United Parcel Service, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1982

263 N.L.R.B. 616 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Parcel Service, Inc. and Carlos Eaves. Case
9-CA- 15622-2
August 23, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On February 5, 1982, Administrative Law Judge
Phil W. Saunders issued the attached Decision in
this proceeding. Thereafter, the Charging Party
filed exceptions and a supporting brief.
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 and brief
and has decided to affirm the rulings, findings, 1
and conclusions of the Administrative 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 The Charging Party asserts that the Administrative Law Judge's res-
olutions of credibility, findings of fact, and conclusions of law are the
result of bias. After a careful examination of the entire record, we are
satisfied that this allegation is without merit. There is no basis for finding
that bias and partiality existed merely because the Administrative Law
Judge resolved important factual conflicts in favor of the Respondent's
witnesses. As the Supreme Court stated in N.LR.B. v. Pittsburgh Steam-
ship Company, 337 U.S. 656, 659 (1949), "[Tlotal rejection of an opposed
view cannot of itself impugn the integrity or competence of a trier of
fact." Furthermore, it is the Board's established policy not to overrule an
administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950), enfd. 138 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Law Judge: Based
on a charge filed on July 29, 1980, by Carlos Eaves,
herein the Charging Party or Eaves, a complaint was
issued on September 11, 1980, against United Parcel
Service, Inc., herein Respondent, Company, or UPS, al-
leging a violation of Section 8(a)(1) and (3) of the Act.
Respondent filed an answer to the complaint denying it
had engaged in the alleged matter. Both the General
Counsel and Respondent filed briefs in this matter.
Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, is engaged in
the transportation and delivery of packages throughout
the United States from terminals located in various cities
of the United States, including its terminal or center at
Huntington, West Virginia, the only terminal involved in
this proceeding.
During the past 12 months, a representative period,
Respondent performed services valued in excess of
$50,000 for customers located outside the State of West
Virginia.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union 505, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, herein called the Union
or Local 505, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
It is alleged in the complaint that on or about March
13, 1980, Respondent discharged employee Carlos Eaves
because he joined, supported, or assisted the Union and
engaged in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and
also in order to discourage other employees from engag-
ing in such activities or other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.
The General Counsel maintains that Eaves was termi-
nated because he filed certain grievances. Respondent
contends that Eaves was discharged as a result of steal-
ing time and falsifying records.
Respondent is engaged in the business of delivering
small packages and, in order to best accomplish its oper-
ations, maintains centers throughout the United States, as
well as Canada and Germany. One such center, and the
only location involved in this proceeding, is located in
Huntington, West Virginia, and at all times relevant to
the instant matter, is designated the Huntington-Bar-
boursville Center. It appears that three separate oper-
ations are carried out at the Huntington-Barboursville
Center-feeder operations by which trailer truckloads of
packages are delivered from one center to another; sorter
operations whereby packages delivered to the center are
sorted for shipment by feeder trucks to other centers or
delivery in the Huntington-Barboursville area; and pack-
age delivery whereby packages are delivered to individu-
al homes and businesses and are picked up from individu-
al homes and businesses for delivery to the center.
It further appears that for many years Respondent has
had a collective-bargaining relationship with the Union
263 NLRB No. 63
616
UNITED PARCEL SERVICE, INC.
at all its centers, and when UPS opened operations in
West Virginia in 1964, it voluntarily recognized the
Union. Moreover, the evidence shows a rather long rela-
tionship between UPS and the Union, and there is no
evidence in this record of any union animus or bias on
the part of the Company.
Local 505 represents the hourly employees at the Hun-
tington-Barboursville Center, and UPS and the Union,
including Local 505, are presently parties to a collective-
bargaining agreement effective May 1, 1979, and termi-
nable as of April 30, 1982, and which is denominated
The National Master United Parcel Service and Atlantic
Area Supplemental Agreement. '
Further background evidence reveals that since UPS is
a motor carrier engaged in interstate commerce, it is
governed by trucking regulations promulgated by the In-
terstate Commerce Commission, and these regulations
entitled "Federal Motor Carrier Safety Regulations" 2
prescribe certain records which must be maintained by
the motor carriers and their drivers. Such regulations re-
quire that a driver maintain a daily log of his activities
showing miles driven, number of hours spent on duty
driving, the number of hours spent on duty but not driv-
ing, and the number of hours spent off duty. Failure of a
driver to make a log, or to make required entries on the
log, makes both the driver and the carrier subject to
prosecution. Furthermore, in addition to keeping and
preparing a daily log, a UPS feeder driver is also re-
quired to maintain certain other records-he must keep a
daily timecard which shows the time he begins work, the
time he takes his breaks, and the time he finishes work-
such entries are made by inserting the card in a time-
clock which records the time on the card. A feeder
driver is also required to maintain a daily tachograph
chart. 3
As further pointed out, Respondent also has specific
rules, set forth in the collective-bargaining agreement,
governing breaks taken by feeder drivers. Article 43 of
the bargaining agreement provides for a 15-minute cof-
feebreak to be taken between the second and third hour,
a 45-minute lunch to be taken between the fourth and
sixth hour on duty, and no other breaks. However, driv-
ers are permitted a "safety check" on the return leg and
during which they may get a cup of coffee to go, or
attend to personal needs, if they hold the stop to 10 min-
utes or less.
The Company also has an established pretrip proce-
dure by which feeder drivers are required to check their
equipment at the beginning of their shift before leaving.
This procedure requires the visual inspection of the fuel
tank to determine whether or not the tank is full.
Additional background evidence shows that the al-
leged discriminatee Carlos Eaves was well aware of
l Reap. Exh. 5.
' Resp. Exh 3.
S A tachograph is an instrument mounted inside the tractor ana which
records various functions of the vehicle-revolutions per minute of the
engine, number of miles traveled by the vehicle, speed of the vehicle, and
length of time of vehicle movement. These recordings are registered by
having the driver, at the beginning of his shift, open the tachograph,
insert the two-sided chart, close the tachograph, and then remove the
chart only after the shift is completed. The tachograph is not to be
opened or tampered with during the particular shift or run involved.
these various operating rules and procedures prior to the
immediate events and circumstances described herein.
Carlos Eaves was employed in the Huntington-Bar-
boursville Center from June 1964 until March 13, 1980.
During the iast 3 or 4 years of his employment, he, as a
feeder driver, drove the "Columbus turnaround"-that is
he drove a truck from Huntington to the Columbus,
Ohio, hub or center, and then returned to Huntington in
the same shift. As a feeder driver on the daily Columbus
run, Eaves drove a tractor-trailer rig pulling two trailers
from Burlington, Ohio, to Columbus and return. He did
not, however, pull double trailers to or from the Hun-
tington Center as West Virginia law prohibits that prac-
tice. His scheduled starting time from Huntington was
7:45 p.m., and his scheduled arrival times at Columbus,
Ohio, was 12:30 a.m. His usual time of departure from
Columbus, Ohio, was 2:45 a.m. and his arrival time at
Huntington was approximately 6:30 a.m. 4
The exhibits introduced into this record as background
reveal that on March 18, 1969, Eaves was given a warn-
ing letter by then Division Manager Lloyd Taylor for
making false entries on his timecard. On September 26,
1972, Eaves was advised by his supervisor, Ray Engle,
as to the proper usage of the tachograph. In January
1973, Eaves was advised by Ray Engle as to the proper
procedures for punching the timeclock, when it was per-
missible to take breaks, and again as to the proper usage
of the tachograph. On April 14, 1973, Eaves was admon-
ished not to take unauthorized breaks; on June 21, 1973,
he was told to punch his timecard to properly record his
lunchbreak; on July 28, 1973, he was again admonished
not to take unauthorized breaks; on September 30, 1977,
Eaves was given a warning letter by Feeder Manager
Ron Held for repeated delinquency in handing in his
tachograph charts at the end of his shift: and on January
12, 1978, Eaves, along with all other feeder drivers, was
given a reminder as to the required recordkeeping and as
to authorized breaks. However, on the other side of the
picture, Eaves enjoyed a very good driving record as
evidenced by 15 successive annual safe driving awards,
and received substantial recognition for his service to
Respondent as evidenced by official correspondence-in-
cluding a November 10, 1970, memorandum lauding
Eaves' perfornlance as a driver at Lexington, Kentucky;
a November 18, 1975, memorandum of commendation
from the Columbus hub where Eaves last pulled his
loads to and from; a three-page handwritten memoran-
dum dated May 13, 1975, by Ron Held, Eaves' last
feeder manager, recounting the favorable reports that he
had received concerning Eave.' performance while on
the Covington, Virginia, run. Additionally, Eaves' con-
' The following named persons occupied the position set forth oppo-
site their respective names and have been, at all times material herein, su-
pervisors of Respondent within the meaning of Sec. 2(11 I) of the Act:
S. George Bodnar-supervisor (until July 1980)
Owen Richard Bowers-automotive supervisor
Rudy Dickens-center manager
Ronald E. Held-feeder manager
Don Krevosh-division manager
Ross D Perkins-feeder supervisor
Ron Thomasdivision manager
Dave Withers-district manager
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tribution was recognized at Lexington, Kentucky, by the
fact that when he completed his work there the person-
nel held a dinner on his behalf. The General Counsel
points out that although Eaves had received some mini-
mal comments on deficiencies over the years, they were
insignificant in nature and comparison to deficiencies of
other employees who received lesser discipline, and that
Eaves' record never warranted any discipline past the
level of a written warning, and there was no evidence
that Respondent ever attempted to impose the next avail-
able sanction of suspension against Eaves before dis-
charging him. Moreover, according to the terms of the
applicable collective-bargaining agreement, all warning
notices were effective only for a period of 9 months
from date of issuance, and a previous warning is required
before imposition of discharge or suspension.
Eaves testified that in the fall of 1979, while fueling his
tractor at the Huntington Center, he started having trou-
ble with water in his fuel tanks and that he made numer-
ous complaints to management about it. 5 On or about
December 4, 1979, an incident occurred on Eaves' return
trip to Huntington, which he attributed to water in the
fuel. Eaves described the incident as follows:
I was coming back from Columbus and my trac-
tor kept losing power and it was losing power and
it just didn't have enough of what it ought to have
and it seemed to be gettin' weaker and there was an
exit right ahead of me and I told the guy that was
following me in another UPS truck on my C.B.,
that I was going to have to get off the road, my
tractor was losing power, I was going to have to
get some new fuel, I have water in my fuel.
I went over there [Wheelersburg, Ohio] and
bought twenty dollars worth of fuel, before I put it
in I drained my fuel tanks and put the twenty dol-
lars worth of fuel ....
All right, before I did any of this, I called the
Center Manager, the terminal manager, Rudy Dick-
ens, and told him exactly what had happened and
told him I had water in my fuel and what I was
going to do and I requested or made a suggestion
that he send the other driver, which was Dale Ha-
zelett to met [sic] me at Burlington or further on
down the road in case my tractor wouldn't pull up
6 During the winter months, UPS took several steps to correct the
water problems in their fuel. The dual fuel tanks on the truck tractors
were generally drained daily during the cold periods, and the normal
amount of water drained from tractors was two to three tablespoonsful.
Moreover, alcohol was added to the fuel to prevent freezeups. An inde-
pendent service Company, Lovelet Repair, was also called in by Hun-
tington Center Manager Rudy Dickens to drain the in-ground fuel storage
tanks from which the fuel was pumped. The storage tanks were drained
of approximately I inch of water, an amount normally found in such
tanks, but thereafter, according to supervisors, the storage tanks were
checked daily, and no abnormal amounts of water were found. However,
in or about January 1980, after registering complaints, Eaves was in-
structed to fuel his tractor at Respondent's Columbus Center. Manager
Rudy Dickens testified that Eaves was the only driver using diesel fuel to
complain about water in his fuel tanks. It appears that later on a leak was
discovered in the ground tanks at Huntington and the other drivers were
then told to fuel elsewhere.
enough to get the trailers up here, he did that and
he thought it was a good idea.
All right, I drained my tanks, bought twenty dol-
lars worth of fuel, put it in my tractor and made it
the rest of the way in, it didn't have good power,
but I made it in.
The Respondent contends that on this occasion, con-
trary to Eaves' insistence that he had water in his fuel,
the evidence showed that Eaves had run out of fuel. It
appears to me that the credited testimony in this record
adequately sustains Respondent's position.
After Eaves called Center Manager Rudy Dickens
about his situation at Wheelersburg-Dickens, in turn,
called Roos Perkins, the feeder supervisor, to advise him
that Eaves would be late, and Ross Perkins then called
Ron Held, feeder manager, in accordance with UPS'
practice of advising managers when a load would be de-
layed. Perkins advised Held that Eaves' asserted reason
for being late was fuel-line freezeup, but Ron Held
became suspicious that Eaves had run out of fuel instead
of freezing up, and relative thereto testified as follows:
Q. What was your reaction to this information?
A. Well my reaction was that $20 worth of fuel if
he had fuel-line freeze-up wouldn't have done any
good; and it wouldn't have thawed ice out of the
fuel. My question was: Did we run out of fuel or
did we have fuel-line freeze-up?
Q. Why did you think perhaps he had run out?
A. Well because of the fact that $20 worth of
fresh fuel doesn't thaw out ice in the fuel.
Q. What problem with a tractor will buying fuel
cure?
A. Pardon me?
Q. What problem with a tractor would putting
fuel in it cure that you are aware of?
A. None.
Q. Anything other than running out of fuel?
A.... than running out, no.
Q. What, if anything, did you tell Mr. Perkins to
do or suggest that Mr. Perkins do as a result of this?
A. I suggested that Ross [Perkins] call the Hun-
tington Center to check the fuel records to see if
the tractor was fueled the night before and make a
determination of whether we did or did not run out
of fuel or have fuel-line freeze-up.
Q. Okay. And did he report to you as to his find-
ings?
A. Yes, he did.
Q. Did he find out whether the tractor had been
fueled?
A. Yes, he did.
Q. And had it been?
A. No, it was not.
In accordance with the instructions received from Man-
ager Held, as noted above, Perkins then contacted the
mechanic who had conducted a PMI (preventive mainte-
nance inspection) on Eaves' vehicle immediately prior to
his run, and the mechanic, Gene Bowman, then informed
Perkins that he had checked the fuel in Eaves' tractor
618
UNITED PARCEL SERVICE, INC.
during his PMI and found that it was little more than
one-quarter full, and that he so advised Eaves who re-
plied that this would be enough fuel to take him to Co-
lumbus. Based on this information, Perkins then calculat-
ed that Eaves had run out of fuel in Wheelersburg-he
testified:
Q. How did you make that determination that he
had run out of fuel?
A. Well I called the mechanic in Huntington,
which was Gene Bowman; and he had told me that
on the PMI he had seen that there was a quarter of
a tank of fuel in the truck. With a quarter of a tank
of fuel, you have between 30 and 33 gallons;[ 6] and
it averages about seven miles per gallon. That's 210
miles; and he ran out of fuel in [Wheelersburg]
Lewisburg (phonetic) coming back from Columbus.
As indicated, the above conclusion by Center Manager
Perkins was supported by Larry Beers. This record
shows that Beers is an expert with long experience and
schooling in respect to Mack trucks, the type of tractor
driven by Eaves, and testified that a large amount of
water in the fuel tanks would permit the engine to start
and to run for approximately 3 minutes, and after that
time the engine would draw water and stop running, but
that a smaller amount of water would disperse with the
fuel itself causing an erratic running engine with low
power-however, as the engine runs the water would be
dispersed through the fuel system and the erratic running
engine would clear up totally and full power would
return. Thus, Beers concluded that it is very improbable
that a Mack tractor would perform as Eaves had alleged.
Beers further testified that merely adding fresh fuel to a
system that had frozen water in the fuel filters would
have no effect whatsoever, and to alleviate the problem
the fuel filters must be replaced.
Based on his belief that Eaves had run out of fuel in
Wheelersburg, Manager Perkins then confronted Eaves
in respect thereto, but Eaves denied that he had run out
of fuel. Nevertheless, Perkins issued Eaves a warning
letter on December 7, 1979.7 The warning letter advised
Eaves as to a seal control infraction at an earlier date,
and that his failure on December 3 to follow proper pre-
trip procedure by not physically checking his tanks had
caused him to run out of fuel on December 4, and that
further such irresponsibility would result in more severe
disciplinary action.
On the night of December 17, 1979, Eaves once more
had trouble with his tractors and which he again attrib-
uted to having water in the fuel. Eaves testified that on
this occasion water contaminated his fuel at Chillicothe,
Ohio, in bitter cold weather, causing a complete shut-
down of his tractor, and that he was stranded for nearly
5 hours, and it was then necessary that his tractor be
towed into Columbus and, thereafter, Shop Supervisor
George Hurt told Eaves that he had drained 5-1/2 gal-
lons of water out of the fuel tanks.
Larry Beers, an expert in Mack engines, explained in
detail, as fully outlined in this record, the numerous me-
6 This calculation was based on the fact that the fuel tanks hold 120 to
126 gallons of fuel.
' G.C. Exh. 10.
chanical operations and workings of a diesel Mack fuel
system and the manner in which the engine heats the
fuel. From this credited explanation of Beers, I must con-
clude that the description given by Eaves of his freezeup
in Chillicothe is a mechanical impossibility or at least
highly unlikely. 8
Eaves testified that starting in the late fall of 1979, he
also began experiencing various other mechanical diffi-
culties with the tractor assigned to him in addition to
problems related to water contamination. He stated that
the difficulties included a loose right front wheel, a lack
of heat in the tractor, front-end alignment, brake prob-
lems, and electrical problems affecting the lights, but the
most significant problem he experienced with the me-
chanical condition of his tractor was related to the fuel
pump, and which made it difficult to regulate the speed
of the engine and caused the tractor to surge-a safety
problem. It appears that Fleet Supervisor Richard
Bowers was well aware of these complaints through
Eaves' direct contact with him concerning the fuel regu-
lation problem on his tractor as early as December 1979
or January 1980, and also through mechanic Gregory
Johnson, who spoke to Bowers about the surging prob-
lem on Eaves' tractor on several occasions.
Eaves maintained that although he talked and com-
plained to Manager Rick Bowers, and Respondent's me-
chanics, Greg Johnson and Gene Bowman, about these
problems, nothing or little was done about them. Eaves
also maintained that he had these problems with the fuel
pump for approximately 2 months prior to his discharge
and that the problem still existed at the time of his dis-
charge, and that the mechanics at the Huntington Center
did not try to fix the problem.
Several witnesses for Respondent testified as to the
steps and procedures they took to rectify the "surging
problem," and Manager Bowers stated that in late Febru-
ary 1980, the tractor being driven by Eaves was again
sent to the Mack truck dealerships and at this time the
fuel pump was replaced. Mechanic Eugene Bowman tes-
tified that the tractor being driven by Eaves was in ex-
cellent shape-that when Eaves complained about the
cab heater, it was fixed (a new thermostat put in); that
the front end was aligned; and that a complete set of
new tires were also installed.
In the final analysis, Respondent introduced sufficient
testimony which showed its good-faith efforts to correct
these mechanical problems, and the special problem re-
lating to the fuel pump was also handled and fixed, even
though it required considerable attention and efforts to
do so.
On December 18, 1979, Eaves prepared a grievance
report requesting the removal from his personnel file of
the warning letter he had received on December 7 for
running out of fuel. Also, on December 18, 1979, Eaves
filed an additional grievance with respect to water in the
* Kenneth Scott, an employee of VDO Argo Instruments Company
and an expert in the analysis of tachograph charts, also testified for the
Company and in so doing analyzed Eaves' tachograph chart for the run
of December 17 and 18, 1979, and in relation thereto stated that the chart
showed clearly that the truck did not suddenly "freeze up" as testified to
by Eaves, but was parked, permitted to idle, and stopped and started sev-
eral times during the time it was parked.
619
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fuel which allegedly caused his breakdown in Chillicothe
the previous night. On December 19, 1979, Eaves filed
another grievance alleging that he was being "harassed"
much more than other feeder drivers.9
Sometime around January 10, 1980, a grievance meet-
ing was arranged and was to take place in the morning
after Eaves finished his run. However, Manager Ron
Held was 5 or 6 minutes late in arriving and as a result
Eaves left the meeting before Held arrived. The presi-
dent of Local 505, James Boyd, was present in order to
represent Eaves.
A subsequent grievance meeting was scheduled to take
place on January 21, 1980. This meeting resulted from a
request that District Manager David Withers received
from Lccal 505 president Jim Boyd. Withers stated as
follows:
Q. What did Mr. Boyd tell you about the situa-
tion?
A. He told me that Carlos [Eaves] was having
some problems and wanted to meet with me and the
Division Manager and his Feeder Manager.
Q. What did you say?
A. I told him I would look into it. I came back
and got ahold of his Division Manager, Don Kre-
vosh. Don Krevcsh alerted me to the fact that the
meeting had been set up prior with Carlos Eaves
that Carlos Eaves had left and gone home; so I in-
structed Don to once again get Ron Held and make
sure that there was a business agent involved with
it, preferably Jim Boyd, and have another one.
Pursuant to such instructions, Manager Held contacted
Huntington Center Manager Rudy Dickens and had him
call Local 505 President Jim Boyd in order to set up the
meeting and Dickens then had Local 505 contact Eaves.
It appears that the meeting was scheduled for Monday,
January 21, because Eaves did not work on Sunday
nights and management did not want any excuses the
next morning or any problems of having to leave the
Center early.
Manager Held arrived at the Huntington Center at
about 7:45 a.m. on January 21. Jim Boyd was present as
well as another union representative, Larry McDowell.
After waiting 45 minutes without Eaves showing up,
Ron Held asked Jim Boyd if he would like to contact
Eaves, and Boyd replied that he had already done so.
Ron Held then stated:
Since we have waited 45 minutes, I see no reason to
wait any longer. I said, as far as I'm concerned this
problem is resolved and the warning letter stands.
THE WITNESS: Jim Boyd made a comment at that
time and said That's right. If he wanted to be here
to defend his grievance and defend the problem, he
would have been here.
9 See G.C. Exhs. 12, 13, and 14.
To the knowledge of all parties concerned, no further
action has been taken by anyone concerning these griev-
ances with the possible exception of the order from
Withers that Eaves fuel his tractor in Columbus rather
than in Huntington, as aforestated.
Respondent's feeder supervisor at Huntington, Ross
Perkins, testified that during the period of 6 or 7 months
preceding the discharge here in question (March 13,
1980), he noticed that the tachograph charts indicated
that Eaves was taking improper breaks which were not
recorded on his timecard, and stated that he then coun-
seled Eaves about this matter, but it merely resulted in
only temporary improvement, and after consultation
with Managers Ron Held and Don Krevosh, he deter-
mined to follow Eaves on his Huntington to Columbus
run. Moreover, Perkins asked Richard Bowers, then fleet
supervisor, to accompany him in order to verify the
times, and who would also be present in case of a break-
down.
In accordance with the above, Perkins and Bowers fol-
lowed Eaves in Perkins' truck on the night of March 12,
1980, as he made his run from Huntington to Columbus
and had their first contact with him in Burlington,
Ohio-the first contact was by C.B. radio and then
Eaves was picked up by sight-they followed him to
Portsmouth, Ohio, where he took his first break. It ap-
pears that Perkins made notes of the times and places of
the stops and Bowers verified the times. The Portsmouth
break took place at Frisches Big Boy Restaurant and
lasted from 9:50 p.m. until 10:13 p.m., for a total of 23
minutes. Perkins testified that during this break, he got
out of his own vehicle and walked to Eaves' tractor and
determined it was running, and that it should not have
been left running as it is a waste of fuel. 0
After leaving Portsmouth, Eaves then drove to a cafe
called the Biscuit Palace in Waverly, Ohio, where he
went inside and stayed from 10:38 until 11 p.m.-a
period of 22 minutes. Perkins testified that while Eaves
was inside the building, he checked Eaves' vehicle and
which was again left running, and that when Eaves came
back out, he again drove off without checking his vehi-
cle by walking around it.
Perkins and Bowers followed Eaves to the Columbus
Center, where he arrived at approximately 12:30 a.m.,
but they did not follow him inside, and therefore had no
actual knowledge of what he did or did not do inside the
Columbus Center. Eaves testified that while at the Co-
lumbus terminal he was working all the time at his
normal duties and only took his regular 45-minute lunch-
break, but Respondent contends otherwise and I will
detail all such testimony and surrounding circumstances
later on.
'o Eaves admits stopping in Portsmouth, but testified he was sick with
the flu and had to get some aspirins and then stayed there "a few min-
utes" with some coffee. Eaves did not record this stop in his log, but
considered it as driving time. Moreover, he did not insert his tachograph
chart on the evening in question until he reached Burlington.
i" Eaves testified that at the Biscuit Palace in Waverly, Ohio, he took
his regular 15-minute coffeebreak which he was entitled to, and then
went back out to his tractor-made a "quick go around" checking tires,
light, cables, and safety chains-and then drove on to the Columbus
Center.
620
UNITED PARCEL SERVICE, INC.
Eaves left the Columbus Center at or about 2:40 p.m.
on March 13, 1980, for his return run to Huntington, and
was followed by Perkins and Bowers. Eaves again
stopped at the Biscuit Palace in Waverly. Perkins testi-
fied that Eaves stayed on this break for 29 minutes (4 to
4:29 a.m.), and then came out and left. Perkins stated that
during the time in question there were other units or
trucks in the parking lot of the Biscuit Palace, but the rig
being driven by Eaves was "not blocked in" and that
Eaves was able to drive off right after emerging from
the cafe. 12
From his stop at Waverly, Eaves then proceeded to
Burlington where he disconnected his rear trailer. He
then went on to the Huntington Center, arriving at ap-
proximately 6:25 a.m. Perkins stated that when Eaves got
to the Huntington Center, he pulled into the lot, went
inside the building for a few minutes, came back out, and
then with another employee walked across the street to
the coffee shop, stayed there 14 minutes while on the
clock, got coffee, and then came back to his tractor and
sat there like he was doing some kind of paperwork. Su-
pervisor Perkins testified that he had informed all of the
Huntington feeder drivers not to go to the coffeeshop
while they were on the clock, and that in November
1979, he had specifically told Eaves not to do so.' 3
Fleet Supervisor Richard Bowers testified to essential-
ly the same observations as Perkins on the night and
morning here in question. He and Perkins then contacted
Division Manager Don Krevosh to report what they had
observed, and as a result Krevosh set up a meeting for
that afternoon and instructed Perkins to obtain Eaves
timecards, logs, and tachograph charts from the first of
the year and to prepare a memo of the events for the
night here in question.' 4
On the afternoon of March 13, 1980, Division Man-
ager Don Krevosh met with Bowers and Perkins, and
asked them to describe what had happened when they
had followed Eaves. As they related the previous night's
events from their notes, Krevosh then made his own
notes as to particular points and time periods. Bowers
and Perkins also had with them Eaves' tachograph chart,
log, and timecard, and in respect thereto Krevosh stated:
12 Eaves testified that he stayed 10 minutes on his break at Waverly,
but when he got ready to leave his tractor was blocked in by a rig from
Commercial-Lovelace, and as a result he went back into the cafe and
asked the driver if he would let him out, but the Lovelace driver would
not do so until he finished his breakfast. Eaves testified that the total
amount of time he was there amounted to about 25 minutes.
ts Eaves testified that upon his return to the Huntington Center, he
was told by Supervisor George Bodner that there was no work to be
done right at the present and he could go across the street and get coffee
if he wanted to. Eaves stated that after paying for his coffee and ciga-
rettes he then walked back to his truck, got in, drank his coffee, did a
little paperwork, and awaited further instructions. He was then told to
spot his trailer, and after so doing checked out. Former supervisor
George Bodner testified that on the morning in question, Eaves looked
sick and since he was not needed for another 15 minutes, told him to go
across the street and drink some coffee. Bodner stated that it was not un-
usual for drivers to do this while they were on the clock, and that Man-
ager Rudy Dickens had advised him this was all right to do so long as
the drivers only stayed for a minute or two.
i" Resp. Exh. 57, signed by both Bowers and Perkins, states that on
March 12 and 13 they observed Eaves taking four illegal breaks; exces-
sive idling on the motor; failure to properly pretrip his tractor; and falsifi-
cations of his daily log and timecard.
They showed me on his tach where he had stopped
and they showed me that he had kept his vehicle
running all the time and that he had verified the
tach with the time card. They also showed me the
log where he had put in an extra break-put in a
break. They told me-showed me the alternations
on his time card.
Krevosh then reviewed the chronology of events as
recorded on Eaves' timecard and determined that Eaves
had entered a break from 10:45 until 11 p.m. after he had
punched off the clock on the morning of March 13. Kre-
vosh also reviewed Eaves' log which showed that Eaves
had originally shown the time from 10:45 until 11 p.m. as
driving time, but then later came back and interrupted
the driving sequence by entering a break.
As pointed out, Perkins and Bowers also had with
them Eaves' tachograph charts, timecards, and logs from
the first of January 1980 up through March 13, 1980."'
Krevosh then reviewed those documents and was able to
conclude that:
Well it showed that some days he turned in a tach;
some days he turned them in blank; and the days
that he turned them in that had recordings on them
showed he took breaks continually going up to Co-
lumbus and he took breaks on the way back from
Columbus to Huntington.
Moreover, Manager Krevosh compared these documents
with the events of the night of March 12, 1980, and
found that, "Well it showed almost the exact thing, that
he took breaks; normally two breaks going up to Colum-
bus and one break coming back." Krevosh also testified
that "in most cases, on the tachs it showed that he had
taken anywhere from 40 minutes to over an hour in
excess of his lunch time in Columbus; and his lunch time
in Columbus he always showed 1:30 to 2:30. He always
showed an hour for lunch time in Columbus," and that
the breaks were usually not entered on Eaves' log or his
timecard.
Krevosh then called District Manager Dave Withers
relating to him what he had learned as to Eaves, and he
was told to set up a meeting that evening in order to get
Eaves' side of the story. At this meeting on the evening
of March 13, 1980, the Respondent was represented by
Krevosh, Jim Beard, Rudy Dickens, and Ross Perkins,
and for Local 505 union steward, Larry Bowen and
Business Agent Larry McDowell. Carlos Eaves was also
present. At the beginning of this meeting Krevosh asked
Eaves if he knew why he was there, to which Eaves re-
plied "no." Krevosh then asked Eaves if he knew that he
had been followed the previous night, and to which
Eaves replied in the affirmative. Krevosh then asked
Eaves to reconstruct his previous night's work, and
Eaves asked Business Agent McDowell if he had to do
so. McDowell suggested that he comply and Eaves then
told Krevosh what he had done the previous evening.
Eaves stated that he went from Huntington to Burling-
ton, Ohio, and hooked up the second of his two trailers;
i' See Resp. Exh. 16-46.
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Burlington he went to Waverly and took a break;
and from Waverly he proceeded to Columbus; that at
the Columbus Center he unhooked his inbound doubles,
hooked up his outbound doubles, got them ready, put
them on line, fueled, and had his lunch. He stated that he
took a 45-minute lunch in Columbus. On his return trip
Eaves informed Krevosh that he left Columbus and went
back to Burlington, and there disconnected his double
trailers, drove to Huntington, did his paperwork, and
then punched off the clock. Krevosh testified that in the
reconstruction of the previous night's events Eaves did
not mention a stop in Portsmouth, nor did he mention
taking a break in Waverly on the return trip from Co-
lumbus, and he also did not tell Krevosh that he had
taken a break in Huntington after he had returned to the
center. 16
It appears that after Eaves had recited his story, Kre-
vosh then reconstructed what Supervisor Bowers and
Perkins had observed the previous night-Krevosh
stated that Eaves had left Huntington late, but to which
Eaves replied that his tractor was not there on time.
Krevosh then told Eaves that he had failed to properly
pretrip his vehicle, and to which Eaves replied, "No, I
pre-tripped it," but Krevosh stated, "If you had pre-
tripped it, you would have put your tach in Huntington
rather than in Burlington." Eaves answered that he had
forgotten but when he got to Burlington the tach was
put in at that time. Krevosh stated:
Well let me remind you of a meeting I had with
you a couple of months earlier [referring to the
meeting of December 7, 1979] telling you to proper-
ly pre-trip you vehicle. Isn't putting your tach in
your vehicle part of your pre-trip? Eaves acknowl-
edged that a proper pre-trip did indeed include in-
serting a tach chart. Krevosh then told Eaves that
aside from failing to insert the tach chart at the
proper time and location, he also set the clock back
as if he were starting in Huntington. Eaves replied
that "well I guess I just made a mistake."
Krevosh then advised Eaves that he was further ob-
served stopping at Frisches Restaurant in Portsmouth for
a 23-minute break. Eaves replied that he did remember
the stop but that he was sick and had to stop for aspirins,
but had no real explanation for the length of that stop.
Krevosh then told Eaves that he was followed 30 or 40
miles to Waverly where he stopped at the Biscuit Palace
for another break. Eaves argued that that was his sched-
uled break and that the break taken at Frisches did not
count. Krevosh informed Eaves that he is entitled to one
15-minute break on the trip to Columbus, but that Eaves
was in the Biscuit Palace for 22 minutes. Eaves replied,
"Well I didn't do anything wrong. I might have made a
mistake or I didn't realize it was that long."
Krevosh next informed Eaves that he was followed to
Columbus and that he had been in Columbus for approxi-
mately 2 hours. Krevosh asked Eaves again about the
length of his lunch period in Columbus, and to which
16 Eaves testified that in his reconstruction of events, he did mention
his stop in Portsmouth because of illness, and on his return also men-
tioned being blocked in at Waverly.
Eaves replied, "I only took 45 minutes." Krevosh also
asked Eaves whether he slept in his tractor at night, and
Eaves stated that "I think I may have."
Krevosh testified that in respect to the return trip, he
advised Eaves that he was observed stopping in Waverly
on the return trip, and that Eaves stated, "Well I am al-
lowed a 10-minute safety check." Krevosh conceded that
Eaves was entitled to stop for a safety check, but that
Eaves had not checked his vehicle during that stop, and
had been observed at the Biscuit Palace in Waverly
longer than 10 minutes. Eaves argued that he was
blocked in. Krevosh then turned to Perkins and asked
whether in fact Eaves was blocked in, to which Perkins
replied "no."
Krevosh then advised Eaves that he was observed
taking an additional break when he returned to the Hun-
tington Center and that he had recently been reprimand-
ed by Perkins not to go across the street for coffee.
Eaves admitted taking such a break but stated, "Yes, but
I only took a few minutes. I had to get a pack of ciga-
rettes," and according to Krevosh, Eaves then admitted
that he was not permitted to go across the street to get
coffee but, "I guess I made a mistake."
Near the end of the meeting, Krevosh further told
Eaves:
Well your so-called mistakes are very costly to
United Parcel Service and these are more than just
mistakes. I said, I would like to recap once more
what you did wrong. I said, you left the building
late. You failed to pre-trip your vehicle properly.
You inserted your tach in Burlington instead of
Huntington. I stated that he not only put his tach in
at the wrong time, you put your tach back as if you
started in Huntington. I said you took unauthorized
breaks going up. I said you didn't report to a super-
visor. I said you left your engine running all the
time, the whole night; you left it unattended, unse-
cured; and you took breaks on the way back. I said
these are more than just simple mistakes. I said that
for that reason, I am going to have to discharge
you from my employ.
Eaves then mentioned that he felt he had done nothing
wrong and that he was a good employee. Krevosh re-
plied that he had not only taken unauthorized breaks on
the night of March 12, but that he had been doing it for
months. Eaves replied that, "Well I never intended to be
anything but a good employee. I always try my best. I
always get the load in on time." Krevosh then advised
Eaves that his job is much more than just getting the
load in on time.
As pointed out, Eaves' version of what occurred the
night and morning in question is not significantly differ-
ent from the admissions he made after being confronted
with the evidence. On his outrun he admitted the stop in
Portsmouth, admitted that he failed to log this break in
his logbook, and tried to explain his failure to note it in
his timecard on the basis that he considered it as "time
driving." He also admitted his stop at the Biscuit Palace
in Waverly, but maintained that the break was only 15
minutes and that he checked his vehicle for 5 or 6 min-
622
UNITED PARCEL SERVICE, INC.
utes after the break. On his return trip Eaves admitted an
extended break in Waverly, and testified he intended it
to be a 10-minute safety check, but then could not leave
because he was blocked in. Eaves admitted that he did
his paperwork on the stop in Burlington. He admitted
changing his timecard to reflect the stop on the way up
at Waverly, and to shorten his lunch hour in Columbus
from I hour to 45 minutes. He also admitted that he
might have taken his tachograph chart out in Burling-
ton-"if I finished up my paper work there." As noted,
Eaves' testimony as to what occurred in Huntington on
March 13 had one additional explanation, not heard
before-for the first time Eaves alleged that the coffee-
break in Huntington was authorized by Supervisor
George Bodner, and admitted that he logged this time as
time worked.
It appears that within a few weeks or so following the
discharge of Eaves, Union Agent Larry McDowell con-
tacted District Manager Withers and between them ar-
ranged for a meeting at the Dunbar Center to again dis-
cuss this situation. The Company had several people
present and Local 505 also had representatives along
with Eaves, but nothing was accomplished other than
the parties restating their positions.
McDowell testified that prior to the Dunbar meeting,
he had also contacted Division Manager Ron Thomas
asking him to intervene in behalf of Eaves, but Thomas
informed him, according to McDowell, that he had been
told to stay out of the matter, and that he (Thomas)
never really cared what Carlos Eaves did so long as he
got his packages into the centers on time.
Manager Thomas denied the above conversation at-
tributed to him, and testified that if McDowell had
called him on this matter, he would have told him to
contact Manager Krevosh, as he (Thomas) had no re-
sponsibility for Eaves-he was not assigned to Thomas.
Final Contentions and Conclusions
Respondent has taken the position that the instant
matter was resolved by the Atlantic Area Parcel Griev-
ance Committee, herein AAPGC, by its denial of Eaves'
grievances over his discharge. The General Counsel con-
tends that such deferral is wholly inappropriate.
On March 14, 1980, Division Manager Don Krevosh
sent a mailgram to Carlos Eaves advising him that he
had been discharged the previous day as a result of his
dishonest acts. Eaves then went to the union hall to pre-
pare a grievance concerning his discharge. In his griev-
ance of March 14, 1980, Eaves claimed that his discharge
was unjust and improper and requested that he be rein-
stated with all backpay and benefits, but in this grievance
made no mention of Bodner's permitting him to take the
coffeebreak after he returned to Huntington or that he
had been blocked in at the cafe in Waverly on the return
trip. ?
This record shows that both business agents for Local
505, Larry McDowell and James Boyd, contacted Dis-
trict Manager Dave Withers with respect to the dis-
charge of Eaves, and wanted Respondent to reconsider
his discharge. Withers informed them that he would be
I" See Resp. Exh 4-d.
willing to meet with them and such a meeting did take
place, as detailed above. District Manager Withers testi-
fied that he agreed to the meeting because he "wanted
Carlos [Eaves] to tell me what happened . .. I wanted
to see if Carlos would tell me the truth of what hap-
pened that night. Carlos never admitted anything." With-
ers stated that at this meeting Eaves usually opened each
sentence with "if I did anything wrong" and he also said
a couple of times "It must be just a mistake I made."
Withers testified that Eaves would not admit that he had
done anything wrong and, therefore, he decided to let
the discharge stand.
Eaves' grievance was presented to the AAPGC on
May 8, 1980, pursuant to the terms of article 41-griev-
ance procedure, sections 2 and 4 of the Atlantic Area
Supplement to the National Master United Parcel Serv-
ice Agreement. The panel was composed of equal repre-
sentatives of labor and management. Don Krevosh repre-
sented Respondent and also present for UPS were
Dwight Barackman and Dave Withers. Eaves was repre-
sented by Larry McDowell and Jim Boyd, president of
Local Union 505. Carlos Eaves was also present at the
hearing.
During the initial phase of the meeting a formal state-
ment was submitted by UPS setting forth the events of
March 12 and 13, 1980, and in so doing showing improp-
er breaks on Eaves log and timecard, and argued that
following his discharge an audit of his records for the 2
previous months revealed that Eaves continually took
unauthorized breaks, falsified his records, and frequently
left his tractor idling for his entire shift. '
Local 505 submitted a formal outline stating, in part,
that Eaves was discharged because of his protest or
grievance to his warning letter of December 7, 1979, and
as a result of this grievance, Manager Krevosh took it
upon himself "to get" Carlos Eaves. The Union in its
statement to the AAPGC also attacked Respondent's po-
sition that dishonesty occurred-that Eaves had not stolen
88 minutes nor had he altered him timecard or logbook.
Finally, the Union submitted laudatory statements of
Eaves' job performance and character both from present
UPS supervisors and from coworkers.' 9 Following the
formal statements, testimony and arguments were re-
ceived. 20o
Respondent argues that under Spielberg Manufacturing
Company, 112 NLRB 1080 (1955), deferral to an arbitra-
tion award is proper where (I) the arbitration proceed-
ings appear to have been fair and regular, (2) all parties
had agreed to be bound by the decision, (3) the decision
of the arbitration panel is not clearly repugnant to the
purposes and policies of the National Labor Relations
Act, and (4) the issues giving rise to the unfair labor
practice charge were presented to and considered by the
arbitration panel-moreover, in the instant case, all of
the Spielberg deferral requirements have been met, and
that the hearing before the AAPGC was conducted in
accordance with the principles of fundamental fairness
and impartiality. Furthermore, argues Respondent, Larry
s See Resp. Exh 4-c.
19 See Resp. Exh. 4-d and attachments thereto.
20 See Resp Exh 4-b
623
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDowell, Eaves' union representative at the hearing,
repeatedly urged that Eaves was discharged as a result
of his grievance activity, and thus it cannot be contended
that the issue giving rise to the unfair labor practice
charge was not before the AAPGC, and in rejecting
Eaves' contentions the AAPGC, of necessity, decided
that Eaves' discharge was not as a result of his grievance
activity-consequently, the decision of the AAPGC is
clearly not repugnant to the purposes and policies of the
Act, rather it fully comports that Act's purpose of en-
couraging the voluntary settlement of labor disputes.
Counsel for Respondent concludes his argument by stat-
ing that the contractually agreed-upon grievance machin-
ery functioned properly to fairly settle the dispute, and
the basis of the unfair labor practice charge was consid-
ered and resolved.
The record in this case is clear that no mention was
made to the AAPGC of Eaves' grievance activities or
other evidence in support of the General Counsel's case
in this proceeding, other than the grievance Eaves had
filed on December 18 concerning his December 7, 1979,
warning letter, and his grievance on March 14, 1980,
protesting his discharge. Thereafter, the AAPGC ren-
dered a summary decision which precluded any review
of that body's consideration, if any, of the unfair labor
practice aspect of Eaves' discharge. Moreover, as also
pointed out, it is obvious that the AAPGC had no
neutral member on the panel and by its decision fore-
closed Eaves' grievance from proceeding to the final step
of the procedure before an impartial arbitrator, as pro-
vided by the Atlantic Area Supplement, article 41,
Grievance Procedure, section 5.2 1
As noted previously herein, Eaves also filed two addi-
tional grievances in December 1979-one of them relat-
ing to water in the fuel tanks at Huntington, and another
grievance which alleged that he was not treated equal
with other feeder drivers and had been harassed. There
are no indications whatsoever that either of these griev-
ances or union activities was before the AAPGC.
The Board, in the lead case of Suburban Motor Freight,
Inc., 247 NLRB 146, 147 (1980), held:
The Board can no longer adhere to a doctrine
which forces employees in arbitration proceeding to
seek simultaneous vindication of private contractual
rights and public statutory rights, or risk waiving
the latter. Accordingly, we hereby expressly over-
rule Electronic Reproduction and return to the stand-
ard for deferral which existed prior to that decision.
In specific terms, we will no longer honor the re-
sults of an arbitration proceeding under Spielberg
unless the unfair labor practice issue before the
Board was both presented to and considered by the
arbitrator. In accord with the rule formerly stated
in Airco Industrial Gases, we will give no deference
to an arbitration award which bears no indication
that the arbitrator ruled on the statutory issue of
discrimination in determining the propriety of an
employer's discriminatory actions. In like accord
with the corollary rule stated in Yourga Trucking,
t See Reap. Exh. 5.
we shall impose on the party seeking Board deferral
to an arbitration award the burden to prove that the
issue of discrimination was litigated before the arbi-
trator.
The Board has continued to adhere to the general rule
laid down in Suburban Motor Freight, supra. Indeed, in
another discharge case involving the same Respondent as
in the instant matter, United Parcel Service, Inc., 252
NLRB 1015 (1980), the Board held that the matter there-
in was not appropriate for deferral under Spielberg, be-
cause the factual record showed that evidence concern-
ing the dischargee's protected concerted activities was
not presented to the arbitrator.
This record clearly reveals that in the instant case
some aspects of the evidence adduced by the General
Counsel in support of the unfair labor practice allega-
tions were not presented to the AAPGC, and in addition
the factual evidence concerning Eaves' protected con-
certed activities in the filing of two grievances was not
presented to the panel. In any event, the AAPGC ren-
dered such a summary denial that it is impossible to as-
certain whether it took recognition of the argument ad-
vanced that Eaves was discharged in retaliation for
having grieved his December 7, 1979, warning letter and
the events on March 12-13, much less whether it
reached any conclusions with respect to the evidence
presented in these regards. Accordingly, I am not per-
suaded that the instant case is appropriate for deferral.
The General Counsel points out that the evidence in
this record reveals that Carlos Eaves was a long-term
and valued employee of Respondent with minimal prob-
lems and substantial accolades for his performance; until
about November 1979, but at this time he became frus-
trated in his attempts to have fuel and mechanical prob-
lems with his tractor resolved and having encountered
the water-contaminated fuel at Wheelersburg on Decem-
ber 4, 1979, he then became incensed over receiving a
warning letter accusing him of running out of fuel, and
at this time exercised his contractual rights to have a
protest letter sent and a grievance filed. Moreover, when
Eaves ran into a similar problem a few weeks later at
Chillicothe, he filed additional grievances. The General
Counsel argues that such grievances adversely reflected
on management people directly responsible for Eaves-
Feeder Supervisor Roscoe Perkins and those responsible
for the equipment and fuel-Fleet Supervisor Richard
Bowers, and such grievances were taken directly to the
highest level of authority in the area, District Manager
David Withers, who then directed that meetings be held
to resolve Eaves' grievances-that Eaves did not attend
at least one such scheduled meeting because Respond-
ent's representative, Ronald Held, was late in arriving,
and Eaves was never even informed of the second meet-
ing on his grievances. It is further pointed out by the
General Counsel that irrespective of Eaves' nonatten-
dance at meetings relative to his grievances, nevertheless,
his message had been delivered up the line to at least as
far as Respondent's District Manager David Withers-to
the effect that there were serious problems reflecting on
the local supervisors at Huntington, and thus both Per-
kins and Bowers had reason for concern.
624
UNITED PARCEL SERVICE, INC.
The General Counsel also rationalizes that the supervi-
sors directly involved in this matter then bided their time
until the night of March 12 when the two most ag-
grieved managers-Perkins and Bowers-set out to get
Carlos Eaves, and even though Perkins had never even
issued a warning letter to Eaves on the matters he was
now concerned about. Moreover, according to the Gen-
eral Counsel, when the report was in concerning Eaves'
run for March 12 and 13-management then moved with
all deliberate speed and determination to discharge Eaves
that very evening (March 13) without any consideration
for his logical and plausible explanations for what he
did-that Respondent was "so obsessed" with discharg-
ing Eaves that it did so even while expressing its own
anxiety as to whether its case was sufficient, as evi-
denced by the various conversations initiated by Center
Manager Rudy Dickens and Division Managers Thomas
and Krevosh.
The General Counsel maintains that thereafter Re-
spondent continued to build its case against Eaves as it
went along-Krevosh accusing Eaves of not turning in a
transfer slip for work at the Columbus Center on his last
workday and, subsequently, he was also accused of
speeding by Krevosh when Eaves had not been accused
of that by Perkins and Bowers, and by the time this case
came to hearing, Respondent had acquired more evi-
dence not then known to Respondent until it prepared its
case against Eaves for hearing-i.e., the Ingall writeups,
experts in diesel mechanics, and tachograph charts to
present evidence in support of its case that it obviously
did not have when it discharged Eaves. Moreover,
argues the General Counsel, Respondent also marshalled
witnesses from all levels of its supervisory hierarchy
who testified under the watchful gaze of District Man-
ager Withers and Richard Bowers' supervisor, Bob Pil-
grim, sat in the hearing during Bowers' testimony when
there was no indication that Pilgrim was in any way in-
volved.
Additional aspects in the argument for the General
Counsel is as follows: "It is submitted that Respondent's
witnesses generally demonstrated a willingness to tout
the company line and say whatever was necessary to ad-
vance Respondent's cause irrespective even of their lack
of competency to testify." Indeed this was abundantly
demonstrated by the testimony of Ron Held when he tes-
tified, as the case wound down, without any proper au-
thentication of the tachograph charts, to just anything
that would seem to help them into evidence. Of course,
Bowers and Perkins, as detailed above, demonstrated
their total lack of reliability to even keep the story
straight from the time of their affidavit until the time of
the hearing. For the foregoing reasons, it is respectfully
submitted that Respondent's case against Eaves was con-
trived, at the outset, by those supervisors most offended
by Eaves' grievances, and that, as the matter progressed,
Respondent's entire management staff locked arms in a
determined effort to support those supervisors irrespec-
tive of the merits of the case.
The General Counsel also maintains that his case was
presented primarily through the testimony of 12 wit-
nesses, half of which-Marvin Gore, Ross Dale Hazelett,
Larry J. Bowen, Gregory Lee Johnson, Millard Bailey,
and Kellerman Swann-were employed by Respondent
at the time they testified adverse to their interest and
thereby did so at the risk of incurring Respondent's ire.
Accordingly, the General Counsel submits that the testi-
mony of those witnesses is particularly credible because
of the potential risk involved for current employees who
are dependent upon the Respondent for their employ-
ment.
The General Counsel further relies on circumstances
and events involving an incident between Eaves and
Bowers in the locker room; on the different kind of "sen-
sitivity" for other employees found in like situations; on
the improper or insufficient authentication of tachograph
charts and the logs of Commercial-Lovelace; on the
timestudy of Millard Bailey on his Huntington-Columbus
feeder run; and in certain areas on the inconsistent testi-
mony of witnesses for the Respondent, both at the hear-
ing and in their pretrial affidavits.
Turning first to the locker room incident. Eaves testi-
fied that he had a conversation with Manager Bowers in
the locker room at the Huntington Center in January
1980. Eaves stated that Bowers then told him that he
(Eaves) would "pay for the grievances." Eaves testified
that Bowers had been using the restroom and at the time
in question was coming out of the restroom into the
locker room area, and that Mark Coats was also present
in the locker room at the time.
Mark Coats, discharged by UPS in November 1980,
testified on behalf of Carlos Eaves. He stated that he was
employed by UPS from May 10, 1974, to November 17,
1980, but from December 21, 1978, until August 18,
1980, he was off work due to a workmen's compensation
injury. Coats testified that beginning in approximately
February 1980, until his return to work in August 1980,
he had to go to the Huntington Center to obtain his
workmen's compensation check, and that on the occasion
here in question he was looking at the bulletin board in
the locker room at the Huntington Center, and over-
heard Manager Richard Bowers tell Carlos Eaves "I'm
going to fire you for filing those papers, or griev-
ances...." Coats also testified that Bowers could not
see him where he was standing, and that when Bowers
did discover his presence, he looked surprised, threw
down a paper towel with which he had been drying his
hands, and then walked out. Coats also testified that he
was somewhat startled at what he had heard, and as a
result walked up to Eaves and said "is there anything
wrong," but Eaves just mumbled "I don't know." Coats
testified further that immediately thereafter, as he was
going to his car, Bowers approached him and said,
"Mark, you didn't hear any of that, did you?" Coats
stated that he then just looked at Bowers and got into his
car and drove off. Manager Bowers denies that any such
conversations with either Eaves or Coats, ever took
place.
The General Counsel speculates that at this point in
time it was apparent that Eaves was becoming a man to
be reckoned with-that his grievances ultimately reflect-
ed on Fleet Manager Bowers, who was responsible for
the supervision of the mechanical maintenance of the
tractor assigned to Eaves, as well as the quality of the
625
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diesel fuel available at Huntington, and that when
Bowers encountered Eaves in the locker room he then
openly informed Eaves that he would pay for his griev-
ances. Unknown to Bowers at the time of this remark,
Mark Coats was also in the locker room and overheard
Bowers' statement, and thereafter Bowers showed his
concern over his ill-timed announcement by following
Coats out into the parking lot and attempting to get him
to assure Bowers that he had not overheard the remark.
First of all, it is noted that the occurrence of the al-
leged Bowers threat is supported solely by the testimony
of two discharged UPS employees-Eaves and Coats.
Moreover, their testimony is not consistent as to what
was said nor as to when the incident allegedly took
place. Eaves first testified that this incident took place in
1979, but later changed it to 1980. Coats also evidenced
lack of credibility with his changing description as to his
conversation with Eaves. He first stated that he was
positive that Eaves had said only "I don't know" to his
query as to what was wrong. Later, he admitted placing
in his affidavit a statement to the effect that "Bowers
was mad because he filed a grievance." Eaves made no
mention in his testimony of such a statement to Coats.
As indicated, Manager Bowers categorically denied
the locker room incident and this denial is consistent
with the surrounding facts. Bowers had nothing to do
with the subject matter of Eaves' grievances-the warn-
ing letter in December and alleged harassment came
from Held, Perkins, and Krevosh, and Dickens was re-
sponsible for the fuel. Moreover, Bowers had no supervi-
sory authority over Eaves, and there is no evidence to
rebut Bower's testimony that he knew nothing about the
grievances. As further indicated, even assuming, ar-
guendo, that Bowers did make such a statement, there is
no evidence that he had anything to do with the actual
decision to discharge Eaves. Bowers, of course, did wit-
ness the events on the night in question, as aforestated,
but testified he made no recommendation as a result of
his observations, and absent a showing that Bowers took
some specific action to carry out the alleged threat-and
there is none-there remains only a rebuttable inference,
at most, that UPS terminated Eaves for his grievance ac-
tivity.
In the final analysis, both by testimony and video tape,
it was established by Respondent that Coat's testimony
to the effect that he was not visible to Manager Bowers
at the time Bowers made the alleged threat to Eaves was
simply impossible. Managers Dickens and Bowers de-
scribed the locker room in question and even showed by
a schematic of it that anyone in the locker room could
not help but see everyone in the room.
Eaves testified that immediately before the above al-
leged threat by Bowers in the locker room, he had an
argument with Bowers about something being said to the
effect that Eaves' son had damaged a new paint job on a
package truck belonging to UPS. Manager Bowers con-
firmed this dispute, but he credibly placed it right after
the trucks had been painted in June or July 1979 and this
date is confirmed by the records relating to those paint
jobs. Moreover, Bowers' testimony of the timing of the
dispute was confirmed by Respondent's Customer Serv-
ice Representative Art Brannon who testified as to the
content of the dispute and to a conversation with Eaves
about it. Moreover, this record shows that Manager
Bowers immediately apologized when he learned that
Eaves' son was confined to a wheelchair, and therefore,
could not have written on the truck. However, it is clear
that this entire incident took place about 6 months before
the alleged locker room incident, and not immediately
prior thereto as suggested by Eaves. 22
As to the discipline that other drivers received for im-
proper conduct of performance in their duties, the Gen-
eral Counsel contends that UPS treated such drivers,
who were guilty of the same infractions that Eaves was
guilty of, less severely than Eaves was treated.
The testimony of Marvin Gore was presented with re-
spect to the warning letters which he received from Re-
spondent. Gore testified that his job, unlike that of
Carlos Eaves, was a combination package car and feeder
driver. Gore testified that on September 24, 1980, he re-
ceived a verbal warning for taking an illegal break. In
his affidavit Gore stated that he had an urgent need to
make a telephone call arising from a personal problem.
Therefore, he stopped at a supermarket, and shortly
thereafter the center manager of his area, Wade Cald-
well, inquired as to the break. Gore explained the matter
to Caldwell, and was then told by Manager Caldwell
that illegal breaks were a serious matter, but that he
(Gore) did perform his job well and he was going to let
him go with a verbal warning.
Gore also testified that he remembered receiving a
warning letter on or about January 11, 1979, concerning
his taking an unauthorized break and leaving his vehicle
running and unattended. Gore testified that:
. . . stopped to get a cup of coffee, and as I recall, I
had to get some change for a C.O.D. and left my
engine run, it was cold weather, and of course, I
had been instructed not to do that, but I did leave
my engine run, and I went inside the drive-in, and
got a cup of coffee, and Rudy Dickens drove by at
the particular time, he was the Center Manager, and
22 Mechanic Gregory Johnson testified that when Eaves was terminat-
ed he had a conversation with Manager Krevosh under the following cir-
cumstances:
Q. Do you recall the time when Mr. Eaves was discharged?
A Yes, I do.
Q. Do you recall if you had any conversation with Mr. Krevosh
about that?
A. Yes, I do.
Q. Can you tell the court what the conversation was with Mr.
Krevosh.
A. Well, he was over in the 7th Avenue building, I walked in and
he was standing over there at the end of the belt, and I approached
him, I said "what happened to Carlos," and he said, "we disqualified
him." I said, "well," I said, "Carlos was an asshole, but he wasn't
that big of an asshole." He said, "well," he said, "You got a wife and
family at home, don't you?" I said, "yes." He said, "I see your pa-
perwork every day." I said, "Yeah, but how much of it stops," I
said, "I do a good job and it shows." He said, "well," he said, "just
don't back me into a corner." I said, "okay." And then he left.
Q He what?
A. He left.
Manager Krevosh admits a conversation with Johnson wherein he told
him that Eaves had been terminated, but denies making any remark
warning Johnson not to back him into a corner on Eaves.
626
UNITED PARCEL SERVICE, INC.
told me that I would receive disciplinary action for
that. 23
Gore remembered that afterwards there was a meeting
with the shop stewards concerning the matter, but he
could not recall any justification he gave for taking a
break or what was said by either side at the meeting.
Gore also testified that on or about February 20, 1981,
he received a warning letter from Delivery Supervisor
Pat Kelly with respect to Gore's taking an unauthorized
break on February 18, 1981.24 Gore testified that he had
stopped at a drive-in to get a cup of coffee as it was cold
weather, and as he came out of the coffee shop his super-
visor appeared asking him if he had not already had his
lunch hour, and Gore replied that he had. Gore was then
told that he would receive the disciplinary action for
taking an illegal break. The General Counsel argues that
thus Gore was charged with four unauthorized breaks,
two of them after Eaves' discharge, and the only penalty
imposed was a warning letter.
On October 18, 1979, employee Kenny Withrow was
observed by Dave Wright working on his personal vehi-
cle inside Respondent's Huntington building, using Re-
spondent's equipment, and on Respondent's time.
Center Manager Rudy Dickens reviewed the warning
letter that he issued to Kenny Withrow on this occasion
and also the memo from Dave Wright to him concerning
the events which led to the issuance of the warning
letter.25 Dickens testified that Withrow was a part-time
employee who worked inside the center washing pack-
age cars and tractor trailers, but on the date in question
Withrow was observed by Delivery Supervisor Dave
Wright working on his private vehicle inside the Hun-
tington Center, and thereupon Wright sent Withrow
home and told him that as far as he was concerned he no
longer worked for UPS. Rudy Dickens testified that an
investigation was then conducted with regard to this in-
cident and an effort was made to determine whether or
not Withrow was working on his private vehicle at a
time when he was being paid by Respondent, and in so
doing they had obtained Withrow's timecard which
showed that he had punched off the clock, but he had
not entered that he was on his lunch hour. Moreover, a
review of his previous timecards indicated he had been
following the proper instructions with respect to entering
his lunch break on his timecards. Therefore, according to
Dickens, it appeared that Withrow was working on his
vehicle during his normal lunch hour as disclosed by his
previous timecards, and as a result it could not be estab-
lished by management that Withrow was washing his ve-
hicle on company time; thus, Withrow was simply given
a warning letter stating that he could not work on his
private vehicle inside the building and that he could not
use the tools of the Company to work on his private ve-
hicle. Respondent points out that Withrow was not dis-
charged with respect to stealing time, because it could
not be proven that he was doing so.
a2 See G.C. Exh. 4, and which also makes reference to a similar inci-
dent involving Gore on October 20, 1978.
24 G.C. Exh. 3.
15 See G.C. Exhs. 5 and 6.
Manager Dickens further testified that on March 24,
1980, during an audit of the Huntington facility, With-
row was observed taking a I hour and 18-minute lunch
when he was entitled to only 1 hour. Dickens stated a
meeting was then held, and Withrow did not deny the
fact that he had extended his lunch period. UPS gave
Withrow the option to be terminated for dishonesty or
resign for personal reasons. Withrow chose to resign and
signed a clearance slip which said that he resigned. It ap-
pears that no grievance or any other action challenging
that resignation was ever filed.
As pointed out, Manager Richard Bowers testified as
to the facts and circumstances which led up to his issu-
ing Talmadge Calloway a warning letter on February 27,
1978.26 Bowers testified that Calloway is the mechanic
for the Beckley Center, and that he (Bowers) and Beck
ley Center Manager Lee Smith were observing the Beck-
ley Center on the occasion here in question-that in the
morning he and Smith left for breakfast and when they
returned to the Center, Calloway's own vehicle was not
in sight, but when they entered the terminal building
they found Calloway's car inside and noticed it had just
been washed. Bowers asked Calloway for his timecards.
and also asked him why he was washing his car inside
the building-Calloway then produced the timecard and
informed Bowers that he did not wash the car on Com-
pany time, but had done so on his lunch hour and had
brought the car inside the building so that it would not
freeze outside. Manager Bowers then issued Calloway a
warning letter rather than discharging him explaining
that the only way to verify that the wash job had been
done on company time was by the timecard, and a por-
tion of the timecard had been destroyed, and Bowers and
Smith had not actually observed Calloway washing his
car on company time,
Employee Talmadge Calloway was issued a written
warning on March 2, 1981,27 concerning alleged falsifi-
cation of his timecard on February 18, 1981, which indi-
cated he had completed work that he had actually not
done and which, in fact, resulted in Fleet Supervisor
Eugene Bowman having to obtain the parts himself and
oversee the job being done to make sure it was complet-
ed. Supervisor Bowman testified that Calloway was not
discharged because he was doing a "relatively good job"
and this was only a "single incident" as far as Fleet Su-
pervisor Bowman was concerned, even though Calloway
had been discharged before.
On July 25, 1980, a warning letter was issued to em-
ployee Dale Maxwell. Maxwell's transgressions were
stated as follows:
Discussed was your dishonesty by the fraudulent
use of the Company telephones and your overall
work record. After a complete investigation, it was
discovered that you had used the Company phone
to make eight long-distance calls. These calls were
not only an additional cost to the Company, but the
time you spent making four of the calls was during
26 G.C. Exh 7.
7 G C Exh 8.
627
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
your scheduled working hours, which in effect is
stealing time.
The warning letter indicated that Maxwell was dis-
charged, but his discharge was later converted to a 6-day
suspension .2
It appears that in November 1979 Charles Null was
discharged for stealing time. Center Manager Rudy
Dickens testified that he and another person had con-
ducted an on-area audit of Null, a package driver, and
discovered that Null took extended lunch breaks on
successive days rather than his permitted I-hour lunch-
break, and did not record those breaks on his timecard.
After these observations Dickens discussed the matter
with his immediate supervisor, Don Krevosh, and decid-
ed to discharge Null for his flagrant violation of the bar-
gaining contract, but prior to making that decision Null
was given the opportunity to relate his side of the story
and in so doing admitted he had done wrong and re-
quested another chance.
Null then filed a grievance with respect to his termina-
tion and there were resultant meetings between UPS and
the Union concerning that grievance. Out of those meet-
ings with the Union, and upon consideration of Null's
work record and the fact that he seemed genuinely sorry
for his admitted mistake, UPS agreed to reinstate Null
after a 10-day suspension, but with a stipulation-agreed
upon by Local 505 President James Boyd-that a letter
be sent out to all hourly employees warning that in the
future any employee caught extending his lunchbreak or
taking unauthorized breaks would be subject to immedi-
ate termination.2 9 In fact, Boyd accepted the letter and
informed management that a meeting should be given to
all hourly employees concerning the letter's contents,
and in accordance therewith meetings were held in the
presence of all package drivers in the Huntington and
Barboursville Centers where the letter was read to all
employees. Dickens testified that he went over the letter
to make sure that all understood it and then posted the
letter above the timeclock in both facilities. He stated
that the letter was posted in the Huntington facility ap-
proximately 2 inches away from the timeclock and was
positioned so that it would be quite impossible to punch
in or out of the facility without seeing the letter-that
this letter was posted for a period of at least 2 weeks
above the timeclock and which clock Carlos Eaves used
in reporting in and out. Dickens stated that since then no
Huntington employee caught stealing time was disci-
plined with anything but discharge.
The General Counsel argues that contrasted to the
"shoot to kill" attitude demonstrated by Respondent in
its mission to fire Eaves, the above incidents reveal a to-
tally different kind of sensitivity for other employees
found in like or even more aggravated circumstances in-
volving some deviation from company norms. Counsel
for Respondent points out that none of the incidents in
respect to the other drivers, as detailed above, involved
the flagrant theft of time of which Eaves was guilty.
In making my evaluations in this aspect of the case-it
is noted that after the November 1979 Null incident and
H' G.C. Exh. 9.
s9 See Resp. Exh. 4-c(4).
the related letter posting on or about November 13,
1979, employee Marvin Gore was the only employee not
terminated for unauthorized breaks. In September 1980,
Gore merely received a verbal warning, but this infrac-
tion involved an urgent personal telephone call and was
fully explained to his supervisor. In February 1980, Gore
received a warning letter, but this incident only involved
a cup of coffee on a very cold day.30 I am in agreement
with Respondent that the circumstances involving Gore
does not match the overall situation surrounding Eaves.
In the other instances here enumerated the Company has
taken a very consistent course ever since the posting of
the letter involving Charles Null.
Turning now to contention by the General Counsel
that there were improper authentication of tachograph
charts of Respondent, and the logs of Commercial-Love-
lace is the following:
As indicated, testimony by Kenneth Scott respecting
the analysis of tachograph charts, established that Eaves'
version of what occurred on the nights of December 4
and 17 were impossible, or at least highly unlikely, and
corroborated by the expert testimony of Larry Beers.
Scott's testimony also verified the length and location of
Eaves' breaks on the night of March 12, and revealed
that the work performed by Eaves prior to his lunch-
break at Columbus on that night, took only 26 minutes
rather than the longer time as testified by Eaves-and
then for the next I hour and 48 minutes, the tractor in
question remained motionless, but during this entire
period the motor was at a high speed idle-probably for
cab warmth.
Harry Beard, safety supervisor for Commercial-Love-
lace Motor Freight, Inc., testified that Lovelace requires
its drivers to maintain a daily log showing, inter alia, the
time and place of any stop for more than 15 minutes, and
pursuant to a subpoena issued at the request of UPS,
Beard produced records of Commercial-Lovelace which
show the location of drivers employed by them who
might have stopped in Waverly, Ohio, on the morning of
March 13, 1980. Minard Culbertson, safety manager for
UPS, then reviewed the logs produced by Lovelace, and
as a result of his review found that only two drivers of
Lovelace were in the Waverly area at that time. He testi-
fied that the log of Warren Lynn showed that he
stopped in the vicinity of Waverly from 3:15 until 4 a.m.
on March 13, 1980, and that the log of a driver named
Crockett revealed that he stopped for coffee in Waverly
from 5 until 5:15 a.m. on the morning of March 13, 1980,
but none of the other logs produced indicated a stop by
a Commercial-Lovelace driver at Waverly on the eve-
ning of March 12 or the morning of March 13, 1980, and
neither Eaves nor Bowers nor Perkins placed Eaves at
the truck stop at these times.
The General Counsel engaged in considerable cross-
examination in respect to Scott and Culbertson and also
so Kenny Withrow was given the opportunity to resign when he ex-
tended his lunch hours in March 1980. In 1981, Calloway was given a
written warning, but his situation did not involve any unauthorized
breaks, and in July 1980, Dale Maxwell was given a suspension, but again
the complaint merely involved telephone calls. Charles Null ended up
only receiving a 10-day suspension for unauthorized breaks, but only
after the Union agreed to the posted letter, as aforestated.
628
UNITED PARCEL SERVICE, INC.
conducted quite extensive voir dire examinations with op-
portunities to fully explore their testimony and qualifica-
tions, but in final analysis, there is no showing in this
record that the logs and charts in question were incom-
plete, removed, altered, or tampered with in any way,
nor was there any showing that they did not correctly
reflect the records and charts duly kept by the employ-
ers in the ordinary course of their daily business. More-
over, most of the expert testimony involving charts, logs,
and timecards was merely in corroboration of credited
testimony by other witnesses, as indicated previously
herein. 3 1
To show that Eaves took an additional hour to make
the Columbus run and return, UPS introduced through
Ron Held (Resp. Exh. 67) a comparison of the time spent
on the job by Eaves, and his successor (Bailey) in the
identical job. That comparison shows that Eaves took an
average of an hour a day longer, and that this excess
hour is attributed to on-road driving time.3 2
It is, of course, well established that a discharge may
be for good cause or bad cause, or not cause at all except
that a discharge is unlawful when the real motivating
purpose is contrary to the prohibitions of Section 8(a)(l)
or (3) of the Act. The controlling Board decision on
burden of proof in this proceeding is Wright Line, a Divi-
sion of Wright Line, Inc., 251 NLRB 1083 (1980). In
"' In efforts to corroborate Eaves' story of being blocked in at the cafe
in Waverly on his return trip, the General Counsel called Patsy Cochen-
our, the operator of the Biscuit Palace during the time in question. Co-
chenour testified that she remembered Eaves' last run on March 12-13,
1980, because "it was my granddaughter's birthday, and we had a party."
She stated that Eaves had stopped on his break, but as he went out to
leave, he had to come back in and asked who was driving the Commer-
cial-Lovelace truck and that it be moved. She said the driver then stated
that he was going to first finish his breakfast and that the Lovelace driver
moved his rig some 8 minutes later To impeach Eaves' testimony about
buying aspirin at Portsmouth, UPS called Vriena Sharon Metzger, wait-
ress at the Frisches Big Boy Restaurant in Portsmouth, Ohio. She testi-
fied that she had been employed in her present capacity for 12 years. She
testified further that the restaurant sold no aspirins in March 1980 and
that such practice had been discontinued in January 1980. For my con-
clusions and findings herein, I do not rely on either the testimony of Co-
chenour or Metzger.
as It should be noted that all facts found herein are based on the
record as a whole and upon my observation of the witnesses. The credi-
bility resolutions herein have been derived from a review of the entire
testimonial record and exhibits with due regard for the logic and prob-
ability, the demeanor of the witnesses, and the teaching of N.LRB. v.
Walton Manufacturing Company and Loganville Pants Co., 369 U.S. 404
(1962). As to those witnesses testifying in contradiction of the findings
herein, their testimony has been discredited, either as having been in con-
flict with the testimony of reliable witnesses or because it was in and of
itself incredible and unworthy of belief. All testimony has been reiewed
and weighed in the light of the entire record. Furthermore, it should be es-
pecially noted that in several instances I have not credited the circum-
stances and events as recalled by Eaves in that his testimony, in areas
where there was conflict, revealed considerable discrepancies and was
also inconsistent at times, and not as convincing and straightforward as
the witnesses for Respondent who stated otherwise. The employees who
testified for the General Counsel on behalf of Eaves-Gore, Hazelett,
Bowen, Johnson, Bailey, and Swann-were either union officers of Local
505 (present or previously) or gave testimony on events and circum-
stances already established or on matters not overly important or relevant
in the final evaluations, and in other instances raised inferences in sheer
speculation as to what happened (Swann saw Eaves and Bowers in an
argument a few weeks prior to his discharge). Each supervisor in man-
agement who played any part in the decision to discharge Eaves, or to
uphold that discharge, categorically denied that Eaves' grievances in De-
cember 1979 had anything to do with their decision. In other sections of
this Decision, additional credibility resolutions have also been made.
Wright Line, the Board established the following causa-
tion test in all cases alleging violations of Section 8(aX3)
or violations of Section 8(a)(1) turning on employer mo-
tivation. First, it requires that the General Counsel make
a prima facie, case showing sufficient to support the in-
ference that protected conduct was a "motivating factor"
in the employer's decision. Once this is established, the
burden will shift to the other employer to demonstrate
that the same action would have taken place even in the
absence of the protected conduct.
I am in accord that the General Counsel in the instant
case made a prima facie showing sufficient to support the
inference that union activities (filing grievances prior to
March 13) was a motivating factor in the decision by
UPS to discharge Eaves, but I have further found that
UPS had legitimate business reasons for its actions.
Therefore, I must decide whether UPS has proved that it
would have taken the same action even in the absence of
the protected conduct, and I find, for all the reasons
noted herein, that UPS has met its burden of proof and I
am satisfied that because of the legitimate business rea-
sons for the discharge of Eaves-UPS would have taken
the same action even in the absence of his protected ac-
tivities. Accordingly, I have found that the reasons for
discharging Eaves was not pretextual but served a legiti-
mate business purpose, and while there was some con-
cern by Respondent over the grievances here in ques-
tion, the termination would have taken place even in the
absence of this protected activity.
As indicated, each UPS supervisor who participated in
reaching the decision to discharge Eaves unequivocably
and credibly testified that Eaves' grievances played no
part in their decision, and that testimony is buttressed by
surrounding circumstances and among which are: (1)
Eaves was guilty of serious misconduct; (2) his griev-
ances were not the sort to cause retaliation and were ac-
corded little weight or importance by everyone includ-
ing Eaves, the Union, and UPS; and (3) there is no evi-
dence of UPS' animus to the Union or union activity.
As pointed out, there can be no doubt that Eaves' mis-
conduct was of a very serious nature, and the Union in
November 1979 had agreed that such conduct merited
immediate termination, as aforestated. Moreover, it costs
UPS approximately S18 in unearned overtime wages to
Eaves on the night and morning in question, and such
was accomplished by the falsification of documents re-
quired by both company rules and Federal regulations.3 s
Furthermore, the evidence in this record clearly reveals
that Eaves was guilty of that misconduct. On the night
in question there were several separate instances of
Eaves' taking unauthorized breaks which he recorded as
time spent working. As noted, the first occurred when
he stopped in Portsmouth, Ohio. Eaves admitted the stop
and did not deny its length, but explained it as a neces-
se Ron Held's testimony established the substantial cost which Eaves'
practice of taking breaks and logging them as working time causes UPS.
He summarized the problems as follows:
... The [paid day] was an hour over; which is approximately S18
an hour overtime at that time, SS,000 a year. He had to be speeding
to make up his time which is unsafe to himself and unsafe to the
public. We have to consider the public image of speeding . . . vehi-
cle abuse, speeding, excess of fuel....
629
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary stop to buy aspirin for the flu bug. Even accepting
the explanation that Eaves had a compelling personal
reason to take a break-he entered the stop on his time-
card as time working or time driving, and had he not
been followed would have been paid for this time.3 4
The second instance was his next stop at Waverly,
Ohio. As indicated Eaves was entitled to a 15-minute
break, however, by the credited testimony of Perkins
and Bowers, he took 7 extra minutes. Eaves, of course,
denied spending more than 15 minutes, but Respondent
witnesses stated otherwise and his tachograph chart also
showed a stop of some 22 minutes as testified to by Ken-
neth Scott. 35
Respondent points out that the tachograph chart is
even more revealing on his third stop at the Columbus
Center in the early morning hours of March 13. In es-
sence, Eaves' testimony was to the effect that he worked
all but his 45-minute lunch period. He testified that from
his arrival in Columbus at 12:30 until 1:30 a.m., he spent
time driving around the yard unhooking and hooking up
his trailer and refueling. Yet for this period the tacho-
graph chart shows his truck movement only for a period
of 26 minutes as testified to by Scott. After 1:30 a.m.
Eaves, according to his testimony, remained in the trac-
tor on his regular lunchbreak. However, the tachograph
shows that his tractor idled at a good rate of speed
during 1 hour and 48 minutes and without any move-
ment during this period. Obviously, Eaves was perform-
ing no services during this time, yet, he recorded all but
the 45-minute lunch period as working time.
On his return trip Eaves again took a break, recorded
as working time, at Waverly. Here, he tried to justify
this stop as a 10-minute safety check and its excessive
length (29 minutes) because he was blocked in by a rig
from Commercial-Lovelace, but I have not credited such
testimony for reasons previously indicated herein. There-
fore, this stop must also be deemed as an unauthorized
break and his consideration of it as the time worked is
not justified.
As further detailed, the fifth and final false claim for
pay occurred in Huntington on March 13 where Eaves
went to the restaurant across the street from the center
for coffee and stayed for 14 minutes. Eaves claimed and
testified that George Bodner, a discharged UPS supervi-
sor, authorized the break. Bodner backed up Eaves' testi-
mony, as aforestated. but as detailed herein I do not
credit either of them.
34 Over-the-road drvers are not subject to being regularly observed-
the employer must rely on their honesty in properly recording their time.
as Eaves was asked whether the tachograph charts, logs, and time-
cards introduced into this record (Resp. Exhs. 16 through 46) were his.
and he answered by stating "I believe they are mine," but a little later
testified that he could not be sure of the tachograph charts. However, on
rebuttal the General Counsel went through most of Respondent's exhibits
as noted above, and from such Eaves testified as to some of the stops and
starts he made on the various days as reflected by such exhibits (from
early January into March 1980) and by doing so at least indirectly auth-
enticating all the documents as his. There is also testimony that on occa-
sions Eaves would forget to insert his tachograph chart when starting his
run or would remove the chart pnor to the completion of his run. Eaves
was then asked if he did not care about the charts, and he replied, "I
didn't care if they operated correctly or not, because they didn't mean
anything to me."
I am in agreement with Respondent that Eaves' lack
of truth in this instance is best shown by the fact that he
did not raise the defense noted above until after the arbi-
tration of his grievance was completed. Moreover, on
cross-examination Eaves admitted that he even failed to
mention this alleged approval by Bodner in the March 13
evening meeting with management when he was dis-
charged or in the meeting with Withers following his
discharge nor did he mention this approval in the written
statement to the AAPGC, and his sole explanation for
this failure to mention such a defense was that he did not
think "it was that important."
George Bodner suggested in his testimony that it was
not unusual for drivers to go across the street for coffee
while on the clock; that Manager Rudy Dickens had re-
cently given his approval to do this so long as they only
stayed for a few minutes; that on the day Eaves was dis-
charged, Division Manager Ron Thomas asked if there
was anything he (Bodner) knew of that Eaves could
come back on management with; and that on the follow-
ing day Manager Ron Thomas handed him several time-
cards of Eaves with the "ending times" marked out and
Bodner's initials beside the markouts and a written time
indicated instead. Bodner said that he then explained to
Thomas that this was so because in bad weather he
would pay Eaves for his lunch when he had not been
able to eat, or when he needed a driver to switch trailers
in the yard, and on such occasions he (Bodner) would
put in a new time on Eaves' card.36 Bodner also attribut-
ed a remark to Manager Krevosh, through Dickens, to
the effect that his initials on Eaves' timecards were the
"weakest link" in the case against him.
In summary, the reasons I have not credited either
Bodner or Eaves in this matter is because their defense
as to this incident was not raised until the time of the
hearing; their testimony attributing certain remarks were
denied by the supervisors involved; and the open admis-
sion by Bodner that he and Eaves were very "close."
Certainly, the strange circumstances involving the time-
cards and extra work for Eaves, is quite indicative of this
fact. Again, for the fifth time on the night and morning
in question, Eaves claimed pay by noting that he was
working when he was actually doing no work.
In the final analysis, the main thrust of the General
Counsel's case hinges on the contention that Eaves was
discharged for engaging in concerted activity in the
filing of three grievances on December 18 and 19, 1979.
However, this record shows that no one accorded these
grievances any real importance, and Eaves certainly did
not. On two occasions management arranged meetings to
attempt to resolve them, and twice Manager Ron Held
drove from Charleston to Huntington for those meetings,
but on each occasion Eaves failed to either wait or
appear. As noted, on the first occasion Eaves left before
Manager Held arrived, even though he was only a few
minutes late, and on the second occasion Eaves did not
show at all, and as a result Local 505 agreed not to
36 Manager Thomas admitted talking to Bodner about this matter, but
placed the date of their conversation weeks before the discharge of
Eaves. Thomas stated that Bodner was altering the timecards in question
and he instructed Bodner never to do it again.
630
UNITED PARCEL SERVICE, INC.
pursue the grievances. From such circumstances it is dif-
ficult for me to attach any great significance in the filing
of the grievances. The Company endeavored to settle
them at the local level, and in their attempt to do so
were successful to the extent that Eaves displayed so
little interest that they were dropped and with the con-
sent of Local 505. The only apparent inconvenience suf-
fered by the Company, if any, was making arrangements
for the meetings and getting people there. As further
noted, the grievances were also by their very nature
quite innocuous-they challenged no fundamental right
or no serious disciplinary action, and they were the first
grievances filed by Eaves in quite some time. Certainly,
there is nothing in the grievances, or Eaves' prior histo-
ry, which would indicate the sort of militant union activ-
ity which would tempt an employer to discriminate. The
General Counsel has argued that the grievances adverse-
ly reflected on supervisors responsible for Eaves, and as
a result they set out to get even. It appears to me that
had Eaves pressed his grievances, or had somehow dis-
played at least some active interest and desire in finaliz-
ing his protests, then, under such conditions, some ad-
verse reflections might have been attributed to the super-
visors involved. But, in his refusal to pursue his griev-
ances he actually indicated, at least on the surface, that
there was no real merit in them and, therefore, it is un-
likely that any adverse dispersions were cast on anybody.
In view of the seriousness of Eaves' misconduct, the
nonthreatening nature and processing of his grievances,
and the absence of any evidence of antiunion animus, it
is clear to me that Eaves would have been discharged
had he not filed the grievances here in question.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent has not engaged in any of the unfair
labor practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER3 7
The complaint is dismissed in its entirety.
37 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National [ahor 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
631