United Parcel Service

National Labor Relations Board - Board Decisions

May 18, 1982

261 N.L.R.B. 990 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Parcel Service and Richard W. Roberge.
Case 1-CA-17308
May 18, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 3, 1981, Administrative Law Judge
George F. McInerny issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed cross-exceptions and a supporting
brief in opposition to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs, and has decided to affirm the
rulings, findings, and conclusions' of the Adminis-
trative Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its order the recommended
Order of the Administrative Law Judge, and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I Member Jenkins does not rely on Wright Line, a Division of Wright
Line, Inc., 251 NLRB 1083 (1980), for the principle that the General
Counsel bears the burden of proving a prima facie case; that principle was
established generations earlier.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge:
Based on a charge filed on March 25, 1980, by Richard
W. Roberge, an individual, the Regional Director for
Region I the National Labor Relations Board, herein re-
ferred to as the Board, issued a complaint on May 15,
1980, alleging that United Parcel Service, herein referred
to as UPS or Respondent, had violated Section 8(a)(l)
and (3) of the National Labor Relations Act, as amend-
ed, 29 U.S.C. § 151, el seq., herein referred to as the Act.
Thereafter, Respondent filed an answer to the complaint
denying the commission of any unfair labor practices.
Pursuant to notice contained in said complaint, a hear-
ing was held before me in Biddeford, Maine, on Novem-
ber 24 and 25, 1980, at which all parties appeared and
were given the opportunity to present testimony and
documentary evidence, to examine and cross-examine
261 NLRB No. 142
witnesses, and to argue orally. After the close of the
hearing Respondent and the General Counsel filed briefs,
which have been carefully considered.
Based on the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
United Parcel Service is a New York corporation
which maintains a facility in South Portland, Cumber-
land County, Maine, where it is engaged in the handling,
distribution, and delivery of parcels, packages, and relat-
ed materials within and outside the State of Maine. The
jurisdiction of the Board is admitted and is not in issue.
1. THE LABOR ORGANIZATION INVOLVED
The record shows that Respondent has a collective-
bargaining agreement with Truck Drivers, Warehouse-
men & Helpers Union Local 340, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, herein referred to as the
Union. The complaint alleges, the answer admits, and I
find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE AI.LEGED UNFAIR LABOR PRACTICES
In February 1980,' Richard W. Roberge had been em-
ployed for about 9 years as a route driver for UPS, deli-
vering and picking up parcels and packages. During the
times material herein Roberge was assigned in the down-
town area of the city of Portland. Respondent's wit-
nesses uniformly testified that Roberge was not outstand-
ing, either in a positive or a negative sense, and aside
from a written warning given him on October 24, 1979,
he had no disciplinary problems with management.2
The incident in October 1979 arose out of a complaint
by a customer that Roberge was erratic in his delivery
times. As a result of this David Sherman, the division
manager in charge of the entire South Portland oper-
ation,3 requested the UPS loss-prevention department to
investigate the matter, whereupon Carl Driggers of the
loss-prevention department and Supervisor Dean Dow
followed Roberge on his route on October 22, 1979.
They observed him commit a number of infractions of
company rules, and finally, when he was seen coming
back to his truck from his lunch break 13 minutes late,
they suspended him.
Respondent is particularly concerned about unauthor-
ized extensions of breaks or lunch hours, referred to in
the record as "hanging on." Part of this concern is due
I All dates herein are in 1980 unless otherwise noted.
2 I have examined and rejected testimony by Donald M. Simpson, a
former supervisor for UPS who was discharged early in March 1980 for
reasons which he considered unjust. Simpson exhibited a poor memory,
and his testimony about the motivations of other supervisors tended to be
so general and vague as to be worthless. His demeanor, moreover, did
not lead me to believe he was a candid witness.
:" There are about 18 supervisory people and 200 rank-and-file employ-
ees at South Portland.
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UNITED PARCEL SERVICE
to the obvious fact that employees who extend their
lunch hours and breaks are being paid for not working,
but in addition it appeared from the testimony, particu-
larly that of Sherman, that UPS is proud of its image and
ever watchful that its employees maintain company-im-
posed standards of promptness, neatness, and courtesy.
Thus, Respondent reacted strongly to Roberge's depar-
ture from UPS standards of conduct. Roberge, who ad-
mitted to the charges against him, was given a 5-day sus-
pension and was issued a "final warning notice" in writ-
ing, setting out his offenses and noting that "any further
incidents would result in further disciplinary action up to
and including your discharge."
The collective-bargaining agreement between UPS and
the Union contains standard grievance procedures but
Roberge did not file a grievance on account of this sus-
pension, and the matter ended.
The contract also provides4 for a 10-minute break in
the morning and another in the afternoon. Further, the
contract states, "All employees shall be entitled to a
twenty (20) minute break if they work more than ten
(10) hours. "The evidence herein shows that the standard
workday for package drivers out of the South Portland
facility was 10 hours. The Company's practice was for
drivers who were going to be out for a period over 10
hours to call a dispatcher at or before 5 p.m. The driver
and dispatcher would discuss the driver's current and
projected work situation and the dispatcher made the de-
cision as to when the driver shall arrive back at the ter-
minal. An effort is made to stagger these arrivals, so that
the unloading crew at the terminal can efficiently unload
and process the packages the driver has picked up during
the day. While the evidence is not clear, I infer from the
record that in practice the dispatcher's instructions are
based on his estimate of when the driver should stop de-
liveries and start back to the terminal so as to arrive at
the proper time. This, in turn, was at least in part the
reason why the Company read the contractual provision
for the 20-minute break after 10 hours to mean that the
break would be paid for, but had to be taken after the
driver arrived back at the terminal rather than at the ex-
piration of the 10 hours if the driver was still on the
road.
There is no evidence as to when this rule was institut-
ed, or whether there was any discussion on its effect
among employees at that time. There was, however, a
grievance filed by an employee named Milford C. Dube
on November 30, 1979, alleging that he had been in-
formed of the company policy that he had to take his 20-
minute break after returning to the terminal. Dube
claimed that he was entitled to take the break upon com-
pletion of the 10 hour's work wherever he happened to
be. Dube's grievance was filed with the Union's office on
December 6, 1979. On December 7, 1979, the grievance
was discussed by Earl Sherwood, one of the Union's
business agents, and David Sherman. Sherman explained
the company policy as outlined above, and told Sher-
wood that the break would be taken where and when
the Company decided it would be taken. 5 This resolution
* New England Supplemental Agreement, art. 60.
s Sherwood did not testify but I found Sherman to be a credible wit-
ness.
was accepted by Sherwood since there is no record of an
appeal, as provided in the contract, to the New England
Area Parcel Grievance Committee. 6 Dube was not
called as a witness so it cannot be said that he was either
satisfied or dissatisfied with this resolution.
In January, Sherwood left office and was succeeded
by Adelard LeCompte, who is also secretary-treasurer of
the Union. LeCompte testified that he went through
Sherwood's file and found a number of grievances which
had been filed but bore no indication as to what had hap-
pened with regard to them. Among these grievances was
Dube's grievance of November 30, 1979. LeCompte
therefore met with Sherman on January 25. Sherman
went over the conversation he had had with Sherwood
and LeCompte agreed with the Company's resolution of
the matter: "I agreed with him that if they instructed
drivers to be in at the center at a certain time, that is
when the drivers would be in the center."
On the next day, January 26, LeCompte had a meeting
with the drivers from the South Portland terminal. At
that time, according to LeCompte, "a few drivers" men-
tioned that they were having "problems" with the 20-
minute break.7 LeCompte instructed the employees who
were at the meeting that they had to return to the termi-
nal when they were instructed to do so. If they could
take their break and be in the terminal on time there was
no problem. If they could not, then they were to return
and take their break at the terminal.
Late in January or early in February, Respondent rea-
ligned the routes in the Portland area. A new route su-
pervisor, John E. Harrison, was assigned by his supervi-
sor, Dick Deery, to do an "area trace" of Roberge's
route.8 The area trace is a plotting of the route to allow
the route to be done most efficiently and with a mini-
mum of effort and mileage. There is no indication that
the selection of Roberge's route for the area trace was
improperly motivated, or that Roberge was singled out
for special treatment.
The area trace on Roberge's route was to last 3 days
beginning on February 11. 9 On that morning Deery told
Harrison that he would also be riding with Harrison and
Roberge in order to verify Harrison's knowledge of Re-
spondent's delivery methods. to
6 This group is convened to hear grievance appeals from various UPS
terminals throughout New England. The committee is composed in each
case of three union representatives from locals not involved in the dis-
pute and three company representatives from locations not involved in
the dispute. If the grievance cannot be settled by the committee, provi-
sions are made for outside arbitration.
I There is no evidence that Richard Roberge attended this meeting.
Neither he nor LeCompte was asked if he was present.
s Harrison had been assigned as a supervisor in South Portland on Feb-
ruary 1. He had previously been a timestudy man in the Company's in-
dustrial engineering division in Vermont.
g The 3 days were considered necessary because of variations in the
route which required that period of time to cover.
Io I have based my findings on the events in the period February II to
13 on the credible testimony of Harrison and Decry. I have not credited
Roberge's testimnny where it differs from that of the two supervisors
Roberge testified that he had been undergoing medical treatment for an
ulcer for 5 years, and attributed his actions on February 13, at least in
part, on this ailment. However, he was examined by a physician paid by
UPS in May 1979. On the form which he filled out, Roberge answered
"no" in the space provided for "ulcer of the stomach (peptic or duode-
Continued
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before they left on the route on February II11, Roberge
commented to Deery that driving with three people in
the cab was not safe. Deery replied that UPS had been
doing that for some time and would probably continue
to do so. Roberge then said that when he took his break
he would call OSHA (Occupational Safety and Health
Administration of the United States Department of
Labor). Deery said, "Fine, go to work." The cab area of
Respondent's delivery trucks has only one seat, for the
driver, so that any passengers would be required to stand
either in the cab or in the cargo section of the truck.
There is no indication that there were any further prob-
lems that day, but Deery did write up a report on the
morning's exchange with Roberge and submitted it to
Sherman. ' Deery did not go out on the route after Feb-
ruary 11.
Nothing further of substance occurred until 7:30 p.m.
on Tuesday, February 12. At that time Roberge had
completed 10 hours work on that day. He pulled the
truck over to the curb and told Harrison that he was
electing to take his 20 minute break at that time. Harri-
son told Roberge to take the truck back to the terminal
and he would find out the reason why the Company
wanted drivers to take their break at the terminal. Harri-
son was new to South Portland and new to supervising,
and had not himself been a route driver. He had heard
some talk among supervisors about this kind of situation
but was not clear on the reasons. Roberge agreed and
they returned to the terminal. Harrison checked with an-
other supervisor, whose name he could not remember,
and was informed about the need to get the incoming
packages to the terminal so that they could be unloaded
and sorted. Harrison conveyed this information to Ro-
berge. Roberge then said that he had to submit a griev-
ance because it was not right. Harrison then said, "Fine,
but please talk to Dick (Deery) first." That was the end
of that conversation.
The next morning, February 13, Harrison asked Deery
to talk to Roberge about the matter before Roberge and
Harrison left the terminal. Roberge asked Deery if he
could take his 20-minute break on the road. Deery re-
plied that he positively could not, explaining the compa-
ny procedures on incoming packages. Roberge replied
that it was not right. Harrison and Roberge then left the
terminal.
While they were out on the route the matter of the 20-
minute break was discussed. At one point Harrison asked
nal)" but did indicate "yes" in the space designated "nervous stomach."
In the space provided on the form for details, Roberge explained the
"yes" answer to the "nervous stomach" question by saying "periodical-
ly-no problem." I also note that Roberge listed on the form that he had
last seen a physician in February for treatment of a "knee and ankle
injury." The attending physician on that occasion was Dr. Monkhouse,
the same physician who performed the physical examination on Roberge
in May. Roberge asserted at the hearing that he told Dr. Monkhouse
about the ulcer at the May physical. The doctor did not testify, but it is
my opinion, based on the content of the medical examination, that Ro-
berge did not tell the doctor about the ulcer. Otherwise, logic and experi-
ence show, the doctor would have made some notation of the fact. Thus,
I find that Roberge did not tell the truth at the hearing on this important
point and I discredit his further testimony on substantive issues.
II I find nothing unusual in this as the evidence shows that company
supervisors wrote up reports on any incident involving employees. There
is no evidence that this report was discussed further among supervisors.
or that it played any part in Roberge's discharge.
Roberge if he was going to "challenge me and take the
break" and Roberge answered that he was. After this
conversation, sometime in the afternoon, Harrision called
Sherman at the terminal and informed him of the situa-
tion. Sherman told Harrision about the Dube grievance
and its resolution and also about the grievance proce-
dures available to Roberge. Further, Sherman told Harri-
son to advise Roberge of the consequences if he did
challenge Harrision, that he could lose his job.
At the same time he talked to Sherman, Harrison had
also talked to a dispatcher, who told him that the truck
was due back at the terminal at 8 p.m. On his return to
the truck Harrison explained to Roberge what Sherman
had told him. They continued to discuss this until some-
time after 7:30 p.m. when Roberge pulled the truck over
and said he was going on his break. Harrison asked him
not to do this but to continue delivering. Roberge re-
sponded that he was hungry and that he wanted to get
something to eat. Harrison then said he would appreciate
it if Roberge kept on delivering, and then added, "I am
instructing you to keep on delivering." Roberge said,
"no," and Harrison then asked him for his keys and sus-
pended him. Harrison drove the truck back to the termi-
nal, took Roberge's paperwork, and told him to leave the
premises.
On February 19 a meeting was scheduled in Sherman's
office to discuss the situation. Roberge attended, together
with Dennis Sisti, a shop steward, and Adelaid Le-
Compte. They reviewed the situation. Roberge and Le-
Compte explained their side of the story.' Sherman dis-
agreed and told them that Roberge was terminated as of
that date. The reasons as given orally by Sherman and in
a termination letter of February 19 (erroneously dated
February 14) were Roberge's prior final warning of Oc-
tober 24, his failure to follow his supervisor's instruc-
tions, and his taking an unauthorized break.
Roberge then filed a grievance alleging that he was
suspended after attempting to take the 20-minute break
due him after 10 hours of work, which suspension was
changed to a discharge on February 19. The matter pro-
ceeded through the contractual grievance procedure and
was finally presented to the New England Area Parcel
Grievance committee on March 5. Both the Company
and the Union made presentations to the Committee. Le-
Compte made the presentation for the Union, and went,
ill detail, into the question of the contractual right to
take the 20-minute break on the road. His theory was
that unless the Company had ordered a driver in by a
certain time, which time did not permit the taking of the
break on the road, the driver was entitled to do so. Le-
Compte further maintained that Roberge had never been
advised on February 13 to come in at any certain
hour. 3 Roberge testified in his own behalf, for the first
12 Roberge testified that he had consulted with Shop Steward Sisti
twice on February 13, and that Sisti assured him he was within his nghts
in taking the 20-minute break on the road There is no evidence that Sisti
verified these statements at the February 19 meeting, later at the arbitra-
tion hearing, or at this hearing. I do not credit Roberge's statements that
Sisti endorsed his actions on February 13.
1 LeCompte was mistaken in this as I have found that Harrison in-
formed Roberge that they had to be back in the terminal by 8 p.m. fol-
lowing Harnson's telephone call to the dispatcher about 5 p.m. on Febru-
ary 13. 1 do not credit Roberge's denial that he was so informed
992
UNITED PARCEL SERVICE
time bringing up his problem with the ulcer. Sherman
made the presentation for the Company.
Although it is clear from Roberge's grievance, from
LeCompte's testimony, and from the written presentation
which LeCompte made to the committee that the ques-
tion of interpretation of the guidelines for the 20-minute
break was a vital part of this grievance, the committee
chose to ignore that aspect of the grievance and the pres-
entation.
The committee's decision reads as follows:
Based on the evidence presented the panel in execu-
tive session ruled that Richard Roberge despite pre-
vious warnings and a five day suspension and with
an [sic] repeated verbal warning, refused to follow
supervisory direction. Consequently the claim of the
Union is denied.
IV. ANALYSIS AND CONCLUSIONS
As a threshold question to a decision of the issues in
this case, Respondent has raised, as an affirmative de-
fense, the decision of the New England Area Parcel
Grievance Committee in Roberge's case. Respondent
urges that the case of United Parcel Service, Inc., 232
NLRB 1114 (1977), enfd. sub nom. Adam Bloom v.
N.L.R.B., 603 F.2d 1015 (D.C. Cir. 1979), is controlling
in the instant matter. I do not agree.
The case cited is very similar, and the Board, in over-
ruling the Administrative Law Judge, did find that the
award by the UPS-Union Area Parcel Committee in that
case had met the standards established in Spielberg Manu-
facturing Company, 112 NLRB 1080 (1955). The Board
therefore deferred to the award and dismissed the com-
plaint therein.
After deciding the United Parcel Service case relied
upon by Respondent, the Board decided Suburban Motor
Freight. Inc., 247 NLRB 146 (1980), in which it deter-
mined that it would "no longer honor the results of an
arbitration proceeding under Spielberg unless the unfair
labor practice issue before the Board was both presented
to and considered by the arbitrator" (emphasis supplied).
The record here is clear that Roberge presented the issue
which is now before me in his grievance of February 19.
That issue, Roberge's insistence on what he considered
his contractual right to take his 20-minute break on the
road, was briefed by LeCompte and presented to the
New England Area Parcel Grievance Committee. But
the second half of the equation, the consideration, if any,
by the committee of that issue, was not met. The com-
mittee's decision did not even mention the issue of the
20-minute break. It is impossible to tell whether the issue
was even considered, but the absence of a ruling or even
comment on the issue suggests strongly that it was not.
For that reason, despite my underlying conviction that
the Board should keep a respectful distance away from
situations where labor and management have arrived at
mutually satisfactory accommodations, I decline to defer
to the decision of the New England Area Parcel Griev-
ance Committee.
Turning to the merits of the case, the complaint al-
leges that Harrison told Roberge on February 12 not to
file a grievance but to talk to him, Harrison, instead, The
facts do not support this allegation. Harrison's testimony,
which I credit, admitted that Roberge had told him he
was going to file a grievance, but Harrison's reply was,
"Fine, but please talk to Dick first." I view this as a re-
quest or a suggestion, and I do not find in it any interfer-
ence with Roberge's rights to union representation and
thus no violation of the law.
The question of the lawfulness of Respondent's suspen-
sion and subsequent discharge of Roberge depends on
whether Roberge's insistence on taking his 20-minute
break after completing 10 hours' work on February 13
constituted protected concerted activity under the Act.
The General Counsel has advanced two theories in
support of his position that the activity was protected
and concerted. The first of these is based initially on arti-
cle 18, section 1, of the contract between UPS and the
Union, which provides that "under no circumstances will
an employee be required or assigned to engage in any ac-
tivity involving dangerous conditions of work or danger
to a person or property or in violation of a government
regulation relating to safety of a person or equipment."
With this contractual provision as a base, the General
Counsel has asked that I take official notice of a United
States Department of Transportation regulation which
forbids the operation of a motor vehicle, or requiring or
permitting a driver to operate a motor vehicle, when
"the driver's ability or alertness is so impaired, or so
likely to become impaired, through fatigue, illness, or
any other cause, as to make it unsafe for him to begin or
continue to operate the motor vehicle."'4
To complete the theory, the General Counsel argues
that the evidence shows that Roberge was suffering from
an ulcer, exacerbated by the strain of having Harrison
with him for 3 days, and that his assertion of his right to
take his break implicitly asserted the contractual provi-
sion cited above, including by reference the Department
of Transportation regulation. Since the assertion of a
contractual right, even as an individual, has been held to
be concerted, and thereby protected, Roberge's assertion
of his right to take the break was protected concerted
activity. N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d
495, 499-500 (2d. Cir. 1967).
The difficulty which I find in this novel and imagina-
tive theory is that Roberge had never told anyone in
management about his ulcer, and did not on the night of
February 13 tell Harrison that the ulcerous condition
was a reason why he did not wish, or did not feel able,
to continue his route. Roberge admitted on cross-exami-
nation that he was aware of procedures used by drivers
to report off sick, or even to return to the terminal
during the workday if they were sick. Roberge admitted
that he had used these procedures himself, but offered no
explanation of why he did not tell Harrison of his condi-
tion, or even that he did not feel well, on February 13.
Further, I find no support for the General Counsel's
theory in the case he has cited to support it. In Varied
Enterprises, Inc. d/b/a Private Carrier Personnel, 240
NLRB 126 (1979), the Board held that the employer vio-
lated Section 8(a)(1) of the Act by discharging an em-
4 I)epartment of Transxportation Regulations, subpt A. sec. 392 3,
issued under authority of 49 U S C § 304 (1981)
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee who had refused to drive a tractor-trailer which
was of such a length as to be illegal in several States
through which the driver's route would pass. In that
case, however, it was more than apparent that the em-
ployee expressed very clearly to management the reasons
why he was refusing to drive the truck as ordered. Here
there is no evidence that Roberge mentioned pain, ill-
ness, safety, or anything else which would furnish a clue
that his protest was based upon any factor other than the
contractual provision for a 20-minute break at the end of
10 hours' work. Therefore, I do not find that Roberge's
assertion that he was entitled to the break, and that he
was hungry, is sufficient to establish the theory advanced
by the General Counsel.
As I have noted, however, that Roberge was asserting
a contractual right to take his break while on the road
and that such an assertion ordinarily constitutes protect-
ed concerted activity. Interboro Contractors, Inc., 157
NLRB 1295 (1966), enfd. 388 F.2d 495.15 There are two
factors which in my opinion serve to differentiate this
case from Interboro. The first is that the contractually
based complaints made by employees in Interboro were
being raised for the first time. Here we have the Dube
grievance of November 30 which, since it was not pur-
sued beyond Sherman's denial of the grievance and as-
sertion of the Company's right to determine when the
break was to be taken, should have, and I find did, settle
the matter.
The second distinction is that in Interboro the employ-
er attempted to raise a defense that the employees in-
volved there were discharged not for raising grievances
under the contract then applicable, but for absenting
themselves from their assigned work to an excessive
degree. The Board rejected that defense, not because it
was irrelevant, but because the defense appeared to be a
post hoc justification for company actions, and followed a
number of prior, inconsistent reasons given for the dis-
charges.
Thus I find that Roberge, who was aware of the Dube
grievance and its resolution, was not raising, on the night
li Respondent thinks Interboro is an improper expansion of the cover-
age of the Act. In that regard the Court of Appeals for the Second Cir-
cuit seems to agree that a broad reading of Interboro is not warranted.
Ontario Knife Co. v. NL. R.B., 637 F.2d 840 (2d Cir. 1980).
of February 13, a reasonably based contract claim. He
was attempting to work only on his own terms and his
conduct was neither concerted nor protected in these
circumstances. Yellow Freight System, Inc., 247 NLRB
177 (1980). In addition, it appears, and I find, that Re-
spondent's assertion here that Roberge was discharged
solely because of his past warning in October 1979, cou-
pled with his insubordinate conduct on February 13,
constitute legitimate business reasons for its action, and
were consistently maintained over the course of the in-
vestigation and hearing of this case, in contrast to the
shifting reasons found inadequate in Interboro.
Finally, the General Counsel's allegation that Roberge
intened to complain about safety matters to OSHA has
not been shown to have contributed in any way to his
later discharge.
In the light of the findings I have made herein it ap-
pears to me that the General Counsel has not established
a prima facie case within the meaning of Wright Line, a
Division of Wright Line, Inc., 251 NLRB 1083 (1980).
CONCLUSIONS OF LAW
1. Respondent United Parcel Service is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not violated the Act in any manner.
Based on the above findings of fact, conclusions of
law, and the entire record of this case, I issue the follow-
ing recommended:
ORDER16
The complaint herein is dismissed in its entirety.
l6 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
994