United Parcel Service, Inc.

National Labor Relations Board - Board DecisionsJan 30, 1985

273 N.L.R.B. 1673 (N.L.R.B. 1985)

UNITED PARCEL SERVICE 1673 United Parcel Service, Inc. and Lodge 804, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO. Case 9-CA-14987 30 January 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 23 September 1981 Administrative Law Judge Karl H. Buschmann issued the attached deci- sion. The General Counsel and the Charging Party each filed exceptions with a supporting brief. The Respondent filed a cross-exception and a brief in support of that cross-exception and in response to the General Counsel's and the Charging Party's ex- ceptions. - The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 In adopting the judge's recommendation to dismiss the complaint we rely specifically on the evidence that stewards Tharp, Bryant, add DeZani provided leadership to rank-and-file employees during an unpro- tected work stoppage. The Respondent may discipline stewards who In- stigate or provide leadership for a work stoppage in violation of a no- strike clause in the parties' applicable collective-bargaining agreement. See Midwest Precision Castings Co., 244 NLRB 597 (1979), Chrysler Corp., 232 NLRB 466 (1977). DECISION KARL H. BUSCHMANN, Administrative Law Judge. This case arose upon the filing of a charge by Lodge 804, International Association of Machinists and Aero- space Workers, AFL-CIO and a resulting complaint issued by the General Counsel charging United Parcel Service, Inc. with violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). More specif- ically, the complaint, as amended, charges that United Parcel Service, Inc., the Respondent, suspended its em- ployee Cam Cantrell for 20 days without pay and dis- charged three employees, Gary Tharp, William Bryant, and Daniel DeZarn, because of their union activities, i.e., their participation as union stewards in an unauthorized strike. Respondent's answer admits the jurisdictional elements of the complaint, as well as the suspension and dis- charges of the four individuals. However, it denies the commission of any unfair labor practices, and further states that the union stewards were discharged "for insti- gating, leading, prolonging and engaging in a strike in breach of contract which is unprotected activity under the Act." A hearing was held on January 13 and 14, 1981, in Cincinnati, Ohio. The General Counsel and Respondent filed briefs on March 3 and 2, 1981, respectively. On consideration of the entire record' and from my observa- tion of the demeanor of the witnesses, I make the follow- ing FINDINGS OF FACT The Respondent, United Parcel Service, Inc., is an Ohio corporation engaged in the transportation and de- livery of goods by truck from various terminals located throughout the United States, including its Cincinnati, Ohio terminals. It is admittedly an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union, Lodge 804, International Association of Machinists and Aerospace Workers, AFL-CIO is admit- tedly a labor organization within the meaning of Section 2(5) of the Act. The Union has represented certain em- ployees at Respondent's terminals pursuant to a collec- tive-bargaining agreement effective November 7, 1979. It provides, inter alia: The Union, or its members, agree that during the term of this Agreement, it will not engage in or en- courage any strike, picketing, work stoppage or im- peding of work. The Company agrees that during the term of this Agreement, it will not lock out its employees. In the event of a violation of this article, the Union agrees that upon notification by the Company it will take immediate affirmative action with the employees involved to bring about an im- mediate resumption of normal work. [R. Exh. 2.1 Contrary to this provision, several employees of the Respondent engaged in a strike on March 5 and 6, 1980. The events leading up to this strike are not in dispute. During the morning of March 5, 1980, the Union and the Respondent held a grievance meeting at the Company's Third Street location. The Company's spokesmen were Robert Mulvaney, acting south-Ohio district automotive manager, Larry Thomas, south-Ohio district automotive manager and Robert Sions, south-Ohio district automo- tive fleet supervisor. The Union was represented by Business Agent Dave Patterson, Don Helcher, the griev- ant, and Union Stewards Gary Tharp and William Bryant. During the discussion, dealing with the lawful- ness of Helcher's discharge and the right to be represent- ed by the Union, Mulvaney admonished Patterson who had raised his voice that unless he modified his tone of voice "he would shut the meeting down." Patterson countered by stating that he would have the men out on an unfair labor practice strike, to which Mulvaney re- plied, "[W]hatever turns you on buster." Patterson promptly announced, "We're going to strike." He left the meeting, followed by Helcher, Tharp, and Bryant. Patterson went through the shop telling employees to lock their boxes and "hit the street." All employees at the Third Street location who were members of the 1 Respondent's unopposed motion to correct transcript is granted. 273 NLRB No. 205 1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union walked out Within a half an hour, Patterson had distributed picket signs to the striking employees; among these were Tharp and Bryant. Patterson then told Tharp to call Daniel DeZarn, the union steward at Respondent's Gest Street facility, to ex- plain the events that had just occurred Tharp called DeZarn about 10:30 a.m. A few minutes later, Patterson, Tharp, Bryant, and employee John Guth drove to the Gest Street facility and began to picket there. Within a few minutes, Ed Siebbenberg, Respondent's controller, approached the pickets and wanted to know what was printed on the signs. He spoke briefly to the pickets and left. Patterson returned to Third Street, leaving Tharp, Guth, and Bryant on the picket line at the Gest Street area In the meantime, DeZarn, the steward at the Gest Street area, who had known of the problem at Third Street only through the earlier telephone call from Tharp, did not know of the picketing activity in front of his building. At around 11 a.m. he clocked out, intending to go to the Third Street facility to obtain more details, at which time he saw the pickets. He obtained the neces- sary facts from them, and returned to his building to keep his coworkers, Mike Lickliter and James Wise, in- formed. Once inside, a confrontation occurred when DeZarn was confronted by his supervisor, Thomas Cade, who was accompanied by Myrna Ethridge, a supervisor in the maintenance department. The record is unclear as to the exact sequence of events during this brief encounter. But it is evident that a brief scuffle ensued between Cade and DeZarn, primarily because Cade wanted to stop DeZarn who had clocked out from reentering the building Nevertheless, DeZarn, warning his supervisor to keep out his way, walked to the work area of Lickliter, and told him that the Third Street shop was on strike. At Cade's persistent orders, DeZarn left the building and joined the pickets, followed about 15 minutes later by employees Lickliter and Wise. Patterson, who had returned from the Gest Street shop to the Third Street facility, contacted Cam Can- trell, the union steward at Respondent's Dayton plant, and informed him of the breakdown in the Helcher grievance hearing and the resulting strikes in Cincinnati. Patterson told Cantrell that he would contact him again later. Patterson called Cantrell shortly after 12 noon to tell him that he was negotiating with the Company to reopen the Helcher hearing and that he would "pull Dayton and Columbus shops out" if he had not reached an agreement by 1 p.m. At 12:30 p.m, Chuck Stephens, Cantrell's supervisor, sent him to a repair shop on an errand. When Cantrell returned shortly after 2 p.m., he found all the employees in front of the shop office ready to walk out. He was told by the employees that Patter- son had called and told them to leave the building. At that point, Stephens approached the group with the union contract and read the "no strike" clause to them. Nevertheless, the employees left the building Two of them obtained picket signs and the five employees, in- cluding Cantrell, picketed the Dayton facility. During the afternoon, Patterson officially notified the Company of the strike activity and the reasons for the walkout Subsequently television news reporters inter- viewed the pickets at the Third and Gest Street facilities in an attempt to obtain the details about the strike. Tharp, DeZarn, and Bryant gave short interviews re- flecting their belief that the strike had been authorized by the International That evening the news on television actually contained excerpts of the interviews with Tharp and DeZarn However, the International Union had not sanctioned the strike and had so informed Patterson. Ac- cordingly, Patterson then attempted to end the strike. He initially called Cantrell in Dayton and told him that the strike was over and that he should "pull down the pick- ets." Cantrell followed Patterson's orders and told the striking employees to return to work. He also informed 6tephens, his supervisor, what Patterson had told him. The Dayton stnke ended the same day. Patterson also attempted to end the strike at the Gest and Third Street facilities. He met repeatedly with Mi- chael Vercheak, Respondent's labor relations manager, during the evening of March 5, 1980, in an effort to re- solve the situation. Vercheak, aware that the strike was not sanctioned and that Patterson was then in a bad bar- gaining position, insisted on the following proposal (Tr. 314): "[P]ickets down, people report to work immediate- ly, we'll talk, and the five named individuals—Tharp, DeZarn, Bryant, Cantrell, and Pete Martin—would be suspended pending investigation." Although Patterson urged the strikers at the Gest and Third Street plants to return to their jobs, they refused unless the stewards also went back to work. While Pat- terson had agreed to the proposal, the strikers refused to return to work without their stewards. Patterson sent Vercheak a telegram in which he noti- fied the Company that he had instructed the striking em- ployees to end their strike Vercheak read that telegram to them and still they refused. On the morning of March 6 the employees at Gest and Third Streets were still picketing and other employees were now refusing to cross the picket line. In an effort to have the pickets return to their jobs, Vercheak at- tempted to resolve the dispute with Bryant, DeZarn, and Tharp as well as with Patterson. But the employees were reluctant to return to their jobs without the stewards. Fi- nally, when Vercheak agreed orally and in writing that no reprisals would be taken against the employees for their picketing, they were persuaded by Patterson and the stewards to end the strike at 11:30 on March 6. The five stewards, Bryant, Cantrell, DeZarn, Tharp, and Martin, were suspended pending an investigation by the Respondent as to their conduct during the strike. On March 11, the Company decided to discharge Tharp, Bryant, and DeZarn and officially notified them by letters of March 17 of their discharge "because of [their] active leadership role in commencing prolonging and participating in the work stoppage on March 5-6, 1980, in violation" of the no-strike clause of the contract. Grievances were filed but were not pursued to arbitra- tion. The Company decided to suspend Cantrell for 30 days with loss of benefits for his role in the strike. After negotiations, the Union was able to reduce the 30 days to a 20-day suspension without pay and restoration of all UNITED PARCEL SERVICE 1675 benefits (except the retirement benefits). The document was signed by the parties as evidence of the settlement. Analysis The discharges of the three union stewards, as well as the 20-day suspension of the fourth steward, were, ac- cording to the General Counsel, the result of the Compa- ny's discriminatory treatment of these employees solely because of their status as union stewards. While a compa- ny may lawfully discipline employees for their participa- tion in a unlawful strike, an employer may not single out employees on the basis of their union office. Since a number of employees who participated in the walkout were employees who did not hold a union office, it can be inferred, argues the General Counsel, that the Compa- ny unlawfully discriminated against union officials when it selected only union stewards for disciplinary action. Moreover, it is the position of the General Counsel that the individuals concerned did not assume a leading role in the strike activity as asserted by the Respondent Respondent's argument is twofold. First, Respondent "had the right, as a matter of law, to discipline the four stewards for their participation in the strike and failure to exercise higher duty and responsibility as union offi- cials to prevent the strike from occurring or continuing." Second, the actions of these four stewards in commenc- ing, prolonging, and participating in the illegal strike ex- ceeded those of other strikers and distinguished them. Accordingly, Respondent's position is that their union office notwithstanding, the stewards assumed a leading role which justified the disciplinary action. The record is clear, the four individuals participated in the walkout at Respondent's several facilities in violation of the "no strike" provision in the contract There is also no dispute that the strike did not amount to an unfair labor practice strike or otherwise constitute protected ac- tivity. Accordingly, any or all of the strikers could law- fully have been disciplined by the Respondent. And at first blush, it would seem that as a result of the contrac- tual language requiring the Union to "take immediate af- firmative action with the employees involved to bring about an immediate resumption of normal work" union stewards could be held to a higher duty as agents of the Union. However, this issue was squarely decided in Precision Castings Co, 233 NLRB 183 (1977). There, the Board re- jected the notion of a higher duly of union stewards and held that "discrimination directed against an employee on the basis of his or her holding union office is contrary to the plain meaning of Section 8(a)(3) and would frus- trate the policies of the Act if allowed to stand" (233 NLRB at 184). In subsequent decisions, the Board has adhered to that standard. See Babcock & Wilcox Co., 249 NLRB 739 (1980); Metropolitan Edison Co., 252 NLRB 1030 (1980).2 With respect to Respondent's second argument, the record shows that the three stewards who were dis- charged did more than participate in the strike or fail to 2 Courts have disagreed with this position Gould Corp. 237 NLRB 881 (1978), enf denied 612 F 2d 728 (3d Cir 1979), Indiana ii Michigan Electric, 599 F 2d 227 (7th Cir 1979) take positive steps in stopping it Among the 10 or 15 employees involved in the strike, Bryant, Tharp, and DeZarn were the most prominent. Although Patterson was the real instigator and the stewards were the "pawns" caught in the middle, they nevertheless played the role of union stewards when they relayed Patterson's messages, spoke as strikers' representatives to the press, picketed at another location in addition to their own duty station, and participated in the strike negotiations with management. More particularly, the record shows that Tharp, at Patterson's orders, called DeZarn over the telephone with instructions and details concerning the strike. Further, while he was among the striking employ- ees at Third Street, he went with Patterson 3 to the Com- pany's Gest Street facility and engaged in picketing "back and forth between Third Street and Gest Street all day, on and off." He also spoke to a television news re- porter at Gest Street and subsequently appeared on tele- vision explaining the reasons for the strike stating that it was not a wildcat strike but a sanctioned strike. In addi- tion, Tharp assumed a leading role during the picketing to guard against problems; for example, he told employ- ees to keep walking while in the picket line. He was also among the three stewards (in addition to DeZarn and Bryant) who first discussed and then agreed to Ver- cheak's ultimatum that the men return to work and that the stewards be suspended. With respect to DeZarn, the record shows that as soon as he left his building after clocking out, he talked to the union pickets and immediately returned to notify the two employees at the Gest Street plant who prompt- ly joined the strike; he was also interviewed by a televi- sion news reporter about the strike and subsequently ap- peared on two television news programs in which he ex- pressed his hope that the teamsters would honor the picket line, and where he inaccurately explained the reason for the strike as follows: "We had a man was [sic] fired and they aren't willing to sit down and talk about it." DeZarn, with the other two stewards, discussed, considered, and finally accepted Vercheak's conditions for settling the strike Bryant was one of the stewards who also engaged in picketing both the Third Street and the Gest Street fa- cilities. He participated in the negotiations affecting the strike; for example, at one point, he told Siebbenberg who wanted to read the message on the picket signs that they "wanted to talk with someone to try to get the problem resolved." He also told Vercheak, in response to his offer to settle the strike, that "they went out togeth- er, they'll go back together" Bryant also admitted giving the television news reporter an interview Apparently none of his remarks were broadcast. From the foregoing, it is apparent that the participa- tion of the three stewards in the strike went beyond simple participation and refusal to urge the men to return to work Their role, though substantially performed at Patterson's behest, certainly assisted and affected the strike activity of the employees They acted as union 3 The only employee who picketed at both locations and who was not disciplined was John Guth However, that was the extent of his participa- tion in the strike 1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives during the strike and failed to act as union representatives in conformity with their union con- tract. Accordingly, I find that Respondent did not un- lawfully discriminate against the three stewards in viola- tion of Section 8(a)(3) and (1), and that Respondent's conduct was not coercive of the employees' rights under Section 7 of the Act. With respect to the suspension of Cam Cantrell, the record contains a settlement of the dispute. The settle- ment is indicative of Respondent's effort to gauge the se- verity of the discipline to the extent of the particular em- ployee's participation in the strike. It is substantially un- disputed that Cantrell's "leading" role in the walkout amounted to no more than relaying Patterson's strike in- structions to employees and the display of a homemade picket sign in his car immediately in front of Respond- ent's property. He did not engage in picketing at sites other than his work station, and he did not grant a tele- vision interview on behalf of the Union. In any case, dispositive of this issue is the settlement signed by Cantrell, as well as management and union representatives. It is a short statement in handwriting which clearly states: "All legal action or grievance ma- chinery action by C. Cantrel [sic] is dropped as a part to the above agreement." Even though the signatories failed specifically to articulate in this waiver the right to file charges with the Board, it can be inferred, considering the brevity of the statement as a whole and its basic in- formality. The parties obviously intended that this settle- ment would bar any further dispute or procedural conse- quences. As already stated, there is no further evidence that the settlement was unfair or arbitrary in the light of the surrounding circumstances. I would therefore defer to the settlement. CONCLUSIONS OF LAW 1. United Parcel Service, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Lodge 804, International Association of Machinists and Aerospace Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not commit any unfair labor prac- tices alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER It is ordered that the complaint is dismissed in its en- tirety 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses