Teamsters Local 710 (United Parcel Service)

National Labor Relations Board - Board Decisions

May 3, 2001

333 N.L.R.B. 1303 (N.L.R.B. 2001)

TEAMSTERS LOCAL 710 (UNITED PARCEL SERVICE) 1303
Local Union No. 710, Highway Drivers, Dockmen,
Spotters, Rampmen, Meat, Packing House and
Allied Products Drivers and Helpers, Office
Workers and Miscellaneous Employees, a/w In-
ternational Brotherhood of Teamsters (United
Parcel Service, Inc.) and Bradley G. Pletcher
and Donald Dale Hinkle, Jr. and Bill Loomis and
Brent Butler and Timothy Williams. Cases 25–
CB–8150, 25–CB–8150–2, 25–CB–8150–3, 25–
CB–8150–4, and 25–CB–8180
May 3, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
On December 9, 1999, Administrative Law Judge Jane
Vandeventer issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Michael T. Beck, Esq., for the General Counsel.
Marvin Gittler, Esq., of Chicago, Illinois, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
JANE VANDEVENTER, Administrative Law Judge. This
case was tried on September 23, 1999, in Goshen, Indiana. The
complaint alleges Respondent violated Section 8(b)(1)(A) of
the Act by bringing internal union charges, conducting trials,
reprimanding, and assessing fines against 27 named union
members, which included the Charging Parties, in contraven-
tion of a negotiated no-retaliation agreement.1 Respondent
filed an answer denying the essential allegations in the com-
plaint. After conclusion of the trial, the parties filed briefs,
which I have considered.

g
1 Member Hurtgen adopts the judge’s finding that the Respondent
entered into a settlement agreement prohibiting only the Employer from
imposing any “penalty or discipline.” However, Member Hurtgen
disavows the judge’s observations that the General Counsel’s interpre-
tation of the agreement is “strained” or “tortured.” Member Hurtgen
believes that the language of the agreement is ambiguous. The agree-
ment, as clarified by parol evidence, does not support the General
Counsel’s case.
1 At the hearing, the name of one individual, Chuck Hannah, was
amended out of the complaint allegation, leaving 26 individuals in
issue.
Based on the testimony of the witnesses, including particu-
larly my observation of their demeanor while testifying, the
documentary evidence, and the entire record, I make the
followin
FINDINGS OF FACT
I. JURISDICTION
Respondent admits United Parcel Service (the Employer) is a
corporation with offices and places of business in various States
of the United States, and is engaged in the interstate transporta-
tion of freight. The Employer operates places of business in
Elkhart, South Bend, and Fort Wayne, Indiana, which facilities
employ the individuals involved herein. During a representa-
tive 1-year period, the Employer performed services valued in
excess of $50,000 in States other than the State of Indiana.
Accordingly, I find, as Respondent admits, the Employer is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Respondent admits it is a labor organization within the
meaning of Section 2(5) of the Act, and I so find.
II. UNFAIR LABOR PRACTICES
A. The Facts
Respondent has represented certain employees of the Em-
ployer for approximately 40 to 45 years. These employees
work for the Employer at various locations in Illinois, Iowa,
and Indiana. While the International Brotherhood of Teamsters
(International Union) and other local unions of the International
Union represent employees of the Employer throughout the
nation, Respondent has maintained a separate contract for the
approximately 6000 employees of the Employer whom it repre-
sents.
The facts are largely undisputed. The parties stipulated the
International Union engaged in an economic strike against the
Employer during the period August 4 through 20, 1997. Re-
spondent, however, pursuant to its separate collective-
bargaining agreement and an extension thereof, continued to
negotiate with the Employer during the period of the Interna-
tional Union’s strike without itself calling a strike. Respondent
and the Employer completed their negotiations some time in
October 1997, without Respondent ever having called a strike
in the unit covered by its collective-bargaining agreement.
As was explained by Frank Wsol, Respondent’s secretary
treasurer, many of Respondent’s members participated in the
strike called by the International Union by refusing to cross
picket lines at other terminals and facilities which they encoun-
tered in the course of their driving and delivery duties, and by
refusing to handle “struck work” at their own facilities. He
explained that “struck work” meant packages which had been
shipped in from facilities not covered by Respondent’s contract,
where the employees were represented by the International
Union and were on strike. He further explained this “struck
work” began to appear at facilities represented by Respondent
about 3 days into the International Union—called strike. In
addition, according to Wsol, “roving” picket lines were set up
for a few days at a time by the striking unions at some of the
333 NLRB No. 159
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1304
facilities represented by Respondent, and many members re-
fused to cross these lines.
According to the testimony of the four Charging Parties who
testified,2 they refrained from crossing any picket lines which
they encountered, but at least two of the four Charging Parties
who testified stated they were unaware that they should refrain
from handling “struck work,” and had not been instructed by
any Respondent official to refrain from handling it. Butler, for
example, testified that while he was aware the union contract
with the Employer gave him the right to refuse to cross a picket
line without fear of discipline, he was unaware of the similar
right to refuse to handle “struck work.” Charging Party Donald
Hinkle testified that while he was aware Respondent was advis-
ing employees they could and should refuse to handle “struck
work,” he personally believed the identity of “struck work”
was, in his word, “debatable.” Thus, they continued to deliver
or transport packages as assigned. It is undisputed, and the
Charging Parties admitted, that Respondent’s collective-
bargaining agreement with the Employer contains provisions
stating employees have the right to honor picket lines and to
refuse to handle “struck goods.”
There is no contention that any of the 26 named individuals
resigned from Respondent or attempted to do so at any time
during the events described herein.
After the end of the strike, Respondent continued its negotia-
tions with the Employer. According to Wsol, however, Re-
spondent had been informed by a number of members that they
had been threatened with discipline by agents of the Employer
because of their support of the International Union’s strike.
Consequently, on September 4, 1997, Respondent presented the
Employer with a proposal concerning such discipline which
Respondent had drafted. The proposal was printed on Respon-
dent stationery and read as follows:

SETTLEMENT MEMORANDUM

This Settlement Memorandum is made by and between
Teamsters Local 710 (710) and United Parcel Service (the
employer) as follows:
WHEREAS, the International Brotherhood of Team-
sters and the employer have arrived at a settlement and
mutually satisfactory agreement on outstanding issues in-
volved in the dispute; and
WHEREAS, 710 and the employer agree that it is in
the best interests of the employer, 710 and all employees
to eliminate any disharmony, ill will and/or hard feelings
and to restore an efficient and cooperative work environ-
ment,
NOW, THEREFORE, 710 and the employer hereby
agree as follows:

1. No U.P.S. employee shall be discriminated against,
disciplined or suffer any adverse employment action
for engaging in peaceful activity during or in con-
nection with the dispute.
2. All employees in the unit represented by 710 shall

2 Charging Party Timothy Williams did not testify, nor did he appear
at the hearing.
be returned to employment without discrimination
or loss or reduction of wages and/or benefits and
with full preservation of all seniority and other
rights, and no penalty or discipline of any sort shall
be suffered by any such unit employee because of
his/her choices, decisions, actions and/or activities
during the dispute or in any way siding, assisting or
otherwise supporting 710, the International Brother-
hood of Teamsters or any other party involved in the
dispute.

IN WITNESS WHEREOF, the parties have executed this Set-
tlement Memorandum on this 4th day of Sept, 1997.

UNITED PARCEL SERVICE TEAMSTERS LOCAL
710
ss/Gerald A. Nerone ss/Frank J. Wsol

Testimony concerning the negotiation of the above document
was admitted over the objection of the General Counsel. Wsol
testified that on September 4, Respondent presented the docu-
ment to the Employer with the explanation that it had received
complaints from its members that they were experiencing
threats of discharge for having honored the picket lines during
the recent strike by the International Union. Respondent stated
to the Employer that it wished to have a written agreement to
protect its members from actions by the Employer. There was
apparently very little discussion of the document, and after
denying there had been such threats, the Employer agreed to the
document and signed it. Wsol further testified that the protec-
tion sought by the document was solely protection against Em-
ployer actions. Michael Sweeney, Respondent’s recording
secretary, testified the “other parties” referred to in the last
paragraph of the document refers to the International Union and
other local unions representing the Employer’s employees.
Both of these witnesses testified that only potential actions by
the Employer were discussed, and there was no mention of
internal union charges nor of any other potential actions by
Respondent. Gerald A. Nerone, the employer representative
who signed the document, was not called to testify by either
party, and hence the facts testified to by Wsol and Sweeney as
to the discussions surrounding the negotiation and execution of
this document are uncontradicted in the record.3
Negotiations for a contract were concluded in October 1997.
After the end of negotiations, various individual members of
Respondent filed internal union charges against other members
whom they believed to have violated Respondent’s strictures
against crossing picket lines and handling struck work during
the International Union’s strike. Notice was given to the mem-
bers charged, and hearings were conducted before panels of
Respondent members, with an official of Respondent present as
3 Respondent, in its brief, contends the General Counsel’s failure to
call Nerone as a witness entitles it to an adverse inference, i.e., that had
Nerone testified, his testimony would support that of Respondent’s two
witnesses. The Employer was a party to the Settlement Memorandum,
but did not file the instant charges or otherwise seek to enforce the
agreement against Respondent. In view of the fact the Employer was
not clearly aligned with either party, and Nerone was equally available
to the General Counsel and Respondent, I decline to draw the requested
inference.
TEAMSTERS LOCAL 710 (UNITED PARCEL SERVICE) 1305
moderator or convenor of the panels. Sweeney testified there
were over 100 hearings conducted, but that he was unaware of
the exact number of these hearings.
A number of members, including the 26 individuals named
in the complaint, were charged under these procedures. Some
of the individuals charged were found not to have violated the
constitution, and the charges against them were presumably
dismissed. The 26 named individuals were found by the panels
to have violated the constitution, and were assessed fines in
varying amounts between $100 and $2455. It was stipulated by
the parties that none of the fines or discipline assessed against
the individual members interfered with their employment rela-
tionship in any way.
Under Respondent’s procedure, as set forth in the Interna-
tional Union’s constitution and its own constitution and bylaws,
the executive board may overturn the decision of the hearing
panels. In addition, there is an internal appeals process by
which the member may appeal the fines. There is no evidence
as to how many of the 26 named individuals took advantage of
this appeals process. Of the four Charging Parties who testi-
fied, all appealed or attempted to appeal their fines through
Respondent’s internal procedures. There is no evidence that any
of the five Charging Parties, nor any of the 21 other named
individuals, resigned or attempted to resign from membership
in Respondent at any time.
There is no evidence the Employer has sought to enforce the
Settlement Memorandum against Respondent, whether by
grievance, unfair labor practice charge, or a contract enforce-
ment action in State or Federal court. Likewise, there is no
evidence as to the Employer’s views on the reach of the Memo-
randum, i.e., whether it applies to the Employer only or to both
the Employer and Respondent.
B. Discussion and Analysis
The General Counsel argues that the Settlement Memoran-
dum constitutes a bilateral settlement agreement which prohib-
its Respondent, as well as the Employer, from disciplining em-
ployees for any conduct which occurred during the strike. The
Board has held that where a bilateral strike amnesty, or “no-
retaliation” agreement, has been negotiated between the parties
to a strike, the union may not discipline or fine its members for
conduct during the strike, and that the internal rules proviso of
Section 8(b)(1)(A) does not apply in this situation. See, e.g.,
Teamsters Local 792 (Johnson Bros.), 283 NLRB 111 (1987);
Sheet Metal Workers Local 208 (Paul Mueller Co.), 278 NLRB
638 (1986).
Respondent, on the other hand, argues the Memorandum
bars only the Employer from taking any disciplinary action
against employees for conduct engaged in during the strike, but
does not contain any undertakings by Respondent. In the ab-
sence of such an undertaking by Respondent, it urges that its
disciplining and fining of its own members falls within the
internal union rules proviso of Section 8(b)(1)(A), and does not
violate the Act. Where, as here, the union discipline did not
interfere with the employment relationship, it is not the Board’s
province to evaluate the fairness of union discipline meted out
to protect a legitimate union interest, Respondent argues, citing
NLRB v. Boeing Co., 412 U.S. 67 (1973), and NLRB v. Allis-
Chalmers Mfg. Co., 388 U.S. 175 (1967).
The crux of the case, then, is the meaning of the Settlement
Memorandum. There is a further difference of opinion con-
cerning the evidence to be used in determining this crucial is-
sue. The General Counsel argues the parol evidence rule pro-
hibits the consideration of extrinsic evidence, in this case evi-
dence concerning the negotiation of the Memorandum and the
intent of the parties. The General Counsel would limit the
search for meaning in this document to the actual language of
the document itself, and would ignore any evidence of the in-
tentions of the parties or of the negotiations which resulted in
the document.
Respondent argues that the admission of extrinsic evidence
is appropriate because its purpose is to interpret the language
and meaning of the Memorandum, and that such evidence is
essential to a correct interpretation of certain terms in the
Memorandum.
While it is true that the parol evidence rule does prohibit the
consideration of evidence which varies or contradicts a writing,
it does not prohibit the consideration of evidence outside the
document itself for the purpose of interpreting the writing.
Sansla, Inc., 323 NLRB 107, 109 (1997); Inter-Lakes
Engineering Co., 217 NLRB 148, 149 (1975).
I find the argument of Respondent concerning the eviden-
tiary issue is more persuasive. The parol evidence rule excludes
extrinsic evidence concerning a written contract only when the
meaning of the document is clear. It does not exclude such
evidence when the meaning of certain terms in a document are
ambiguous. Several terms in the Settlement Memorandum are
less than crystal clear. For example, the term “dispute,” the
phrase “any other party” in the last paragraph, and the term
“penalty or discipline,” are not defined within the language of
the Memorandum itself, and are susceptible to more than one
interpretation. Therefore, the evidence concerning the drafting,
presentation, discussion, negotiation, and execution of the
Memorandum at issue was admitted for the purpose of interpre-
tation of the meaning of the language and terms of the Memo-
randum.
At first reading, and without considering any extrinsic evi-
dence, the Settlement Memorandum appears to apply to the
Employer, and to prohibit the Employer from disciplining or
penalizing employees in connection with their employment
because of their support of the International Union’s strike.
The sentence numbered “1” clearly refers to discrimination or
discipline related to employment. Likewise, the first portion of
the sentence numbered “2” clearly refers to employees being
returned to employment without discrimination or other detri-
ments to their employment and it would be logical to read the
remainder of the same sentence as continuing to refer to the
same type of discrimination.
The General Counsel, however, argues the language of the
second portion of the last sentence of the agreement, “no pen-
alty or discipline of any sort shall be suffered by any such em-
ployee because of his/her choices, decisions, actions and/or
activities during the dispute or in any way aiding, assisting, or
otherwise supporting 710, the International Brotherhood of
Teamsters or any other party involved in the dispute,” refers to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1306
more than simply discrimination or discipline by the Employer.
The General Counsel argues that it also means the Employer is
a “party,” and hence is included in the term “any other party.”
Likewise, the General Counsel argues the words “no penalty or
discipline of any sort” means that no fines or other penalties by
Respondent may be imposed for any activities “supporting . . .
any other party,” a term which includes the Employer. The
General Counsel’s argument depends further on the phrase
“aiding, assisting, or otherwise supporting” being interpreted to
include employees’ work activities in the course of their em-
ployment. This seems a strained, but possible, interpretation of
the language of the agreement, but at the same time, the argu-
ment that such an interpretation should be made emphasizes the
need for elucidation of the language by extrinsic evidence, and
undercuts the General Counsel’s argument the language of the
agreement is clear, and therefore the parol evidence rule should
bar consideration of such extrinsic evidence.
The general rules of contract interpretation militate against
the General Counsel’s argument. As succinctly set forth by
Administrative Law Judge Schlesinger in Don Lee Distributor,
322 NLRB 470, 485 (1996):

That rule of interpretation [ejusdem generis] provides that
“general words following a detailed enumeration will be con-
fined to things of the same kind . . . as the particular matters
mentioned,” 18 Williston, Contracts Sec. 1968 (3d ed. 1978);
Black’s Law Dictionary at page 517 (6th ed. 1990); and spe-
cific words following general ones restrict application of the
general term to things that are similar to those enumerated. 2A
Sutherland, Statutory Construction Sec 47.17 (1992 rev.).

Applying these principles to the disputed second sentence of
the Memorandum, the second clause, referring to “penalty or
discipline” is confined to employment penalty or discipline,
since the first portion of the sentence refers only to penalties or
discipline in the employment relationship.
The Settlement Memorandum was not part of the settlement
of the collective-bargaining agreement between Respondent
and the Employer. Instead, it was executed prior to the end of
negotiations, and was intended to deal with a particular prob-
lem, i.e., Respondent’s perception that the Employer was dis-
criminating or threatening to discriminate against employees
because of their participation in a sympathy strike in violation
of the current extended collective-bargaining agreement be-
tween them. The Memorandum therefore differs in its incep-
tion from the bilateral no-retaliation agreements in the cases
cited at the beginning of this discussion.
Turning to the evidence concerning the drafting and negotia-
tion of the Memorandum, it is noted initially that Respondent
drafted the agreement, and its proffered language remained
unchanged by the Employer. Respondent’s representatives
testified that in drafting and proffering the Memorandum, they
intended to secure a guarantee by the Employer that it would
not discriminate in employment-related matters against em-
ployees. It is undisputed that no promises or undertakings by
Respondent were contemplated, discussed, nor agreed to by
Respondent and the Employer. The Employer did not request
Respondent to agree to any such terms, nor did it request any
changes in the language of the Memorandum.
The General Counsel’s argument that “penalty or discipline”
refers to internal union charges under Respondent’s internal
union procedures is contrary to a logical reading of the docu-
ment and the principles of contract interpretation, as well as the
evidence concerning the intentions of the parties, the drafting
and negotiation of the Memorandum. I reject it. Likewise, the
General Counsel’s argument that the term “other parties”
should include the Employer is flawed. The Employer is spe-
cifically referred to in the document as “the employer.”
Sweeney testified without contradiction that “other parties” was
meant to refer to other local unions who had struck the Em-
ployer.4 This argument also depends on an assumption that the
phrase “in support of” a party includes reference to employees
choosing not to take advantage of their contractual rights to
refuse to cross picket lines or handle struck goods, and that
such actions by employees would be “in support of” the Em-
ployer. Such an interpretation is more than strained; it is tor-
tured. I reject it.
I find the Settlement Memorandum was a unilateral agree-
ment which bound the Employer to refrain from imposing any
“penalty or discipline” in employment, but did not bind Re-
spondent. Thus, the cases cited above concerning mutual or
bilateral amnesty agreements are inapposite to the agreement in
question here. I find, in agreement with Respondent’s position,
that its actions were within the ambit of the union rules proviso
to Section 8(b)(1)(A).
ORDER
It is recommended that the complaint be dismissed in its en-
tirety.5

4 The General Counsel argues in its brief that Wsol’s admission that
the Employer was in fact a “party” to the International Union’s dispute
which resulted in the strike is tantamount to an admission that the
words “any other party” in the Settlement Memorandum also included
the Employer. Both Sweeney and Wsol testified specifically that these
words were not intended to include the Employer, and that it was re-
ferred to in the document only by the words “the employer.”
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.