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

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

,s& 2 :°D

94 5309 SEP 231998

N we __OFFISE OF Hie, CLERK...

IN THE

Suprene Court of the United States

OCTOBER TERM, 1994

UNITED PARCEL SERVICE, INC. and

TEAMSTERS NATIONAL UNITED PARCEL SERVICE

NEGOTIATING COMMITTEE,

. Petitioners,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Joint Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

JOINT PETITION FOR A WRIT OF CERTIORARI

JUDITH A. SCOTT MARTIN WALD *

CHRISTY HOFFMAN NICHOLAS N. PRICE

25 Louisiana Avenue, N.W. AXEL J. JOHNSON, IV

Washington, D.C. 20001 CHRISTOPHER J. MORAN

Attorneys for Teamsters SCHNADER, HARRISON,

National United Parcel SEGAL & LEWIS

Service Negotiating 1600 Market Street

Committee Philadelphia, PA 19103

(215) 751-2188

Attorneys for United Parcel

* Counsel of Record Service, Inc.

tora: et

WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

BD ESF. 00 \

QUESTIONS PRESENTED

1. Can the National Labor Relations Board properly

find that an employer has unlawfully recognized a union

as its employees’ collective bargaining representative

where no evidence has been presented that the union

lacked the support of a majority of the employees?

2. Is it permissible to apply a presumption that work-

ers previously excluded from a bargaining unit do not

support a union, when that presumption is not supported

by either empirical evidence or policy considerations?

3. Can the National Labor Relations Board alter its

well-established accretion doctrine to hold that employees

who were historically not part of a bargaining unit can

never be accreted to that unit, without giving any rea-

soned analysis for such a change?

(i)

PARTIES TO THE PROCEEDING AND

DESIGNATION OF CORPORATE RELATIONSHIPS

In accordance with Rule 29.1 of the Rules of the Su-

preme Court of the United States the parties make the

following disclosures:

Petitioner, United Parcel Service, Inc., is comprised of

two entities, one incorporated in the state of New York

and one incorporated in the state of Ohio, both of which

are incorporated under the name “United Parcel Service,

Inc.” Neither corporation has an ownership in any other

company that is not a wholly-owned subsidiary. The par-

ent of both corporations is United Parcel Service of

America, Inc.

Petitioner, Teamsters National United Parcel Service

Negotiating Committee, is not a corporate entity and has

no corporate parents, subsidiaries or affiliates.

TABLE OF CONTENTS

Page

bh oy tl 8 yy - | en re i

PARTIES TO THE PROCEEDING AND DESIGNA-

TION OF CORPORATE RELATIONSHIPS ............ ii

TABLE OF AUTHORITIES ....................0..ccccccssseesees v

OPINIONS BELOW .................... PREPAY BISHOPS Fe 1

STATEMENT OF JURISDICTION .......00000. 0... 2

STATUTORY PROVISIONS INVOLVED ..................... 2

STATEMENT OF THE CASE ....20.0.0....02...2..2ecccescceeeseeees 2

REASONS FOR GRANTING THE PETITION ........... 6

I. CERTIORARI SHOULD BE GRANTED BE-

CAUSE THE COURT OF APPEALS’ DECI-

SION ALLOWING A PRESUMPTION TO

SUBSTITUTE FOR ADMISSIBLE EVIDENCE

CONFLICTS WITH APPLICABLE PRECE-

py ae EN)» 7

II. CERTIORARI SHOULD BE GRANTED BE-

CAUSE THE COURT OF APPEALS’ DECI-

SION ABSOLVING THE GENERAL COUN-

SEL OF HIS BURDEN TO PROVE A LACK

OF MAJORITY STATUS IN AN UNLAWFUL

RECOGNITION CASE IS CONTRARY TO

EVERY REPORTED PRECEDENT ON THIS

GR EEE Ee eee cece eee 11

III. CERTIORARI SHOULD BE GRANTED BE-

CAUSE THE COURT OF APPEALS’ DECI-

SION FRUSTRATES THE IMPORTANT

GOAL OF ENCOURAGING COLLECTIVE

aii lake batulcsinierisnsn eres hicnicensienteinwsineenncnssscse 14

TABLE OF CONTENTS—Continued

Page

IV. CERTIORARI SHOULD BE GRANTED BE-

CAUSE THE BOARD HAS ALTERED THE

ACCRETION DOCTRINE IN A MANNER

THAT CONFLICTS WITH THE DECISIONS

Se AN IIT waceekcbss dsssdicesicesdcipssehsansststahbecuieodsnansevis 16

NS | ERE TU Signa oe OORT WE EPR IPTU ET ENN EET CAPA 18

APPENDIX

Opinion of the United States Court of Appeals for

the District of Columbia Circuit, dated March 25,

RARE eS POOR: + VRS RENO GE ee es Lior bd AP LED TEM la

Opinion and Order of the National Labor Relations

pe 8 Se nee ne ene l4a

Opinion of the Administrative Law Judge, dated

es NE cate hs ea iiccds ic ceieaianiiahinues 30a

Order of the United States Court of Appeals for

the District of Columbia Circuit Denying Rehear-

ing In Banc, dated July 20, 1994 0000... 52a

Order of the United States Court of Appeals for

the District of Columbia Circuit Denying Rehear-

Bam, GEE UR Ta RO acai heise inn cnscebenisnctceniee 54a

Judgment of the United States Court of Appeals

for the District of Columbia Circuit, dated March

Be. IE chetadgentactoneceandewachie beeen sdeeeednadboumine nies 55a

Excerpts of the Transcript of the Hearing Before

the Administrative Law Judge on January 8-9,

SOREN eee ae EN UO Ey IN ea RMNO NS HUME CLS ORK 59a

TABLE OF AUTHORITIES

CASES Page

American Beef Packers, Inc., 187 N.L.R.B. 996

(1971), enf’d sub nom. Arthur L. Morgan Union,

Local No. 3 v. NLRB, 463 F.2d 818 (D.C. Cir.

URED sciniacivinthinonteizaetauntensscees aeiae ete 7, 12-13

Beth Israel Hospital v. NLRB, 437 U.S. 483

oe PIED sicasrdoninsomnoonncesaibintal dabitaameiureunsnteatesdt tr ene eas 9

Brooks v. NLRB, 348 U.S. 96 (1954) ....0.00.00..20... 9

Director, Office of Workers’ Compensation Pro-

grams, Department of Labor v. Greenwich Col-

Sorted, 1E4 BH, CE. SRGR CHD ance cscicncccssesec-ncs...<. 13

Great Atlantic & Pacific Tea Co., 140 N.L.R.B.

BETES Eee aie ee ee 16

International Ladies’ Garment Workers’ Union v.

SUR OS Uh FR GOURD wiksrteseceeecrertoe 7

King Radio Corp., 257 N.L.R.B. 521 (1981)............ 12

Laconia Shoe Co., 215 N.L.R.B. 573 (1974) ............. 12,17

Modine Manufacturing Co. v. NLRB, 453 F.2d

Se Cee Ge SPE wks 7

Motor Vehicle Mfrs. Ass’n of the United States,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

BP CREE cbc eee ee 6, 16

NLRB v. Baptist Hospital, Inc., 442 U.S. 773

IED necintgiiaiaescihlstelmeaenatetanece rates en ere 6,8

NLRB v. Burns Int’l Security Services, Inc., 406

Se SE I ak eect cede eae es 9

NLRB v. Curtin Matheson Scientific, Inc., 494 U.S.

ae ee a ek eee 6,9, 10, 15

NLRB v. Security-Columbian Banknote Co., 541

ae A ee ee SUEY eeikode sti aoccis cece tas 3

NLRB v. Transportation Management Corp., 462

US. 8938 (1982) ............. icin hclahre taiaee Le ei tae diet 6, 7

Playskool, Inc. v. NLRB, 477 F.2d 66 (7th Cir.

DE oa. ARLE ALN ET a 8 LM RL Rag Tee 7

Progressive Construction Corp., 218 N.L.R.B. 1368

5g , , eS eR ares BE Pave ne ye RENT EE GRR reo 12

Rainey Security Agency, Inc., 274 N.L.R.B. 269

EOD iaccnisciizvnsventantex Gunes ee ee 7

Regency Gardens Company, 263 N.L.R.B. 1265

UIs sacvscucocescneccksuaenendaminciatadpeaaeaan ete maenaiameiaad 10

TABLE OF AUTHORITIES—Continued

Page

Republic Aviation Corp. v. NLRB, 324 U.S. 793

I a 9

Rust v. Sullivan, 500 U.S. 173 (1991) -................... 16

St. Regis Paper Co., 239 N.L.R.B. 688 (1978) ........ 16-17

United States Steel Corp., 280 N.L.R.B. 837

:_: RRSP RR Sire Cera NNER OE sn Pics 208 SAE 17

Walker's Midstream Fuel & Service Co., 208

A, SE MED ‘vnicsscccnonasectecsuinaiasenabaaaiaie 10

William Penn Broadcasting Co., 93 N.L.R. B. 1104

tS eee TER A Phere Sate Bs 7

STATUTES

ye Be I eiicinseacseniscitetacsae Siemegiaceninan acne 7,13

ae U.BA. © ieee (1) ..............~ a a ee 2

RR 8b ERR Aina ieee lancaster pete roernateocoyt 14, 15

y Rik seh BEG) . | Re ENCEeR Meer emn 2,3

29 U.S.C. §§ 158(b) (1) (A) and (b) (2) -................. 2,3

BO GF ihe G ROSE) crnicscsssionstanichinnmieeaainns 7

IN THE

Siyreme Court of the United States

OCTOBER TERM, 1994

No.

UNITED PARCEL SERVICE, INC. and

TEAMSTERS NATIONAL UNITED PARCEL SERVICE

NEGOTIATING COMMITTEE,

Petitioners,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Joint Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

JOINT PETITION FOR A WRIT OF CERTIORARI

United Parcel Service, Inc. and the Teamsters National

United Parcel Service Negotiating Committee jointly peti-

tion for a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of Colum-

bia Circuit in this case.

OPINIONS BELOW

The opinior. of the court of appeals (la-13a) is re-

ported at 17 F.3d 1518 (D.C. Cir. 1994). The decision

and order of the National Labor Relations Board (14a-

51a) are reported at 303 N.L.R.B. 326 (1991). The

decision of the Administrative Law Judge (30a-51la) is

appended to the decision of the National Labor Relations

Board.

JURISDICTION

The judgment of the court of appeals (55a-56a) was

entered on March 25, 1994 and a petition for rehearing

was denied on July 20, 1994 (52a-54a). The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved in this case are Sec-

tions 8(a)(1)-(3) and Sections 8(b)(1)(A) and (b)(2)

of the National Labor Relations Act, 29 U.S.C. §§ 158

(a)(1)-(3) and 158(b)(1)(A) and (b)(2). The full

text of these provisions is set forth in the appendix (57a-

58a) in accordance with Rule 14.1(f) of the Rules of

the Supreme Court of the United States.

STATEMENT OF THE CASE

Prior to 1979, ‘ocal unions affiliated with the Inter-

national Brotherhood of Teamsters (“IBT”) represented

most, but not all, of the “operations clerks” employed by

United Parcel Service, Inc. (“UPS”) throughout the coun-

try. In 1979, UPS and the IBT agreed to consolidate

many smaller bargaining units into a single nationwide

bargaining unit. For the next eight years, the parties dis-

agreed over whether the nationwide bargaining unit of

over 100,000 persons included those operations clerks

who, prior to 1979, had not been represented by the IBT.

In 1987, in the belief that the union enjoyed majoriiy

support among the employees in question, the parties

agreed to modify the language in their collective bar-

gaining agreement expressly to include all operations

clerks. Of the 2,000 to 3,000 operations clerks added

to the bargaining unit, one employee, Sara Griffin, com-

plained to the National Labor Relations Board (“NLRB”

or “Board”). Although Ms. Griffin lived in a “right-

to-work” state and, thus, was not required to join the

union, she nevertheless filed an unfair labor practice

charge, alleging unlawful recognition i.e., violations of

Sections 8(a)(1)-(3) and 8(b)(1)(A) and (b)(2) of

the National Labor Relations Act (“NLRA”).

The General Counsel subsequently issued a complaint

against UPS and the IBT alleging that the union did not

represent a majority of the employees who were added

to the existing unit and, further, that those employees did

not constitute a proper accretion to the unit. A full hear-

ing on the charge was held before an Administrative Law

Judge (“ALJ”). In accordance with the traditional analy-

sis applied by the Board, the ALJ concluded that the

operations clerks had been properly accreted to the exist-

ing bargaining unit because they shared a strong “com-

munity of interest” with the other IBT-represented em-

ployees (47a, 50a-Sla).* Accordingly, the ALJ dismissed

the complaint (51a).

On exceptions filed by the General Counsel to the

ALJ’s decision, the Board agreed that the employees

added to the unit shared a community of interest with

the other IBT-represented employees, but nevertheless held

that they were not accreted to the unit (17a, 20a). The

Board reasoned that accretion is never possible if the

employees in question have historically been excluded

from the bargaining unit (19a). ‘Having rejected the

ALJ’s finding of accretion, the Board then concluded,

with no discussion or explanation, that a majority of the

employees added to the unit did not support the IBT

(20a).

1“Simply stated, an accretion is the incorporation of employees

into an already existing larger unit when such a community of

interest exists among the entire group that the additional employees

have no separate unit identity.” NLRB v. Security-Columbian

Banknote Co., 541 F.2d 135, 140 (3d Cir. 1976).

tained

The Board’s decision did not discuss the General Coun-

sel’s burden of proving that a majority of the employees

did not support the union, nor did it discuss the undis-

puted fact that the General Counsel had failed to intro-

duce any evidence that the IBT lacked majority support.

Likewise, the Board’s decision did not address the evi-

dence offered by the union that it did have majority

support, and it totally ignored the uncontradicted evidence

that only one out of the 2,000 to 3,000 affected employ-

ees (Ms. Griffin) ever complained about being brought

into the bargaining unit (59a-67a). Nevertheless, the

Board concluded that UPS and the IBT had violated

the NLRA by respectively recognizing and accepting

recognition for a bargaining unit within which the Board

asserted that a majority of employees did not support the

union (20a).

The court of appeals found that the Board’s “historical

exclusion” rule—i.e., that accretion is never possible if

the employees in question have historically been excluded

from the bargaining unit—was reasonable (4a-9a). The

court then turned to the question of whether the union

lacked majority support among the employees. Citing

well-settled precedent, the court acknowledged that “in

cases alleging unlawful 8(a)(2) recognition it is the

burden of proof of the General Counsel to establish that

the union accorded recognition was not the majority rep-

resentative” (10a) by introducing evidence that is “more

than conjecture” (id.).

Although, or perhaps because, the Board’s decision

never addressed the General Counsel’s burden of proof,

the court of appeals assumed that the Board had per-

missibly applied a presumption that “the majority of a

group that has historically been excluded from a bargain-

ing unit does not support the union that represents that

unit” (12a-13a). Allowing the General Counsel this pre-

sumption, the court then shifted the burden to the union

and the company to demonstrate that the union was in

fact supported by a majority of the disputed clerks (12a).

ss PURO

The court reasoned that a presumption of non-majority

status after employees have historically been excluded

from a bargaining unit was analogous to the presumption

of continued majority status after a union has been recog-

nized or certified by the Board (lla-12a). The court

did not require any empirical evidence that this presump-

tion was reasonable nor did it acknowledge that the

Board applies a “no presumption” rule in cases where

support for the union by employees hired during a strike

is at issue.

Thus, despite the fact that in cases alleging a violation

of Section 8(a)(2), the General Counsel is required to

produce evidence to support his claim that the union does

not have majority status, the court concluded that, in the

absence of affirmative evidence of majority support, the

General Counsel was not required “to prove the negative”

(13a). The court then granted enforcement of the

Board’s order which requires UPS to withdraw and with-

hold recognition from the IBT with respect to these em-

ployees pending certification (13a, 31a). Moreover, the

order holds UPS and the IBT jointly liable to reimburse

employees for union dues and initiation fees unlawfully

withheld—an amount that could potentially exceed one

million dollars (21a).

UPS and the IBT seek review of that decision, which

conflicts with this Court’s decisions regarding the appro-

priate use of presumptions, the procedure that an ad-

ministrative agency must follow to change established

rules, and which presents important questions of labor

law.

REASONS FOR GRANTING THE PETITION

Review of the court of appeals’ decision in this case is

of exceptional importance because the decision sanctions

the unprecedented and unwarranted result that the Board

can find that the recognition of a union as the employees’

bargaining agent is unlawful without ever adducing evi-

dence, let alone proving, that the union did not represent

a majority of the employees involved. Thus, the court of

appeals’ decision contravenes this Court’s decision in

NLRB v. Transportation Management Corp., 462 U.S.

393, 401 (1983) which establishes that the General

Counsel has the burden of proof in an alleged unlawful

recognition case, and it frustrates two major goals of

federal labor relations—the encouragement of collective

bargaining and harmonious union-management relations.

Review in this case is also warranted because the court

of appeals’ decision irreconcilably conflicts with this

Court’s decisions regarding the permissible use of pre-

sumptions. In enforcing the Board’s decision, the court

of appeals presumed, without any empirical evidence or

policy support, that historically excluded employees do

not support the union. Thus, the court of appeals deci-

sion squarely conflicts with this Court’s decisions in NLRB

v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990)

and NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979)

which require that presumptions be supported on both

empirical and policy grounds. Moreover, the presump-

tion is irrational, irreconcilable with established Board

law, and contrary to the policies underlying the NLRA.

Finally, review is warranted because the Board’s deci-

sion, as enforced by the court of appeals, alters a long-

standing doctrine or rule without providing a reasoned

basis for that change as required by this Court’s decision

in Motor Vehicle Manufacturers Association of the

United States, Inc. v. State Farm Mutual Automobile

Insurance Co., 463 U.S. 29, 42 (1983). Specifically, the

Board failed to supply any reasoned analysis when chang-

ing the accretion doctrine from a “community of inter-

est” analysis to an analysis that treats historical exclusion

as a determinative factor. For these reasons, further re-

view of the court of appeals decision is warranted.

I. CERTIORARI SHOULD BE GRANTED BECAUSE

THE COURT OF APPEALS’ DECISION ALLOWING

A PRESUMPTION TO SUBSTITUTE FOR ADMIS-

SIBLE EVIDENCE CONFLICTS WITH APPLICA-

BLE PRECEDENT OF THIS COURT.

It is clearly established that the General Counsel

carries the burden of proving the elements of an unfair

labor practice charge. See Transportation Management,

462 US. at 401; 29 C.F.R. § 101.10(b) (“the Board’s

attorney has the burden of proof of violations of

Section 8 of the [NLRA]”); 5 U.S.C. §556(d) (“the

proponent of a rule or order has the burden of the

proof”).

In the context of an alleged unlawful recognition, the

Board has held, without exception, that the General Coun-

sel’s prima facie case requires proof of a lack of majority

support. See, e.g., Rainey Sec. Agency, Inc., 274 N.L.R.B.

269, 279 (1985); see also, International Ladies’ Garment

Workers’ Union v. NLRB, 366 U.S. 731, 738 (1961)

(stating that the gist of a Section 8(a)(2) violation is the

“grant of exclusive recognition to a minority union”). This

burden of proving lack of majority support remains with the

General Counsel even if a rival union’s certification peti-

tion is pending. See e.g., Playskool, Inc. v. NLRB, 477

F.2d 66, 71 (7th Cir. 1973); Modine Mfg. Co. v. NLRB,

453 F.2d 292, 296 (8th Cir. 1971); William Penn Broad-

casting Co., 93 N.L.R.B. 1104, 1106 (1951). Such proof

requires evidence which is “more than conjecture.” Amer-

ican Beef Packers, Inc., 187 N.L.R.B. 996 (1971), enf’d

sub nom. Arthur L. Morgan Union, Local No. 3 v. NLRB,

463 F.2d 818 (D.C. Cir. 1972).

Acknowledging the undisputed law establishing the

General Counsel’s burden of proof, and confronted with

a case in which the General Counsel had adduced no

evidence to satisfy this burden, the court of appeals

assumed that the Board had applied a presumption that

previously unrepresented employees do not support a

union. The court of appeals stated:

[I]t is reasonable for the Board to presume that,

absent some indication to the contrary, the majority

of a group that has historically been excluded from a

bargaining unit does not support the union that rep-

resents that unit. Without any affirmative evidence

that the union has obtained majority support—such

as a response to a union organizational campaign—

there is simply no basis upon which to believe that

the union in fact enjoys majority support. Having

shown that there is no such basis in this case—and

he can hardly do more to prove the negative—the

General Counsel made his prima facie case; it was

then up to UPS and the Teamsters to rebut him, and

this they utterly failed to do.

(13a) (emphasis added).

The presumption inferred by the court of appeals can-

not meet the standards established by this Court for

allowing presumptions to substitute for evidence. More-

over, the court of appeals’ decision is at variance with

every other reported decision, since it held an employer

and union liable for the former’s recognition of the latter,

in the absence of any evidence that a majority of the

affected employees did not support the union.

In NLRB vy. Baptist Hospital, Inc., 442 U.S. 773, 787

(1979), this Court reaffirmed that “a presumption adopted

and applied by the Board must rest on a sound factual

connection between the proved and inferred facts” and

that the validity of any presumption depends upon the

rationality betwen what is proved and what is inferred.

These requirements are rooted in a long line of this

— |

dom tate ee lee!

Court’s precedent concerning the application of presump-

tions by the Board. See Beth Israel Hosp. v. NLRB,

437 U.S. 483, 504 (1978); NLRB v. Burns Int'l Sec.

Servs. Inc., 406 U.S. 272, 279 n.3 (1972); Brooks v.

NLRB, 348 U.S. 96, 98-99 (1954); and Republic Avia-

tion Corp. v. NLRB, 324 U.S. 793, 804-05 (1945).

In this case, neither the Board nor the court of appeals

offered any basis to demonstrate the required sound fac-

tual connection between what was proved—i.e., a group

of previously unrepresented employees—and what was

inferred—i.e., that such employees do not support the

union.

The court of appeals’ decision is also inconsistent with

this Court’s holding in NLRB v. Curtin Matheson Scien-

tific, Inc., 494 U.S. 775 (1990). In Curtin Matheson,

an employer argued that persons who crossed picket lines

to replace striking workers should be presumed not to

support the union. 494 U.S. at 778. This Court rejected

the employer’s position and upheld the Board’s applica-

tion of a “no-presumption” rule in such cases. Id. at 796.

In so ruling, this Court stated that, to be valid, a pre-

sumption must be both empirically supported, and con-

sistent with the policies of the NLRA. 7d. at 787. This

Court concluded that the Board’s no-presumption rule

passed muster under both prongs of this test. /d. at 796.

The presumption in this case has neither the sound

factual connection required by Baptist Hospital, nor the

empirical and policy support required by Curtin Mathe-

son. Tested against this Court’s precedent, the court of

appeals’ presumption in the instant dispute that histor-

ically excluded employees do not support the union must

fail as irrational and inconsistent with the policies of

the NLRA.

First, the presumption that historically excluded em-

ployees do not support the union is irreconcilable with

established Board law. Such a presumption cannot be

reconciled with the Board’s no-presumption policy in the

case of striker replacements which was endorsed by this

Court in Curtin Matheson. If persons who cross picket

lines to fill the jobs vacated by striking employees cannot

permissibly be presumed to oppose the union, neither can

those who were merely historically excluded from the

bargaining unit. If the sentiments of striker replacements

for or against the union should be assessed on the basis

of the evidence and not presumptions, so should the views

of previously unrepresented employees.

Second, application of the court of appeals’ presump- .

tion would eviscerate the well-established body of Board

and court decisions that an employer need not possess

tangible proof of a union’s majority status in order law-

fully to recognize the union as the exclusive bargaining

agent of the employer and employees. See Regency Gar-

dens Co., 263 N.L.R.B. 1265 (1982) (noting that “there

is no requirement that a union must have, and show to

an employer, a majority of signed cards before a union

may be lawfully recognized by an employer”); Walker’s

Midstream Fuel & Serv., Co., 208 N.L.R.B. 158 (1974)

(dismissing complaint even though, as here, the union

did not attempt to claim majority status by producing

recognition cards). Application of the presumption of

the court of appeals would mean that any time a union

seeks to represent previously unrepresented employees, the

General Counsel’s burden to prove such recognition unlaw-

ful would automatically be discharged by virtue of their

previous unrepresented status. Such a result is contrary

to all applicable precedents, statutes and regulations.

Finally, the application of this presumption does not

make common sense. Presumptions are used as an eviden-

tiary tool when “proof of one fact renders the existence

of another fact so probable that it is sensible and time-

saving to assume the truth of [the inferred] fact .. . until

the adversary disproves it.” Curtin Matheson, 494 U.S.

at 788 (citing E. Cleary, McCormick on Evidence § 343,

at 969 (3d ed. 1984)). As in the situation involving

striker replacements, there are many reasons, apart from

anti-union sentiment, that workers may be excluded from

a bargaining unit when it is first recognized or certified.

Moreover, even if the excluded workers were generally

opposed to the union when it initially became the bargain-

ing representative, it stands to reason that these views

may change if union representation proves beneficial to

their co-workers.

As applied in this instant case, application of the pre-

sumption was especially illogical The ALJ expressly

found (50a) that, of the 2,000 to 3,000 affected employ-

ees, only one (Ms. Griffin) objected to being brought into

the bargaining unit, and the IBT presented evidence

(which the court of appeals acknowledged, but charac-

terized as “impressionistic” (lla)) that it did have

majority support (10a-lla). The General Counsel ad-

duced not an iota of contrary evidence. Given these facts,

it is far more rational to presume that the union did

have majority support than to presume the contrary.

Consequently, the court of appeals’ adoption of a pre-

sumption of lack of majority support is both inconsistent

with standards approved by this Court for assessing the

validity of presumptions and is completely irrational.

II. CERTIORARI SHOULD BE GRANTED BECAUSE

THE COURT OF APPEALS’ DECISION ABSOLVING

THE GENERAL COUNSEL OF HIS BURDEN TO

PROVE A LACK OF MAJORITY STATUS IN AN

UNLAWFUL RECOGNITION CASE IS CONTRARY

TO EVERY REPORTED PRECEDENT ON THIS

ISSUE.

As discussed earlier, established precedent unequivo-

cally holds that the General Counsel has the burden,

in unlawful recognition cases, to prove that the union

lacked majority support at the time of recognition. See

supra, at 7.

The court of appeals recognized this principle (9a-10a)

and purported to follow it, but in fact deviated sharply

from it by ruling that the employer’s and union’s assertion

of the defense of accretion required that a different rule

be followed (lla). In so holding, the court of appeals

deviated from every other reported decision on the issue

of accretion.

The cases are uniform in holding that accretion is an

affirmative defense available to the employer and union

even if the union lacks majority suport. See, e.g., Laconia

Shoe Co., 215 N.L.R.B. 573, 575 (1974) (stating that,

if the defense of accretion is established, “the extension:

of recognition to the [union] was lawful whether or not

the Shoeworkers enjoyed majority support among those

employees”); King Radio Corp., 257 N.L.R.B. 521, 525

(1981) (recognizing that “accretion would constitute an

absolute defense to the 8(a)(1) and (2) allegations”

regardless of lack of majority).

Thus, the threshold issue—even before considering the

defense of accretion—was whether the General Counsel

had established a prima facie violation of Section 8(a) (2),

by proving that the IBT lacked majority support of the

newly-included employees. On that threshold issue of

majority support, it is well-established that the burden

of proof rests with the General Counsel to show the

absence of such support. See, e.g., Progressive Construc-

tion Corp., 218 N.L.R.B. 1368, 1371 (1975):

It was incumbent on General Counsel to adduce

direct and affirmative evidence—such as proof that

a majority of the unit employees did not sign author-

ization cards or that they otherwise manifested

unwillingness to be represented by Carpenters on the

critical dates in issue.

Similarly, in American Beef Packers, Inc., 187 N.L.R.B.

996, 997 (1971), aff'd sub nom. Arthur L. Morgan

Union, Local No. 3 v. NLRB, 463 F.2d 818 (D.C. Cir.

1972), the Board dismissed a Section 8(a)(2) complaint,

stating:

The circumstantial evidence relied on by the Trial

Examiner in drawing an inference of lack of majority

amounts to nothing more than conjecture. It is no

substitute for proof, which is the General Counsel’s

burden, that Amalgamated [the recognized union]

did not in fact represent a majority of Respondent’s

employees at the relevant times. Accordingly, we

shall dismiss the complaint in its entirety.

Consequently, by holding that the burden of proof on

majority status should shift from the General Counsel

to the employer and the union merely because the latter

entities asserted the defense of accretion, the court of

appeals ignored a uniform line of precedent holding that

(1) it is the General Counsel’s burden in an unlawful

recognition case to prove lack of majority support, and

(2) accretion can be a valid defense even if majority

support was lacking.

The court of appeals’ decision in this case is also incon-

sistent with this Court’s recent decision in Director, Office

of Workers’ Compensation Programs, Department of La-

bor v. Greenwich Collieries, 114 S. Ct. 2251 (1994).

Greenwich Collieries holds that the phrase “burden of

proof” as used in Section 7(c) of the Administrative Pro-

cedures Act, 5 U.S.C. §556(d), means burden of per-

suasion. 1148S. Ct. at 2257.

The court of appeals attempted to justify its shifting

the burden to UPS and the IBT by drawing an analogy

to the burden of proof in cases where an employer is

charged with illegally withdrawing recognition from a

union (lla-12a). As the court noted (12a), the burden

of proof in such cases is initially on the employer to

demonstrate that it had a “good faith reasonable doubt”

as to the union’s majority status before withdrawing rec-

ognition; only if it meets that burden is the General

Counsel obligated to produce evidence that the union in

fact did enjoy majority support at the time recognition

was withdrawn.

The court of appeals’ analogy provides no basis for

shifting the burden of proof to the employer and union.

The burden of proof in cases alleging unlawful with-

drawal of recognition (the court’s analogy) has no rele-

vance to the burden of proof in cases alleging unlawful

recognition of a minority union (the present case). Thus,

not only is the court of appeals’ analogy illogical and

inconsistent with basic labor law principles,” but it pro-

vides no basis for distinguishing the uniform line of cases

holding that (1) the burden is on the General Counsel

to prove lack of majority support, and (2) accretion is

a defense even if majority support was lacking. Petition-

ers request this Court to grant certification in order to

rectify the court of appeals’ unprecedented deviation from

these well-established principles.

III. CERTIORARI SHOULD BE GRANTED BECAUSE

THE COURT OF APPEALS’ DECISION FRUS-

TRATES THE IMPORTANT GOAL OF ENCOURAG-

ING COLLECTIVE BARGAINING.

In addition to being inconsistent with this Court’s rul-

ings on presumptions and with all reported decisions on

“It is hard to imagine an action that is more clearly a direct

interference with collective bargaining than an employer’s with-

drawal of union recognition. By definition, an employer that with-

draws recognition is disrupting an established bargaining relation-

ship, and the employer’s action is directly antithetical to collective

bargaining. Because one of the express goals of the NLRB is to

“encouragfe] the practice and procedure of collective bargaining”

(29 U.S.C. § 151, fifth paragraph), it is not surprising that the

Board and the courts place the initial burden of proof on an em-

ployer to justify its disruption of this bargaining relationship.

In the present case, by contrast. UPS ond the IBT were not

antagonists, but were in agreement. Indeed, the record clearly

established that the parties’ conduct in bringing the previously-

excluded clerks into the unit—which UPS did ecnlv in response to

repeated pressure from the IBT—,resolved a long-festering dispute

between the parties. Thus, the parties’ conduct here encouraged

collective bargaining, rather than frustrated it as any withdrawal

of recognition would do.

‘15

the burden of proof in recognition cases, the court of

appeals’ decision is inconsistent with the NLRA’s “over-

riding policy of achieving industrial peace.” Curtin

Matheson, 494 U.S. at 794 (quoting Fall River Dyeing

& Finishing Corp. v. NLRB, 482 U.S. 27, 38 (1987)).

An expressed goal of the NLRA is to “encourag[e] the

practice and procedure of collective bargaining.” 29

U.S.C. § 151, fifth paragraph. Voluntary recognition fully

credits that goal by achieving a collective-bargaining rela-

tionship through the agreement of the employer and the

union. The court of appeals’ decision frustrates the pur-

poses of the NLRA by discouraging voluntary collective

bargaining.

While it is true that the NLRA seeks to preserve the

free choice of employees as well as to encourage collec-

tive bargaining, preservation of employee choice should

be based on evidence, not presumptions. Had the Gen-

eral Counsel proved by competent evidence that a ma-

jority of the previously unrepresented employees did not

support the union, one ordinarily could not quarrel with

a finding that the freedom of employee choice should

prevail over the goal of furthering collective bargaining

(unless, of course, the elements of a valid accretion de-

fense were present). However, where (as here) there was

no evidence that the union lacked majority support, ap-

plication of a presumption based solely on historical ex-

clusion violated the goal of encouraging collective bar-

gaining while doing nothing to preserve free choice of

employees.

In this case UPS voluntarily recognized the IBT as the

exclusive representative of 2,000 to 3,000 previously un-

represented clerks. These clerks received the full benefit

of the UPS/IBT negotiated collective bargaining agree-

ments. Not one of these clerks complained about the

recognition or the attendant benefits, save a single voice

from an individual who, because she resides in a “right-

to-work” state, was not compelled to join the union. On

the basis of a single dissent from a group of between

2,000 to 3,000 employees and the court of appeals’ irra-

tional presumption, a stable collective bargaining relation-

ship stands to be upset.

The court of appeals’ presumption and burden-shifting

approach inject an aura of uncertainty into the otherwise

settled law on voluntary recognition. Such uncertainty

has broad-based ramifications and is contrary to the

NLRA’s goals of stabilization and industrial peace. This

Court should grant this writ of certiorari and maintain

the stability that the court of appeals’ decision threatens

to disrupt.

IV. CERTIORARI SHOULD BE GRANTED BECAUSE

THE BOARD HAS ALTERED THE ACCRETION

DOCTRINE IN A MANNER THAT CONFLICTS

WITH THE DECISIONS OF THIS COURT.

Administrative agencies may not alter established doc-

trines unless they “supply a reasoned analysis for the

change.” Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983);

accord Rust v. Sullivan, 500 U.S. 173, 187 (1991). In

this case, the Board not only failed to supply a reasoned

analysis for changing the accretion doctrine, it also re-

fused to admit that it was making a change. For this

reason alone, the court of appeals erred in granting the

petition to enforce the Board’s order.

Prior to this case, the Board applied a multi-factored

analysis in virtually every decision involving the accretion

doctrine. See, e.g., St. Regis Paper Co., 239 N.L.R.B.

688, 691-92 (1978); Great Atl. & Pac. Tea Co., 140

N.L.R.B. 1011, 1021 (1963). The Board found an

accretion if factors indicated that the employees shared

a community of interest. As explained in St. Regis:

Whether or not a particular operation constitutes

an accretion or a separate unit turns, of course, on

the entire congeries of facts in each case. ... [T]he

Board has given weight to a variety of factors, such

NP as Sill gn et ah Apt ee OO AS i Big IE

PUAN: Pets

Sek een Ea lot hat PS UNAM a NE WR eae oe

ie Was

as integration of the operations; centralization of man-

agerial and administrative control; geographic prox-

imity; similarity of working conditions, skills, and

functions; common control over labor relations; col-

lective-bargaining history; and interchangeability of

employees. Obviously, cases in which all of these,

or only these, positive accretion factors are present

are rare. For, the normal situation presents a variety

of elements, some militating toward and some against

accretion, so that a balancing of factors is necessary.

239 N.L.R.B. at 691.

Contrary to its own established precedent, the Board

now argues that the historical exclusion factor—i.e.,

whether the employees have historically been a part of

the bargaining unit—is alone determinative. In attempt-

ing to justify the Board’s historical exclusion rule, the

court of appeals’ decision twice quotes from the ALJ’s

decision in Laconia Shoe Co., 215 N.L.R.B. 573 (1974).

However, in Laconia Shoe, the Board expressly found

that the General Counsel had met his burden of proving

a lack of majority status. 215 N.L.R.B. at 573 n.l.

Therefore, the so-called historical exclusion rule was ir-

relevant and the language quoted by the court of appeals

is merely dicta.

Moreover, in United States Steel Corp., 280 N.L.R.B.

837, 837 n.2 (1986), a case decided eight years after

Laconia Shoe, the Board expressly rejected this so-called

historical exclusion rule, stating:

While we agree with the judge’s finding that the

Respondent’s truckdrivers at the Antioch facility

do not constitute an accretion to the existing bar-

gaining unit of warehouse employees, we do not

adopt the judge’s analysis that the “controlling

factor” here is the long bargaining history of separate

units of warehouse employees and _truckdrivers.

Rather, we find, after examining all of the accretion

factors traditionally considered by the Board, that

the two employee groups continued to maintain their

separate identities despite certain changes made in

the drivers’ duties.

(emphasis added).

Thus, United States Steel reaffirmed that historical

exclusion is not the determinative factor in a proper

accretion analysis. The Board was not entitled to change

its rule on accretion to make the historical exclusion

factor determinative unless it provided a reasoned analysis

to support that change. It did not, and it could not,

because such a change is irrational and contrary to the

policies underlying the NLRA. .

CONCLUSION

For the foregoing reasons, petitioners, United Parcel

Service, Inc. and the Teamsters National United Parcel

Service Negotiating Committee respectfully request that

this Court grant their petition for a writ of certiorari to

the United States Court of Appeals for the District of

Columbia Circuit.

Respectfully submitted,

JUDITH A. SCOTT MARTIN WALD *

CHRISTY HOFFMAN NICHOLAS N. PRICE

25 Louisiana Avenue, N.W. AXEL J. JOHNSON, IV

Washington, D.C. 20001 CHRISTOPHER J. MORAN

Attorneys for Teamsters SCHNADER, HARRISON,

National United Parcel SEGAL & LEWis

Service Negotiating 1600 Market Street

Committee Philadelphia, PA 19103

(215) 751-2188

Attorneys for United Parcel

* Counsel of Record Service, Inc.

’

APPENDIX A

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

Nos. 91-1314, 91-1317

TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGO-

TIATING COMMITTEE and INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA, LOCAL 385, AFL-CIO,

Petitioners/Cross-Respondents,

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner.

UNITED PARCEL SERVICE, INC.,

Petitioner/Cross-Respondent,

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Peiitioner.

Petitions for Review and Cross-Petitions for

Enforcement of an Order of the

National Labor Relations Board

Argued Sept. 8, 1993

Decided March 25, 1994

Before BUCKLEY, GINSBURG, and HENDERSON,

Circuit Judges.

Opinion for the Court filed by Circuit Judge GINS-

BURG.

GINSBURG, Circuit Judge:

The Teamsters National United Parcel Service Nego-

tiating Committee and United Parcel Service, Inc. sepa-

rately petition for review, and the National Labor Rela-

tions Board applies for enforcement, of a Board order

(1) requiring the Company to withdraw recognition of

the Union as the representative of certain operations

clerks; and (2) requiring the Company and the Union

to reimburse those clerks for dues payments that had

been deducted from their paychecks during the period

that the Company recognized the Union as their repre-

sentative. Because the order is supported by substantial

evidence and is consistent with prior Board precedent

concerning accretions to a bargaining unit, we deny the

petitions for review and grant the Board’s petition to

enforce the order.

I. Background

Prior to 1979, operations clerks at various UPS facili-

ties were separately represented by approximately 220

different local unions, all of which were affiliated with

the International Brotherhood of Teamsters. At that time,

about 40% of UPS’s operations clerks were not covered

by a contract between UPS and a local union. In 1979,

however, the Company recognized the Teamsters as the

representative of all operations clerks in a new nation-

wide bargaining unit; and all of the local unions were

merged into the national unit.

Under their new nationwide collective bargaining

agreement, the Company and the Union agreed that

“{e]mployees covered by this agreement shall be con-

strued to mean, where already recognized .. . clerks... .”

Following execution of the contract, the Union contended

ane

Sifted esi olin.’ hres

that this provision meant that all clerks employed by the

Company were covered by the agreement; the Company

countered that only those clerks previously represented

by one of the Teamster locals were covered by the agree-

ment.

In practice, the Board found only those clerks that had

previously been represented by one of the local unions

were treated by the parties as represented by the Team-

sters under the nationwide agreement; the other clerks

were excluded from the bargaining unit. Therefore, when

the parties renegotiated the agreement in 1982, the Union

proposed to delete the limiting phrase (“where already

recognized”) from the coverage provision quoted above

and the Company insisted upon retaining it. When the

Union again argued in 1987 that it should be treated as

the representative of all the clerks, the Company finally

agreed: “effective August 1, 1987, the Employer recog-

nize[d] [all clerks] as bargaining unit members.” The

new agreement also contained a union security clause that

required all employees to pay dues and initiation fees as

a condition of employment (where state law permitted).

The Company therefore began to deduct Union dues and

initiation fees from previously unrepresented clerks who

completed a dues checkoff form.

Upon a charge filed by an operations clerk from whom

Union dues were newly deducted in 1987, the General

Counsel charged the Company and the Union with vari-

ous unfair labor practices in violation of §$ 8(a)(1)-(3)

and 8(b)(1)(A) and (2) of the Labor Management Re-

lations Act. An Administrative Law Judge found that

the previously unrepresented clerks had been properly

accreted to the existing bargaining unit, and therefore

held that there was no unfair labor practice in agreeing

that the Company would recognize the Union as the bar-

gaining representative for all operations clerks. United

Parcel Services, Inc., 303 N.L.R.B. 326, 330-36 (1991)

(ALJ Opinion). The Board, however, rejecting the

ALJ’s opinion, held that the Company and the Union

had violated the Act by respectively recognizing and ac-

cepting recognition for a bargaining unit within which a

majority of employees had not picked the Union as their

representative. See id. at 326-30 (Board Order); see also

International Ladies Garment Workers’ Union v. NLRB

(Bernhard-Altmann Texas Corp.), 366 U.S. 731, 738-39,

81 S.Ct. 1603, 1608, 6 L.Ed.2d 762 (1961) (holding

that “employer support of a minority union” and the

minority union’s acceptance of such recognition are un-

fair labor practices); Human Development Ass'n _ v.

NLRB, 937 F.2d 657, 665 (D.C.Cir. 1991) (same}.

The Board ordered the Company to withdraw recognition

from the Union with respect to the previously unrepre-

sented clerks until such time as the Board might certify

the Union as their exclusive representative, and ordered

the Company and the Union to reimburse the clerks for

the dues and initiation fees that were unlawfully collected

from them.

II. Analysis

The petitioners attack the Board’s order on two fronts.

First, they argue that precedent requires the Board to

apply its “community of interest” standard for evaluating

an accretion to a bargaining unit, under which (they

claim) the accretion of the clerks would have passed

muster. In the alternative they contend that the Union

had majority status among the accreted clerks and was

therefore lawfully recognized by the Company.

A. Were the Clerks Lawfully Accreted?

An accretion occurs whenever new employees are

added to an existing bargaining unit. In contested cases

the Board generally applies a community of interest test

for determining the legality of an accretion. That test

involves an examination and balancing of such factors as

“integration of operations, centralization of managerial

and administrative control, geographic proximity, similar-

ity of working conditions, skills and functions, common

oar Te nike, Sate

182 Maeda? Vt i OAR a NRT OI a a &

elie al

se Samana Etat dt Pan, tke Sim axa SR eC ss

de tile mS A

bite

control of labor relations, collective-bargaining history,

and interchange of employees.” Gould, Inc., 268

N.L.R.B. 442, 445 (1982).

In this case, however, the Board declined to apply the

community of interest test, holding that “the fact of [the

clerks’] historical exclusion [from the bargaining unit]...

is determinative” that they could not be accreted to the unit

except by a showing of majority sentiment among them.

303 N.L.R.B. at 327 (emphasis omitted). In other

words, if neither the Company nor the Union insisted

upon including a particular group of employees in a bar-

gaining unit at its formation, then the excluded employees

are thereafter conclusively presumed to lack a community

of interest with those in the bargaining unit. Both the

Company and the Union attack the Board’s holding as

contrary to Board precedent and therefore arbitrary and

capricious. See International Union of Petroleum &

Industrial Workers v. NLRB, 980 F.2d 774, 778 (D.C.

Cir.1992).

The Board based its holding in this case on its prior

decision in Laconia Shoe, 215 N.L.R.B. 573 (1974), in

which it stated:

When a group has in fact been excluded for a signifi-

cant period of time from an existing production and

maintenance unit, the Board will not permit their

accretion without an election or a showing of major-

ity among them even if no other union could obtain

representative status for them.

Id. at 576. That decision fully supports the Board’s

formulation in this case—that the clerks’ “historical ex-

clusion . . . is determinative” against their later accretion

absent evidence of the majority’s preference.

The Union, however, argues both that Laconia Shoe

was wrongly decided—specifically, that the case upon

which the Board based that decision, Sterilon Corp., 147

N.L.R.B. 219 (1964), does not support the conclusion

reached in Laconia Shoe—and that the Board has not

consistently applied it to cases like the present one. As

to the former point, we do not think it necessary, in view

of the intervening case law, to re-examine the fundaments

of Laconia Shoe. Both the Board and the courts recog-

nize that the Laconia Shoe doctrine is critical to the pro-

tection of employees’ Section 7 right to choose whether

to belong to a union and if so to which one. As the

Second Circuit perceptively stated the matter in NLRB

v. Stevens Ford, Inc., 773 F.2d 468 (1985):

If groups of employees may be permissibly accreted

to a bargaining unit after they have been earlier ex-

cluded from an election in that unit, strategic selec-

tion of one group for election purposes followed by

accretion will lead to a larger bargaining unit in

which the bargaining representative does not have

majority status. Such boot-strapping violates the

Act’s policies favoring the free choice of employees.

Id. at 474; see also King Radio Corp., 257 N.L.R.B. 521,

526 (1981) (no accretion of group excluded when bar-

gaining unit was formed regardless of commonality of

interests ).

The petitioners’ argument that the Board has not ap-

plied Laconia Shoe consistently rests primarily upon its

decision in St. Regis Paper, 239 N.L.R.B. 688 (1978),

aff'd, 255 N.L.R.B. 72 (1981), enf'd, 674 F.2d 104 (lst

Cir.1982). The employer in that case had entered into

a collective bargaining agreement that was expressly

limited to the mechanics at its garage in Bucksport,

Maine. When the company later opened an additional

garage at First Lake and staffed it by transferring union

members from the Bucksport facility, it recognized that

the transferred mechanics continued to be represented by

the Union, but it refused to renegotiate the provision of

the collective bargaining agreement limiting its coverage

to the Bucksport garage. Eventually, the employer hired

new non-union mechanics for the First Lake garage and

transferred the union members back to Bucksport.

ed hi Ati ited id. Chane ities

rae ony en

BAAN Ra oR ale abl ADU OM HON

pe i Renner de etic i a

The Board found that the new mechanics at the First

Lake facility had lawfully been accreted to the Bucksport

bargaining unit, in part because the First Lake mechanics

“had been governed by the contract between [the em-

ployer] and the union [even though] the contract pur-

ported to cover Bucksport only.” To our reading, this

suggests that the accretion occurred when the new garage

was opened, and that no employees were ever “historically

excluded” from the bargaining unit. St. Regis Paper does

not, therefore, demonstrate that the Board has failed to

apply the Laconia Shoe rule consistently.

Nor does Lammert Industries v. NLRB, 578 F.2d 1223

(7th Cir.1978), which involved the physical consolida-

tion of one union facility with 19 employees, and one

non-union facility with seven employees, into a new facil-

ity. In Lammert, the Board ultimately found that the

union retained its majority status at the new facility and

therefore permitted it to represent all 26 employees. Al-

though the combination of the previously unrepresented

employees with the existing bargaining unit was (rather

loosely in our view) termed an accretion, Lammert is

uniquely addressed to the physical consolidation of a

union and a non-union facility at a single location; it has

no application to the accretion of employees who had

historically been excluded from a bargaining unit. There-

fore, the petitioners have failed to document their claim

that the Board has not applied Laconia Shoe consistently

since it was decided.

Finally, the petitioners argue that if the Board is to

apply the rule of Laconia Shoe, then precedent and the

facts of this case require it (1) to find that the Union

did not acquiesce in the exclusion of any clerks from the

bargaining unit and (2) then to weigh the Union’s non-

acquiescence heavily in its analysis of whether a lawful

accretion occurred. According to UPS, for example,

“Laconia Shoe makes clear that the question of union

acquiescence remains essential to an accretion analysis.”

UPS Br. at 19. In sharp contrast, the Board maintains

that it is irrelevant whether the Union acquiesced in the

clerks’ exclusion, and that in any event the Board prop-

erly found that the Union had acquiesced in their exclu-

sion when it accepted a contract that did not include

them in the national bargaining unit.

In deciding this case, the Board clearly treated ac-

quiescence as irrelevant to the exclusion issue. See 303

N.L.R.B. at 327. Nor does any of the accretion decisions

that the petitioners cite demonstrate that the Board has

previously deemed acquiescence a pre-requisite to finding

that the historical exclusion of certain employees barred

their accretion to an existing bargaining unit. Sunar-

Hauserman, 273 N.L.R.B. 1176 (1984), a case upon

which the petitioners rely heavily, arose from a unit

clarification petition; it is simply inapplicable in the ac-

cretion context. Even if SunarHauserman were applicable,

moreover, it would not sustain the petitioners’ position.

In that case, the Board found that “[t]he Union did not

abandon its proposal to include [in the unit the new posi-

tion of] dock auditor in exchange for a concession during

bargaining” but rather expressly preserved its right to

seek a bargaining unit clarification. 7d. at 1177. In con-

trast, here the Teamsters twice agreed to the “where al-

ready recognized” limitation on the bargaining unit and

never reserved the right to seek, much less sought, a bar-

gaining unit clarification. Indeed, the Union claims only

that it proposed to eliminate the exclusionary clause in

later contract negotiations and in the interim pressed the

Company on the matter.

Similarly, the petitioners assert that in Color Tech

Corp., 286 N.L.R.B. 476 (1987), the Board based its

no-accretion holding crucially upon the union’s not hav-

ing initially sought to cover the disputed employees in its

collective bargaining agreement. The Board did indeed

note that the union had never sought to include the

allegedly accreted employees in the bargaining unit, but

it recounted that merely as evidence of their historical

exclusion from the unit. See id. at 487. Nowhere in

Pray ee baad

that case did the Board indicate that union acquiescence

vel non in the employees’ exclusion is a factor to be con-

sidered in determining whether the historical exclusion of

a group of employees precludes their later accretion.

The only decision that even remotely supports the

petitioners’ position is King Radio Corp., 257 N.L.R.B.

521 (1981), in which the Board mentioned that the

union had in the past “consciously excluded” the em-

ployees that it was then seeking to include by accretion

in the bargaining unit. See id. at 526. In context, how-

ever, it is clear that the Board treated that fact as nothing

more than additional evidence of the employees’ historical

exclusion.

In sum, the cases cited by the petitioners suggest only

that the Board considers a union’s course of conduct as

a factor in determining whether a group of employees was

in fact historically excluded from a bargaining unit. To

infer from this, however, that the union’s acquiescence is

a prerequisite to the Board’s finding that a group of em-

ployees was historically excluded would be significantly .

to overread the cases.

Never having held, in terms or de facto, that the union’s

acquiescence is a prerequisite to finding that employees

were historically excluded from a bargaining unit, the

Board was not obliged to determine whether the Union

in this case acquiesced (as matter of law) in the exclusion

of certain clerks from the nationwide UPS bargaining

unit, or if it did not, whether its nonacquiescence means

that the employees were not (again, as a matter of law)

historically excluded from the unit. Therefore, the previ-

ously unrepresented clerks could not be incorporated into

that unit absent a showing of majority support among

them for the union.

B. Did the Union Have Majority Support?

The petitioners argue next that the Board’s order

should be set aside because the General Counsel failed

to show that the Union lacked majority support among

10a

the allegedly accreted clerks. If the Union had such ma-

jority support, then the Company was of course entitled

to recognize it as their exclusive bargaining representa-

tive.

The law is clear that “in cases alleging unlawful

8(a)(2) recognition, it is the burden of proof of the

General Counsel to establish that the union accorded

recognition was not the majority representative.” Rainev

Security Agency, Inc., 274 N.L.R.B. 269, 279 (1985)

(internal quotations and citations omitted). It is equally

clear that in meeting his burden of proof, the General

Counsel must rely upon “more than conjecture,” i.e.,

must produce evidence that the Union did not enjoy

majority support. American Beef Packers, 187 N.L.R.B.

996, 997 (1971), enf'd, 463 F.2d 818 (D.C.Cir.1972);

see also Regency Gardens Co., 263 N.L.R.B. 1265, 1269

(1982).

The record in this case is also clear. To quote the

Board, it was

undisputed that the Employer did not ask for and

the Union did not proffer proof of majority support

for the Union in the group of previously unrepre-

sented employees. An official of the Union testified

about his belief that the Union had majority support

in this group, but he admitted that he had no

‘papers,’ including authorization cards, to support

this belief.

303 N.L.R.B. at 326. Further, we note that prior to

prosecuting the complaint in this case, the General

Counsel subpoenaed “all books, papers, documents, cor-

respondence, notes or other writings showing that on or

before August 1, 1987, a majority of operations clerks

employed by UPS who had not been represented by the

Teamsters prior to August 1, 1987 designated the Team-

Sters as their collective bargaining representatives.” Hear-

ing Trans. at 55. The Union produced nothing in re-

sponse. At the hearing before the ALJ, a Union official

ere Mee TRS ee ee

biti

lla

confirmed that he had “no records or papers to verify

that.” Jd. Instead, he testified that he believed that the

Union had majority status solely upon the basis of con-

versations he had had with various of the previously un-

represented clerks. See id. at 53.

The petitioners’ argument raises the question whether

the Board could properly find that the General Counsel

discharged his burden of proof by showing that the

Union’s claim to majority support was entirely impres-

sionistic and unsupported either by documentation or by

any other indicia of employee sentiment. In another con-

text we might well doubt whether the General Counsel’s

reliance upon these facts amounts to anything “more than

conjecture.” There is, after all, no general requirement

that a union have documentary or indeed any specific

type of evidence, such as authorization cards, to support

its claim to majority support.

The General Counsel’s burden should be sensitively

calibrated, however, to the context in which it must be

carried—in this case, a context formed by the doctrines

of accretion and historical exclusion. We repeat the pas-

sage from the Board’s opinion in Laconia Shoe, quoted

above: “When a group has in fact been excluded for a

significant period cf time from an existing production

and maintenance unit, the Board will not permit their

accretion without an election or a showing of majority

among them even if no other union could obtain repre-

sentative status for them.” 215 N.L.R.B. at 576. With

this statement of the substantive law in mind, we do not

see how the General Counsel could be expected to prove

more, in his prima facie case against accretion, than the

fact that the employees in question were historically ex-

cluded from the putative bargaining unit. It was, of

course, open to the Union to rebut the General Counsel’s

prima facie case by producing some reliable evidence of

its majority status, but it failed to do so.

We see a close analogy between the manner in which

the Board allocated the burden of proof in this case and

the way in which the Board proceeds when an employer

12a

has withdrawn its recognition of a union that it had

recognized either voluntarily or after certification by the

Board. Such a union benefits from the presumption of

continued majority status. See, e.g., Sullivan Industries

v. NLRB, 957 F.2d 890, 897 (D.C.Cir. 1992). Hence,

if the employer ceases to recognize and to bargain with

the union, it commits an unfair labor practice unless it

can demonstrate, based upon clear and cogent evidence,

that it had a “good faith reasonable doubt” as to the

union’s majority status. See, e.g., Sullivan Industries, 957

F.2d at 897-98; NLRB vy. Creative Food Design Ltd.,

852 F.2d 1295, 1300-01 (D.C.Cir. 1988). If the em-

ployer succeeds in making this showing, the burden then

shifts to the General Counsel to produce evidence that

the union did, in fact, enjoy majority support when the

employer withdrew its recognition from the union. See

Creative Food Design, 852 F.2d at 1300.

Although the roles are reversed here, the situation is

essentially similar. By showing that the disputed clerks

had historically been excluded from the Teamsters Union,

the General Counsel cast substantial doubt upon the

Union’s majority status among them. This doubt, which

is founded upon fact and is thus “more than conjecture,”

is enough in the context of an aileged accretion, to satisfy

the General Counsel’s burden. The burden then shifted

to the Union and the Company to demonstrate that the

Union was, in fact, supported by a majority of the dis-

puted clerks when the Company recognized it as their

representative. |

In light of the Board’s explanation of the policies that

underlie the accretion doctrine, this manner of proceeding

makes eminently good sense. If a union and an employer

could accrete unrepresented employees to an existing unit

merely by claiming to be under the impression that the

union has majority support among them, then the accre-

tion doctrine would do little to protect the employees’

right not to be represented by that union. In other words,

13a

it is reasonable for the Board to presume that, absent

some indication to the contrary, the majority of a group

that has historically been excluded from a bargaining unit

does not support the union that represents that unit.

Without any affirmative evidence that the union has ob-

tained majority support—such as a response to a union

organizational campaign—there is simply no basis upon

which to believe that the union in fact enjoys majority

support. Having shown that there is no such basis in

this case—and he can hardly do more to prove the nega-

tive—the General Counsel made his prima facie case;

it was then up to UPS and the Teamsters to rebut him,

and this they utterly failed to do. Hence, the Board prop-

erly concluded that the Union lacked the necessary ma-

jority support when the Company recognized it as the

representative of the previously unrepresented clerks.

III. Conclusion

In sum, we find that the Board properly applied its

prior decisions to conclude that the unrepresented clerks

employed by the Company could not lawfully be accreted

to the existing bargaining unit without a showing of ma-

jority support among them for the Union and that the

Union did not in fact enjoy majority support among them.

Therefore, we grant the Board’s petition for enforcement

and deny the Company’s and the Union’s petitions for

review.

So ordered.

l4a

APPENDIX B

D-2042

Rockledge, FL

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 12-CA-12749

UNITED PARCEL SERVICE, INC.

and

SARA F. GRIFFIN, an Individual

Case 12-CB-3028

TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGOTI-

ATING COMMITTEE AND INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND

HELPERS OF AMERICA, LOCAL 385, AFL-CIO, ITs

AGENT

and

SARA F. GRIFFIN, an Individual

DECISION AND ORDER

The issue presented is whether Respondent United Par-

cel Service (UPS) and Respondent Teamsters violated

Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A)

and (2) of the Act, respectively, by executing and main-

15a

taining a collective-bargaining agreement in 1987 which

extended an existing nationwide bargaining unit to in-

clude a group of employees who had historically been

excluded from that unit. The judge found that the chal-

lenged action involved a lawful accretion.’ For the rea-

sons set forth below, we find merit in the General

Counsel’s exceptions to this finding.

The Board has considered the decision and the record

in light of the exceptions and briefs and has decided to

affirm the judge’s rulings,’ findings, and conclusions only

to the extent consistent with this Decision and Order.

UPS engages in the interstate transportation and dis-

tribution of parcels. Prior to 1979, approximately 220

local unions of the International Brotherhood of Team-

sters had individual bargaining relationships with various

UPS facilities located throughout the country. Operations

clerks * were included in the bargaining unit at some facili-

ties and were excluded from the unit at other facilities.

10On July 27, 1990, Administrative Law Judge William N. Cates

issued the attached decision. The General Counsel filed exceptions

and a supporting brief. The Respondents filed briefs in opposition

to the General Counsel’s exceptions and in support of the judge’s

decision.

The National Labor Relations Board has delegated its authority in

this proceeding to a three-member panel.

2The judge granted the General Counsel’s motion to strike

attachments to the Respondent Employer’s posttrial brief on the

basis that these attachments were not part of the record. The

Respondent Employer has not excepted to the judge’s ruling but

has appended the same documents to its answering brief. We have

again stricken these documents and have not considered them in

deciding the issues presented in this case.

% The term operations clerk refers to employees in the following

classifications: rewrap clerk, bad address clerk, post card clerk,

operating center clerk, air operations clerk, package return clerk,

damage clerk, and hub and air-hub return clerks. The general

function of operations clerk is to process packages through the

system for ultimate delivery to the customers.

l6a

In 1979, UPS and the Teamsters executed their first

National Master Agreement consolidating all previously

represented units into a single nationwide bargaining unit.

Article 1, section 2, of that agreement was entitled “Em-

ployees Covered” and stated “Employees covered by this

Agreement shall be construed to mean, where already rec-

ognized . . . clerks.” The term “clerks” referred to opera-

tions clerks.

Approximately 40 percent of UPS operations clerks had

not previously been represented in a recognized Teamsters

bargaining unit when the 1979 National Master Agree-

ment was executed. Notwithstanding the contract refer-

ence to coverage of clerks “where already recognized,” the

Union asserted that all operations clerks should be cov-

ered by the 1979 agreement. The contrary view of UPS

prevailed in practice, however, so that previously unrep-

resented operations clerks were excluded from the nation-

wide unit.

During negotiations for a new National Master Agree-

ment in 1982, the Union proposed deletion of “where al-

ready recognized” from the “Employees Covered” section.

UPS rejected this proposal. The language of that section

in the new 1982 agreement remained the same as in its

predecessor. Consequently, previously unrepresented op-

erations clerks continued to be unrepresented.

On August 1, 1987, the parties executed a new 3-year

National Master Agreement. This time the. Union pre-

vailed in its effort to include all operations clerks in the

bargaining unit. The relevant portion of article 1, section

2, of the new contract contained revised language effec-

tively recognizing the bargaining unit status of all UPS

clerks. Those clerks who worked in States without “right-

to-work” laws were obligated to comply with the new con-

tract’s union-security provisions.

At the time of the new contract’s execution, UPS em-

ployed over 5000 operations clerks nationwide. It is un-

FN Seat Se a te nee SPO a

17a

disputed that the functions of clerks excluded from the

unit until 1987 were at all times the same as the functions

of cierks traditionally included in the unit. It is also

undisputed that the Employer did not ask for and the

Union did not proffer proof of majority support for the

Union in the group of previously unrepresented employ-

ees. An Official of the Union testified about his belief that

the Union had majority support in this group, but he

admitted that he had no “papers,” including authorization

cards, to support this belief. The overall nationwide bar-

gaining unit had more than 100,000 employees in 1987.

The Respondents contend that their expansion of the

unit to include previously unrepresented operations clerks

was a lawful accretion. As found by the judge, traditional

community-of-interest factors relevant to the Board’s anal-

ysis of accretion issues weigh heavily in favor of finding

an accretion. The General Counsel contends, however,

that the traditionally unrepresented group of operations

clerks could not lawfully be accreted to the unit. In sup-

port of this contention, the General Counsel relies on the

well-established Board principle precluding accretion

where “the group sought to be accreted has been in exist-

ence at the time of recognition or certification, yet not

covered in an ensuing contract, or, having come into exist-

ence, has not been part of the larger unit to which their

accretion is sought or granted.” Laconia Shoe Co., 215

NLRB 573, 576 (1974).*

In the judge’s opinion, the precedent cited by the Gen-

eral Counsel requires both historical exclusion of employ-

ees from a unit and acquiescence in that exclusion by the

union involved. The judge found that, since the 1979

establishment of the nationwide bargaining unit in this

case, the Respondent Union had never acquiesced to the

exclusion of operations clerks who were not previously

4 See also Color Tech Corp., 286 NLRB 476, 487 (1987); King

Radio Corp., 257 NLRB 521, 525—526 (1981); Sterilon Corp., 147

NLRB 219 (1964).

lia

represented in local units. In addition, the judge noted

the consensus of all litigant parties here that the Board has

not had the occasion to apply the Laconia Shoe accretion

bar in a case where the group of employees in dispute are

not distinguishable by classification, job function, or geo-

graphic location from employees who have traditionally

been included in the bargaining unit. Under these circum-

stances, the judge concluded that the historical exclusion

of some operations clerks should not preclude their accre-

tion to the existing unit. He therefore found the accretion

to be lawful. We disagree.

In furtherance of the statutory duty to protect employ-

ees’ right to select their bargaining representative, the

Board follows a restrictive policy in finding accretion.

See, e.g., Towne Ford Sales, 270 NLRB 311 (1984).

One aspect of this restrictive policy has been to permit

accretion only in certain situations where new groups of

employees have come into existence after a union’s recog-

nition or certification or during the term of a collective-

bargaining agreement. If the new employees have such

common interests with members of an existing bargaining

unit that the new employees would, if present earlier, have

been included in the unit or covered by the current con-

tract, then the Board will permit accretion in furtherance

of the statutory objective of promoting labor relations sta-

bility. Gould, Inc., 263 NLRB 442, 445 (1982).

No such accommodation of the collective-bargaining

process is required or warranted, however, where the par-

ties to a bargaining relationship have historically failed to

include an existing group of employees from a bargaining

unit. If a group of employees is in existence when a union

is recognized or certified, then the statutory right of those

employees to select a bargaining representative can be

honored and they can be included in the unit at that time

without any disruption of labor relations stability. If a

group of employees comes into existence during the term

of a contract for an existing unit, then the parties must

19a

timely address the unit status of those employees prior to

executing a successor agreement. Should they fail to do

so, the parties have only themselves to blame for any

instability resulting from the existence of a group of em-

ployees having interests in common with unit employees

but excluded from representation in the unit.

The limitations on accretion discussed above and ap-

plied in Laconia Shoe and related precedent require

neither that the union have acquiesced in the historical

exclusion of a group of employees from an existing unit,

nor that the excluded group have some common job-

related characteristic distinct from unit employees. It is

the fact of historical exclusion that is determinative.

Here, for instance, it is undisputed that prior to 1979

a nationwide group of operations clerks at various UPS

facilities were excluded from single-facility units and from

1979 to 1987 this same group of employees continued

to be excluded from a nationwide multifacility unit under

two successive collective-bargaining agreements. More-

over, although this factor does not affect the result here,

the judge erred in finding that the Union had not ac-

quiesced in the exclusion of the disputed group of opera-

tions clerks. At the very least, the Union’s conscious

abandonment of a proposal for the 1982 contract that

would have specifically modified the unit to include all

operations clerks sufficed to prove its acquiescence in con-

tinued exclusion of certain operations clerks during that

contract’s terms.°

Based on the foregoing, we find that the previously

unrepresented group of operations clerks did not consti-

tute an accretion to the nationwide bargaining unit of UPS

employees represented by the Teamsters. Accordingly,

5 Compare King Radio Corp., supra at 526 (in successive contract

negotiations, union sought extension of unit coverage to other plants

but “always acquiesced” in respondent employer’s position limiting

recognized unit to single plant).

20a

we find that the Respondents violated Section 8(a)(1),

(2), and (3) and Section 8(b)(1)(A) and (2) of the

Act, respectively, by executing and maintaining a collec-

tive-bargaining agreement in 1987 which extended an

existing nationwide bargaining unit to include a group

of employees who had historically been excluded from

that unit and a majority of whom did not support the

Union.

Conclusions of Law

1. The Respondent Employer, by recognizing and en-

tering into a contract with the Respondent Union as the

collective-bargaining representative of a bargaining unit

including a group of previously unrepresented operations

clerks, at a time when a majority of those employees had

not designated that Union as their representative, and by

tendering to the Respondent Union dues collected from

the pay of certain previously unrepresented operations

clerks in States where a contractual union-security clause

was lawful and operative, has engaged in unfair labor

practices within the meaning of Section 8(a)(3), (2),

and (1) of the Act.

2. The Respondent Union, by accepting exclusive rec-

ognition as the representative of a group of previously

unrepresented UPS operations clerks at a time when it

was not designated as the exclusive representative by a

majority of such employees, and by receiving dues de-

ducted from the pay of certain previously unrepresented

operations clerks in States where a contractual union-

security clause was lawful and operative, has engaged in

unfair labor practices within the meaning of Section

8(b)(1)(A) and (2) of the Act.

3. The aforesaid unfair labor practices are unfair labor

practices affecting commerce within the meaning of Sec-

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

2la

The Remedy

Having found that the Respondents have engaged in

certain unfair labor practices, we shall order that they

cease and desist and take certain affirmative action de-

signed to effectuate the policies of the Act. Having found

that Respondent UPS unlawfully recognized and entered

into a collective-bargaining agreement on August 1, 1987,

with the Respondent Union as the representative of previ-

ously unrepresented operations clerks, we shall order Re-

spondent UPS to withdraw and withhold all recognition

from the Respondent Union as the collective-bargaining

representative of those employees, and we shall order both

Respondents to cease applying to those employees the

terms of the Respondents’ August 1, 1987 collective-

bargaining agreement, or any extension, renewal, modifi-

cation, or superseding agreement,’ unless or until the

Respondent Union is certified by the Board as such rep-

resentative.

We shall also order that the Respondent Union and

Respondent UPS, jointly and severally, reimburse previ-

ously unrepresented operations clerks, present and former,

for dues and initiation fees involuntarily exacted from

them as a result of the unlawful application of the union-

Security clause in the Respondents’ collective-bargaining

agreement, with interest to be computed in the manner

prescribed in New Horizons for the Retarded, 283 NLRB

1173 (1987).

ORDER

The National Labor Relations Board orders that

A. Respondent Employer United Parcel Service, Inc..

Rockledge, Florida, its officers, agents, successors, and

assigns, shall

* Nothing in this decision should be construed as requiring Re-

spondent UPS to rescind benefits conferred on the group of previ-

ously unrepresented operations clerks as the result of the unlawful

application of contract provisions to them.

224

1. Cease and desist from

(a) Encouraging membership in Teamsters National

United Parcel Service Negotiating Committee and Inter-

national Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America, Local 385, AFL-CIO,

its agent, by recognizing it as the exclusive representa-

tive of a group of previously unrepresented operations

clerks at a time when the labor organization has not

been designated by a majority of those employees as their

representative.

(b) Applying the terms of its collective-bargaining.

agreement of August 1, 1987, or any other agreement

with the Union, to previously unrepresented operations

clerks unless and until it has been duly certified by the

National Labor Relations Board as the exclusive repre-

sentative of those employees.

restraining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Withhold and withdraw all recognition from the

Respondent Union as the exclusive representative of

previously unrepresented operations clerks unless and

‘ until it has been duly certified by the National Labor

Relations Board as the exclusive representative of those

employees. |

(b) Jointly and severally with the Respondent Union,

reimburse all previously unrepresented operations clerks

for any initiation fees, dues, or other moneys involun-

tarily exacted from them pursuant to application of a

union-security clause in the Respondents’ collective-bar-

gaining agreement executed on August 1, 1987, or any

other agreement between the Respondents, in the manner

set forth in the remedy section of this decision.

VOVO—VO————————— ee

23a

Board or its agents for examination and copying, all pay-

roll records, social security payment records, timecards,

personnel records and reports, and all other records neces-

sary to analyze the amount of backpay due under the

terms of this Order.

(d) Post at all facilities employing unrepresented oper-

ations clerks copies of the attached notice marked “Ap-

pendix A.”* Copies of the notice, on forms provided by

the Regional Director for Region 12, after being signed

by the Respondent Employer’s authorized representative,

shall be posted by the Respondent Employer immediately

upon receipt and maintained for 60 consecutive days in

conspicuous places including all places where notices to

employees are customarily posted. Reasonable steps shall

be taken by the Respondent Employer to ensure that the

notices are not altered, defaced, or covered by any other

material.

(e) Notify the Regional Director in writing within 20

days from the date of this Order what steps the Respond-

ent Employer has taken to comply.

B. Respondent Union Teamsters National United Par-

cel Service Negotiating Committee and _ International

Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Heipers of America, Local 385, AFL-CIO, its offi-

cers, agents, and representatives, shall

1. Cease and desist from

(a) Accepting exclusive recognition as the represent-

ative of all previously unrepresented operations clerks of

7 If this Order is enforced by a judgment of a United States court

of appeals, the words in the notice reading “POSTED BY ORDER

OF THE NATIONAL LABOR RELATIONS BOARD” shall read

“POSTED PURSUANT TO A JUDGMENT OF THE UNITED

STATES COURT OF APPEALS ENFORCING AN ORDER OF

THE NATIONAL LABOR RELATIONS BOARD.”

24a

the Respondent Employer, at a time when it was not

designated as the exclusive representative by a majority

of those employees.

(b) Applying the terms of its collective-bargaining

agreement of August 1, 1987, or any other agreement

with the Respondent Employer, to previously unrepre-

sented operations clerks, unless and until it has been

duly certified by the National Labor Relations Board as

the exclusive representatives of those employees.

ing employees in the exercise of the rights guaranteed:

them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Jointly and severally with the Respondent Em-

ployer reimburse all newly added and previously unrep-

resented operations clerks for any initiation fees, dues,

or other moneys involuntarily exacted from them pur-

suant to application of a union-security clause in the Re-

spondents’ collective-bargaining agreement executed on

August 1, 1987, or any other agreement between the

Respondents, in the manner set forth in the remedy sec-

tion of this remedy.

(b) Post at its business offices serving members at

any United Parcel Service facility where previously un-

represented operations clerks are located copies of the

attached notice marked “Appendix B.”* Copies of the

notice, on forms provided by the Regional Director for

Region 12, after being signed by the Respondent Union’s

authorized representative, shall be posted by the Respond-

8If this Order is enforced by a judgment of a United States

court of appeals, the words in the notice reading “POSTED BY

ORDER OF THE NATIONAL LABOR RELATIONS BOARD”

shall read “POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORCING AN

ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

ER ates 1 Ete a Eo nine TN es A ee Aaya

eA Ne A ct AARC ARN ar ins JD anc diet dist i is ali

25a

ent Union immediately upon receipt and maintained for

60 consecutive days in conspicuous places including all

places where notices to members are customarily posted.

Reasonable steps shall be taken by the Respondent Union

to ensure that the notices are not altered, defaced, or

covered by any other material.

days from the date of this Order what steps the Respond-

ent Union has taken to comply.

Dated, Washington, D.C.

June 11, 1991

DENNIS M. DEVANEY, Member

CLIFFFORD R. OvIATT, JR., Member

JOHN N. RAUDARBAUGH, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

26a

APPENDIX A

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Goverment

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has or-

dered us to post and abide by this notice.

WE WILL NOT encourage membership in Teamsters.

National United Parcel Service Negotiating Committee

and International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, Local 385, AFL-

CIO, its agent, by recognizing it as the exclusive repre-

sentative of a group of previously unrepresented opera-

tions clerks at a time when it has not been designated by

a majority of those employees as their representative.

WE WILL NOT apply the terms of our collective-

bargaining agreement of August 1, 1987, or any other

agreement with the Union, to previously unrepresented

operations clerks unless and until it has been duly certi-

fied by the National Labor Relations Board as the exclu-

sive representative of those employees.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce you in the exercise of the rights

guaranteed you by Section 7 of the Act.

WE WILL withhold and withdraw all recognition from

the Union as the exclusive representative of previously

unrepresented operations clerks unless and until it has

been duly certified by the National Labor Relations

Board as the exclusive representative of those employees.

WE WILL jointly and severally with the Union make

whole all previously unrepresented operations clerks for

any initiation fees, dues, or other moneys involuntarily

exacted from them and paid to the Union pursuant to ap-

27a

plication of a union-security clause in the collective-

bargaining agreement executed on August 1, 1987, or

any other agreement with the Union.

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 con-

cerning this notice or compliance with its provisions may

be directed to the Board’s Office, 700 Twiggs Street,

Suite 511, Tampa, Florida 33602-4081, Telephone 813-

228-2662.

28a

APPENDIX B

NOTICE TO EMPLOYEES AND MEMBERS

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has or-

dered us to post and abide by this notice.

WE WILL NOT accept exclusive recognition as the rep-

resentative of all previously unrepresented United Parcel

Service, Inc. operations clerks at a time when we are not

designated as the exclusive representative by a majority

of those employees.

WE WILL NOT apply the terms of our collective-

bargaining agreement of August 1, 1987, or any other

agreement with United Parcel Service, Inc. to previously

unrepresented operations clerks, unless and until we have

been duly certified by the National Labor Relations Board

as the exclusive representative of those employees.

WE WILL NOT in any like or related manner restrain

or coerce you in the exercise of the rights guaranteed you

by Section 7 of the Act.

WE WILL jointly and severally with United Parcel Serv-

ice, Inc. make whole all previously unrepresented opera-

tions clerks for any initiation fees, dues, or other moneys

involuntarily exacted from them and paid to us pursuant

to application of a union-security clause in the collective-

bargaining agreement executed on August 1, 1987, or

any other agreement with United Parcel Service, Inc.

—s ani "

29a

TEAMSTERS NATIONAL UNITED PARCEL

SERVICE NEGOTIATING COMMITTEE

AND INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF

AMERICA, LocaL 385, AFL-CIO,

Its AGENT

(Labor Organization)

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 concern-

ing this notice or compliance with its provisions may be

directed to the Board’s Office, 700 Twiggs Street, Suite

511, Tampa, Florida 33602-4081, Telephone 813-228-

2662.

30a

JD(ATL)-39-90

Rockledge, FL

UNITED STATES OF AMERICA BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

ATLANTA BRANCH OFFICE

Case 12-CA-12749

UNITED PARCEL SERVICE

and

SARA F. GRIFFIN, An Individual

Case 12-CB-3028

TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGO-

TIATING COMMITTEE AND INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

& HELPERS OF AMERICA, LOCAL 385, AFL-CIO, its

agent

and

SARA F. GRIFFIN, An Individual

Peter J. Salm and Michael R. Maiman, Esgs., for the

General Counsel.

Martin Wald and Edward J. McBride, Jr., Esqs., Phila-

delphia, PA, for the Company.

A. E. Lawson, Esq., Washington, DC, for the Union.

3la

DECISION

Statement of the Case

WILLIAM N. CATES, Administrative Law Judge.

These cases were tried before me at Orlando, Florida, on

January 8 and 9, 1990, pursuant to an Order Consolidat-

ing Cases, Consolidated Complaint, and Notice of Hear-

ing (complaint) issued by the Acting Regional Director

for Region 12 of the National Labor Relations Board

(Board) on April 25, 1989, which in turn was based

upon charges filed by Sara F. Griffin, an individual

(Griffin). An amendment to the complaint was issued by

the Acting Regional Director on September 26, 1989.

The charge in Case 12-CA-12749 was filed on November

3, 1987. The charge in Case 12-CB-3028 was also filed

on November 3, 1987, and amended on December 22,

1988. The complaint alleges that United Parcel Service

(Company) on or about August 1, 1987, violated Section

8(a)(1), (2), and (3) of the National Labor Relations

Act (Act) by recognizing Teamsters National United

Parcel Service Negotiating Committee and International

Brotherhood of Teamsters, Chauffeurs, Warehousemen &

Helpers of America, Local 385, AFL-CIO, its agent

(Union) as the collective bargaining representative of

certain previously unrepresented operations clerks at the

time when a majority of those employees had not desig-

nated the Union as their collective bargaining representa-

tive and by tendering to the Union dues collected from

the pay of certain previously unrepresented operations

clerks pursuant to a union security clause in non-

right-to-work states. It is also alleged the Union violated

Section 8(b)(1)(A) and (2) of the Act by receiving

dues deducted from the pay of certain previously unrep-

resented operations clerks in non-right-to-work states pur-

suant to a union security clause at a time when the

Union did not represent a majority of certain previously

unrepresented operations clerks and by causing the Com-

pany to discriminate against certain of its employees in

32a

violation of Section 8(a)(3) of the Act.’ The Company

and Union filed answers admitting certain complaint alle-

gations but denying the commission of any unfair labor

practices.

All parties were given full opportunity to participate,

to introduce relevant evidence, to examine and cross-

examine witnesses, to argue orally, and to file briefs.

Briefs, which I have carefully considered, were filed on

behalf of the General Counsel, the Company, and the

Union.”

Upon the entire record of the case and from my ob-

servation of the witnesses and their demeanor, I make the

following:

Findings of Fact

I. Jurisdiction

The Company, an Ohio and New York corporation,

has offices and places of business in various states includ-

ing its place of business located at Rockledge, Florida,

where it is engaged in the interstate transportation and

distribution of parcels. During the 12-month period pre-

ceding issuance of the complaint herein, a representative

period, the Company, in the course and conduct of its

1The complaint also contained alleged independent violations of

Section 8(b) (1) (A) of the Act. However, those allegations were

served from the complaint at trial and resolved pursuant to an

informal settlement agreement that I approved prior to close of

the hearing herein.

2On March 19, 1990, Counsel for the General Counsel filed a

Motion to Strike Attachments to Respondent-Employer’s Post Hear-

ing and All References Thereto. In said Motion, Counsel for the

General Counsel moved to strike certain daily labor reports that

were attached to the Company’s posttrial brief. Counsel for the

General Counsel’s contention that such reports were never made a

part of the record in this case has merit. Accordingly, I shall strike

the documents appended to the Company’s posttrial brief. I have

given no consideration to the attachments or references made in

the Company’s posttrial brief to the attachments.

33a

business operations, performed interstate freight transpor-

tation services valued in excess of $50,000. During that

same period, it received gross revenues in excess of

$500,000 as a link in the interstate movement of freight.

The complaint alleges, the parties admit, the evidence

establishes, and I find, the Company is an employer en-

gaged in commerce within the meaning of Section 2(2),

(6), and (7) of the Act.

II. Labor Organization

The complaint alleges, it is admitted, and I find, the

Union is a labor organization within the meaning of Sec-

tion 2(5) of the Act.

III. The Alleged Unfair Labor Practices

A. The Facts?

Union Local 385 along with approximately 220 other

union locals nationwide has represented certain Company

employees including operations clerks* for many years

within their respective jurisdictions. The various geo-

graphical units were, by practice and consent, merged into

a single nationwide bargaining unit. The nationwide unit

consists of approximately 108,000 employees. Since

1979, national negotiations have been conducted between

the Company and the Union’s national negotiating com-

mittee that represents all union locals. Between 1979

* The facts set forth herein have been taken from a joint stipula-

tion of facts entered into by the parties, admissions made by the

parties, and from credited uncontradicted testimony of certain wit-

nesses, whose identity will be set forth at those places in the

Decision where their testimony is utilized and/or relied upon.

* The generic term “operations clerks” refers to the classifications

of: re-wrap clerks, bad address clerks, postcard clerks, operating

center clerks, air operations clerks, package return clerks, damage

clerks, and hub and air-hub return clerks. Their duties are dis-

cussed in greater detail elsewhere in this Decision.

34a

and 1987, three national collective-bargaining agreements

were negotiated with effective dates of A979, 1982, and

August 1, 1987.°

Article 1, section 2, of the 1979 National Agreement

entitled “Employees Covered” reads as follows:

Employees covered by this Agreement shall be con-

strued to mean, where already recognized, feeder

drivers, package drivers, sorters, loaders, unloaders,

porters, office clericals, clerks,° mechanics, mainte-

nance personnel (building maintenance), car wash-

ers, and other employees of the Employer for whom

a signatory Local Union is presently the bargaining

representative.

The provisions of this agreement shall apply to all

accretions to the bargaining unit in the classifica-

tions listed in the applicable individual Supplements.

Company Air and Midwest Regional Manager Morton

testified there probably were more than 1,000 but less

than 5,000 operations clerks utilized by the Company at

the time the parties entered into the 1979 National

Agreement.

The first paragraph of article 1, section 2, of the 1982

National Agreement reads as follows:

Employees covered by this agreement shall be con-

strued to mean, where already recognized, feeder

drivers, package drivers, sorters, loaders, unloaders,

porters, office clericals, clerks, mechanics, mainte-

nance personnel (building maintenance), car wash-

ers, United Parcel Service employees in the employ-

5 The most recent agreement expires by its terms on July 31,

1990.

®Company Air and Midwest Regional Manager Roy Morton

(Morton) testified without contradiction that the term “clerks” as

used in this agreement referred to “operations clerks.”

35a

er’s air operations, and other employees of the em-

ployer for whom a signatory Local Union is or may

become the bargaining representative.

The second paragraph of article 1, section 2, of the

1982 National Agreement was identical to the second

paragraph of article 1, section 2, of the 1979 agreement.

As is noted above, at the time the 1979 contract be-

came effective, some operations clerks throughout the

country were represented by the Union in recognized

units, while other operations clerks were not. Thus, after

1979, some operations clerks were treated as being cov-

ered under article 1, section 2, of the 1979 and 1982

agreements while others were treated as being unrepre-

sented.’

Air and Midwest Regional Manager Morton testified the

Union had always, over the years, taken the position it

represented all employees having anything to do with the

movement of packages from the time the packages were

tendered to the Company until such packages were deliv-

ered to the customers. Morton testified the Union inter-

preted the recognition clause of the 1979 contract as cov-

ering all operations clerks employed by the Company

nationwide. Morton stated that although the Company

did not share that interpretation of the collective-bargain-

ing agreement by the Union, the Union nonetheless con-

tinued to complain about the Company’s failure to do so.

According to Morton, the complaints were not limited to

the national level but union locals also objected that the

Company did not treat all operations clerks as being

members of the bargaining unit.* Morton testified that

7™The Company’s growth in volume as well as the additional] need

for operations clerks increased approximately 6 to 7 percent on an

annual basis between 1979 and 1987.

8 Two grievances were filed on May 5, 1980. One each by Local

435 (Denver, Colorado) and Local 146 (location not available in

36a

until the 1987 agreement, the status of all operations

clerks “was a constant bone of contention between the

Company and the Union.” Morton testified that during

the 1982 negotiations, one of the proposals made by the

Union was to modify the “Employees Covered” section of

the agreement. The Union’s proposal would have changed

the recognition clause from:

Employees covered by this agreement shall be con-

strued to mean, where already recognized, feeder

drivers, package drivers, sorters, loaders, unloaders,

porters, office clericals, clerks—

To:

Employees covered by this agreement shall include

» « « CHEERS.

Morton said the Company, however, did not agree to

this proposed change in 1982.

Morton testified that during the 1987 negotiations, the

Union finally convinced the Company its (Union’s) inter-

pretation of the recognition clauses in the 1979 and 1982

agreements was correct and that all operations clerks

should properly be considered as being in the bargaining

unit.” 4s: a result thereof, the second paragraph of article

1, sectica 2 (which has been quoted above), was changed

to read as follows:

In addition, effective August 1, 1987, the Employer

recognizes as bargaining unit members clerks who

the record) in which the locals complained the Company refused to

recognize the Union as the collective bargaining representative for

the operations clerks. G.C. Exhibit 3.

® No specific evidence of majority status was requested by the

Company or provided by the Union at the time the 1987 agreement

was executed which contained the language pertaining to all opera-

tions clerks being included in the bargaining unit.

37a

are assigned to package center operations, hub cen-

ter operations, and/or air-hub operations who assign-

ment involves the handling or progressing of mer-

chandise after it has been tendered to United Parcel

Service to effectuate delivery. These jobs cover:

package return clerks, bad address clerks, postcard

room clerks, damage clerks, re-wrap clerks, and hub

and air-hub return clerks. Classifications covered in

Article 39—Trailer repair shop are also covered.

There were over 5,000 operations clerks employed by

the Company nationwide in 1987."° Some operations

clerks newly included in the unit under the 1987 agree-

ment who were employed in non-right-to-work states, ex-

ecuted bargaining authorization cards and checkoff au-

thorizations and, pursuant thereto, have had dues and

initiation fees deducted from their pay by the Company.

Said dues have been tendered to and received by the

Union. The 1987 National Agreement contains a union

security clause that is applicable to the extent allowed by

state law.

At this point, a detailed look at the functions of the

operations clerks is helpful. The generic term “operations

clerks” refers to employees who work along side sorters,

loaders, and drivers in processing packages to be trans-

ported by the Company. Their job functions include,

inter alia, correcting addresses on packages, re-wrapping

packages, redirecting packages sent to a location by mis-

take and returning damaged packages with claim forms.

Company labor relations staff member Edward R. Len-

hart (Lenhart) testified:

. .. . Probably the best way to describe the operation

at [The Company] is go through the delivery cycle

10 Prior to August 1987, the terms and conditions of employment

of the unrepresented operations clerks were governed by a clerical

employee’s handbook, which handbook had no effect on unit

employees.

38a

and then have the fill in or clerical people come into

play...

Package driver[s] pickup packages at accounts on a

daily basis at their regular customers; they transport

those . . . packages into the package center, which

may be an independent center housed in its own con-

fines or it may be a center as part of a hub. At that

time, the packages were unloaded. The packages are

unloaded by a hub person. That hub person then

places them on the belt. The packages then go

through the sorting belt system to be sorted to the

destination trailers. .. . .

During any of this portion of the package delivery

cycle, clerical people can come into play. If a pack-

age is unloaded that needs to be taped, a clerical per-

son, a rewrap person may, with a tape gun, put tape

on that package so as to keep the package on its way.

If a package is off loaded and the package is dam-

aged, a damage clerk may be involved in rewrapping

that package, discovering what’s demaged, fill out the

appropriate damage reports, causing that package

either to go on its way back to the shipper or to a

designated place for other treatment, depending on

the type of merchandise it is.

The packages are then loaded into destination trail-

ers. They are pulled by feeder drivers to the destina-

tion center. They are unloaded at the destination

center, again, by hub people, placed on belts, loaded

by a group of people called the pre-loaders. Pre-

loaders can operate off of running belts or off of box

lines or cage lines, or whatever the case may be.

Those pre-loaders place the packages into package

cars for the delivery driver to deliver packages on

that particular delivery day.

Then the pre-load operation, as well as the unload

operation, as well as the sort operation, packages can

39a

become damage[d], packages may need rewrapped.

Packages may on the pre-load be recognized as hav-

ing an incorrect address, either missing a digit, hav-

ing an incorrect zip code, and the clerical people

would be involved at that time in correcting the ad-

dresses for the pre-loader.

Once the packages leave the center, the delivery

driver is responsible for making the deliveries. If for

whatever reason he cannot make those deliveries, he

would then, on his return to the center, indicate to

the clerical person who is on duty at that time why

he could not affect delivery on certain packages that

he returned.

Again, they could have bad addresses that the driver

discovered on area; they could be in need of rewraps

and the driver chose not to deliver the packages be-

cause of the appearance of the package; they could

have had damage that he’d noticed and the pre-

loaders hadn’t noticed; they could have been refused

by the consignee and then need to have the appropri-

ate paperwork filled out for the return; they could be

packages that have postcard delivery addresses and

the driver’s unfamiliar with the consignee and could

not affect the delivery, gives it to the return clerk

upon his return to the center and they fill out the

appropriate paperwork to notify the customer via the

US mail, the postcard system; it could be COD’s

that were refused; it could be—you know, it could

be a variety of reasons.

* * ok

The air return clerk . . . is one that works in an air-

hub. . . . . Performs the same type of clerical work,

but they just have to do with air packages because

of his or her location in the airhub.

Lenhart testified without contradiction that the opera-

tions clerks work “shoulder to shoulder” “at all times”

with other unit employees. He further testified:

40a

They converse with them on work related matters,

they receive packages from those classifications, they

give packages back to those classifications, they ask

those classifications for information.

He testified, for example:

They may ask a driver for information concerning a

customer for correction of a bad address. There’s so

much interplay that, I mean, they’re all part of the

same team....

Lenhart testified the working conditions for the operations

clerks and, for example, the drivers, sorters, loaders, and’

unloaders are identical. Lenhart said they take their

breaks together, adhere to the same grooming standards,

share the same locker and personal storage space and

utilize the same lunch room and parking facilities. The

operations clerks and other unit employees are under the

same supervision.

B. Positions of the Parties

Counsel for the General Counsel urges that the appli-

cation of the 1987 national agreement to those operations

clerks not covered under the 1979 and 1982 agreements

did not constitute a lawful accretion. Counsel for the

General Counsel urges the Board follows a restrictive pol-

icy in finding an accretion because such a finding fore-

closes employees’ basic right to select their own bargain-

ing representative. In this regard, Counsel for the General

Counsel points out that a fundamental consideration in

determining accretion issues is to insure employees the

fullest freedom in exercising their rights guaranteed by the

Act. Counsel for the General Counsel does not contend

the factors generally militating in favor of a finding of an

accretion are not present in the instant case but rather

argues there is a factor present in the case sub judice

that precludes an accretion finding. Counsel for the Gen-

eral Counsel asserts that where the group sought to be ac-

creted, as he contends is the case herein, was in existence

Sem) Kye

a eke ered neal San mA

4la

at the time of the recognition or certification and not cov-

ered in ensuing contracts the Board will not permit ac-

cretion without an election or a showing of majority

status. Counsel for General Counsel argues the fact that

some employees in the classifications claimed to be ac-

creted into the unit have always been in the unit should

not cause this case to be treated differently than a tradi-

tional accretion case and that the preclusion principle

should apply. Further, Counsel for the General Counsel

asserts there is no evidence on this record that the Union

represented a majority of the operations clerks at the time

all were added to the unit in 1987. Thus, he asserts no

lawful basis for the Company’s and Union’s actions has

been demonstrated and a finding that both violated the

Act as alleged in the complaint is warranted.

Counsel for the General Counsel, in responding to cer-

tain defenses raised or anticipated, contends the plain

language in the recognition clauses of the 1979 and 1982

national agreements defeats any inference the agreements

were intended to cover all operations clerks. In support

thereof, Counsel for the General Counsel points to that

portion of the recognition clauses in both agreements

that reads “employees covered by this agreement shall be

construed to mean, where already recognized, . . . [oper-

ations] clerks . . .”. While Counsel for the General Coun-

sel concedes that some of the operations clerks were

covered under the approximately 220 local agreements

prior to 1979, he asserts all were not, and that all were

not intended to be, covered under those agreements.

Counsel for the General Counsel argues that since the

above recognitional language remained in the parties’

two national agreements, lasting approximately 8 years,

they condoned the fact some operations clerks were cov-

ered by the two agreements while others were not. Sim-

ply stated, Counsel for the General Counsel urges it can-

not be concluded that the 1979 and/or 1982 agreements

were intended to cover all operations clerks employed by

the Company. ‘

42a

The Union contends it has always represented a

majority of all operations clerks in that a majority of

those clerks were indeed covered under the 1979 and

1982 National Agreements. Furthermore, the Union as-

serts it has continuously sought to have the minority

of operations clerks not included in the unit be added

thereto. The Union argues the complaint, as to it should

be dismissed in that no showing has been made that

non-bargaining unit operations clerks were other than a

minority of the overall operations clerks. Further, the

Union argues that since the overall national bargaining

unit consists of 108,000 unit employees, the small per-

centage of non-bargaining unit employees added under the

1987 collective-bargaining agreement constitutes nothing

more than a de minimis adjustment of the composition

of the unit in order “to establish national uniformity, and

to clarify [the Company’s] pre-existing de facto recogni-

tion of the majority of these operations clerks, already

bargaining unit members.” Such, the Union contends, is

consistent with the policies and purposes of the Act and

as such does not constitute an unfair labor practice.

The Union argues that if the instant case is to be

viewed as an accretion case, it is undisputed that a ma-

jority of the employees in the classifications to be ac-

creted were already bargaining unit employees. As such,

the Union argues the Board’s general doctrine of deny-

ing accretion in a situation where an employee classifica-

tion has previously been excluded from a collective-

bargaining agreement should not apply to, or control,

the disposition of the instant case. The Union urges the

Board’s iine of cases precluding accretion where the em-

ployee classification has been excluded are clearly dis-

tinguishable in that in none of those cases were the em-

ployee classifications to be accreted already bargaining

unit members as was stipulated to be the case herein.

The Union urges that since the employees brought into

the unit by the 1987 agreement constituted a relatively

small percentage of the overall unit, and the employees

43a

shared a sufficient community of interest with the unit

employees they should be considered an accretion to that

unit especially in light of the fact the accreted employees

do not have a community of interest sufficiently separate

and distinct so as to preclude their accretion into the bar-

gaining unit. In this regard, the Union notes the opera-

tions clerks involved have historically been included in

the unit in most parts of the country because their job

functions are integrated with the job functions of other

members of the bargaining unit. The Union urges that

as a matter of law, the inclusion of the unrepresented

operations clerks into the existing bargaining unit in

1987 constituted a proper accretion to the existing bar-

gaining unit and as such the complaint as to it should

be dismissed.

The Company contends the agreement to add new lan-

guage to the “Employees Covered” section of the 1987

national agreement that treated all operations clerks as

bargaining unit members, merely clarified the fact all

operations clerks had been bargaining unit members under

the 1979 and 1982 agreements. The Company asserts the

Union always interpreted the recognition clauses of the

prior agreements to mean all operations clerks were bar-

gaining unit employees. The Company claims the Union

always tried, although unsuccessfully until 1987, to per-

suade it of the correctness of its interpretation of the prior

agreements. The Company asserts the Union based its

interpretation on the fact that when the first national

agreement was executed in 1979, the Union, through its

locals in various parts of the country already represented

a majority of all operations clerks employed by the Com-

pany. The Company contends it finally agreed to the

Union’s interpretation because the added language cov-

ered something that factually already existed. Thus, the

Company urges it did not violate the Act by agreeing to

language in the 1987 agreement that reflected what in

fact already properly existed.

44a

The Company, like the Union, contends that assuming

accretion principles apply to the instant case, the opera-

tions clerks were lawfully accreted into the bargaining

unit in 1987 because prior Board cases regarding accre-

tion of previously excluded classifications are not applica-

ble and because a community of interest with unit em-

ployees is clearly present such as to warrant an accretion

finding. The Company, like the Union, points out that in

those cases where the Board has treated the accretion

issue in the context of a classification previously excluded

none of the classifications to be accreted had ever been

part of the bargaining unit. The Company asserts the

instant case is one of first impression in that a majority

of the employees in the classifications to be accreted are

already members of the bargaining unit. The Company

urges that the instant case is an accretion case, if at all,

only in the narrowest sense—what is to be accreted is a

group of employees who work in job classifications which

are already a part of the unit. The Company contends a

finding of lawful accretion in the instant case will advance

the Board’s policy of promoting the peaceful resolution

of industrial disputes through the collective bargaining

process. The Company urges the dismissal of all com-

plaint allegations against it.

C. Analysis, Discussion, and Conclusions

I reject the Company’s and Union’s position that by

adding language to the 1987 national agreement to treat

all operations clerks as bargaining unit members, the par-

ties were merely clarifying the fact all had been bargain-

ing unit members under the two previous national agree-

ments. I likewise reject the contention the language

change was nothing more than a de minimis adjustment

of the unit composition. The evidence establishes that

prior to the first (1979) national agreement, sorne Union

locals considered operations clerks to be covered under

the local agreements while others did not. The language

45a

“where already recognized” regarding employees covered

under the 1979 agreement, which language was retained

in the 1982 agreement, indicates the parties intended to

maintain the status quo—that is in those locations where

operations clerks were previously considered to be in the

unit such would continue to be so while those considered

not to be included would remain in that status. The

Company and Union having failed to demonstrate that

the additional recognitional language in the 1987 agree-

ment was simply a clarification of what in fact already

existed, I shall turn to the central issue of whether the

employees added to the unit in 1987 constituted a lawful

accretion.

The Court in Lammert Industries v. NLRB, 578 F.2d

1223, 1225 at fn. 3 (7th Cir. 1978) noted:

An accretion is simply the addition of a relatively

small group of employees to an existing unit where

these additional employees share a sufficient com-

munity of interest with the unit employees and have

no separate identity. The additional employees are

then properly governed by the unit’s choice of bar-

gaining representative. NLRB v. Food Employers

Council, Inc., 399 F.2d 501, 502-03 (9th Cir.

1968).

In King Radio Corporation, 257 NLRB 521 at 525

(1981), the Judge, with approval, noted the Board weighs

a variety of factors in determining whether a particular

group of employees constitute an accretion to an existing

unit. Such factors are: (1) integration of operations;

(2) centralization of administration and management

control; (3) geographic proximity; (4) similarity of

working conditions and skills; (5) labor relations con-

trol; (6) common or separate supervision, and (7) bar-

gaining history. Where there are factors militating to-

ward and against accretion a balancing of the factors is

necessary. That is, the Board must balance the right of

employees to express their desires concerning representa-

46a

tion against the policy favoring continuity in collective

bargaining relationships. Although the Board generally

follows a somewhat restrictive rather than expansive pol-

icy in finding an accretion in order to ensure employees

the fullest freedom in expressing their rights under the

Act, it is not hesitant to find an accretion where the facts

warrant such. The bottom line is that the Board will

very carefully weigh every factual situation in balancing

the implicit statutory policy of stability in bargaining

relationships against the expressed statutory right of em-

ployees, as set forth in Section 7 of the Act, to choose

to refrain from engaging in collective bargaining.

In applying the Board’s traditional community of inter-

est analysis to the instant case, I am persuaded the facts

overwhelmingly militate in favor of a finding of accretion.

The facts establish the Company’s packaged delivery op-

erations are highly integrated with the operations clerks

fulfilling vital and necessary roles at most all stages of

the Company’s operations. When packages are brought

from customers to hub or air hub centers and unloaded,

operations clerks work alongside the unloaders and sort-

ers re-wrapping and/or re-taping packages. Packages that

are damaged beyond delivery and are to be returned to

the customers are processed by operations clerks in the

return clerks classification. The return clerks insure the

packages, as well as the related paper work, are prepared

and processed so loaders can reload the packages and

drivers can return the packages to the customers. Like-

wise, operations clerks assist loaders, unloaders, and sort-

ers in ascertaining correct and complete addresses for

packages brought to the hub without correct, proper or

complete addresses. The parties stipulated the operations

clerks perform their work “alongside sorters, loaders, and

drivers [unit members] in processing packages to be

transported” by the Company. The working conditions

of the operations clerks are identical to other inside em-

ployees that are unit members. The operations clerks at

each hub or air hub report to the same supervision as do

47a

bargaining unit members. As more fully discussed, inter

alia, the parties’ bargaining history demonstrates opera-

tions clerks at various locations have traditionally been

part of the bargaining unit. Simply stated, the functions

performed by the operations clerks are the same as those

performed by bargaining unit members, namely, progress-

ing packages through the system for ultimate delivery to

the customers. The operations clerks who were not con-

sidered as already being in the unit constitute a small

percentage of the overall unit and do not form a separate

unit of their own. Absent some valid reason for not ap-

plying the traditional community of interest analysis to

the instant case, I would find the operations clerks that

were not previously included in the bargaining unit but

that were brought into the unit by the 1987 national

agreement were properly merged into or included in the

overall unit by accretion.

There are, however, a line of cases in which the Board

has not permitted accretion where the classification to be

accreted has been excluded from the unit by a collective-

bargaining agreement. See, e.g., Sterilon Corporation,

147 NLRB 219 (1964); Laconia Shoe Company, Inc.,

215 NLRB 573 (1974); King Radio Corporation, supra;

and Color Tech Corp., 286 NLRB 476 (1987). Counsel

for the General Counsel, as noted earlier, urges this line

of cases controls the instant case while the Company and

Union argue to the contrary. A closer look at the above

cases is necessary. The Board, tor example, in Laconia

Shoe, supra, adopted the Judge’s decision wherein he

held:

The single most crucial factor in any ‘accretion case’

under settled Board law [the Judge cited Sterilon

Corporation as the ‘lead’ case in this respect] is

whether the group sought to be accreted has been

in existence at the time of recognition or certifica-

tion, yet not covered in an ensuing contract, or,

having come into existence, has not been part of the

48a

larger unit to which their accretion is sought or

granted.

The Judge in Laconia Shoe, supra, further held:

When a group has in fact been excluded for

a significant period of time from an existing pro-

duction and maintenance unit, the Board will not

permit their accretion without an election or a show-

ing of majority among them even if no other union

could attain representative status for them.

In the Sterilon Corporation case, supra, which was relied

upon by the judge in Laconia Shoe, supra, the Board

held two factors needed to be present in order to preclude

or bar a finding of accretion. Namely, prior exclusion

from a unit and acquiescence therein by the union in-

volved. In the Sterilon Corporation case, supra, the union

had never attempted during the 11-year existence of the

unit to have the disputed classification included in the

unit. The Judge in Laconia Shoe, supra, did not specifi-

cally state that both of the above factors had to be present

to preclude or bar an accretion finding but he did con-

sider acquiescence to be a relevant factor when he con-

sidered and rejected a contention the union’s failure to

seek to represent the disputed classification was due to the

union’s belief the disputed classification was already in-

cluded in the unit. In the Color Tech case, supra, the

Judge considered and rejected a contention that any

acquiescence was not knowing because the union was

unaware of the character of the work being performed by

the classification sought to be accreted. Although it is

perhaps not as clear as the parties might wish, I am

persuaded the Board still adheres to the teachings in

Sterilon Corporation, supra, that both prior exclusion

from a unit and acquiescence by the union involved must

be present to bar an accretion.

All of the parties acknowledge the case sub judice dif-

fers from the above cases in that in none of the above

49a

cases was the Board confronted with the situation where

a large percentage of the employees in the classifications

to be accreted were already members of the bargaining

unit. Stated differently, none of the classifications to be

accreted in the above-cited cases had ever been a part of

the bargaining unit. Counsel for the General Counsel

contends that since an identifiable group of employees

had been excluded for two consecutive contracts (1979

and 1982), the principles of Laconia Shoe, supra, should

apply nctwithstanding the fact that approximately half

the employees in the same job classifications (operations

clerks) had been treated as being in the unit. Counsel

for the General Counsel appears to be asserting that be-

cause the recognition language in the 1979 and 1982

national agreements covered only those operations clerks

already in the unit that the status of the remaining opera-

tions clerks should be governed by the principles estab-

lished in the above-cited cases. The Company and Union

urge such cases are not controlling herein. In support of

its position that the above-cited cases should not be con-

trolling the Company points with emphasis to the fact the

classifications to be accreted in the instant case have,

from the very first national agreement, been included in

the unit with only some employees at some locations being

considered as not being included. The Company argues

the proper subject of focus in an accretion case is the

classification accreted and not the employees per se. In

this regard and in further support of its position, the Com-

pany points out the parties stipulated that the pre-1987

bargaining unit included employees in the operations

clerks classifications. Thus, the Company, as noted ear-

lier, urges the instant case is an accretion case in only

the narrowest sense—what is to be accreted is a group

of employees who work in job classifications which are

already a part of the national unit. All parties agree the

instant case is one of first impression.

In what appears to be an absence of Board precedence,

I am persuaded a determination of the lawfulness of the

50a

accretion issue herein will require consideration of the

various purposes (expressed and implied) of the Act—

some of which have been alluded to earlier in this Deci-

sion. A finding of a lawful accretion herein will provide

stability in the bargaining relationship and will lessen the

potential for union-employer discord. I note the issue of

the inclusion of all operations clerks in the national unit

has been a constant bone of contention between the

parties until the 1987 agreement. Eliminating this type

strife between the Company and the Union, in my opin-

ion, effectuates the purposes of the Act. This is especially

so where, as is the case herein, the classifications to be

accreted are already included in the unit with a large

percentage of the employees in those classifications al-

ready covered under prior agreements. Furthermore, the

record reflects that only one objection, (the Charging

Party herein), has been raised to all operations clerks

being included in the unit of approximately 108,000 em-

ployees. A finding of an accretion in the instant case

will not, in my opinion, improperly disenfranchise certain

of the operations clerks at certain locations inasmuch as

the job classifications involved have been covered under

the national agreements since the first such agreement

was executed in 1979. Inasmuch as a strong commu-

nity of interest exists between the operations clerks to be

accreted and the operations clerks already in the unit

and inasmuch as a finding of accretion would favor

continuity in the collective bargaining relationship and

eliminate the potential for discord, I conclude the above-

cited cases do not constitute an impediment ™ to the find-

11 Although it is not as clear as perhaps it could be, I am per-

suaded the Board requires a finding that both factors, prior exclu-

sion and acquiescence, be present to bar an accretion finding. There

was no acquiescence by the Union herein. It, through its various

locals and at the national level, continuously from the beginning

objected to the fact the Company did not consider all operations

clerks at all locals to be included in the national unit.

5la.

ing, which I make, that the operations clerks not previ-

ously covered under the parties’ national agreements were

lawfully accreted into the unit in 1987.”

Accordingly, inasmuch as I have found a lawful ac-

cretion herein, I shall dismiss all complaint allegations

against both the Company and the Union.

Conclusions of Law

1. The Company, United Parcel Service, is an em-

ployer engaged in commerce within the meaning of 2(2),

(6), and (7) of the Act.

2. Teamsters National United Parcel Service Nego-

tiating Committee and International Brotherhood of

Teamsters, Chauffeurs, Warehousemen & Helpers of

America, Local 385, AFL-CIO, its agent, is a labor or-

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

3. Neither the Company nor the Union has engaged

in the unfair labor practices alleged in the complaint.

On these findings of fact and conclusions of law, and

on the entire record, I issue the following recommended:

ORDER

The complaint is dismissed in its entirety.

Dated at Washington, D.C. July 27, 1990.

/s/ William N. Cates

WILLIAM N. CATES

Adminisrative Law Judge

12 A finding concerning majority status by the Union among those

newly accreted operations clerks is not necessary and is not made.

52a

APPENDIX C

[Filed Jul. 20, 1994]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 91-1314

TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGO-

TIATING COMMITTEE AND INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA, LOCAL 385, AFL-CIO,

; Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

and Consolidated Case No. 91-1317

BEFORE: Mikva, Chief Judge; Wald, Edwards, Silber-

man, Buckley, Williams, Ginsburg, Sentelle,

Henderson, Randolph and Rogers, Circuit

Judges

ORDER

Petitioner’s Suggestion For Rehearing Jn Banc has

been circulated to the full Court. No member of the

Court requested the taking of a vote thereon. Upon con-

sideration of the foregoing it is

ORDERED, by the Court in banc, that the suggestion

is denied.

53a

Per Curiam

FOR THE CourRT:

RON GARVIN

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

54a

[Filed Jul. 20, 1994]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 91-1314

TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGO-

TIATING COMMITTEE AND INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA, LOCAL 385, AFL-CIO, .

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

and Consolidated Case No. 91-1317

eee

BEFORE: Buckley, Ginsburg and Henderson, Circuit

Judges

ORDER

Upon consideration of petitioner’s petition for rehear-

ing, filed May 9, 1994, it is

ORDERED, by the Court, that the petition is denied.

Per Curiam

FOR THE COURT:

RON GARVIN

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

55a

APPENDIX D

[Mandate issued 8/8/94]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 91-1314

TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGO-

TIATING COMMITTEE AND INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA, LOCAL 385, AFL-CIO,

Petitioners/Cross-Respondents

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner

and Consolidated Case No. 91-1317

Petitions for Review and Cross-Application for

Enforcement of an Order of the National Labor

Relations Board

BEFORE: Buckley, Ginsburg and Henderson, Circuit

Judges

JUDGMENT

These causes came on to be heard on the petitions for

review and cross-application for enforcement of an order

of the National Labor Relations Board and were argued

by counsel. On consideration thereof, it is

oe Senet reac! cea

56a

ORDERED and ADJUDGED, by the Court, that the

petitions for review are denied and the cross-applications

for enforcement are granted in accordance with the Opin-

ion for the Court filed herein this date.

Per Curiam

FOR THE CouRT:

RON GARVIN

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

Date: March 25, 1994

Opinion for the Court filed by Circuit Judge Ginsburg.

57a

APPENDIX E

STATUTORY PROVISIONS

Section 8(a)(1)-(3) of the National Labor Relations

Act (NLRA), 29 U.S.C. 158(a)(1)-(3), provide:

(a) Unfair labor practices by employer

It shall be an unfair labor practice for an em-

ployer—

(1) to interfere with, restrain, or coerce employ-

ees in the exercise of the rights guaranteed in section

157 of this title;

(2) to dominate or interfere with the formation

or administration of any labor organization or con-

tribute financial or other support to it: Provided,

That subject to rules and regulations made and pub-

lished by the Board pursuant to section 156 of this

title, an employer shall not be prohibited from per-

mitting employees to confer with him during work-

ing hours without loss of time or pay;

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of employ-

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 em-

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

in the appropriate collective-bargaining unit covered

by such agreement when made, and (ii) unless fol-

lowing an election held as provided in section 159(e)

of this title within one year preceding the effective

} 58a

: date of such agreement, the Board shall have certi-

' fied that at least a majority of the employees eligible

to vote in such election have voted to rescind the

i authority of such labor organization to make such

i an agreement: Provided further, That no employer

: shall justify any discrimination against an employee

' for non-membership in a labor organization (A) if

he has reasonable grounds for believing that such

| membership 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 uniformly required as a condition of

acquiring or retaining membership;

Sections 8(b)(1)(A) and (2), 29 U.S.C. 158(b)(1)

(A) and (2) provide:

(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor or-

ganization or its agents—

(1) to restrain or coerce (A) employees in the

exercise of the rights guaranteed in section 157 of

this title: Provided, That this paragraph shall not

impair the right of a labor organization to prescribe

its own rules with respect to the acquisition or reten-

tion of membership therein;... .

(2) to cause or attempt to cause an employer to

discriminate against an employee in violation of sub-

section (a)(3) of this section or to discriminate

against an employee with respect to whom member-

ship in such organization has been denied or termi-

nated on some ground other than his failure to

tender the periodic dues and the initiation fees uni-

formly required as a condition of acquiring or re-

taining membership;

59a

APPENDIX F

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

TWELFTH REGION

Case 12-CA-12749 -

UNITED PARCEL SERVICE

and

SARA F. GRIFFIN, an individual

Case 12-CB-3028

TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGO-

TIATING COMMITTEE AND INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

& HELPERS OF AMERICA, LOcAL 385, AFL-CIO, its

agent

and

SARA F. GRIFFIN, an individual

Cypress Room

Orlando Public Library

Orlando, Florida

Monday,

January 8, 1990

60a

The above-entitled matter came on for hearing, pursu-

ant to Notice, at 1:00 p.m.

BEFORE: HONORABLE WILLIAM N. CATES

Administrative Law Judge

* * * *

[22] ALFRED BARLOW

was called as a witness by and on behalf of General

Counsel, and having been first duly sworn, was examined

and testified as follows:

JUDGE CATES: Please have a seat. State your

name and address for the record. Please spell your last

name and speak with enough volume so each can hear

what you have to say.

THE WITNESS: L. Barlow, B-a-r-l-o-w; 25 Loui-

siana, N.E., Washington, D.C. 20001.

JUDGE CATES: Mr. Barlow, I ask everyone to spell

their last name and, hopefully, it will be correct, then,

in the record.

General Counsel, you may question the witness.

DIRECT EXAMINATION

[23] Q. BY MR. MAIMAN: Sir, what is your title

with the Teamsters?

A. Im the director of the parcel small package divi-

sion for the IBT.

* * x *

[28] Q. How many of the clerks—as you admitted,

some were not covered; how many were not covered under

the contract in 1979, total number?

A. I keep telling you, I don’t know the figure; that

it’s my opinion, we had the majority. Whatever it is, we

had the majority. I don’t know the exact figure. I keep

telling you, I don’t know.

6la

Q. More than 100 or 200? You're talking about

1,000 people here, at least, aren’t we?

A. I can’t give you a figure because I’d be speculat-

ing. But talking to Local Unions, hitting grievance panels,

complaints coming in “Why don’t we have them?”, “Why

aren’t they an attrition?”. Through the grievances filed

with the national committee, I couldn’t give you a figure,

but I know—in my opinion, I think we had the majority.

* * * *

[53] Q. BY MR. MAIMAN: §Isn’t it true, that as of

August 1, 1987, the effective date of the 1987 contract,

you had no proof of majority status among the six new

classes of clerks?

JUDGE CATES: That’s not your last question.

Your last question was, he said that he didn’t feel—

In response to that question, he answered, and I may be

paraphrasing at this point that, no, your assumption

wasn’t correct, that they did believe that they had the

majority. And then you asked him, “What’s the basis for

your belief, what is it that constitutes your belief that

you had a majority?”; and he’s now permitted to answer

that question.

Go ahead.

THE WITNESS: _ I hit grievance panels; I talked to

people; I had a workshop in San Diego, California. This

is naturally a big topic of conversation for the ware-

houses. Talking to different people, talking to different

Locals, talking to grievance panels, I assumed—I believe

we had the majority status.

* * * *

[81] Q. BY MR. MAIMAN: §Isn’t it true, Mr. Bar-

low, that between 1979 and August 1, 1987, some pack-

age return clerks were not in the Union?

A. In some instances, in some Locals they were not,

in others they were.

Q. Isn’t it true, that with respect to bad address

clerks—Between 1979 and August 1, 1987, isn’t it true

62a

that some of the bad address clerks were not in the Union

in ’79 to 87?

A. He’s going to ask me six questions and the same

thing on every one. Now, one takes care of the whole

category, Your Honor.

JUDGE CATES: Are you saying that in all six of

them, the response would be the same?

THE WITNESS: Sure, because we had some of them.

We had, we figure, the majority of them.

MR. MAIMAN: _ No further questions.

* * * *

63a

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

TWELFTH REGION

Case 12-CA-12749

UNITED PARCEL SERVICE

and

SARA F. GRIFFIN, an individual

Case 12-CB-3028

TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGO-

TIATING COMMITTEE AND INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

& HELPERS OF AMERICA, LOCAL 385, AFL-CIO, its

agent

and

SARA F. GRIFFIN, an individual

Cypress Room

Orlando Public Library

Orlando, Florida

Tuesday,

January 9, 1990

64a

The above-entitled matter came on for hearing, pursu-

ant to Adjournment, at 9:30 a.m.

BEFORE: HONORABLE WILLIAM N. CATES

Administrative Law Judge

* * * *

[150] ROY MORTON

was Called as a witness by and on behalf of the Company,

and having been first duly sworn, was examined and tes-

tified as follows: .

JUDGE CATES: Please have a seat. State your

name and address for the record. Please spell your last

name and speak with enough volume so each can hear

what you have to say.

THE WITNESS: Roy Morton, M-o-r-t-o-n; 51 Weaver

Street, Office Park Five, Greenwich, Connecticut 06813.

JUDGE CATES: You may question the witness.

DIRECT EXAMINATION

[151] Q. BY MR. WALD: Mr. Morton, you were

first employed by UPS in 1959?

A. Correct.

* ok cK ok

Q. In ’69, you began working as a labor relations

officer?

A. That’s right.

Q. And you worked as the assistant regional labor

manager for the mid-west region?

A. Correct.

cK ok * *

Q. Then you became regional labor manager for the

western region in ’69?

A. That’s right.

* * * *

65a

[152] Q. In ’75, you moved to headquarters in Green-

wich, on the headquarters labeled the national iabor re-

lations staff?

A. That’s correct.

Q. And you’ve been there ever since?

A. Right.

* * * *

[158] Q. Okay. And what the Teamsters position in

regard to the operating clerks?

A. Well, it hadn’t changed. That since they repre-

sented the operating clerks in the majority of the areas

with the majority of the Local Unions, that they should

have the right to represent them in all of the areas with

all Local Unions.

[159] Q. Did they also represent, as far as you know

in numbers, the majority of the operating clerks?

A. Yes.

* * * *

[167] JUDGE CATES: Did you have an opinion

whether Teamsters represented a majority of the opera-

tions clerks in 1987, I think is essentially what he was

asking you?

THE WITNESS: Yes.

JUDGE CATES: Yes, you have an understanding?

THE WITNESS: Yes, it is my understanding that in

1987 the Teamsters represented the majority of the op-

erating clerks in those classifications that were added to

the labor agreement.

JUDGE CATES: What were you basing that on?

THE WITNESS: Based on my experience in working

in the vast majority of the areas of the country.

JUDGE CATES: Did somebody tell you? I mean,

how did you know that—

THE WITNESS: Well, we see—

JUDGE CATES: —this clerk was a member and

that clerk wasn’t?

THE WITNESS: We see operating reports in the bus-

iness and we know which ones, which of the areas rep-

66a

resent—which of the areas are represented by the Union

and which of the areas are not represented by the Union.

And of those areas that I was involved in the last—well,

at that point in time, in the last 18 years, the vast ma-

jority of the operating clerks in the [168] classifications

that were added in the 1987 agreement were in the bar-

gaining unit.

JUDGE CATES: Already covered by Local agree-

ments, is that what you're saying?

THE WITNESS: Yes.

* * * *

{220] VINCENT J. BOOS

was called as a witness by and on behalf of the Company,

and having been first duly sworn, was examined and

testified as follows: .

JUDGE CATES: Please have a seat. State your

name and address for the record. Please spell your last

name and speak with enough volume so each can hear

what you have to say.

THE WITNESS: My name is Vincent J. Boos,

B-o-o-s. My address is United Parcel Service, Five Cor-

porate Park, Greenwich, Connecticut 06831.

JUDGE CATES: You may question the witness.

DIRECT EXAMINATION

Q. BY MR. WALD: Mr. Boos, you started with

UPS in 1964 as a package driver?

A. Yes, sir.

* * * *

[223] Q. Now you are a manager on the staff of the

national labor relations department in Greenwich, which

is headquarters?

A. That’s correct.

* * * *

67a

[239} Q. Okay. In the 1987 negotiation, based on

your experience with the company and what you heard

at the table, did you have an understanding as to whether

a majority of the operating clerks were already in the

Union or were not already in the Union?

A. Were in the Union.

* * * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.