievance panel clearly decided the

underlying unfair labor practice issues and only resolved

matters within its competence. The Stephenson opinion

betrays a severe lack of confidence in the collective bar-

gaining mechanisms which were upheld so strongly in Motor

Convoy.

Thus, like the NLRB, the courts of appeals are in

total disarray concerning the proper test for deferral.

Furthermore, even when courts have accepted the stan-

dard chosen by the Board, they have frequently reached

different results on the facts as the relevant criteria are

amorphous. See, e.g., Richmond Tank Car Co. v. NLRB.,

supra, 721 F.2d at 501-03; Liquor Salesman’s Union Local

2 v. NURB, supra, 664 F.2d at 326; NLRB v. Pincus

Brothers, Inc.-Maxwell, supra, 620 F.2d at 374. This chaos

can be made order only if this Court acts to do so.

Il. BOTH THE RULING OF THE COURT OF

APPEALS IN THIS CASE AND THE NLRB’S

SUBSEQUENT FORMULATION OF DEFER-

RAL STANDARDS IN OLIN CLASH WITH

FEDERAL LABOR POLICY.

The NLRB may not exercise its discretion in a man-

ner that is inconsistent with federal labor policy, NLRB

14 Petition for Writ of Certiorari

v. Yeshiva University, 444 U.S. 672, 691 (1980), in this

instance, the policy favoring arbitration. The Board's recent

deferral rulings, both as applied in this case and as refor-

mulated in Olin, flout the congressional policy in favor

of private grievance mechanisms for resolution of labor

disputes.

In the famous Steelworkers Trilogy, this Court estab-

lished three principles relevant to this case. First, 29 U.S.C.

$173(d) expresses a congressional preference for volun-

tary resolution of labor disputes, which requires that “the

means chosen by the parties for settlement of their differ-

ences under collective bargaining agreement [be] given

full play.” United Steelworkers v. American Manufactur-

ing Co., 363 U.S. 564, 566 (1960). Second, if the parties

to a collective bargaining agreement establish a manda-

tory grievance procedure, any dispute between them must

be resolved under that procedure unless the collective

bargaining agreement specifically excludes the dispute from

the procedure. United Steelworkers v. Warrior & Gulf

Navigation Co., 363 U.S. 574, 581 (1960). Third, the

results of a mandatory grievance procedure may only be

overturned if the underlying award fails to draw “its essence

from the collective bargaining agreement.” United Steel-

workers v. Enterprise Wheel & Car Corp., 363 U.S. 593,

597-98 (1960). These policies retain full force and vitality.

W.R. Grace & Co. v. Local 759, International Union of

Rubber Workers, 103 S.Ct. 2177 (1983).

To safeguard the integrity of private grievance mech-

anisms, this Court has held that employees may not

deliberately bypass any remedy established by collective

bargaining agreement. In Republic Steel Corp. v. Mad-

dox, 379 U.S. 650 (1964), an employee attempted to sue

for breach of a collective bargaining agreement without

invoking a grievance procedure which the collective bar-

gaining agreement established as the exclusive remedy for

such claims. The Court held that litigation brought to

Petition for Writ of Certiorari 15

circumvent the “procedure agreed upon by the employer

and the union as the mode for redress,” must be dis-

missed. 379 U.S. at 653. The Court explained that this

rule furthers labor peace by enforcing the collective bar-

gaining relationship between union and management.

Conversely, a “rule which would permit an individual

employee to completely sidestep available grievance pro-

cedures . . . would deprive the employer and the union

of the ability to establish a uniform and exclusive method

for orderly settlement of employee grievances.” /d.

There can be no doubt that the decision rendered

below is inconsistent with Republic Steel. Teamsters Local

89, the exclusive collective bargaining representative for

Bowlds and Perkins, negotiated clauses in the collective

bargaining agreement with UPS which prohibit discrimi-

nation for protected activity and provide an exclusive

remedy for all alleged violations of the agreement,

including the ban on discrimination. As the Court in Motor

Convoy explains, limitations in deferral like that approved

by the court below not only permit but encourage employ-

ees to circumvent the mandatory grievance remedy.

Republic Steel teaches that this result is inimical to federal

labor policy.

The NLRB’s standard in Olin is also at odds with

federal labor policy. The new test would still permit an

employee “to completely sidestep available grievance

procedures” by foregoing such mechanisms entirely or by

limiting the scope of grievances so that the requirements

for deferral are not satisfied. Thus Olin still deprives “the

employer and union of the ability to establish a uniform

and exclusive method for orderly settlement of griev-

ances.” This is precisely the vice prevented by Republic

Steel. Only a return to the Board’s policy in Electronic

Reproduction, which mandates deferral if a grievance

procedure offers an “opportunity” for redress, will pro-

tect grievance procedures from the threat posed by

deliberate bypass.

16 Petition for Writ of Certiorari

Throughout this litigation, the NLRB has placed heavy

reliance upon §10(a) of the Act, 29 U.S.C. §160(a), which

states that the power of the Board to prevent unfair labor

practices “shall not be affected by any other means of

adjustment or prevention that has been or may be estab-

lished by agreement, law or otherwise.” The NLRB has

contended that this provision gives it a carte blanche to

defer or to refuse to deter at whim. That claim fails for

two reasons.

First, as already noted, once the Board chooses to

exercise its discretion, it may not do so inconsistently or

in a manner which compromises federal labor policy.

Having adopted the Spielberg deferral doctrine, the NLRB

is subject to judicial review in its application of the prin-

ciple. Yeshiva University, supra, 444 U.S. at 691; NLRB

v. Bell Aerospace Co., supra, 416 U.S. at 289.

Second, to the extent that §10(a) insulates NLRB

discretion on deferral from appellate review, it is over-

riden by the more recent and specific language of §203

of the Labor-Management Relations Act, 29 U.S.C.

§$§173(d), which provides that:

Final adjustment by a method agreed upon by the

parties is declared to be a desirable method for set-

tlement of grievance disputes arising over the

application or interpretation of an existing bargain-

ing agreement.

The preeminent effect of §203 is illustrated by Boys Mar-

kets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235

(1970).

In Boys Markets, the Court held that a union could

be enjoined from violating a no-strike clause in a collec-

tive bargaining agreement which contained mandatory

grievance procedures. The result clashed with the lan-

guage of the Norris-LaGuardia Act which expressly forbids

the issuance of federal injunctions to halt labor disputes.

The Court, however, explained that Norris-LaGuardia

Petition for Writ of Certiorari 17

was enacted when Congress was preoccupied with “pro-

tection of the nascent labor movement” and must be

reconciled with the subsequent federal policies which favor

collective bargaining and private mechanisms for regula-

tion of labor disputes. 398 U.S. at 250.

The Boys Markets opinion recognized that most

employers would not accept collective bargaining agree-

ments which establish private grievance procedures unless

the quid pro quo, a no-strike pledge, was enforceable.

The Court concluded that the literal language of Norris-

LaGuardia must give way “under the circumstances” in

order to prevent the mass boycott of employers which

would threaten the efficacy of private grievance mecha-

nisms. 398 U.S. at 253.

This case falls within the logic of Boys Markets. Sec-

tion 10(a) was part of the original Wagner Act passed in

1935, only three years after Norris-LaGuardia. The Boys

Markets opinion specifically recognized that the Wagner

Act was one of the “older statutes” enacted when Con-

gress was preoccupied with protecting “the nascent labor

movement.” Consequently, like Norris-LaGuardia, §10(a)

of the Act must be interpreted in light of the modern

trend in favor of private grievance mechanisms, and its

“literal language” may not be allowed to thwart the poli-

cies recognized by this Court in Republic Steel and the

Steelworkers Trilogy or by Congress in §173(d), enacted

in 1947.

As already noted, the Fourth Circuit recognized in

Motor Convoy that the very existence of private griev-

ance mechanisms would be threatened if employees could

circumvent them, because such remedies could then

become pointless, and thus would be omitted from collec-

tive bargaining agreements. 673 F.2d at 737. This is

precisely the same result that the Boys Markets Court

feared would result if the “literal language” of Norris-

LaGuardia were permitted to bar injunctions enforcing

ae

18 Petition for Writ of Certiorari

no-strike pledges. Consequently, the Board’s construc-

tion of §10(a) would pose a serious impediment to the

policy in favor of peaceful resolution of labor disputes

and must be rejected.

lil. ALTERNATIVELY, THIS CASE SHOULD BE

REMANDED TO THE NLRB FOR RECONSID-

ERATION IN LIGHT OF OLIN.

If the Court does not decide to use this case as a

vehicle to review the deferral issue, then at the very least,

the litigation should be remanded to the Board for recon-

sideration in light of Olin, which it adopted as a deferral

standard during the pendency of this litigation. Were the

Board to apply Olin to the facts of this case, UPS would

certainly prevail.

The opinion below is plainly inconsistent with Olin.

Indeed, Member Zimmerman, in dissenting from the Olin

decision, specifically relied on the opinion of the Court

of Appeals. 268 N.L.R.B. No 86 at 22. Application of

the new deferral standard to the facts of this case clearly

requires a different result. The case which Bowlds and

Perkins submitted to the grievance committees is nearly

identical to that which the General Counsel presented to

the Board, turning almost entirely on whether the griev-

ants actually falsified their timecards and overstayed their

break periods. Bowlds, moreover, explicitly raised the

discrimination issue and informed the joint panels of the

activities for which he allegedly suffered retaliation. As

the “factual issues” in the grievance and unfair labor

practice proceedings were parallel and basically the same

evidence was involved in both instances, the Olin test for

deferral is satisfied.

This Court has recognized that when the Board adopts

a new rule, a case which is on appeal should at least be

remanded for consideration in light of the change in pol-

Petition for Writ of Certiorari 19

icy. E.g., Woodkraft Division v. NLRB, 52 U.S.L.W. 3700

(March 19, 1984), remanding case to Court of Appeals

with instructions to remand to the Board in light of Clear

Pine Mouldings, Inc., 268 N.L.R.B. No. 173 (February

22, 1984). The instant case was still on appeal when Olin

was issued. UPS should receive the benefit of the new

standard.

CONCLUSION

For the foregoing reasons, UPS requests the Court

to grant this Petition for Certiorari.

Respectfully submitted,

BERNARD G. SEGAL

JAMES D. CRAWFORD

FRANK C. SABATINO

Attorneys for Petitioner

SCHNADER, HARRISON, SEGAL & LEWIS

Suite 3600

1600 Market Street

Philadelphia, Pennsylvania 19103

(215) 751-2162

Of Counsel.

Dated: June 22, 1984

Appendix

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-3318

UNITED PARCEL SERVICE, INC.

j Petitioner

NATIONAL LABOR RELATIONS BOARD,

Respondent

Before: GiBBONS, HUNTER and ROSENN, Circuit Judges

Upon the consideration of the petition for rehearing

by petitioner before the original panel,

ItisO R D E R E D that the petition for

rehearing before the original panel is denied.

By THE Court

JOHN J GIBBONS

Circuit Judge

Dated:

March 15, 1984

Al

A2 Court of Appeals Judgment

UNITED STATES COURT OF APPEALS

FoR THE THIRD CIRCUIT

No. 82-3318

UNITED PARCEL SERVICE, INC.

Petitioner

NATIONAL LABOR RELATIONS BOARD,

Respondent

PETITION FOR REVIEW

NATIONAL LABOR RELATIONS BOARD

Board Nos. 25-CA-11313 & 25-CA-11313-2

Argued February 15, 1983

Before: GIBBONS, HUNTER and ROSENN, Circuit Judges

JUDGMENT

This cause was originally before this Court on a peti-

tion filed by United Parcel Service, Inc., Owensboro,

Kentucky, to review an order of the National Labor

Relations Board issued against said Petitioner, its offi-

cers, agents, successors, and assigns on May 12, 1982, and

upon a cross-application filed by the National Labor

Relations Board to enforce said order. The Court heard

argument of respective counsel on February 15, 1983,

and considered the briefs and transcripts of record filed

in this cause. On April 18, 1983, the Court, being fully

advised in the premises, issued its opinion enforcing the

Board’s order in part, and vacating and remanding it in

oart to the Board for further proceedings. A judgment

Court of Appeals Judgment A3

was entered April 20, 1983. On November 14, 1983, the

Supreme Court of the United States granted the petition

of United Parcel Service, Inc. for certiorari, vacated the

judgment entered April 20, 1983, and remanded the cause

for further consideration in light of National Labor Rela-

tions Board v. Transportation Management Corp., 462

U.S. (1983).

It is hereby ORDERED and ADJUDGED that the

judgment entered April 20, 1983 be and is hereby vacated

and it is further ORDERED and ADJUDGED that the

Board’s Order be and is hereby enforced in full.

By THE Court,

JAMES Hunter, III, Circuit Judge

ATTEST:

Sally Mrvos, Clerk

Dated: January 19, 1984

A4

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 82-3318

UNITED PARCEL SERVICE, INC.

‘ Petitioner

NATIONAL LABOR RELATIONS BOARD,

Respondent

PETITION FOR REVIEW

NATIONAL LABOR RELATIONS BOARD

Board Nos. 25-CA-11313 & 25-CA-11313-2

Argued February 15, 1983

Before: GIBBONS, HUNTER and ROSSEN, Circuit Judges

Opinion Filed April 18, 1983

James D. Crawford (Argued), Bernard G. Segal,

Martin Wald, Frank C. Sabatino, Schnader, Harrison,

Segal & Lewis, 1719 Packard Building, Philadelphia, PA

19102, Matthew R. Westfall, Baird, Kirven, Westfall &

Talbott, 501 So. Second Street, Louisville, Kentucky

40202, Of Counsel Attorneys for Petitioner.

Joseph A. Oertel (Argued), William A. Lubbers,

General Counsel, John E. Higgin, Jr., Deputy General

Counsel, Robert E. Allen, Associate General Counsel,

Elliott Moore, Deputy Assoc. General Counsel, Na-

tional Labor Relations Board, 1717 Pennsylvania Ave.,

NW, Washington, D.C. 10570, Attorneys for Respondent.

Court of Appeals Opinion AS

OPINION OF THE COURT

HuNTER, Circuit Judge:

1. On May 21, 1982, the National Labor Relations

Board (“Board”) issued a decision and order holding that

United Parcel Service, Inc. (“UPS”) had committed cer-

tain unfair labor practices under the National Labor

Relations Act, 29 U.S.C. §§ 151-169 (1976 & Supp. V

1981) (“Act”). The Board held that UPS had violated

section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) (1976),

by promulgating, maintaining, and enforcing an unlaw-

fully broad no-distribution of literature rule. It also held

that UPS had violated sections 8(a)(1), 8(a)(3), and 8(a)(4)

of the Act, 29 U.S.C. § 158(a)(1), (a)(3), (a)(4) (1976),

by unlawfully discharging Robert W. Bowlds and David

E. Perkins, two UPS employees.

2. This action is a petition for review and a cross-

application for enforcement of that order. For the rea-

sons stated herein we wili enforce in part, and we will

remand in part.

A. Driver Robert Bowlds

3. Bowlds was originally hired by UPS in 1965. For

the six or seven years prior to the instant unfair labor

proceeding, he worked as a “feeder driver” out of UPS’s

Owensboro, Kentucky facility.’ Bowlds also served as the

Teamsters Local 89 steward at the Owensboro terminal.”

1. As part of its operation, UPS employs feeder drivers who

drive fixed delivery routes between UPS facilities. Those drivers

operate out of a home location and shuttle packages to and from

specific distribution depots. At those distribution points the packages

are resorted and then loaded on to other UPS trucks for further

delivery.

2. At all times relevant to this action, Teamsters Local 89 was

the exclusive bargaining agent for the Company’s employees. App.

at 142a n.1.

A6 Court of Appeals Opinion

In his position as steward Bowlds filed grievances, partic-

ipated in grievance hearings, and assisted the Professional

Drivers Council (“PROD”), a Teamsters’ organization.

Since 1975 Bowlds had also been a member of “UPSurge,”

a nationwide organization of UPS employees dedicated

to improving their wages, hours, and working conditions.

Bowlds testified that he had been openly involved with

both UPSurge and PROD at the Owensboro terminal”

and had distributed their literature in the presence of

UPS supervisors. App. at 413a-15a, 419a-23a.*

4. Bowlds had a running history of disputes with

UPS. On April 24, 1978, UPS discharged Bowlds, assert-

edly because he falsified his timecard and overextended

his rest breaks.” On May 8, 1978, as a result of a contrac-

tual grievance proceeding, Bowlds was reinstated, and

the discharge was converted into a suspension. On May

24, 1978, Bowlds was issued a “final warning” for taking

excessive time on his breaks. That warning was rescinded

on June 14, 1978, also after a grievance proceeding. On

August 4, 1978, UPS discharged Bowlds for a second

time, again asserting that he had overextended his breaks

and falsified his timecard. On October 3, 1978, a griev-

ance panel reduced the discharge to a “Disciplinary

Suspension and Final Warning.”

3. In the instant case the ALJ found that employee activity on

behalf of PROD and UPSurge constituted concerted protected activ-

ity under the Act. App. at 143a.

4. In addition in March of 1977, Bowlds initiated a class action

suit against UPS alleging that UPS had violated a Kentucky statute

requiring employers to grant periodic ten-minute rest breaks.

5. For UPS's distribution systems to function properly, all feeder

drivers must keep to a preset schedule. Departure times, rest stops,

and arrival times are all predetermined to ensure the continuous and

efficient flow of packages from terminal to terminal. Company policy

requires that a driver's timecard accurately reflect the amount of time

that he spends on the road and on his breaks. App. at 832a-36a; see

app. at 145a n.4. 158a n.16; 366a-68a, 408a-10a, 980a-8 La.

Court of Appeals Opinion A7

5. Both the May 24, 1978 final warning letter and

the August 4, 1978 discharge were the subject of an unfair

labor practice proceeding brought by the General Coun-

sel against UPS. The Board held that those actions violated

sections 8(a)(1) and 8(a)(3) the Act. United Parcel Serv-

ice, Inc., 252 N.L.R.B. 1015, 1019 (1980), enforced, 677

F.2d 421 (6th Cir. 1982)(“United Parcel Service I”).° The

Board issued a cease and desist order, awarded Bowlds

back pay, and ordered the May 24, 1978 warning letter

expunged from his file. United Parcel Service 1, 252

N.L.R.B. at 1016, 1023.

6. UPS claims that in July and August of 1979 it

again became concerned about Bowlds’ consistent late

arrival at the Owensboro Center. The Company decided

to observe Bowlds on the night of August 27-28 during

one of his normally scheduled runs.’ According to the

supervisors who trailed him, Bowlds overstayed his allot-

ted rest periods on that run by forty-three minutes. On

the next night the Company suspended Bowlds allegedly

for overextending his breaks and falsifying his timecard.

Three days later UPS informed Bowlds that he was dis-

charged.

B. Driver David Perkins

7. Perkins has been employed at UPS’s Campbells-

ville, Kentucky facility as a feeder driver since 1971 and,

6. In its decision the Board noted several instances where Com-

pany supervisors indicated shortly after the issuance of the May 24,

1978 warning letter that they were going to “get” Bowlds. United

Parcel Service 1, 252 N.L.R.B. at 1021.

7. UPS hs a policy of putting under observation drivers who are

suspected of excessive delays. In the past ten years several feeder

drivers have been placed under observation for allegedly overstaying

their rest breaks. A driver will not be put under observation, how-

ever, until the situation has been discussed between the driver and

his supervisor and until after the driver has had an opportunity to

remedy the problem. App. at 144a & n.3; 864a-66a.

A8& Court of Appeals Opinion

like Bowlds, has actively been involved with union activ-

ity. He testified that he had openly distributed UPSurge

and PROD material at Campbellsville several times, and

that he had collected money and solicited signatures for

the class action suit brought by Bowlds against UPS.

8. On February 14, 1979, Perkins filed a grievance

protesting UPS's alleged failure to assign him sufficient

work. That grievance was resolved against him. App. at

90a; 648a-50a. Perkins testified that two weeks later he

had a conversation with Tom Mouser, the Campbellsville

Terminal Manager, about obtaining some work pants.

According to Perkins, Mouser stated: “Perkins, we’re

trying to figure out a way to fire your ass anyway. We

won't have to get you any.” App. at 652a. That statement

was made in front of two other employees, Bobby Pierce

and Eddy O’Banion, who both corroborated Perkins’

version of events. App. at 150a; 224a-25a, 234a-35a,

652a-53a.

9. Perkins also stated that in February or March of

1979, Mouser approached him at the Campbellsville facility

and brought up the subject of UPSurge. He testified:

[Mouser] asked me if I had been distributing

some papers around Campbellsville, and I said yes.

And I told him we had the right to as long as the

man wasn’t on the clock working.

And he responded, “Well, I'd rather you didn’t

do it.”

App. at 643a. At the time Mouser made his statement,

Perkins was not distributing literature. Perkins testified

that despite Mouser’s statement, he continued to distrib-

ute UPSurge material at least two more times over the

next few months. App. at 644a-45a.

10. UPS contends that throughout the summer of

1979, Perkins habitually returned late to Campbellsville

after completing his regularly scheduled route. In con-

junction with its observation of Bowlds, UPS decided to

Court of Appeals Opinion AQ

observe Perkins on the night of August 27-28. Company

supervisors testified that they followed Perkins to a rest

stop where they observed him everstay his rest break. On

the next evening Perkins’ supervisor told him that he was

suspended for overextending his rest break and falsifying

his timecard. On August 30, 1979, Perkins was formally

told that he was being discharged.

C. The Grievance Proceedings

11. Both Bowlds and Perkins filed grievances over

their discharges under the grievance procedures in their

union contract. An initial meeting was held on Bowlds’

grievance on September 11, 1979. Bowlds’ grievance was

read into the record,* and Bowlds stated that he was inno-

8. Bowlds’ grievance states [sic]:

On Aug 28th I was called to work early at 7:00 PM and told

by Ben Cissel that I was suspended for overextending my break

and falsifying a time card. Cissel said he could not give me the

details and date therefore denying me a chance to prove myself

innocent. I[t] was not until Aug 31st at 9:00 AM that I was told

that I was terminated and questioned about my 15 min. breaks

the night of Aug 27th. I think the Company withheld the details

of this charge against me as long as possible to make it harder to

defend myself. I did not overextend my break or falsify. Any-

time I stoped my truck, other than the 15 minute break shown

on my card, was because I was very sleepy and had to pull off

the road long enough to get myself woke up so I would not have

an accident. Although I could get myself awake and alert tor

short periods I continued to be sleepy & drowsy, the rest of the

night. I have not been late with my load nor have I ever missed

a scheduled days work.

But once again I think I was terminated for my union activ-

ities, union related activities and my direct involvement in the

class action suit to get the company to comply with state law on

10 minutes Rest Periods. I think the company singled me out to

build a case against me in the NLRB hearing set for Sept 11th.

I ask the Union treat me equal to all the other feeder driv-

ers and see the Company has not. I ask that I be reinstated fully

with pay for all time lost, and be allowed to do an honest and

dependable job.

App. 120a-21la (emphasis in original).

Al0 Court of Appeals Opinion

cent of the UPS’s charges. UPS presented testimony

supporting its claim that Bowlds had overextended his

breaks and falsified his time card. The panel deadlocked,

and the grievance was referred to the state level. The

grievance was heard before the state panel on October 9,

1979, but the parties again deadlocked. On October 30,

1979, the Joint Area Conference heard Bowlds’ griev-

ance but the parties again were unable to resolve the

dispute. Finally on November 20, 1979, the grievance was

placed on the Joint Area Conference’s “Deadlocked

Agenda,” and after a hearing Bowlds’ discharge was

upheld.

12. Perkins’ grievance was also initially heard on

September 11, 1979. A UPS supervisor testified that Per-

kins had been observed taking a thirty-two minute break

although his timecard only reflected a fifteen minute break.

Perkins’ grievance was read,’ and two affidavits were sub-

mitted in his defense. The hearing was deadlocked, and

Perkins’ grievance was referred to the state level. After a

hearing before the state panel, Perkins was granted

immediate reinstatement without backpay.

13. Following their discharges both Bowlds and Per-

kins filed charges with the Board’s Regional Director

claiming that UPS had unlawfully discriminated against

9. Perkins grievance states:

On the night of Aug. 28, 1979 I was suspended for aledgedly

extending my brake and falsifying my time card. I was given no

time or dates of this occurance to defend myself. On Aug. 30,

1979 I was called to work at my regular start time only to be

fired for the above acuations. They did not have the exact times

they recorded me but only the length I was there which was 32

minutes and a lie.

The above charges are degrading and have damaged my

Employment Record. I want to be compensated for all time off

and all documents of this occurance stricken from my records.

App. at 86a.

Court of Appeals Opinion All

them because of their protected activities. On October

24, 1979, the Regional Director issued a consolidated

complaint charging UPS with unfair labor practices. The

complaint alleged that UPS had violated section 8(a)(1)

of the Act by unlawfully promulgating and enforcing a

rule prohibiting distribution of UPSurge’s written mate-

rial on UPS property.'” Order Consolidating Cases,

Consolidated Complaint and Notice of Hearing { 5, 9,

11, app. at 3a, 4a. It also alleged that UPS had violated

sections 8(a)(1), 8(a)(3), and 8(a)(4) of the Act by unlaw-

fully discharging Bowlds and Perkins. /d. at § 6, 7, 8, 9,

11, app. at 3a, 4a.

14. An Administrative Law Judge held hearings and

issued a decision on October 3, 1980. He initially deter-

mined that the General Counsel’s complaint should not

be dismissed on Spielberg deferral grounds.'' Turning to

the merits he found that in February and March of 1979,

UPS had promulgated, maintained, and enforced an

“ambiguous” written rule prohibiting distribution of lit-

erature on UPS property at any time. The ALJ found

that Mouser enforced this rule, pointing specifically to

Mouser’s statement of “I’d rather you didn’t do it,” made

to Perkins concerning the distribution of UPSurge mate-

rial. App. at 156a-57a.'* Based on these facts the ALJ

10. Employees have the right to distribute union literature in

nonworking areas of the employer's premises during nonwork periods.

Employers may not interfere with that right except to the extent

necessary to maintain production or discipline. See Eastex, Inc. v.

NLRB, 437 U.S. 556, 570-75 (1978); Republic Aviation Corp. v.

NLRB, 324 U.S. 793, 801-05 (1945).

11. Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955).

12. Mouser denied that he ever made that statement, but the

ALJ found him not to be a credible witness. Both the Board and this

court are generally bouad by credibility determinations made by the

ALJ. See Behring International, Inc. v. NLRB 675 F.2d 83, 86 (3d

Cir. 1982). petition for cert. filed, 51 U.S.L.W. 3199 (U.S. Sept. 13,

1982) (No. 82-438); Standard Dry Well Products, Inc., 91 N.L.R.B.

544 (1950), enforced, 188 F.2d 362 (3d Cir. 1951).

Al2 Court of Appeals Opinion

held that UPS had violated section 8(a)(1) of the Act.

15. Turning to the discharges of Bowlds and Per-

kins, the ALJ found not credible the supervisors’ testimony

that Bowlds and Perkins had overextended their breaks.

App. at 160a, 162a. He determined that, as a general

ma:ter, late returns by Bowlds and Perkins were due to

delays in getting out of other terminals. /d. The ALJ also

found that Bowlds and Perkins had been singled out for

“extraordinary surveillance” because of their union activ-

ity. Id. While the ALJ did find some discrepancies on the

two employees’ timecards, he held that they were of a

“minor nature.” App. at 162a. The ALJ concluded:

In the instant case, I have found that the General

Counsel made a prima facie showing sufficient to support

the inference that protected conduct was the motivating

factor in the suspension and discharges of Bowlds and

Perkins, and in my view the Respondent has failed to

demonstrate that such actions would have taken place in

the absence of the protected conduct. In acordance

therewith, the Respondent is in violation of sections

8(a)(1), (3), and (4) of the Act.

App. at 163a.

16. UPS filed exceptions to the ALJ’s decision on

December 12, 1980. On May 21, 1982, the Board issued

a decision and order adopting the findings and conclu-

sions of the ALJ. United Parcel Service, Inc., 261 N.L.R.B.

No. 134 (1982) (“United Parcel Service II”). The Board,

however, slightly changed the basis for its finding of an

8(a)(1) violation.

In affirming the Administrative Law Judge’s conclu-

sion that Respondent violated Sec. 8(a)(1) of the

Act by promulgating, maintaining, and enforcing an

unlawfully broad no-distribution rule, we refer solely

to the implied restrictions against distribution on

nonworking time which Supervisor Mouser commu-

nicated to employee Perkins in a February or March

Court of Appeals Opinion Al3

1979 conversation. We find no need to decide whether

Respondent’s written no-solicitation, no distribution

rules also violated Sec. 8(a)(1).

Id.at 2 n.3. The Board specifically upheld the ALJ's

“board” remedial order that the Company cease and de-

sist “in any like or related manner” from interfering with

employees’ section 7 rights. The Board found that the

award was warranted because “Respondent has shown a

proclivity to violate the Act and has engaged in such egre-

gious and widespread misconduct as to demonstrate a

general disregard for the employees’ fundamental Sec. 7

rights.” Id. at 2 n.4; see NLRB v. Local 483 and Local

11, 672 F.2d 1159, 1168 (3d Cir. 1982).

17. UPS filed a petition to review the Board's deci-

sion on July 8, 1982. The Board filed a cross-application

for enforcement on August 17, 1982.

A. The Section 8(a)(1) Violation—

Distribution of UPSurge Literature

18. UPS contends that we should not enforce the

Board’s order holding that UPS violated section 8(a)(1)

of the Act. First UPS asserts that Mouser’s statement,

relied upon by the Board for its finding of a section 8(a)(1)

violation, was not part of the General Counsel’s consoli-

dated complaint nor the basis for the ALJ’s decision. UPS

claims that the Board’s “eleventh hour modification” of

the issue prejudiced it from properly asserting a defense

to the Board’s charges because at the evidentiary hearings

it focused its efforts on disproving the alleged written

policy rather than on rebutting any alleged individual

coercion by Mouser. The Board claims that UPS did have

adequate notice of the charges against it. It argues that

Al4 Court of Appeals Opinion

paragraphs 5(c) and 9 of the consolidated complaint'”

adequately informed UPS of the allegation that Mouser’s

statement violated the Act.

19. Both the Administrative Procedure Act and the

Board’s own rules require that a complaint properly inform

a charged party of any asserted violation. 5 U.S.C.

§ 544(b)(3)(1976); 29 C.F.R. § 102.15 (1982)."* “The Board

may not make findings or order remedies on violations

13. Paragraph 5 of the Order Consolidating Cases, Consoli-

dated Complaint and Notice of Hearing reads:

(a) On or about an unknown date in March, 1979, the

Respondent at its facility promulgated and since said date has

maintained the following rule:

No distribution of UPSurge written material on the

Respondent’s property at any time.

(b) The Respondent promulgated the rule described above

in subparagraph 5(a) in order to discourage its employees from

joining, supporting or assisting UPSurge, an organization of

employees which is designed to inform and influence the

Respondent's employees concerning the actions and policies of

the Respondent and Teamsters Local 710 and Teamsters Local

89 with respect to wages, hours, and working conditions.

(c) On or about an unknown date in March, 1979, the

Respondent by its officer and agent Tom Mouser, maintained and

enforced the rule described above in sub-paragraph 5(a) by pro-

hibiting its employees from passing out UPSurge materials at

anytime while they were on company property.

Paragraph 9 reads:

By the acts described above in paragraph 5 through 8, and

by each of said acts, the Respondent did interfere with, restrain,

and coerce, and is interfering with, restraining, and coercing its

employees in the exercise of the rights guaranteed in Section 7

of the Act, and thereby did engage in, and is engaging in, unfair

labor practices affecting commerce within the meaning of Sec-

tion 2(6) and (7) of the Act.

App. at 2a-4a (emphasis added).

14. General principles of due process also requre that persons

charged with unlawful conduct be given prior notice of the charges

and an opportunity to be heard in defense before the Government

Court of Appeals Opinion Al5

not charged in the General Counsel’s complaint or liti-

gated in the subsequent hearing.” George Banta Co. v.

NLRB, 686 F.2d 10, 17 (D.C. Cir. 1982) (quoting NLRB

v. Blake Construction Co., 663 F.2d 272, 279 (D.C. Cir.

1981) (citing cases)), petition for cert. filed, 51 U.S.L.W.

3554 (U.S. Jan. 10, 1983) (No. 82-1162); see Soule Glass

and Glazing Co. v. NLRB, 652 F.2d 1055, 1073-75 (ist

Cir. 1981). Even where evidence supporting a remedial

order is in the record, courts have refused to grant

enforcement of a Board order in the absence of either a

supporting allegation in the complaint or a meaningful

opportunity to litigate the underlying issue before the

ALJ. See, e.g., Blake 663 F.2d at 279; Montgomery Ward

& Co. v. NLRB, 385 F.2d 760, 763-64 (8th Cir. 1967).

20. Although the thrust of the original complaint

was that UPS’s written policy violated the Act, it specifi-

cally referred to the actions Mouser took in March of

1979 to enforce the no-distribution rule. More impor-

tantly, UPS had a meaningful opportunity to litigate the

issue Of whether Mouser actually made the alleged state-

ment or, if made, whether the statement was coercive.

On direct examination by UPS, Mouser specifically de-

nied that he had ever made the disputed statement to

Perkins. App. at 1015a-16a. In reaching its conclusions,

the Board merely accepted the ALJ’s findings crediting

Perkins’ testimony over Mouser’s. United Parcel Service

IT, 261 N.L.R.B. No. 134, at 2 n.2; see app. at 156 n.14.

Based on this record we find that UPS had sufficient notice

about Mouser’s statement to defend adequately the charge

that that statement constituted a section 8(a)(1) violation

under the Act and therefore was not unduly prejudiced

by the Board’s holding, cf. Soule, 652 F.2d at 1074 (test

is one of fairness under the circumstances of each case).

14. (Contd)

can take enforcement action. Huck Mfg. Co. v. NLRB, 693 F.2d

1176, 1182 (Sth Cir. 1982); Soule Glass and Glazing Co. v. NLRB,

652 F.2d 1055, 1073 (1st Cir. 1981).

Al6 Court of Appeals Opinion

21. UPS’s second argument against enforcement is

that the Board’s conclusion that Mouser’s statement vio-

lated section 8(a)(1) of the Act is not supported by

substantial evidence. UPS asserts that Mouser’s “innoc-

uous” statement should not be considered coercive because

the utterance was extremely short and because there is

no evidence that it was made in a threatening tone.

22. Section 8(a)(1) makes it an unfair labor practice

for an employer “to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed in sec-

tion [7] of this title.” 29 U.S.C. § 158(a)(1)(1976). To

establish a violation of that section, “it need only be shown

that ‘under the circumstances existing, [the employer’s

conduct] may reasonably tend to coerce or intimidate

employees in the exercise of rights protected under the

Act.’ ” United States Steel Corp. v. NLRB, 682 F.2d 98,

101 (3d Cir. 1982) (emphasis added) (quoting NLRB v.

Armcor Industries, Inc., 535 F.2d 239, 242 (3d Cir. 1976)

(quoting Local 542 v. NLRB, 328 F.2d 850, 852-53 (3d

Cir.), cert. denied, 379 U.S. 826 (1964)); see NLRB v.

Keystone Pretzel Bakery, Inc., 696 F.2d 257, 259-60 (3d

Cir. 1982) (en banc). Our standard of review is whether

there is substantial evidence on the record as a whole,

including any evidence detracting from the Board’s view,

to support the Board’s finding of a violation. Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); United

States Steel Corp., 682 F.2d at 101.

23. In affirming the ALJ’s determination that UPS

violated section 8(a)(1) of the Act, the Board relied solely

on Mouser’s statement to Perkins that he would “rather

not” have Perkins distribute literature. 261 N.L.R.B. No.

134, at 2 n.3. We have recently held that where an inci-

dent of alleged interference with the distribution of

literature is trivial and isolated and only imposes a negli-

gible burden on employees’ rights, it will not rise to the

level of a violation of the Act. Graham Architectural

Court of Appeals Opinion Al7

Products Corp. v. NLRB, 697 F.2d 534, 542 (3d Cir.

1983). The Board argues that Mouser’s statement is not

an isolated comment but rather part of a long-standing

pattern of restraining the distribution of literature during

nonworking time. It asserts that when Mouser’s state-

ment is examined against the “backdrop of. . . hostility”

to section 7 rights, it should be considered coercive and

therefore violative of the Act.

24. Viewing all the circumstances, we hold that sub-

stantial evidence exists in the record to uphold the Board’s

finding of a section 8(a)(1) violation. It is true that Mous-

er’s statement, on its face, could be considered noncoercive.

Perkins, however, had recently filed a grievance against

Mouser and UPS. App. at 648a-50a; see app. at 90a. On

February 28, 1979, in the presence of two other employ-

ees, Mouser said to Perkins “we’re trying to figure out a

way to fire your ass.” App. at 150a; 652a. The ALJ took

official notice that the Board had previously determined

that UPS and its supervisors had engaged in various unfair

labor practices, in connection with UPS’s opposition to

employee involvement with UPSurge. App. at 142a-43a.

In light of these facts we think the record supports the

Board’s finding that Mouser’s statement tended to impose

unlawful restrictions on Perkins’ right to distribute liter-

ature.'” Accordingly, we affirm the Board’s holding that

the statement violated section 8(a)(1)."°

15. We agree with the ALJ’s statement that “the mere fact that

the tone of the conversation may have been friendly or conciliatory

does not, of course, erase the implied restrictions by Mouser.” App.

at 157a.

16. In its opening brief and in its reply brief, UPS raised a third

argument against enforcing the Board’s order. It asserted that the

Board’s “re-characterization” of the § 8(a)(1) violation presented a

statute of limitations problem under § 10(b) of the Act, 29 U.S.C.

§ 160(b) (1976), because Mouser’s alleged statement occurred more

than six months prior to the filing of the unfair labor practice charge.

Al18 Court of Appeals Opinion

B. The Sections 8(a)(1), 8(a)(3),.and 8(a)(4) Viola-

tions — The Discharges of Bowlds and Perkins

25. UPS urges us to reject the Board’s conclusion

that the discharges of Bowlds and Perkins violated sec-

tions 8(a)(1), 8(a)(3),'’ and 8(a)(4)'* of the Act. First, it

16. (Cont'd)

On December 6, 1982, the Board filed a motion to strike UPS’s

statute of limitations defense because it had not been properly pre-

sented to the Board. See 29 U.S.C. § 160(e) (1976). In response to

the Board’s motion, UPS argues that it did raise the issue, pointing

to one sentence in its brief submitted in support of its exceptions to

the ALJ’s decision. The Board’s regulations, however, state that a

matter must be included in a party’s exceptions before it will be

considered by the Board. See 29 C.F.R. § 102.46 (1982); see also 29

C.F.R. § 102.34(b) (brief filed in support of exceptions not included

in record of case). UPS concedes that it did not raise the issue in its

formal exceptions, and thus under § 10(e) of the Act and the Board’s

regulations, it is barred from raising that issue before us.

UPS further argues that even if it did not meet the requirements

of § 10(e), it should not be precluded from raising the statute of

limitations issue because “the issue was not interjected into the liti-

gation until the NRLB’s final order.” Cf. NLRB v. Richards, 265

F.2d 855, 862 (3d Cir. 1959) (party not barred from raising before

court issue of law initially created by the Board’s order). The ALJ's

holding, however, specifically based the § 8(a)(1) violation on activ-

ity in February and March of 1979. App. at 157a. Thus the statute

of limitations issue could have been raised by UPS before the Board

in response to the ALJ’s finding of when a violation occurred. UPS’s

failue to raise that issue before the Board preciudes our review at

this stage.

17. Section 8(a)(3) of the Act states:

It shall be an unfair labor practice for an employer —

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment to

encourage or discourage membership in any labor organi-

zation:

29 U.S.C. § 158(a)(3) (1976).

18. Section 8(a)(4) of the Act states:

Court of Appeals Opinion Al9

argues that the Board abused its discretion by refusing to

defer to the grievance panel decisions concerning the dis-

charges of Bowlds and Perkins. Second, it argues that if

we find that the Board properly exercised its jurisdiction,

we should not enforce the Board’s order because the

General Counsel failed to meet its threshold burden of

establishing a prima facie case of unlawful discrimination.

Finally, it argues that, even assuming establishment of a

prima facie case, the Board’s order can not be enforced

because the ALJ erroneously shifted to UPS the burden

of proving that the discharges were not discriminatory.

1. Deferral to the Grievance Proceedings

26. In a series of decisions beginning with Spielberg

Manufacturing Co., 112 N.L.R.B. 1080 (1955), the Board

has ruled that it will defer to an arbitrator’s award if four

criteria are met: (1) the proceedings have been fair and

regular; (2) the parties agreed to be bound; (3) the deci-

sion was not “clearly repugnant” to the purposes and

policies of the Act; and (4) the arbitration has decided

the statutory issue currently under review. Suburban Motor

Freight, Inc., 247 N.L.R.B. 146 (1980); Collyer Insulated

Wire, 192 N.L.R.B. 837 (1971); Raytheon Co., 140

N.L.R.B. 883 (1963), enforcement denied on other grounds,

326 F.2d 471 (Ist Cir. 1964); see Hammermill Paper Co.

v. NLRB, 658 F.2d 155, 159-61 (3d Cir. 1981), petition

for cert. filed, 50 U.S.L.W. 3622 (U.S. Jan. 29, 1982) (No.

81-1438); NLRB v. General Warehouse Corp., 643 F.2d

965, 968-71 (3d Cir. 1981); NLRB v. Pincus Brothers,

18. (Cont'd)

It shall be an unfair labor practice for an employer —

(4) to discharge or otherwise discriminate against an

employee because he has filed charges or given testimony

under this subchapter;

29 U.S.C. § 158(a)(4) (1976).

A20 Court of Appeals Opinion

Inc.-Maxwell, 620 F.2d 367 (3d Cir. 1980); cf. Schaefer v.

NLRB, 697 F.2d 558 (3d Cir. 1983) (Board deferral to

private settlement agreements).'’ The Board’s policy of

deferral is designed to promote industrial peace and sta-

bility by encouraging the private resolution of disputes.

Spielberg, 112 N.L.R.B. at 1082.” In reviewing a Board

decision not to defer to an arbitrator’s award, we are

limited to determining whether the Board abused its dis-

cretion. Herman Brothers, Inc. v. NLRB, 658 F.2d 201,

207 (3d Cir. 1981); General Warehouse Corp., 643 F.2d

at 968 & n.10; see NLRB v. South Central Bell Telephone

Co., 688 F.2d 345, 350 & n.7 (Sth Cir. 1982), petition for

cert. filed, 51 U.S.L.W. 3485 (U.S. Dec. 16, 1982) (No.

82-1016).

19. The first three parts of the Board’s test were originally for-

mulated in Spielberg. 112 N.L.R.B. at 1082. The fourth element.

actually “a prerequisite to the Spielberg standards,” General Ware-

house, 643 F.2d at 969 & n.12, was articulated in Raytheon Co., 140

N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d

471 (1st Cir. 1964), as a separate and distinct factor. NLRB v. Motor

Convoy, Inc., 573 F.2d 734, 735 & n.3 (4th Cir. 1982); see Profes-

sional Porter & Window Cleaning Co., 263 N.L.R.B. No. 34 (1982).

See generally NLRB v. Babcock and Wilcox Co., 697 F.2d 724 (6th

Cir. 1982); NLRB v. South Cent. Bell Tel. Co., 688 F.2d 345 (Sth

Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3485 (U.S. Dec. 16,

1982) (No. 82-1016); Liquor Salesmen’s Union Local 2 v. NLRB, 664

F.2d 318 (2d Cir. 1981), cert. denied, 102 S. Ct. 2236 (1982); NLRB

v. Designcraft Jewel Indus., 675 F.2d 493 (2d Cir. 1982); Pioneer

Finishing Corp. v. NLRB, 667 F.2d 199 (1st Cir. 1981), petition for

cert. filed, 50 U.S.L.W. 3949 (U.S. May 22, 1982) (No. 81-2162);

Murphy & Sterlacci, A Review of the National Labor Relations Board’s

Deferral Policy, 42 Ford. L. Rev. 291 (1973); Note, Spielberg Recon-

sidered — Problems in Application and Content of the Deferral

Doctrine, 49 Ford. L. Rev. 1116 (1981); Note, Limiting Deferral

Under the Spielberg Doctrine, 67 Va. L. Rev. 615 (1981).

20. See William E. Arnold Co. v. Carpenters Dist. Council, 417

U.S. 12, 16-17 (1974); Carey v. Westinghouse Elec. Corp., 375 U.S.

261, 270-72 & n.7 (1964); Hammermill, 658 F.2d at 159 n.8: General

Warehouse Corp., 643 F.2d at 968 n.11.

Court of Appeals Opinion A21

27. In the instant case, no evidence of Bowlds’ and

Perkins’ protected activities was presented at any stage of

the grievance proceedings. Tom Trenaman, the Local 89

Business Agent who represented both employees before

the grievance panel, admitted that he never met with

Bowlds or Perkins before the grievance panel meetings,

never went over their testimony with them, and never

introduced any evidence concerning their PROD or

UPSurge activities. Other than a passing reference in

Bowlds’ grievance, no mention was made before the panel

of the class action lawsuit against UPS, of the other

grievances filed by Bowlds or Perkins, or of their pre-

vious testimony before the Board.*' The panel decisions

made no reference to any concerted or protected activ-

ities on the part of Bowlds or Perkins.

21. UPS argues that because Bowlds’ grievance mentions his

union activities and because it was read into the record at every stage

of the proceedings, the grievance panel was sufficiently apprised of

the statutory issues to require deference by the Board under Spiel-

berg. We have stated:

The Board’s fourth requirement will be deemed net “[i]f there

is substantial and definite proof that the unfair labor practice

issue and evidence were expressly presented to the arbitrator

and /that] the arbitrator's decision indisputably resolve[d] the

[unfair labor practice] issue. . . .” Stephenson, 550 F.2d at 538

n.4 (emphasis added). If “the arbitrator’s decision is ambiguous

as to the resolution of the statutory issue, [we must hold that]

the ‘clearly decided requirement has not been met.’” /d.

General Warehouse, 643 F.2d at 969 n.16 (quoting Stephenson v.

NLRB, 550 F.2d 535 (9th Cir. 1977); see Hammermill, 658 F.2d at

160-61. Mere passing reference in Bowlds’ grievance to his protected

activities is not “substantial and definite proof” that the statutory

issue was “indisputably resolve[dj.”

We note that the Board’s refusal to defer in the instant case is

consistent with its treatment of the same issue in United Parcel Serv-

ice I. In that decision the Board stated:

Because the Union’s failure both to advocate Bowlds’ claim that

he was discharged for dissident activities and to present evidence

A22 Court of Appeals Opinion

28. We find that the Board properly exercised its

jurisdiction over the unfair labor practice proceedings.

We have previously held that “for the Board’s deferral

policy not to be one of abdication, the Board must be

presented with some evidence that the statutory issue has

actually been decided.” Generaly Warehouse, 643 F.2d at

969 (footnotes omitted). The instant record is devoid of

any such evidence. There is nothing to indicate that the

statutory issue was fully presented to or considered by

the grievance panels.” Based on that record, the Board

did not abuse its discretion by refusing to defer.**

21. (Cont'd)

on that claim, we find deferral inappropriate. In these circum-

stances, it is not enough that Bowlds’ grievance was read at each

step of the proceeding, even though in the grievance Bowlds

contended that he was discharged for his “union activities and

involvement in a class action suit. . . .” The mere presentation

of the contention, without more, cannot support deferral.

252 N.L.R.B. 1015, 1016 (1980) (footnote omitted). The Sixth Cir-

cuit affirmed the Board’s ruling on the Spielberg issue. NLRB vy.

United Parcel Service, Inc., 677 F.2d 421, 422 (6th Cir. 1982).

22. Because the grievance panels did not consider or resolve the

unfair labor practice issues, the ALJ and the Board did not have to

consider the other Spielberg criteria when deciding whether to defer.

General Warehouse, 643 F.2d at 969; Professional Porter & Window

Cleaning Co., 263 N.L.R.B. No. 34, at 5 n.3 (1982). Accordingly we

do not reach the Board’s other argument that the arbitrator's deci-

sion as to Bowlds was “clearly repugnant” to the Act.

23. UPS argues that the arbitrator's decision to uphold Bowlds’

discharge implicitly decided that UPS did not discriminate in viola-

tion of the Act. The collective bargaining agreement explicitly prohibits

“any discrimination against any employee because of union member-

ship or activities.” App. at 29a. Thus UPS argues that the decision

to uphold Bowlds’ discharge “necessarily” was a decision holding

that the Company had not discriminated against Bowlds because of

his protected activity.

While an arbitrator’s award may “evince resolution of unfair

labor practice issues,” Hammermill. 658 F.2d at 160, a finding favor-

able to the employer does not automatically dispose of a claim of

Court of Appeals Opinion A23

2. The General Counsel's Prima Facie Case.

29. UPS contends that even if the Board properly

refused to defer to the grievance panel’s decision, we should

not enforce the Board’s order. It asserts that the General

Counsel, when presenting his case to the ALJ, failed to

meet his threshoid burden of making a prima facie show-

ing of unlawful discrimination.

30. To establish a prima facie case, the General

Counsel must present sufficient evidence to support the

inference that protected conduct was a motivating factor

in the employer's decision. Behring International, Inc. v.

NLRB, 675 F.2d 88, 90 (3d Cir. 1982), petition for cert.

filed, 51 U.S.L.W. 3199 (U.S. Sept. 13, 1982) (No. 82-

438). As the Supreme Court explained in Texas Depart-

ment of Community Affairs v. Burdine, 450 U.S. 248

(1981):

[T]he prima facie case “raises an inference of dis-

crimination only because we presume these acts, if

otherwise unexplained, are more likely than not based

on the consideration of impermissible factors.”

Establishment of the prima facie case in effect cre-

ates a presumption that the employer unlawfully

discriminated against the employee. If the trier of

fact believes the plaintiff's evidence, and if the

employer is silent in the face of the presumption, the

23. (Cont'd)

discriminatory discharge in violation of the Act. Jd; General Ware-

house, 643 F.2d at 969 & n.13. When no evidence or protected activity

is presented to the arbitrator and the arbitrator's decision makes no

mention of statutory protected rights, we find it difficult to conclude

“that the arbitrator consider[ed] the statutory issue and rule[d] on it

or all the facts required to decide it.” General Warehouse, 643 F.2d

at 969 & n.17. But cf. Motor Convoy, 673 F.2d at 736 (based on the

evidence presented to the arbitration panel, inherent in its decision

was a resolution of the question of whether employee was fired for

protected union activities).

A24 Court of Appeals Opinion

court must enter judgement for the plaintiff because

no issue of fact remains in the case.

Id. at 254 (quoting Furnco Construction Corp. v. Waters,

438 U.S. 567, 577 (1978)) (footnote omitted). The bur-

den of establishing a prima facie case is not onerous.

Burdine, 450 U.S. at 253.

31. We do not think that the ALJ erred in holding

that the General Counsel established a prima facie case

of unlawful discrimination. The General Counsel pro-

duced evidence that UPS knew that Bowlds and Perkins

were involved in widespread protected activity, including

organizing efforts for UPSurge. The General Counsel

also presented evidence that Bowlds and Perkins, at the

time of their discharges, were involved in another unfair

labor practice proceeding concerning alleged discrimina-

tion for union activity. Bowlds and Perkins both testified

that, contrary to reports by UPS’s supervisors, they did

not overextend their breaks on the night of August 27-

28. Evidence corroborating their testimony was intro-

duced by the General Counsel.** Those facts are sufficient

to support an inference that UPS discharged Bowlds and

Perkins for their protected activities. Accordingly, we hold

that the General Counsel met his threshold burden of

establishing a prima facie case of discriminatory dis-

charge.

3. The Burden of Proof Issue

32. UPS's final contention is that, assuming estab-

lishment of a prima facie case, the ALJ improperly shifted

to UPS the burden of proving that Bowlds and Perkins

would have been discharged regardless of their protected

activity. In Behring International, Inc. v. NLRB, we out-

lined the appropriate burdens of going forward and of

proof to be applied in a discriminatory discharge case.

24. App. at 247a-49a, 275a, 278a, 472a-76a, 529a-31a, 631a.

Court of Appeals Opinion A25

Under our formula, once the General Counsel has

established a prima facie case of discriminatory dis-

charge, the employer should rebut this with evidence

of a legitimate business reason for its action. The

ultimate burden of proof does not shift from the

General Counsel and does not devolve upon the

employer at any stage. Therefore, no violation may

be found unless the Board determines that the Gen-

eral Counsel has proved by a preponderance of the

evidence that the employer’s anti-union animus was

the real cause of the discharge.

675 F.2d 83, 90 (3d Cir. 1982), petition for cert. filed, 51

U.S.L.W. 3199 (U.S. Sept. 13, 1982) (No. 82-438); see

NLRB v. Blackstone, 685 F.2d 102, 105 (3d Cir.), cert.

denied, 103 S. Ct. (1982). UPS argues that the Board

failed to apply that test when it determined that UPS had

violated the Act by discharging Bowlds and Perkins. UPS

contends that the Board instead applied its Wright Line

test, which shifts the burden of persuasion on the issue of

motive to the employer once the General Counsel estab-

lishes a prima facie case of discriminatory discharge. See

Wright Line, a Division of Wright Line, Inc., 251 N.L.R.B.

1083 (1980), enforced, 662 F.2d 899 (Ist Cir. 1981), cert.

denied, 455 U.S. 989 (1982)” Accordingly, UPS argues

to deny enforcement.

25. Note that in Behring we approved that part of the Board’s

Wright Line opinion which placed the initial burden on the General

Counsel to establish a prima facie case of unlawful discrimination.

We disagreed with the Board, however, that once a prima facie case

is shown the burden of persuasion shifts to the employer. Behring,

675 F.2d at 90; see Blackstone, 685 F.2d at 105. We emphasized the

importance of the procedural aspects of a discriminatory discharge

case. We stated:

From a practical standpoint, it is unlikely that the decision

in many cases will turn on whether the employer’s burden is

characterized as being one of persuasion or production. Never-

theless, as the Board recognized in Wright Line, 251 N.L.R.B.

A26 Court of Appeals Opinion

33. We agree that the ALJ and the Board misallo-

cated the burden of persuasion in the instant case. In his

decision the ALJ clearly shifted to UPS the burden of \

providing that the discharges would have taken place in

the absence of any protected conduct. App. at 163a. The

Board specifically affirmed the ALJ’s rulings, findings,

and conclusions. Because the ALJ’s and the Board’s deci-

sions are in contravention of our holding in Behring, we

cannot enforce the Board’s order and must remand to the

Board for reconsideration. Blackstone, 685 F.2d at 106;

Behring, 675 F.2d at 91.

IV

34. We will vacate the Board’s order reinstating

Bowlds and Perkins and awarding them backpay and other

benefits, and we will remand the case for further proceed-

ings. In all other respects we will enforce the Board’s

order.

ROSENN, Circuit Judge, Concurring and Dissenting.

I agree with the majority that because the Board

improperly allocated the burden of proof in determining

that the discharges of Bowlds and Perkins were discrimi-

natory, the case must be remanded for further

25. (Cont'd)

at 1087, “[t]"his distinction is a crucial one since the decision as

to who bears this burden can be determinative.” We think that

fewer errors will result if the distinction is properly observed.

Behring, 675 F.2d at 90 (footnote omitted).

The Supreme Court has recently granted certiorari in NLRB v.

Transp. Management Corp., 674 F.2d 130 (1st Cir.) (per curiam),

cert. granted, 103 §. Ct. 372 (1982), to resolve the conflict between

the Board and various courts of appeals on the burden of proof

issue.

EL

Court of Appeals Opinion A27

consideration of this charge. But I believe that the majority

has erred in its separate holding that United Parcel Serv-

ice (UPS) violated section 8(a)(1) of the Act by its overly

broad rule against the distribution of union literature.

The Company has raised an important statute of limita-

tions challenge to the Board’s finding of this unfair labor

practice, and I think this challenge also warrants further

consideration on remand.

The Board determined that UPS violated section

8(a)(1) of the Act entirely on the basis of the incident in

which Supervisor Mouser told employee Perkins that “Id

rather you didn’t” distribute literature on company prop-

erty. The testimony indicated that this statement was made

sometime in February or March 1979. Since the Admin-

istrative Law Judge had found a violation of section 8(a)(1)

under a different theory, he made no finding as to pre-

cisely when Mouser’s statement was made. Yet the date

of the statement became a crucial item of information

under the Board’s theory of the case. Section 10(b) of

the Act precludes the Board from issuing a complaint

unless formal charges were filed with the Board within

six months of the alleged unfair labor practice. 29 U.S.C.

§ 160(b). Because Perkins filed his charge on September

12, 1979, the General_Counsel could only issue a com-

plaint concerning events taking place after March 12, 1979.

Thus, section 10(b) would require the Board to ascertain

precisely when the Mouser-Perkins conversation occurred

before the conversation could serve as the basis of an

unfair labor practice finding. The Board did not consider

this problem in making its decision.

The majority disposes of this statute of limitations

defense on the ground that it was not adequately raised

before the Board, and that therefore this court may not

consider it now. Under section i0(e) of the Act, 29 U.S.C.

§ 160(e), the court of appeals may not consider any argu-

ment that an employer failed to raise before the Board

unless “extraordinary circumstances” exist. See Woelke &

A28 Court of Appeals Opinion

Romero Framing, Inc. v. NLRB, 50 U.S.L.W. 4538, 4543

(U.S. 1982). The Company argues that it adequately raised

the issue before the Board because in its brief to the

Board filed in support of its exceptions to the Regional

Director’s report, it clearly stated that “the section 10(b)

limitations preclude any. . . finding” that Mouser’s state-

ment violated the Act. The majority does not consider

this adequate to raise the defense because the argument

was not made in the Company’s formal exceptions but

only in its supporting brief. See typescript op. at 18 n. 16.

To my mind, this is an unduly technical and unrea-

sonable disposition of this issue. The majority refers to

regulations of the Board requiring parties to include in

their exceptions all matters that are to be argued before

the Board, and limiting the brief to matters within the

scope of the exceptions. See 29 C.F.R. § 102.46. It is

undeniable, however, that the Board was informed of the

statute of limitations issue.

We have previously held that a technical failure to

comply with the Board’s procedural rules governing

objections will not bar an employer from making his argu-

ment to the court of appeals so long as the Board was

“adequately appraised” of the employer’s position. NLRB

v. Capital Bakers, Inc., 135 F.2d 45, 48 (3d Cir. 1965).

See also NLRB v. Blake Construction Co., 663 F.2d 272,

283-84 (D.C. Cir. 1981) (“We do not think section 10(e)

requires such a triumph of technical pleading over fun-

damental fairness.”). Especially in the instant case, where

the Board itself saw fit to reformulate the section 8(a)(1)

issue at the last minute,’ I am very reluctant to adopt the

1. The Administrative Law Judge found a continuing violation

of section 8(a)(1) arising out of a posted work rule pertaining to

distribution of literature in the plant, and apparently viewed Mous-

er’s statement as simply one instance of the implementation of this

work rule. The Board, however, relied solely on Mouser’s statement

to Perkins as the basis of the unfair labor practice finding.

aor ern aeiinste

Court of Appeals Opinion A29

excessively technical approach to section 10(e) that the

majority does. As we recently have observed, “The pur-

pose of § 10(e) is to ensure against piecemeal appeals to

the courts by requiring that the parties first give the Board

an opportunity to rule upon all material issues in a case.”

NLRB v. Cardox Division of Chemetron Corp., 699 F.2d

148, 153 n.10 (3d Cir. 1983). In the instant case, the

Board had such an opportunity. I cannot conceive of any

purpose that would be served by foreclosing the Com-

pany from arguing its statute of limitations defense on the

ground that, though it made the argument to the Board

in very explicit terms, it did so on the wrong page.

I therefore think that the statute of limitations issue

was adequately raised below and may be considered by

the court on appeal.” The record suggests that this defense

quite possibly has merit, since Mouser’s statement may

have been made in February or the first few days of March.

Accordingly, upon remand of the case, the Board should

also be directed to ascertain whether Mouser’s statement

took place within the statutory six-month period of sec-

2. The Company maintains that, assuming it did not adequately

meet the requirement of section 10(e) that the statute of limitations

issue be specifically raised before the Board, it should be excused for

not having done so, because it was only when the Board reformu-

lated the position of the ALJ that the statute of limitations issue

became crucial. This argument might have had some merit, were it

not for the Supreme Court’s recent decision in Woelke & Romero

Framing, Inc. v. NLRB, 50 U.S.L.W. 4538, 4543 (1982), where the

Court suggested that the section 10(e) bar applies even where an

issue is injected into the proceedings by the Board’s decision, since

the opposing party still has the option of filing a motion for re-

consideration with the Board. But, as noted above, I believe that

the Company adequately urged its statute of limitations objection

before the Board.

A30 Court of Appeals Opinion

tion 10(b).° I therefore dissent on this statute of limitations

issue.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

3. Since the case is being remanded to the Board on the discrim-

inatory discharge issue, no further delay or inconvenience to the

parties would be caused by remanding on the 8(a)(1) issue as well.

Court of Appeals Judgment A31

JUDGMENT

Before: GIBBONS, HUNTER and ROSENN, Circuit

Judges

THIS CAUSE came to be heard upon a petition

filed by United Parcel Service, Inc., Owensboro, Ken-

tucky, to review an order of the National Labor Relations

Board issued against said Petitioner, its officers, agents,

successors, and assigns on May 12, 1982, and upon a

cross-application filed by the National Labor Relations

Board to enforce said Order. The Court heard argument

of respective counsel on February 15, 1983, and has con-

sidered the briefs and transcript of record filed in this

cause. On April 18, 1983, the Court being fully advised

in the premises handed down its decision in which it granted

enforcement of the Board’s order in part, vacated in part

and remanded the case to the Board for further proceed-

ings. In conformity therewith, it is hereby

ORDER AND ADJUDGED by the Court that

Petitioner, United Parcel Service, Inc., its officers, agents,

successors and assigns, shall:

1. Cease and desist from:

(a) Promulgating, maintaining, and enforc-

ing a no-distribution rule prohibiting distribution

of union materials on Company property at any

time.

(b) In any other manner interfering with,

restraining, or coercing employees in the exer-

cise of the rights guaranteed them in Section 7

of the National Labor Relations Act (herein-

after called the Act).

2. Take the following affirmative action neces-

sary to effectuate the policies of the Act:

(a) Post at its facility in Owensboro and

Dated:

Court of Appeals Judgment

Campbellsville, Kentucky copies of the attached

notice marked “Appendix.” Copies of said

notices, on forms to be provided by the Regional

Director for Region 25, of the National Labor

Relations Board (Indianapolis, Indiana) after

being duly signed by Petitioner’s representative,

shall be posted by Petitioner immediately upon

receipt thereof, and be maintained by it for 60

consecutive days thereafter, in conspicuous

places, including all places where notices to

employees are customarily posted. Reasonable

steps shall be taken by Petitioner to insure that

said notices are not altered, defaced, or covered

by any other material.

(b) Notify the aforesaid Regional Director

in writing, within 20 days from the receipt of

this judgment. while steps have been taken to

comply herewith.

By THE Court

JAMES Hunter III

Circuit Judge

May 17, 1983

Court of Appeals Judgment A33

APPENDIX

NOTICE TO EMPLOYEES

POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORC-

ING IN PART AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD

An Agency of the United States Government

After a hearing at which all sides had an opportunity to

present evidence and state their positions, the National

Labor Relations Board found that we have violated the

National Labor Relations Act, as amended, and has

ordered us to post this notice.

The Act gives employees the following rights:

To engage in self-organization

To form, join, or assist any union

To bargain collectively through representatives

of their own choice

To engage in activities together for the purpose

of collective bargaining or other mutual aid or

protection

To refrain from the exercise of any or all such

activities.

WE WILL NOT promulgate, maintain, or enforce a

no-distribution rule prohibiting distribution of union

literature or materials on company property at any

time.

A34 Court of Appeals Judgment

WE WILL NOT in any other manner interfere with,

restrain, Or coerce our employees in their exercise

of the rights guaranteed them under the Act.

UNITED PARCEL SERVICE, INC.

(Employer)

Dated By

(Representative ) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any questions

concerning this notice or compliance with its provisions

may be directed to the Board’s Office, Federal Office

Building, room 232, 575 North Pennsylvania Street, Indi-

anapolis, Indiana 46204, Telephone 317-269-7413.

Decision and Order A35

UNITED STATES OF AMERICA

BEFORE THE NATIONAL

LABOR RELATIONS BOARD

UNITED PARCEL SERVICE, INC.

and

ROBERT W. BOWLDS, an Individual

Case 25— CA — 11313

DAVID E. PERKINS, an Individual

Case 25— CA —11313—2

DECISION AND ORDER

On October 30, 1980, Administrative Law Judge Phil

W. Saunders issued the attached Decision in this pro-

ceeding. Thereafter, Respondent filed exceptions and a

supporting brief, the General Counsel filed a brief in

support of the Administrative Law Judge’s Decision, and

Respondent filed a supplemental brief.’

Pursuant to the provisions of Section 3(b) of the

Nationa! Labor Relations Act, as amended, the National

Labor Relations Board has delegated its authority in this

proceeding to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and has

decided to affirm the rulings, findings,” and conclusions”

1. Respondent's unopposed motion to file a supplemental brief

is granted.

2. Respondent has excepted to certain credibility findings made

by the Administrative Law Judge. It is the Board’s established policy

not to overrule an administrative law judge’s resolutions with respect

to credibility unless the clear preponderance of all of the relevant

evidence convinces us that the resolutions are incorrect. Standard

Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362

(3d Cir. 1951). We have carefuliy examined the record and find no

basis for reversing his findings.

3. In affirming the Administrative Law Judge’s conclusion that

Respondent violated Sec. 8(a)(1) of the Act by promulgating, main-

A36 Decision and Order

of the Administrative Law Judge and to adopt his rec-

ommended Order, as modified herein.”

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Rela-

tions Board adopts as its Order the recommended Order

of the Administrative Law Judge, as modified below, and

hereby orders that the Respondent, United Parcel Serv-

ice, Inc. Owensboro, Kentucky, its officers, agents,

successors, and assigns, shall take the action set forth in

the said recommended Order, as so modified:

1. Substitute the following for paragraph I(c):

“(c) In any other manner interfering with,

restraining, or coercing employees in the exercise of

the rights guaranteed them in Section 7 of the Act.”

2. Insert the following as paragraph 2(b) and reletter

the subsequent paragraphs accordingly:

“(b) Expunge from its files any references to the

disciplinary suspension of Bowlds and Perkins issued

3. (Cont'd)

taining, and enforcing an unlawfully broad no-distribution rule, we

refer solely to the implied restrictions against distribution on non-

working tirne which Supervisor Mouser communicated to employee

Perkins in a February or March 1979 conversation. We find no need

to decide whether Respondent’s written no-solicitation, no-distribu-

tion rules also violated Sec. 8(a)(1). See 7:R.W. Bearings Division, a

Division of T.R.W., Inc., 257 NLRB No. 47 (1981).

4. The Administrative Law Judge recommended that Respond-

ent cease and desist from “in any like or related manner” interfering

with the employees’ Sec. 7 rights. We find that the issuance of a

broad order is warranted inasmuch as Respondent has previously

been found to have violated the Act in certain respects similar to the

violations found herein. See United Parcel Service, Inc., 252 NLRB

1015 (1980). Thus, Respondent has shown a proclivity to violate the

Act and has engaged in such egregious and widespread misconduct

a re

—e

Decision and Order A37

on August 28, 1979, and to their subsequent dis-

charges, and notify them in writing that this has been

done, and that evidence of these unlawful actions

will not be used as a basis for future discipline against

them.”

3. Substitute the attached notice for that of the

Administrative Law Judge.

Dated, Washington, D.C. May 21, 1982

John H.Fanning, Member

Howard Jenkins, Jr., _ Member

Don A. Zimmerman, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

4. (Cont'd)

as to demonstrate a general disregard for the employees’ fundamen-

tal Sec. 7 rights.

We note that during this proceeding, and during the grievance

and arbitration proceedings involving employee Bowlds’ suspension

on August 28, 1979, and his subsequent discharge, Respondent

defended its conduct by relying in part on a final warning letter it

issued to Bowlds on October 3, 1978. In United Parcel Service, Inc.,

252 NLRB 1015 (1980), the Board found that the disclipine which

resulted in this final warning letter was unlawful. It follows that this

letter was nullified by the Board’s decision. Respondent's use of the

letter, in the instant case, as evidence that its discipline of Bowlds

was legitimate is, to the contrary, further proof of Respondent's

unlawful discriminatory motivation.

Apparently through inadvertence the Administrative Law Judge

failed to require Respondent to expunge from its records any refer-

ence to the August 28, 1979, suspensions and subsequent discharges

of Bowlds and Perkins. We shall modify the recommended Order

accordingly.

A38 Decision and Order

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

After a hearing at which all sides had an opportunity

to present evidence and state their positions, the National

Labor Relations Board found that we have violated the

National Labor Relations Act, as amended, and has

ordered us to post this notice.

The Act gives employees the following rights:

To engage in self-organization

To form, join, or assist any union

To bargain collectively through representatives

of their own choice

To engage in activities together for the purpose

of collective bargaining or other mutual aid or pro-

tection

To refrain from the exercise of any or all such

activities.

WE WILL NOT promulgate, maintain, or enforce a

no-distribution rule prohibiting distribution of union lit-

erature or materials on company property at any time.

WE WILL NOT discriminate against our employees

because they gave testimony in a Board proceeding.

WE WILL NOT suspend, discharge, or otherwise

discriminate against employees in violation of the rights

guaranteed them under the Act.

WE WILL NOT discourage membership in Team-

sters Local 710 or Teamster Local 89, or any other labor

organization, by discriminating against our employees in

regard to their hire and tenure of employment or any

terms or conditions of employment.

—

Decision and Order A39

WE WILL NOT in any other manner interfere with,

restrain, or coerce our employees in their exercise of the

rights guaranteed them under the Act.

WE WILL offer to Robert Bowlds and David Per-

kins reinstatement to their former jobs or, if such jobs no

longer exist, to subsiantially equivalent jobs, without

prejudice to their seniority or other rights and privileges

previously enjoyed, and WE WILL make them whole for

any loss of earnings or benefits, plus interest.

WE WILL expunge from our files any references to

the disciplinary suspensions of Bowlds and Perkins issued

on August 28, 1979, and to their subsequent discharges,

and notify them in writing that this has been done, and

that evidence of these unlawful actions will not be used

as a basis for future discipline against them.

UNITED PARCEL SERVICE, INC.

(Employer)

Dated ______ By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any questions

concerning this notice or compliance with its provisions

may be directed to the Board’s Office, Federal Office

Building, Room 232, 575 North Pennsylvania Street,

Indianapolis, Indiana 46204, Telephone 317-269-7413.

A40 Decision and Order

UNITED STATES OF AMERICA

BEFORE THE NATIONAL

LABOR RELATIONS BOARD

DIVISION OF JUDGES

UNITED PARCEL SERVICE, INC.

and Case 25-CA-11,313

ROBERT W. BOWLDS, An Individual

and Case 25-CA-11,313-2

DAVID E. PERKINS, An Individual

Albert G. Fisher, Esq., for

the General Counsel

W. Bruce Baird, Esq., and

Matthew R. Westfall, Esq.,

for the Respondent.

DECISION

Statement of the Case

PHIL W. SAUNDERS, Administrative Judge: Based

on charges and amended charges filed on certain dates in

September and October, 1979, by Robert Bowlds and

David Perkins, a consolidated complaint was issued on

October 24, 1979, against United Parcel Service, Inc.,

herein the Respondent or the Company, alleging viola-

tions of Section 8(a)(1), (3) and (4) of the Act. Resp. »ndent

filed an answer to the complaint denying it had ensaged

in the alleged matter. Both the General Counsel and the

Respondent filed briefs in this matter.

Upon the entire record in the case, and from nmiy

observation of the witnesses and their demeanor, I make

the following:

Findings of Fact

I. The Business of Respondent

The Respondent is an Ohio corporation with an office

and place of business located at Owensboro, Kentucky,

a

Decision and Order A4l

and where it is engaged in the interstate transportation

and distribution of parcels and a parcel delivery service.

During the year preceding the hearing herein, Respond-

ent performed services valued in excess of $50,000 in

States other than the State of Kentucky. During the same

period it received gross revenues in excess of $500,000,

as a link in the interstate transportation of goods. It is

conceded, and I find, that Respondent is engaged in com-

merce within the meaning of Section 2(6) and (7) of the

Act.

Il. The Labor Organizations Involved

Teamster Local 710, a/w International Brotherhood

of Teamster, Chauffeurs, Warehousemen and Helpers of

America, and Teamster Local 89, a/w International

Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America, are labor organizations within

the meaning of Section 2(5) of the Act.

Ill. The Unfair Labor Practices

It is alleged that in March 1979 the Respondent pro-

mulgated and since said date has maintained the following

rule:

No distribution of UPSurge written material on the

Respondent's property at any time.

That the Respondent promulgated the rule described

above in order to discourage its employees from joining,

supporting or assisting UPSurge, and that in March 1979

the Respondent, by its officer and agent Tom Mouser,

maintained and enforced the rule by prohibiting its

employees from passing out UPSurge materials at any

time while they were on Company property.

It is further alleged that on August 31, 1979, the

Respondent discharged Robert Bowlds and David Per-

kins, and that the Respondent did so because:

A42 Decision and Order

(i) said employees filed charges with the Board and

gave testimony under the Act;

(ii) said employees joined and assisted Teamsters

Local 710 and Teamsters Local 89;

(iii) said employees joined and assisted UPSurge;

(iv) said employees joined and assisted PROD;

(v) said employees engaged in other union activity

and concerted activities for the purpose of col-

lective bargaining and mutual aid and protection,

including participation in filing a civil suit against

Respondent, and because the Respondent

believed they had engaged in such activities or

would do so.

Since 1965, Bob Bowlds has been employed by

Respondent at its Owensboro, Kentucky, facility as a

feeder driver. During 1979 his scheduled run was from

Owensboro to Nashville and then a return trip. During

the periods material hereto, David Perkins started his

feeder run at Campbellsville, Kentucky, his home base,

drove to Nashville, and on his way back made a stop at

Bowling Green, Kentucky, and then returned to Camp-

bellsville. Perkins had driven this run since 1977. The

Company maintains that both drivers were terminated in

late August 1979 for overextending their rest breaks and

falsifying their timecards.

It appears that feeder drivers, such as Bowlds and

Perkins, report each day to their home location, drive a

trailer load of packages to the same destination or termi-

nal for dropoffs, and then return to their origin that same

workday with a new load of packages. A feeder driver is

assigned a specific start time each day to begin his sched-

uled run. After punching the timeclock, a feeder driver

must “pre-trip” his truck before departure from the ter-

minal. This consists of checking oil and water and visually

inspecting the safety equipment on the tractor and trailer.

Decision and Order A43

After completion of the “pre-trip inspection” the feeder

driver then updates his ICC logbook and timecard. Each

driver is assigned a specific time when he is scheduled to

physically depart his home facility and begin driving to

his destination.

When en route to his destination, the feeder driver

is allowed one 15-minute break on the down leg, provided

the distance to his destination is 100 miles or greater. In

addition to the 15-minute break, the driver is also allowed

up to 5 minutes additional time contiguous with the rest

break for visual safety inspection of his rig and to update

his timecard and logbook, but the time and place of the

15-minute rest break is left to the discretion of the driver.

However, each feeder driver is scheduled to arrive at his

destination at a precise time. The Company maintains

that punctuality is paramount due to the fact that each

package load is destined for different States, and the

packages must be re-sorted at the destination and then

reloaded on to other feeders or trucks which are sched-

uled to leave at precise times in order to make connections

at their destinations.

It also appears that once at his destination (Nash-

ville) the feeder driver then takes his 30-minute lunch

break. Other duties of the feeder driver at his destination

terminal include fueling of tractors, washing trailers,

spotting trailers in the hub yard, and loading or unloading

packages, and each driver, when his return trailer is hooked

up, must complete another “pre-trip” inspection prior to

departure and update his logbook. Departure for return

to his home terminal is also scheduled on an assigned

time, and on his return, if it exceeds 100 miles, the feeder

driver is again allowed another 15-minute rest break. plus

the 5-minute safety check including the update of his log-

book and timecard. The driver is also assigned a specific

time to return to his home terminal, and upon arrival

makes a visual “post-trip” inspection of his equipment,

A44 Decision and Order

completes his logbook and timecard, and punches out.

The timecard, which is filled out completely by the driver,

must accurately reflect the amount of time the feeder

driver spent on the road and on breaks, and in conformity

with government regulations and Company policy, each

feeder driver must also note any defects or problems with

his equipment on a Car Condition Report.

As to Bowlds

For background purposes, it is noted that Bowlds

was terminated twice in 1978. He was first discharged by

Respondent on April 24, 1978. Thereafter, on May 24,

1978, Bowlds received a final warning. This warning, also

pursuant to the grievance procedure, was rescinded on

June 14, 1978. Bowlds was again terminated on August

4, 1978, but again pursuant to the proceedings and a deci-

sion at the final arbitration step of the grievance procedure,

Bowlds was reinstated on or about October 3, 1978.

However, in the absence of an award for backpay by the

arbitration panel, Bowlds was not reimbursed for the

aforestated period that he was off work.' There was also

an earlier case before the Board (United Parcel Service,

Inc., 25-CA-10318), involving the August 4, 1978, termi-

nation of Bowlds alleging that Respondent unlawfully

discharged Bowlds for his union activities—for his efforts

on behalf of PROD and UPSurge, and for his participa-

tion in the filing of a lawsuit in the United States District

Court for the Western District of Kentucky to improve

working conditions at Respondent. This earlier Board

case was tried on April 5, May 30, and September 12,

1979, and Administrative Judge John P. von Rohr issued

1. It appears that at all times material hereto Respondent's

employees were represented by Local No. 89 of the Teamsters Union,

and that all grievare: matters, meetings and awards, as detailed

herein, were held under the grievance procedure of the collective-

bargaining agreement between the parties.

nd ata Dat ORE AH OM angel nhs

Decision and Order A45

his Decision on January 10, 1980. In this earlier case the

issue was similar to the instant one: did Respondent fire

Bowlds for overstaying his 15-minute break? (Perkins was

not involved in this case.) Judge von Rohr found and

concluded that Bowlds was unlawfully issued a final warn-

ing earlier and then later unlawfully discharged for his

union and protected concerted activities. Judge von Rohr

noted, among other circumstances, that Bowlds was dis-

charged unlawfully for his activities on behalf of PROD

and UPSurge, as well as Bowlds’ participation in the class

action suit against Respondent in the U.S. District Court,

and the Board recently affirmed this Decision. See United

Parcel Service, Inc., 252 NLRB No. 145.

It is noted that UPSurge is an organization of

Respondent employees which is generally critical of the

Teamsters Union, as well as the Respondent, in matters

pertaining to labor relations and in matters pertaining to

the employees’ wages, hours and working conditions. This

organization periodically publishes a newspaper and other

pamphlets to express its views. “PROD” is a related orga-

nization of Respondent employees, similarly involved. I

need not dwell further on the subject, since the Board

has held, and I find, that employee activities on behalf of

these organizations constitute concerted protected activ-

ity.” As relevant background to the instant case, I further

take official notice that the Board, in the aforecited cases,

has found that Respondent has engaged in various unfair

labor practices in connection with its opposition to

employee activities on behalf of the organizations in

question.

UPSurge activities among Respondent's employees

began in 1975. From then on, and at all times material

2. United Parcel Service, Inc., 230 NLRB 1147; United Parcel

Service, Inc., 234 NLRB 223 (1978); United Parcel Service, Inc., 234

NLRB 48s (1°78); enforcement denied, No. 78-1258. (C.A. 6) Octo-

ber 12, 1979 (citation n/a).

|

A46 Decision and Order

hereto, Bowlds was responsible for distributing UPSurge’s

newsletter and literature among the 45-50 employees at

the Owensboro Terminal in late 1976 or early 1977. Bowlds

engaged in similar activities on behalf of PROD at that

facility and distributed the bi-monthly PROD newsletter

to the Owensboro employees. Bowlds specifically testi-

fied that when he openly distributed UPSurge at the

Owensboro Terminal — Supervisor Tom Campbell was

present on several occasions while he did so — in 1977,

1978 and 1979. Bowlds further testified that when he openly

distributed PROD at the Owensboro Terminal, he did so

in front of Supervisors Tom Campbell, Herschel Cash,

and Mike Worth.

As to the 1977 class action suit against Respondent

in the U.S. District Court— Bowlds stated that he assisted

in bringing this suit on behalf of drivers in Kentucky

relative to a Svate statute prescribing or pertaining to

certain breaktimes, and that he also solicited money for

this suit and later hand-passed and mailed out petitions in

conjunction therewith. He stated that the case is now

(April 1980) being reviewed by the Sixth Circuit Court

of Appeals.

The Respondent produced testimony through their

Division Manager Bob Jones, who has overall responsi-

bility for all feeder operations in Kentucky, to the effect

that from the time Bowlds was reinstated on October 3,

1978, as aforestated, until August 27, 1979, he had received

occasional complaints about Bowlds returning late to the

Owensboro Center—that both Owensboro Center Man-

ager Tom Campbell and Western Division Manager Ben

Cissell had reported that Bowlds was still returning behind

schedule. Jones then relayed these complaints to Darwin

Turpin, the feeder manager, and later on to Turpin’s suc-

cessor, George Knoblock.

The Respondent also has a policy of running “serv-

ice checks” on its drivers from time to time, and on March

i

:

:

:

Decision and Order A47

14, 1979, Feeder Supervisor Herschel Cash went with

Bowlds and performed a service check of Bowlds from

the Owensboro Center to his destination at Nashville and

back. It appears that the general purpose of the service

check is for a supervisory inspection and evaluation of

driver peformance, and which is undertaken every few

months for all feeder drivers. On this occasion Bowlds

arrived at Nashville about 4 minutes late. He then departed

Nashville on time and arrived at the Owensboro Center

about 8 minutes late. At the conclusion of the run Super-

visor Cash told Bowlds how he could correct this delay.

Bowlds had taken the proper rest breaks on this run. On

May 9, 1979, Supervisor Cash again made a service check

on Bowlds, and again Bowlds complied with the rest break

periods, but was 6 or 7 minutes late in arriving in both

directions.”

Supervisor Cash receives weekly operation reports

which reflect the actual driving time, turn-around time,

and finish time of all feeder drivers under his supervision,

and Cash testified that between August 1 and August 27,

1979, Bowlds was consistently returning to the Owens-

boro Center 15 minutes or more late. He stated that

Bowlds was scheduled to arrive at Owensboro from

Nashville at 6 a.m., yet he was returning at 6:15 a.m. or

later. Moreover, that on August 22, 1979, he talked to

Bowlds in Nashville, and again instructed him to have his

trailer coupled, complete his pre-trip inspection, and be

ready to leave the Nashville hub at 2:40 a.m., and to be

“out the gate at 2:45 a.m.” Bowlds replied, “Okay.” Cash

3. It appears that the Respondent also has a policy wherein

feeder drivers are followed and monitored by supervisors from time

to time in order to ascertain whether excessive breaks are taken, and

that there have been instances in the past where such violations have

been detected and the driver involved was then terminated or sus-

pended where such a violation was proven, but it appears that in

most instances in the past, the alleged offense was not proven.

A48 Decision and Order

testified that a feeder driver does have control over the

time he leaves the Nashville terminal, but Bowlds (and

Perkins) testified that there can be several factors which

can and do cause considerable delays from time to time.

Turning now to the specific events and circumstances

involved in the instant case pertaining to Bowlds. On the

night of August 27-28, 1979, Bowlds came to work early,

at about 8:10 p.m. and with an assigned starting time to |

Nashville of 8:40 p.m. Bowlds was due to leave the |

Owensboro Terminal at 8:58 p.m., but testified he had |

come in prior to his starting time in order to get away

early since he was sleepy, and also he had been asked by

his fellow-driver Don McMahon to leave early so that

McMahon could check out his CB radio en route. At 8:45

p.m. Bowlds started his trip and proceeded down the

road on Kentucky’s Green River Parkway, but testified

that near the end of the Parkway he was having trouble

staying awake, so around 10:15 p.m., he pulled over and

stopped for less than 10 minutes in order to rest and

relieve himself and to walk around and become more

alert.”

Bowlds testified that his next stop was at the Key

Truck Stop near Franklin, Kentucky, at about 11 p.m.,

and at this time he took his allowed 15-minute break —

his timecard shows 11:02 p.m. to 11:17 p.m. It appears

that on this occasion Bowlds had a cup of coffee with the

night manager of the Key Truck Stop. Night Manager

Wilson “Wimpy” Randolph testified that Bowlds came

into the truck stop cafe almost nightly, and would take

from 10 to 15 minutes to have coffee, and the only time

that Bowlds took longer than 15 minutes was when his

tractor broke down. (Respondent accused Bowlds of tak-

ing 22 minutes at this stop.) Bowlds then went on his way

4. It appears that when drivers normally stopped for a few min-

utes to relieve themselves, such stops were not considered a “break,”

and therefore were not logged or noted.

EE ee

j

:

Decision and Order A49

to Nashville and stated that he arrived at Nashville at

about 12:17 a.m. — now August 28 — and that he was

only | minute late.

Bowlds testified that he left Nashville on his return

leg at about 2:55 a.m., and arrived at Owensboro, Ken-

tucky, at 6:16 a.m. on August 28, 1979, and en route

stopped for his 15-minute break at the Amoco Service

Station in Franklin, Kentucky, at about 4 a.m. along with

over-the-road driver David Perkins. Tracy Sampson, night

manager of the Amoco station, also had coffee with Bowlds

and Perkins. Tracy Sampson stated that both Bowlds and

Perkins were there that night at the Amoco station for

only 15 minutes or so, and that Bowlds looked at his

watch from time to time. According to Sampson, Bowlds

and Perkins came in together and left together, and tes-

tified that he has never known Bowlds or Perkins to stay

over 10 or 15 minutes, but could not remember the exact

time on the morning here in question. (Respondent has

accused Bowlds and Perkins of taking 32 minutes here.)

Bowlds maintains he was back in his truck in 15 minutes

and that he left the Amoco station at 4:15 a.m.

Bowlds testified that he then proceeded toward

Owensboro, but “somewhere up the road” he began to

get a little drowsy so he pulled off the road and relieved

himself, and that this stop would not have been more than

5 minutes. According to Bowlds, he reached Owensboro

3 hours and 20 minutes after he left Nashville, and which

was the time allotted to him for this run. Bowlds explained

that he was supposed to leave Nashville at 2:45 a.m., but

on occasions there would be trucks ahead of him and so

the exact departure time would vary a few minutes. On

the date in question, according to Bowlds, on his return

leg he arrived at Owensboro at 6:16 a.m. after leaving

Nashville at 2:55 a.m.—3 hours and 21 minutes later, or

1 minute late. See Respondent Exhibit No. 6— Bowlds’

timecard for the periods here in question.

ASO Decision and Order

On August 28, 197°, Bowlds was suspended by

Supervisor Ben Cissell for allegedly overextending his

breaks on August 27-28, 1979 and for falsifying his time-

card. At the meeting with management on August 28 —

Bowlds asked when all this had taken place and who saw

him overextend his breaktime. Union Steward Jim Weafer

attended this meeting with Bowlds, and Bowlds testified

that he also asked to see his personnel file in order to get

information on the accusations, but was merely informed

that it would be made available at a later date.

On August 30, 1979, Bowlds returned to Respond-

ent’s office to see his personnel file, but management did

not have it, and Bowlds then filed a grievance contesting

his August 28 suspension.

On August 31, 1979, Bowlds was called in and met

with Union Steward Jim Weafer, and Supervisors Tom

Campbell and Ben Cissell. Cissell told Bowlds that he

was discharged for falsifying his timecard and overextend-

ing his break. Supervisor Cissell also asked Bowlds why

he stopped along the Green River Parkway for 24 min-

utes on the southbound trip on the night of August 27.

Bowlds replied he took less than 10 minutes since he was

sleepy and had to relieve himself. Bowlds testified that on

this occasion Cissell also accused him of stoysping for 5

minutes at the Amoco Truck Stop at Franklin, Kentucky,

on his down leg, but he denied that he had stopped there.

Then Cissell asked him why he took 22 minutes at the

Key Truck Stop. Bowlds replied that he took only 15

minutes on his allotted break. Then Cissell, according to

Bowlds, asked him why he took a 32-minute break at the

Amoco Truck Stop on his northbound or return leg.

Bowlds replied that he only took 15 minutes as his break

at Amoco. Bowlds stated that he then inquired who in

management saw him overextending his breaks, and Cis-

sell answered Herschel Cash, and that he then again asked

to see his personnel file, but Cissell replied that it was

iia caeecalaieaininansil

Decision and Order AS5l

still in Louisville. Bowlds testified that during this meet-

ing the fact that he (Bowlds) was the union steward at

Owensboro Terminal and had filed many grievances, that

he had been involved in the cistribution of PROD and

UPSurge literature at the Respondent’s premises in sight

of management in the past, that he had been a witness in

his own Board case on May 30, 1979 (25-CA-10318) deal-

ing with earlier events in that case,and that his involvement

in a lawsuit against Respondent in the United States Dis-

trict Court to get better working conditions — were not

brought up.

On September 4, 1979, Respondent mailed Bowlds

a written copy of his discharge, and on September 4,

1979, Bowlds filed his grievance for his discharge of August

31.

On September 11, 1979, a local joint meeting con-

cerning the grievance filed by Bowlds was held at

Owensboro with Supervisors Ben Cissell, Tom Camp-

bell, and Bob Jones representing the Respondent, and

Thomas Trenaman of Local 89, Union Steward Jim

Weafer, and Robert Bowlds, all representing the latter.

According to Bowlds, Bob Jones read the charge against

him concerning overextending his breaks and falsifying

his timecard for August 27-28, and also the earlier Octo-

ber 3, 1978, letter to Bowlds from Respondent

(Respondent Exhibit No. 5) which provided an immedi-

ate discharge of Bowlds for another overextension of his

breaktime. Union Agent Thomas Trenaman read the sec-

ond Bowlds discharge grievance and it was agreed that

the suspension grievance and the discharge grievance of

Bowlds be treated as one. It appears that Trenaman also

questioned management as to the times of the alleged

overextension of Bowld’s breaktimes, and introduced the

written notarized statement of Tracy Simpson, night

manager of the Amoco Truck Stop, dealing with the early

morning of August 28, and the notarized statement of

A52 Decision and Order

Don McMahon concerning the fact that Bowlds had come

to work early the night of August 27, and had departed

from the Owensboro terminal early, and that this was not

an uncommon practice for drivers to do. Respondent did

not produce the clock times of Bowlds’ alleged overex-

tension of his breaks of August 27-28, and also mentioned

that Respondent's observers of Bowlds’ alleged overex-

tensions — were Supervisors Herschel Cash along with

George Knoblock and Larry Harris. At this September

11th joint grievance meeting, Bowlds also told his story

concerning the events and circumstances on the night of

August 27 and the morning of August 28, as aforestated,

but testified that his involvement with PROD and UPSurge

on Respondent's premises in management's presence, his

participating in the class action lawsuit against Respond-

ent in the U.S. District Court to secure better working

conditions for Respondent's Kentucky employees, his being

the Union's job steward at the Owensboro Terminal of

Respondent, his filing of many grievances in recent years,

and his testifying in his own behalf in the earlier Board

case, were not discussed (except partially read as a griev-

ance) in this joint meeting. The parties were

DEADLOCKED at this September 11th joint grievance

meeting and the case was referred to the next step in the

grievance procedure —the State Panel.

At the Kentucky State level joint grievance meeting

concerning Bowlds’ grievance, held at Louisville on

October 9, 1979—management representative Bob Jones

read the charges against Bowlds for his alleged overex-

tension of his breaks and falsifying his timecard on August

27 and 28, 1979. Jones also read the Respondent’s Octo-

ber 3, 1978, “final warning” letter to Bowlds and discussed

the times on August 27-28 that Bowlds allegedly overex-

tended his breaks, and management then called

Respondent's Supervisors Herschel Cash, Larry Harris,

and George Knoblock to testify against Bowlds concern-

a ee

Decision and Order A53

ing their observations on the night and morning here in

question. Bowlds also repeated his story, but again stated

that the class action in the U.S. District Court of Louis-

ville, his PROD and UPSurge handbill distribution on

Respondent's premises in management's presence, his job

stewardship and his filing of grievances against Respond-

ent, his filing of his charge in his earlier case and his

giving testimony in support of it, were not discussed except

that Trenaman, in stating Bowld’s grievance, did make

some reference thereto by reading the grievance. This

October 8, 1979, State Level Panel was also deadlocked.

On October 30, 1979, the Joint Area Conference

meeting concerning Bowlds’ grievance was held in the

Sheraton Inn at O’Hare Airport in Chicago. Jones again

read the charge against Bowlds, furnished statements from

managements’ three witnesses — Herschel Cash, Larry

Harris, and George Knoblock —read the “final warning”

letter of October 3, 1978, and read the times of the alleged

over-extension of the breaks. Bowlds then spoke con-

cerning these events and circumstances in the same way

as he had done before, but again the above-mentioned

union and concerted activities of Bowlds were not dis-

cussed. This JAC joint meeting was also deadlocked.

On November 20, 1979, “a Deadlocked JAC” joint

meeting took place in Chicago, and a summary of the

two parties’ positions was presented before the judging

panel. Bowlds spoke briefly and either transcripts of the

JAC meeting or affidavits were introduced, but again his

union and concerted activities were not specifically dis-

cussed. Bowlds lost at this level since the panel denied his

grievances, and sustained Respondent's discharge of

Bowlds. It appears that at each step of the grievance

procedure, Trenaman read Bowlds’ grievance in its entirety

into the record, and at each level Bowlds was afforded

the opportunity to submit additional evidence in support

of his grievance.

A54 Decision and Order

As to Perkins

For the periods involved herein, Perkins started his

feeder run at Campbellsville (his home base), drove to

Nashville, and on his return trip made a stop at Bowling

Green, and then back to Campbellsville.” He started his

employment with Respondent in 1971.

Under normal circumstances Perkins came to work

at 9:55 p.m. (punch in time), and was due to go out of

the Campbellsville Terminal at 10:10 p.m. (EST). Per-

kins testified that the Nashville supervisor told him that

he was to be at Nashville at 1:40 a.m., but that his Camp-

bellsville supervisor told him he was to be at Nashville at

1:34 a.m. Perkins was also told to leave Nashville at 3:45

a.m. but no later than 4 a.m. and was scheduled to return

at 8:05 a.m. to Campbellsville, but in early 1979 this time

was changed to 7:55 a.m. However, there was no mileage

change — only 10 minutes taken off the driving time, and

Perkins stated that at the time of this change, he explained

to the supervisor that he could not make the run in 10

minutes less, but the supervisor told Perkins that this 10-

minute cut was based on a national average, and then

told him to do the best he could. Thereafter, Perkins

would sometimes run late by about 10 minutes in getting

into his home base, and in the spring of 1979 his supervi-

sor at Campbellsville, Tom Mouser, began telling Perkins

that he was getting to the home terminal late. Perkins

testified that he sometimes left Nashville late and other

times got tied up at Bowling Green to sort packages.

Perkins stated that for a while he also noticed the Camp-

bellsville Terminal’s clock was 10 minutes fast and that he

reported this to management on a number of occasions,

but it was not corrected.

5. Perkins operated on Eastern Standard Time — | hour ahead

of Owensboro and Nashville.

Decision and Order A55

On the night of August 27, 1979, Perkins left Camp-

bellsville at 10:25 p.m. (15 minutes late) and arrived at

Nashville at 1:55 a.m. (EST). According to Perkins, he

left Nashville at 3:55 a.m., arriving back at Campbells-

ville at 8:05 a.m., with a 15-minute break at 12:15 a.m. to

12:30 a.m. on the down leg (southbound), and a i5-min-

ute break with Robert Bowlds at 5:05 a.m. to 5:20 a.m.

(EST) at Franklin, Kentucky—at the Amoco Truck Stop

on his return.° Perkins notes that he actually stopped at

the Amoco Truck Stop at 4:58 a.m. (EST) and it was 5

a.m. (EST) by the time he and Bowlds (who had been

driving caravan with Perkins from Nashville) went into

the Amoco Truck Stop lot. Perkins then updated his log-

book and next went into the Amoco Truck Stop cafe and

joined Bowlds and Amoco Manager Tracy Sampson in a

booth. Perkins stated at this time that they could not sit

there long because he and Bowlds only had 15 minutes to

stay there, and he checkec his watch as did Bowlds. Both

drivers then left, and Perkins continued on to Campbells-

ville, bui before reaching his destination had to stop 3 or

4 minutes to let his hot engine cool off.

That evening (August 28) Perkins talked with man-

agement people at Campbellsville. Bob Jones, Neil

Mulvaney, and George Knoblock, all supervisors of

Respondent, spoke with Perkins, and in the presence of

Steward Bobby McMahen. Jones told Perkins that he

had been observed overextending his break and falsifying

his timecard, and that he was suspended until further

investigation. Perkins ther asked, where and when? Jones

replied that their lawyers had this information.

Two days later, on August 30, Perkins was then called

in by Supervisor George Knoblock, and again Jones,

Knoblock, and Mulvaney were present, and Perkins then

called in McMahon, the union steward. Supervisor Jones

6. See General Counsel Exhibit No. 11 -—the timecard of Per-

kins for the period herein in dspute.

A56 Decision and Order

accused Perkins of taking 32 minutes at the Amoco Truck

Stop on the morning of August 28, and that he was ter-

minated. Perkins testified that both he and McMahon

asked for the clock times of this break, but Jones told

them that their lawyers had it, and that Union Agent

Tom Trenaman would later get this information.

Perkins stated that he had testified in the earlier case

involving Bowlds, and that on occasions he had also dis-

tributed UPSurge handbills at the Campbellsville terminal

in the presence of Terminal Manager Tom Mouser (in

February or March 1979), and that Mouser had told him

that he preferred that he (Perkins) not to do it. Perkins

said that he also distributed PROD at the terminal at

Campbellsville on one occasion. Moreover, Perkins tes-

tified that he also was active in the U.S. District Court

class action lawsuit with Bowlds by collecting money from

employees beginning about October 11, 1976, and thére-

after, at the Campbellsville Terminal, and that he further

collected signatures for this class action from Campbells-

ville drivers and then turned in the signed petitions to

Bowlds. Additionally, Perkins filed grievances including

one on February 14, 1979, against Respondent, and it

went through the grievance procedure under the Team-

sters’ contract with Respondent but Perkins lost this

grievance.’ Perkins testified that on February 28, 1979,

7. Counsel for Respondent argues that the allegations that

Bowlds’ and Perkins’ suspensions and discharges resulted from dis-

crimination based on supposed activities for PROD, UPSurge, the

rest break lawsuit, the grievance filings, and their participation and

testimony in the earlier Board case, are all transparent. Respondent

points to Jim Weafer, a union steward for many years, and the fact

that Weafer has filed a number of grievances and has testified in

different matters and yet was never disciplined, and Weafer was also

one of the 13 named plaintiffs in the rest break class lawsuit. It is

also pointed out that Supervisor Mouser denied seeing Perkins dis-

tribute UPSurge, and that Bowlds could not recall any specific day

or month he distributed UPSurge or PROD at the terminal in

Owensboro.

Decision and Order AS57

he told Supervisor Mouser that he needed some addi-

tional trousers or pants for his uniform, but Mouser

answered, “Perkins, we're trying to figure out a way to

fire your ass anyway. We won't have to get you any.”

Perkins said that empioyees Bobby Pierce and Eddy

O’Banion were in the immediate area of Mouser at the

time. It is noted that both Pierce and O’Banion were in

corroboration of Perkins as to this incident.

Campbellsville Center Manager Tom Mouser has been

stationed there since February 1978, but Mouser was

absent from the Center from July through October, 1979,

on special assignment, so he had nothing directly to do

with Perkins’ suspension and discharge in late August

1979. However, this record shows that all Company driv-

ers are furnished uniforms and are required to wear them

whenever they are on duty — and such requirements are

contained in the bargaining contract. Mouser testified that

sometime in early 1978, it was reported to him that Per-

kins had driven that night wearing blue jeans and not his

uniform trousers, and as a result he told Perkins that if

he ever needed uniform trousers to let him know, and

that later in 1978, he took Perkins’ uniform to the clean-

ers on several occasions—that in February 1979, Perkins

reported, after he returned from his run, that he needed

a clean pair of pants for that night. Mouser said that he

would get them for him, but Perkins replied, “If you

don’t have them ready, I’ll wear my bluejeans out of the

Center.” Mouser testified that he then told Perkins that

he would have a pair of pants there for him and he was

not to leave the Center wearing blue jeans, and added

that if Perkins did so he wou’ be terminated. At the

time this conversat.on occurred, Mouser admittedly was

working the package sort near Bob Pierce and Ed

O’Banion.

After Perkins was discharged, he filed a grievance

on September 4, 1979, and the grievance was processed.

A58 Decision and Order

On September 11, 1979, a joint local hearing was held at

Owensboro and Perkins’ grievance was heard at the local

level on the same day that Perkins testified at the Board’s

hearing in the prior Board case (25-CA-10318). At this

grievance hearing Supervisor Bob Jones accused Perkins

of taking 32 minutes break on the morning of August 28

at the Amoco Truck Stop, and falsely putting down the

wrong time on his timecard. Then Union Agent Tom

Trenaman read Perkins’ grievance, and introduced the

affidavit of Amoco Manager Tracy Sampson* (mentioned

above in Bowlds’ case) stating that Bowlds and Perkins

were there only about 15 minutes. Further, Trenaman

presented Jones with the affidavit from Pierce” stating

that Mouser had informed Perkins in February that

Mouser was going to fire Perkins anyway, as aforestated.

At this meeting no one discussed Perkins’ involvement

with PROD, with UPSurge, his involvement with the

class action lawsuit against Respondent, the filing of his

February, 1979, grievance, or Perkins’ former testimony

in the earlier Bowlds’ case (25-CA-10318).

On October 9, 1979, Perkins attended a State level

joint grievance meeting at _ouisville, and again Supervi-

sor Bob Jones presented the Respondent’s case reading

the charge that Perkins took a 32-minute break on August

28, from 3:53 a.m. to 4:25 a.m. — Union Agent Tom

Trenaman presented Perkins’ case, and offered the above

mentioned affidavits from Sampson and Pierce. Then

Respondent’s three witnesses testified at this meeting

(Harris, Cash and Knoblock). As pointed ou’, the only

new thing that Jones brought up at this meeting in addi-

tion to the 32-minute break, was that Perkins was

consistently late coming in to Campbellsville. However,

the panel decided that Perkins should go back to his job

8. See Respondent Exhibit No. 2.

9. See Respondent Exhibit No. 1.

Fe a

Decision and Order AS5S9

on the next day, but without backpay, and Perkins did so

on October 10, 1979.

Respondent's case as to Bowlds and Perkins

The Respondent presented testimony through their

witnesses to the effect that shortly after George Knob-

lock became feeder manager in May 1979, he received

several calls from Campbellsville Center Manager Tom

Mouser about Perkins’ iate return to Campbellsville and

complaints that this was delaying his operation. Knoblock

told Mouser he would send Supervisor Wayne Pruitt to

investigate, and on May 14, 1979, Pruitt service checked

Perkins, and on the following morning Pruitt called

Knoblock and reported that Perkins had driven satisfac-

torily, but several days later Knoblock talked to Mouser

and told him that if Perkins started returning to Camp-

bellsville late again, he would send Pruitt back.

Manager Knoblock testified that on August 22, 1979,

he was service checking feeder driver Al Hester on his

run to Nashville, and while at the Nashville hub he checked

on his other Kentucky drivers who hook up in a line on

one side of the Nashville terminal, but he could not ‘ocate

Perkins. Knoblock then checked with the dispatcher and

learned that Perkins had logged in, and that later he then

saw Perkins coming around the building in his tractor to

back up to his trailer at 3:40 a.m. Knoblock stated that

when Perkins stepped down he had sleep marks on his

face and his eyes were swoiien, and by this time Perkins

only had 5 minutes left to safety check his vehicle and

pull out. Knoblock then instructed Perkins, who had

complained that his late arrivals at Campbellsville had

been caused by delays at Nashville, to safety check his

vehicle and pull out of Nashville by 3:45 a.m.

Turning now to the events and circumstances of

August 27 and 28, 1979, as testified to by witnesses for

the Respondent. Manager Knoblock stated that on the

A60 Decision and Order

morning of August 27, he telephoned Division Manager

Bob Jones to explain the problem he was having with

Perkins — that Perkins was continually returning to the

Campbellsville Center late, but whenever he rode with a

supervisor, he performed satisfactorily. Knoblock then

suggested to Jones that he would follow Perkins on his

run and watch him and time his movements. Jones sug-

gested that Knoblock get Loss Prevention Supervisor

Larry Harris or someone in loss prevention to accompany

him during his observance. Later that same morning,

Supervisors Cash and Knoblock were in contact with one

another and Knoblock told Cash he was going to follow

Perkins that night. According to Knoblock, Cash then

remarked that this would also be a good night for him to

follow feeder driver Bob Bowlds, who had been return-

ing late to Owensboro, and Cash said he would get

Supervisor Hugh Gray to accompany him, but when Cash

called back he said Gray was not available. Knoblock

then told Cash to meet him at Franklin, Kentucky, that

night and they would get in one car for the Nashville trip.

Knoblock also contacted Larry Harris and that evening

they met at the Company’s Louisville Center and left

together in Knoblock’s car for Cave City, Kentucky. They

arrived at 9 p.m., Central time, and waited until 10:10

p.m., but never saw Perkins. When they decided they

had missed Perkins, they then went directly to an AMOCO

station at Exit 6, but again they did not locate Perkins so

they drove to the Key Truck Stop at Franklin. Herschel

Cash testified that he arrived in Owensboro on August

27 about 8 p.m., and drove to the intersection of U.S.

Highway 60 East & 60 Bypass about 2 mile from the

Owensboro Terminai, and at 8:45 p.m., he saw Bowlds

drive past this intersection, and that he then pulled out

behind Bowlds and followed him. Cash said that Bowlds

took the Green River Parkway south and stopped about

100 yards beyond the Bowling Green toll both at 9:56

p.m., and from the top of the exit ramp he then observed

Decision and Order Aol

Bowlds outside his tractor — and that it was 10:20 p.m.

before he pulled away — 24 minutes later. Cash stated

that he then followed Bowlds on Interstate 65 south, and

about 20-22 miles down I-65, at Exit 6, Bowlds pulled

into an Amoco Truck Stop at 10:41 p.m., stated that he

waited on I-65 a few minutes and then pulled toward the

Amoco Truck Stop and met Bowlds leaving the truck

stop at 10:46 p.m. — that he then turned around and

followed Bowlds to the Key Truck Stop at Exit 2. Cash

said he drove past Bowlds’ unit— which was then parked

in front of the Key Truck Stop—at 10:54 p.m. and stayed

until 11:16 p.m.—22 minutes.

It appears that when Knoblock and Harris approached

the Key Truck Stop, they observed a Company tractor

trailer parked in front of the restaurant with Bowlds in

the cab, and that this was at 10:55 p.m. At 11 p.m., when

they parked their car, they then observed that the cab of

the truck was empty and a few minutes later Knoblock

saw Cash in the parking lot and he then went over to

Cash’s car and told him to join them in Knoblock’s car.

He stated that the three of them continued to observe

the truck until 11:16 p.m., when Bowlds drove by in front

of them. The three of them then followed Bowlds into

Nashville where he arrived at 12:16 a.m., on August 28,

and shortly thereafter Perkins pulled into the Nashville

hub. Knoblock said that he then telephoned Jones to tell

him what had transpired and that they had not seen Per-

kins on the down leg.

Witnesses for the Respondent testified that at 2:50

a.m., Central time, on August 28, Perkins left the Nash-

ville terminal followed by Bowlds at 2:51 a.m., and that

they (the three supervisors) followed Bowlds and Perkins

Y. mile back on I-65 until about 5 miles south of the

Kentucky Staie line, when they lost track of them, but

when Knoblock, Harris and Cash reached the Key Truck

Stop and still did not see Bowlds or Perkins — Cash got

A62 Decision and Order

into his car and then both cars proceeded to the Amoco

Truck Stop at Exit 6. It appears that at this point Cash

went back to the Key Truck Stop and Knoblock and

Harris went south to the rest area near the State line, and

at this time Knoblock and Harris saw Bowlds and Per-

kins headed north on the other side of the road. Knoblock

said that he turned around and followed them to the

Amoco Truck Stop, and that when they arrived at the

Amoco Truck Stop at 3:45 a.m. they observed Bowlds

and Perkins in the cafe and testified that they remained

there until 4:26 a.m.—32 minutes.

Cash said that he had observed Bowlds’ and Perkins’

units about 2 miles north of the Key Truck Stop, and

stated that he then turned around and pulled in the Amoco

Truck Stop at 3:53 a.m. where he observed both Bowlds’

and Perkins’ units parked and empty in the back of the

lot, and at 4:24 a.m. he observed Bowlds and Perkins

emerge from the restaurant and at 4:25 a.m., both Bowlds

and Perkins pulled away.

After Bowlds and Perkins pulled away, Knoblock,

Harris and Cash agreed to follow Bowlds back to Owens-

boro, but Cash suggested that when they reached the

Western Kentucky Parkway, he would call Owensboro

Center Manager Tom Campbell, and ask him to note the

time Bowlds pulled on the lot, to secure his timecard

when he was ready to punch out, and then tell Bowlds

they wanted to talk to him. Knoblock testified that when

he and Harris continued to follow Bowlds, they had

observed that at 5:31 a.m., about “% mile north of the toll

booth, Bowlds’ truck was standing on the road and at

5:36 a.m. the rig was still parked when they left and

continued into Owensboro.

It appears that around 6 a.m. Knoblock and Harris

arrived in Owensboro at the Holiday Inn. Harris then

called the Owensboro Center and explained what had

happened to Supervisor Buddy Ellis, and Knoblock tes-

Decision and Order A63

tified he then calied Bob Jones and explained to him what

had happened, and that Jones then told Knoblock to let

Bowlds punch out and to preserve his timecard, and they

would meet later that day to decide what action would be

taken. Jones also told Knoblock he would have Division

Manager Jim Hatcher contact Acting Campbellsville

Center Manager Neil Mulvaney with instructions to keep

Perkins’ timecard.

Jones testified that in accordance with the above, he

telephoned Division Manager Jim Hatcher—whose area

included the Campbellsville Center—and told him to be

sure to retain Perkins’ timecards and log sheet for the day

—that Hatcher left the phone, got Perkins’ timecard and

log sheet and gave the information to Jones on the

telephone — that he then compared what Perkins put on

his timecard and log sheet with the information Knoblock

supplied, and in so doing realized there was a 17-minute

discrepancy on the return leg rest break. Later that same

day Jones asked Knoblock to meet him at the Campbells-

ville Center in order to suspend Perkins pending further

investigation, and said that he also called West Division

Manager Ben Cisseli and told him to suspend Bowlds

that night pending completion of the investigation.

The subsequent circumstances and events involving

the actual suspensions and discharges and the grievance

meetings in relation thereto, have been detailed previ-

ously herein."

10. Jones testified that between August 28 and August 30, he

personally reviewed Bowlds’ and Perkins’ timecards and log sheets

for August 27-28, and compared these with the observations of

Knoblock, Harris and Cash that date, and in so doing was convinced

that both men had falsified their timecards and overextended their

breaks and decided to discharge both men, and that he decided to

handle the discharge of Perkins and directed Division Manager Ben

Cissell to handle Bowlds’ discharge.

A64 Decision and Order

Final Conclusions

The answer by the Respondent raised as separate

defenses the disposition of the Perkins’ and Bowlds’

grievances and requested the Board to defer its processes

to these awards —the Respondent argues that with one

exception, the decision of Spielberg Mfg. Co., 112 NLRB

180 (1955) is applicable to the grievance awards in these

cases. It is pointed out that since both Bowids and Per-

kins amended their unfair labor practice charges to include

a Section 8(a)(4) allegation, there could not be deferral

to any award on that allegation, but Respondent argues

this charge is so obviously specious that it should be dis-

missed, and absent such a charge, the Spielberg doctrine

should be applied to these cases, and the Respondent

then details the various grievance steps and meetings which

were held in pursuant to the grievance procedures in the

bargaining contract, as aforestated. Moreover, it is pointed

out that Bowlds and Perkins pursued their grievances

voluntarily through the procedures outlined in Article 5

of the contract between the parties and the decision of

the Grievance Committee is as binding on Bowlds and

Perkins as it is on the Respondent — that by filing their

grievances under the contract, Bowlds and Perkins clearly

agreed to the submission of their cases to the Grievance

Committee and State Panel for decision, and that Bowlds

submitted, and the Grievance Committee considered,

nearly identical issues that are presented in this case—his

“Union activities” and his participation in the class action

lawsuit — as the bases of discrimination against him —

that Union Agent Trenaman acknowledged that these

issues had been presented at each level of the grievance

procedure since they were specifically mentioned in Bowlds’

written grievance, and admittedly Trenaman read the

grievance aloud as part cf his presentation at each step."

11. See Respondent Exhibit No. 4.

Decision and Order A65

Under the Spielberg doctrine, the Board defers to an

arbitration award where “the proceedings appear to have

been fair and regular, all parties had agreed to be bound,

und tne decision of the arbitration panel is not clearly

repugnant to the Act. In the instant case, the concerted

activities and union activities of Perkins and Bowlds were

not brought up at any of the grievance joint meetings

except in making a brief mention by reading references

to such as part of the grievance language. Moreover, Union

Agent Trenaman admitted that he never met with Bowlds

or Perkins before the grievance joint panel meetings dur-

ing the various steps of the grievance procedure, never

went over their testimony with them, never introduced

any evidence concerning their PROD or UPSurge activ-

ities, their class action lawsuit (other than a reference to

it in Bowlds’ grievance), nor the fact that they had filed

grievances under the grievance procedure, nor that they

had testified in the earlier Board case (25-CA-10318). In

the final analysis, the joint grievance committees and panels

here involved did not consider the relevant facts pertain-

ing to union and concerted activities of Bowlds and

Perkins, in fact, were barely made aware of them.

Accordingly, | am not persuaded that the instant com-

plaint should be dismissed on Spielberg grounds.”

It is alleged that in March 1979 the Respondent

maintained a rule prohibiting the distribution of UPSurge

material on the Respondent’s property at any time, and

that Supervisor Tom Mouser enforced such rule.

12. In the earlier Board case invovling Bowlds (25-CA-10318),

as aforestated, Judge von Rohr, at one stage in the case, issued an

Order recommending dismissal of his case on the grounds that the

Board should defer to the arbitrator’s ruling under the doctrine in

Spielberg. However, in an interim appeal this Order was later reversed

by the Board, and in its recent decision in this case-—252 NLRB No.

145 —-the Board majority outlines in some details their reasons for

rejecting Spielberg and in so doing reaffirms their previous conclu-

sions that this earlier case was not appropriate for deferral to the

arbitration award.

A66 Decision and Order

Supervisor Tom Mouser, terminal manager at

Campbellsville, testified that no such rule has ever been

posted, maintained or published. However, it is admitted

that the Respondent promulgated its no-solicitation and

no-distribution rule appearing on the employees’ bulletin

boards both at Campbellsville and at Owensboro, as out-

lined in General Counsel Exhibit No. 10.'* The General

Counsel argues that the above rule is too confining in its

language, and therefore unlawful.

The reason why the Board holds unqualified restric-

tions against solicitation “in work areas” improper, is

because they leave open the question whether the prohi-

bition applies as well while employees are not working.

In the instant case, there is credible evidence that Perkins

was distributing UPSurge handbills at the terminal in

February or March, 1979, when Supervisor Mouser

inquired of Perkins if he had been distributing “some

papers” around the Campbellsville Center. Perkins replied

in the affirmative and then told Mouser “we had a right

to as long as the man wasn’t on the clock working.” Mouser

answered, “Well, I'd rather you didn’t do it.”'* Perkins

13. 1. NO EMPLOYEE SHALL SOLICIT OR PROMOTE

SUPPORT FOR ANY CAUSE OR ORGANIZATION DURING

HIS OR HER WORKING TIME OR DURING THE WORK-

ING TIME OF THE EMPLOYEE OR EMPLOYEES AT WHOM

SUCH ACTIVITY IS DIRECTED.

2. NO EMPLOYEE SHALL DISTRIBUTE OR CIRCU-

LATE ANY WRITTEN OR PRINTED MATERIAL IN WORK

AREAS AT ANY TIME, OR DURING HIS OR HER WORK-

ING TIME OR DURING THE WORKING TIME OF THE

EMPLOYEE OR EMPLOYEES AT WHOM SUCH ACTIVITY

IS DIRECTED.

3. NO EMPLOYEE SHALL ENTER OR REMAIN IN THE

BUILDING AND OTHER WORK AREAS FOR ANY PUR-

POSE EXCEPT TO REPORT FOR, BE PRESENT DURING,

OR CONCLUDE HIS OR HER WORK SHIFT.

14. Mouser denied that such a conversation took place, but I

have credited Perkins, a convincing and straightforward witness, with

Decision and Order A67

then explained there was a notice or rule on the bulletin

board which permitted the distributions of such leaflets.

While Perkins may have been correct in the overall

application or interpretation of the rule in question —

permitting the distribution of such material on non-work

time — nevertheless, the rule did create an ambiguous

situation so that employees did not clearly know what was

permitted an

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