United Parcel Service

National Labor Relations Board - Board DecisionsFeb 24, 1984

268 N.L.R.B. 1097 (N.L.R.B. 1984)

UNITED PARCEL SERVICE United Parcel Service and Darwin K. Nail. Case 11- CA-10356 24 February 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 6 July 1983 Administrative Law Judge James J. O'Meara Jr. issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed a brief in opposition. The National Labor Relations Board has delegat- ed 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, and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. DECISION STATEMENT OF THE CASE JAMES J. O'MEARA, JR., Administrative Law Judge: The complaint in this case was issued on May 6, 1982, and is based on a charge filed by Darwin K. Nail on March 29, 1982. The complaint alleges that the Respond- ent, United Parcel Service, Inc., the Employer of Darwin K. Nail, refused to transfer that employee from one of the Respondent's divisions to another and that its reason for refusing to transfer was because the said em- ployee was a union member who engaged in union or concerted activity for the purpose of collective bargain- ing and other mutual aid and protection and that such conduct on the part of the Respondent comprises unfair labor practices and violates Section 8(a)(1) and (3) of the Act. The Respondent denies that it has violated the Act. The case was heard in Charlotte, North Carolina, on September 29-30, 1982. The parties waived oral argu- ment and filed briefs which have been received and con- sidered. Based on the evidence of record, including the testi- mony and demeanor of the witnesses, and in consider- ation of the briefs filed by the parties, I make the follow- ing FINDINGS AND CONCLUSIONS I. JURISDICTION The Respondent is now and has, at all times material herein, been an Ohio corporation engaged in interstate motor transportation and delivery of parcels of merchan- dise under a certificate of convenience and necessity issued by the Interstate Commerce Commission. Re- 268 NLRB No. 165 spondent maintains operational centers in many States of the United States, including Charlotte, North Carolina, the facility where the issues in this case arose. During the past 12 months, a representative period, the Respondent, in the course and conduct of its business, derived gross revenues in excess of S50,000 in the trans- portation of parcel freight from and to the State of North Carolina directly from, and to, points outside the State of North Carolina. Accordingly, I find that the Respondent is, and at all times material herein was, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. I further find that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE CHARGING PARTY Darwin K. Nail is an employee of the Respondent and a member of, and shop steward for, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Local Union No. 71, which is a labor organization within the meaning of Sec- tion 2(5) of the Act. At all times material herein the Union was a party to a certain collective-bargaining agreement with the Re- spondent, which agreement had been in effect from May 1, 1979, to April 30, 1982. III. THE FACTS United Parcel Service, Inc. (the Respondent), is en- gaged in the pickup, transportation, and delivery of packages in the continental United States. To perform such services the Respondent maintains various operating centers for sorting and distributing customers' parcels which have been received for delivery by the Respond- ent. Delivery vehicles are located at these facilities and are loaded with parcels in a manner designed to provide for the expeditious delivery within certain local designat- ed areas or for forwarding to more distant areas. Upon performing the delivery of such packages on the aforede- scribed local route, the driver, having picked up pack- ages for delivery from customers, returns to the facility where the newly received packages are sorted and inte- grated into Respondent's system. The Company is divided into approximately 60 oper- ational units called districts including the West Carolina District which is headquartered in Charlotte, North Carolina. The principal distributing units within each dis- trict are its "Centers" which vary in size depending on the package volume in the area where they are located. To facilitate the movement of packages throughout the Respondent's system, it maintains "Hubs" which are large package sorting facilities. Frequently, a Hub and a Center may be located in the same building. In the facili- ty in Charlotte the Hub and several Centers are located in a single building. The principal functions undertaken at the Charlotte Hub comprise the unloading of packages picked up by route drivers and injecting them into the Respondent's system which comprises, at this step, the sorting and dis- tributing of the packages along a conveyor belt which 1097 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accomplishes the reloading of the packages into other transportation vehicles which move the packages to their destination centers or to another Hub from which they would be more specifically broken down according to destination location for delivery to the addressee. The Charlotte Hub and Center are separate and distinct oper- ational units, each having its own management and sepa- rate seniority lists for the employees working in each of the facilities. The basic instrument for package sorting among the Charlotte Centers is a piece of equipment known as the "sortrac." It is an automatic conveyor system along which packages travel and are mechanically diverted to secondary conveyor belts depending on their ultimate destination within the delivery area served by the Char- lotte Center. The packages are placed on the main con- veyor belt by a positioner who locates each package so that it can be read further down the conveyor by a keyer. The keyer reads the destination address and then enters a two-digit code into the equipment thereby deter- mining the auxiliary conveyor belt onto which the pack- age automatically will be diverted. As the packages come off the auxiliary conveyor belts or slides they are placed on the floor by stackers. Finally preloaders place the stacked packages into delivery vehicles completing the Center sorting and loading cycle. Among the various functions performed in the sortrac, the keyer job is by far the most demanding of skill and the most critical to the success of the operation. It requires an operator to read, recognize, and properly code packages moving along the conveyor belts at the rate of approximately one every 2 seconds or approximately 1700 packages per hour. There are two keying stations on the sortrac which permits the equipment to process up to 3400 packages per hour. In order to accurately perform, a keyer has to be familiar with the very large number of addresses throughout the geographic area covered by the Char- lotte Centers. Prior to 1981, the Charlotte sortrac was operated by full-time personnel and ran from approxi- mately 10 p.m. until 8 a.m. the following morning. Al- though the sortrac was in operation for approximately 10 hours a day, packages arrived at the Charlotte Center around the clock. To eliminate the "peaks and valleys" aspect of the sorting process and to spread the activity over the 24-hour operating period of the Charlotte Center, the Respondent decided to convert the sortrac from one full-time shift to three part-time shifts working throughout the day and night. Charlotte District Manag- er Jim Hanley, the top operating official in the West Carolina district, discussed the reorganization of the sor- trac with representatives from Teamsters Local Union No. 71, the collective-bargaining agent for part-time and full-time Hub and Center employees in Charlotte.1 After the matter had been resolved, Hanley and District Labor Manager William Richard met with the Local 71 busi- ness agent, Jimmy Wright, to discuss the implementation of the Company's plan for reorganizing the sortrac. This The Respondent was unable to obtain union acquiescence to the reor- ganization of the sortrac and the matter was resolved by the National United Parcel Service-Teamsters Grievance Committee which decided that the Respondent had a contractual right to institute the changes con- templated for the Charlotte sortrac. discussion centered around the reassignment of current full-time sortrac employees into other full-time jobs within the Charlotte Center. They also discussed staffing three part-time jobs which would become available on the new sortrac shifts. Hanley and Richard requested of the Union that part-time employees be allowed to trans- fer from the Hub to the sortrac to fill three vital new keyer vacancies. They explained that the Company con- templated offering the keyer jobs to the most senior pri- mary sorters in the Hub. Applications for such transfer were to be limited to primary sorters because they were the most skilled package sorters in the Charlotte Hub and those skills were most comparable to the ones needed for the keyer positions. Both Hanley and Richard explained to Wright that these transfers would be one time movements only and that no further transfers would be allowed. All other vacancies on the new sortrac shifts were to be filled from the outside. Wright did not object to the procedure as set forth by Hanley and Richard. After that meeting, Wright and Charlotte sortrac Man- ager Lee Adams contacted "noon-day" and "twilight" shift Hub managers to inform them about the reorganiza- tion plan and to have them identify candidates for the keyer jobs. There were three openings to be filled by pri- mary Hub sorters-two from the noonday sort who would work on the new noonday sortrac shift and a third primary sorter from the Hub midnight shift who would work on the midnight to morning sortrac shift. Marty James, the supervisor of the noonday Hub sortrac, was contacted by Adams in early May 1981 and asked about the two vacancies on the new noonday sortrac shift. Adams asked James to survey his primary sorters and determine if any were interested in becoming keyers on the sortrac. James was told to offer the position to the two most senior primary sorters who were interested in the transfer. James surveyed his primary sorters and determined that the most senior employees who wanted to make the move were Vince Cline and Wayne Lee. James identi- fied the two employees to Adams. Adams made a similar request to Harry Wolfe, Hub manager on the midnight shift. Wolfe identified Lawrence Sloan as the most senior primary sorter on his shift who wanted to become a sor- trac keyer. Adams advised Richard of the three nomi- nees. Richard met with Wright in mid-May and advised him of the identity of the three employees who were the most senior primary sorters interested in the transfers to the new keyer positions. The names given to Wright were those of Lee, Cline, and Sloan. Wright made no objections to the proposed transfer or to the nominees. In accordance with this procedure, the Respondent transferred Lee, Cline, and Sloan on or about June 9 to the Charlotte Hub to the sortrac. These three employees retained their full company seniority and were entered, after the transfer, at the top of the new seniority list which was prepared for each of the three sortrac shifts. Notwithstanding the fact that it was the Company's position that Lee, Cline, and Sloan were one-time trans- fers, a number of Charlotte Hub employees including several on the noonday sort inquired about transferring 1098 UNITED PARCEL SERVICE to the sortrac.2 Subsequent to their request to transfer on July 30, 1981, 15 Hub employees, including Nail, filed a grievance that they be allowed to move by seniority to new positions being opened on the sortrac ahead of any junior part-time employees or new hirees from the out- side. The grievance, submitted by Wright to the Compa- ny, was denied. Hanley and Richard discussed this griev- ance with Wright and advised him that the employees had no contractual right to transfer and reminded him that the transfers of Lee, Cline, and Sloan had been agreed to by the Union on the basis that they would be one-time movements. After the Company's denial of the aforedescribed grievance, one Tracey Newsome was hired as a stacker on the noonday sortrac. In October 1981, she began training for a keyer job in order to serve as a backup or cover employee for vacations, personal holidays, and other times when Lee, Cline, or Sloan were absent. Newsome continued to serve in a backup capacity for the keyer position until February 1982, when Cline was promoted to a supervisory position, at which time New- some replaced him as keyer on the noonday sortrac shift. Shortly after Newsome began training to cover as a keyer, -Darwin Nail filed a grievance complaining that Newsome, an employee junior to him, had been em- ployed to be a keyer despite his repeated requests to transfer to that position. Less than a month later, Nail filed a second grievance requesting that he be trained as a keyer instead of Newsome. The Company denied both of Nail's complaints and, in accordance with the provi- sions of the collective-bargaining agreement, both griev- ances were then presented to the Atlantic Area Parcel Grievance Committee for its consideration. The commit- tee denied the grievances. The group grievance filed by 15 employees comprising the requested transfer was withdrawn by the Union in June 1982, following the ne- gotiation of a new collective-bargaining agreement which, for the first time, provided for part-time employ- ees the right to bid on and transfer to vacancies in other phases of the Company's operations. During July, Darwin Nail became aware of the trans- fer of Cline, Lee, and Sloan from the Hub to the sortrac. Upon learning that the Company had transferred these three employees from the Hub to the sortrac, Nail con- tacted several supervisors in an effort to get himself in a position to transfer to the sortrac. Nail spoke, at this time, to Supervisor Marty James about transferring from the Hub to the sortrac. James told Nail that he had noth- ing to do with the transfers and directed Nall to contact Lee Adams the sortrac manager concerning the transfer. Nail contacted Adams and asked if he needed anyone else to work on the keyer machine in the sortrac. Adams told him that the Respondent had hired all the employ- ees it needed and did not need more. Nail identified him- self to Adams and asked if he would keep him under consideration for the job. Adams acknowledged that he would. Adams also told Nail during this conversation to give his name to Manager Bill Richard in order to be considered for a job in the sortrac area. ' The collective-bargaining agreement between the Respondent and Local 71 makes no provision for any contractual right to a transfer such as the employees of the Charlotte Hub had requested. Nail has been employed by the Respondent for 3-1/2 years as a "pickoff man" in the location known as the Hub. In October 1979, Nail was tried out as a "small sort" operator by spending a couple of hours on his shift for several days performing such tasks. He was returned to his "pickoff job" and an individual was hired from outside the Company for the small sort task. In January 1980, Nail became a shop steward for the Union. His functions as a shop steward entailed the oper- ations in the Hub and, since there was no shop steward in the Center, he engaged himself in that location also. As a shop steward, Nail filed, or was responsible for the filing, of some 25 to 30 grievances most of which had to do with supervisory employees performing bargaining unit work. As a result of this activity, he was told to "stay out of" the sortrac area by various supervisors who also told him that his stewardship was limited to the Hub area. During Nall's efforts to obtain a transfer from the Hub area to the sortrac area in the Center, he was advised by Supervisor John Fisher that the Company's policy pre- cluded transfers of part-time employees from the Hub to the Center or sortrac and that the transfers of Lee, Cline, and Sloan were "one time only" transfers necessitated by the need to find qualified personnel to staff the newly opened sortrac. These qualified personnel came from the Hub facility and were "primary sorters" which functions required the skills closest to that needed for the keyer job in the new sortrac facility. He advised Nail that since it was the Company's policy not to transfer part-time employees from the Hub to the Center he would not be transferred. Nail was tested for the position of "small sort" opera- tor in October 1980. He did not pass the test. Others who did not pass the test were later retested for possible transfer to the small sort task. Nail, since he felt he was "not cooperated with," did not retake the test and con- tinues today as a "pickoff man" which was the task to which he was originally assigned as employee by the Re- spondent. The policy of the Respondent of not transferring part- time employees to the Center from the Hub, or from one facility to another, was maintained in order to minimize the necessity to train personnel for multiple tasks re- quired by the several facilities of the Company. The Re- spondent deemed that the expense of such training was not warranted.3 Other than Lee, Cline, and Sloan, no other part-time employee was transfered to the Center from the Hub. Two boxline employees, Hester and Sloan, did do Center work while employed by the Hub division due to the necessity to gradually integrate the "boxline charge" into the sortrac system. However, they were not transferred from the Hub to the Center during this period. s The current collective-bargaining agreement specifically provides for the opportunity to such part-time employees to bid on such jobs available in several facilities maintained by the Respondent; however, this contract provision was not in the contract existing at the time of Nail's complaint. 1099 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Discussions and Conclusions The question to be determined in this case is whether the Charging Party, Darwin K. Naill, was denied a trans- fer to the Charlotte sortrac because of his union activities in violation of Section 8(a)(1) and (3) of the Act. The Respondent contends that the transfer of part-time personnel between its facilities was contrary to its policy and that the application of the policy is the reason that Nail was not transferred. The Respondent has adopted such policy in order to minimize the expense of training personnel to function in a multiplicity of tasks peculiar to the operations of the Respondent. Nail contends that such policy was applied to him in a manner different from that applied to other part-time employees of the Respondent. With the institution of the sortrac facility the Respondent desired to obtain qualified personnel for the keyer positions in the sortrac system from personnel who had exhibited qualities which would suggest that they could undertake the task of keyer in a successful manner. A cadre of such personnel was known to exist among the "primary sorters" then engaged by the Re- spondent in its Hub system. In order to accomplish this, the Company solicited personnel from its "primary sorter" employees to transfer into the sortrac division. Accordingly, it sought volunteers from among its then employed "primary sorters." Since this was a deviation from its prior practice of not transferring such personnel intra Company, it discussed the program with the Union. The Union expressed no oposition and the Company pro- ceeded to select keyers. Among those employees of the Hub who were deemed qualified were Lee, Sloan, and Cline. These three persons, each "primary sorters," and each having the greater seniority among those primary sorters who expressed an interest in such transfer were transferred from the Hub to the sortrac division within the Center. The General Counsel does not contend that the transfer of Lee, Sloan, and Cline was made in dero- gation of any right to such transfer that Nall may have had; however, he contends that the transfer was a viola- tion of the policy of the Respondent not to make such transfers. While it is true that any transfer would be a deviation from such policy Respondent contends that the transfer of the three "primary sorters" was an exception required by the initiation of the sortrac operation and not an abandonment of its policy. The General Counsel contends that two employees Hester and Young were also transferred from the Hub to the sortrac. The evidence, however, establishes that Hester and Young were "charging the boxline" which prior to the inception of the sortrac system was a part of the Hub operation. With the inception of the sortrac, this operation became a part of the Center and integrated with the sortrac procedure. During the transition or in- stallation of the sortrac system, the boxline was operated by the same personnel who had been operating it previ- ously, thus creating an apparent transfer of these person- nel, Hester and Young, to the sortrac system. However, since this was a temporary condition, neither Hester nor Young was in fact transferred to the sortrac division. They remained on the seniority list and the payroll schedule of the Hub and on the completion of the inter- gration of the sortrac system into the Respondent's total system their duties remained those of employees within the Hub. Therefore no transfer of these two personnel took place. A third employee allegedly transferred was Zakee Mu- hammed. Muhammed was allegedly transferred from the Center to the Hub. This change of employment also took place during the integration of a new unit. However, this new unit was the reverse of that involving the sortrac and concerned itself with the Hub facilities. On this oc- casion again, a qualified person, Muhammed, was select- ed from the Center facility of the Respondent to transfer to the Hub division. In summary, the transfer of Lee, Sloan, Cline, and Muhammed was made in order to find a small cadre of potentially competent personnel to move into new operations of the Company and not a routine transfer from one division to another. Nail contends that since he was an active shop stew- ard for the Union that he drew upon himself the animosi- ty of supervisory personnel, particularly since he fre- quently was instrumental in filing grievances arising out of supervisory personnel performing bargaining unit work. Several instances which Nall contends display this animosity arose during the time he had requested to be transferred to the sortrac system. In addition to the spe- cific grievances filed by Nail, an occasion arose where he wished to represent an employee in a conference with the employee's supervisor. He was not permitted to do so and was excluded from the meeting, also on several occasions he was told to stay out of the sortrac area since his work involved that of the Hub. He was further told by supervisory personnel that his duties as shop steward were limited to the Hub operation and not that of the Center or the sortrac. Although the evidence sug- gests that an antagonism toward Nail had arisen on the part of several of the supervisors, there is no evidence that such antagonism in any way was a factor contribut- ing to the refusal to grant Nail a transfer. The Company contends that job changes within the Hub and various operations of the Respondent were not determined on the question of seniority but rather on the basis of job performance. Nail has not shown, in the evi- dence of this record, that he was qualified for the job which he sought. In October 1979, prior to his undertak- ing the duties of a shop steward, he was given an oppor- tunity to test the "small sort" position in the Hub. Al- though no evaluation of his performance at such task ap- pears in this evidence he was returned to his original po- sition in the Hub as "pickoff man" and a new employee was hired and trained for the small sort function. Again, in October 1980, at his request, he was given an opportu- nity to take the test for the small sort task. He admitted that he failed to pass such test and although he apparent- ly could have taken the test again he chose not to do so because "he felt no cooperation." Under this aura and background Nall contends that the hiring of Tracey Newsome as a keyer in the sortrac from outside the Company was evidence of discrimina- tion against him because of his union activities. The hiring and training of Newsome as a keyer in the sortrac are not inconsistent with the Company's policy. Compa- ny supervisors told Nail that he would not be transferred 1100 UNITED PARCEL SERVICE because such transfers were against the Company's policy. Yet Nail contends that the hiring of Newsome was in some way a rejection of his transfer request and that such rejection was because of his union activities. Such a conclusion is not supported by the evidence in this case. It is clear, save for the occasions of the open- ing of a new function, that no transfers of part-time per- sonnel between intra company functions have ever taken place. Exceptions arose in order for the Company to obtain a cadre with the qualifications deemed helpful in evaluating employees in the new function. The decision of the Company to seek keyers from their primary sort employees was based on the similarity of the ability re- quired of a keyer. Not only did Nail not come within the job description of a "primary sorter" in the Hub, but also he had evidenced an inability to assimilate the necessary skills. Accordingly, I find no connection between the refusal of the Respondent to transfer Nail from the Hub to the Center or the sortrac and Nall's activities as a shop stew- ard or union member or union activist. Accordingly, I find that the General Counsel has not established that the Respondent has discriminated against Darwin Nail in re- fusing to transfer him as he requested because of Nall's union activities. CONCLUSIONS OP LAW 1. Union Parcel Service is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Darwin Nail is an employee as that term is defined in Section 2(3) of the Act. 3. The General Counsel has failed to establish that the Respondent has engaged in unfair labor practices as al- leged in the complaint. On the above findings of fact and conclusions of law and on the entire record, I issue the following recom- mended ORDER' It is hereby ordered that the complaint be, and the same is hereby, dismissed in its entirety. 4 If no exceptions are filed as provided in 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. 1101