NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
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United Parcel Service, Inc. and Teamsters Local 177. Case
22–CA–27863
October 28, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On June 20, 2008, Administrative Law Judge Mindy E. Landow
issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General Counsel and the
Charging Party filed answering briefs.
The Respondent filed a reply brief.
The National Labor
Relations 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
National Labor Relations Board adopts the recommended Order of the
administrative law judge and orders that the Respondent, United Parcel Service,
Inc., Secaucus, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth in the Order.
Dated, Washington, D.C. October 28, 2008
Peter C. Schaumber, Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
Saulo Santiago, Esq.,
for the General Counsel.
Edward P. Lynch,
Esq., (Day Pitney, LLP), of Morristown,
New Jersey, for the Respondent.
Edward O’Hare, Esq.
(Zazzali, Fagella, Nowak, Kleinbaum & Friedman), of Newark, New Jersey, for the Charging Party.
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. Based
upon a charge filed on March 15, 2007 and an amended charge filed on July 31,
2007 by Teamsters Local 177 (the Union), in
Case 22–CA–27863, a complaint and amended complaint were issued against United
Parcel Service, Inc. (Respondent) on July 31 and November 28, respectively.
The complaint, as amended, alleges essentially that on or
about February 9, the Respondent, by Tracy Celmer, violated Section 8(a)(1) of
the Act by stating that a warning letter issued to employee Ernest Griffin
would not be rescinded because of the protected conduct of his shop steward,
and that Respondent further violated Section 8(a)(1) and (3) of the Act by refusing
to rescind said warning letter. The
Respondent’s answer denied the material allegations of the complaint and posed
the affirmative defense that the matter should be deferred to the parties’
grievance-arbitration process.
A hearing on the allegations of the complaint was held before
me on February 5, 2008 in Newark,
New Jersey.
On the entire record,
and considering the briefs filed by the parties, I make the following
Findings of Fact
i. jurisdiction
Respondent, a corporation, with an office and place of business
at 493 County Avenue,
Secaucus, New Jersey,
is engaged in the transportation of packages and goods. During the past year,
Respondent has derived gross revenues in excess of $50,000 from the transportation
of packages and goods from the State of New Jersey
directly to points outside the State of New
Jersey. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. Respondent additionally admits, and I find, that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
ii. alleged unfair labor practices
A. Background
The Union represents a
unit of employees including drivers, sorters, loaders, porters, office clerical
employees, mechanics and other classifications of employees employed by the Respondent.
The most recent collective-bargaining agreement between the parties is
effective from August 1, 2002 to July 31, 2008.
Respondent operates numerous package delivery centers including
the one involved herein, the Hackensack
Center located in the Meadowlands Building
in Secaucus, New Jersey, which was also referred to in
the record as the Secaucus facility. Approximately 43 package delivery drivers
are employed in and from that facility.
Ernest Griffin is a package delivery driver assigned to
the Hackensack Center who has worked for Respondent for
20 years. Celmer is the facility’s business manager and Michael Matteo occupies
the position of dispatch planning supervisor. Chris Eltzholtz has worked as a
driver for Respondent for over 16 years and is the union shop steward for the
facility. He has served in this capacity for approximately 10 years.
B. The Disciplinary Meetings
On February 9, Respondent held its daily pre-working communication
(PWC) meeting with employees. This meeting typically consists of a short informative
talk, presented by a supervisor, to discuss subjects such as safety, training
and other matters of importance to the drivers. At that time, the names of
employees with whom management wishes to meet are announced, and they are
expected to report to the office after the meeting concludes. On that morning, Griffin was summoned and,
accompanied by Shop Steward Eltzholtz, reported to Business Manager Celmer’s
office. Dispatch Planning Supervisor Matteo was also present.
The purpose of the meeting was to discuss a delivery scan
audit performed the prior day on Griffin’s truck
which indicated that he had failed to deliver a package to 14 Mill Street in Lodi, New Jersey. Disciplinary meetings with package car
drivers for such discrepancies are not uncommon, and Eltzholtz has, as shop
steward, represented employees in connection with such issues on numerous occasions.
The record also reflects that Griffin
had been summoned to meetings to discuss similar infractions on four or five
occasions.
Celmer told Griffin
that he would be receiving a warning letter for the missed scan. Eltzholtz
requested to see the delivery records. Celmer stated that six packages had been
scanned for that location. At first, Eltzholtz found only four deliveries, but Griffin explained that he
had missed two packages during his initial stop and that he had returned to
that location later in the day. After
looking through the records, Eltzholtz found two additional delivery scans for 14 Mill Street and
pointed that out to Celmer. She took the delivery records and began comparing
the tracking numbers. According to
Celmer, the six deliveries listed in the records failed to reflect the missing
package, and Eltzholtz asked how she definitely knew it was on Griffin’s truck.
Griffin
was protesting during this exchange, stating that he did his job; that there
had been six packages and he had delivered all six. Celmer was on her computer,
tracking the package numbers. Griffin and
Eltzholtz were continuing to talk, and Griffin
was continuing to insist that he had made all his deliveries. Then Celmer asked
Griffin how did
she know that he did not steal the package. According to both Eltzholtz and Griffin, Celmer made a direct accusation relating to Griffin’s possible theft
of the package.
Upon hearing Celmer’s comments, Griffin stood up and stated that he was not a
thief. He argued that in 20 years, he had never been accused of stealing. Griffin pulled various
items from his pockets, said he had his “own stuff” and did not need anyone
else’s. According to Celmer, Griffin
approached her desk and came to the side of her chair, turned to Matteo and protested
that he (Matteo) knew him and that he did not steal.
Celmer told Griffin
to step back and sit down; but he did not follow her directive and continued to
remonstrate. Eltzholtz told him to take a seat as well. Eltzholtz turned to
Matteo and said that what Celmer said was not right, and Matteo said that he
didn’t think Celmer had meant it the way she said it. Celmer again told Griffin to sit down. Griffin continued to
insist that he had not stolen anything. At that point Celmer told Griffin that he would be
receiving additional warning letters for poor attendance and insubordination
and ended the meeting.
According to Eltzholtz, he and Griffin then left the office. Eltzholtz was
trying to calm Griffin
down, and told him that he would contact the union office about the warning
letters. A short while later, Celmer summoned the two men back to her office.
Celmer entered the office first, and by the time Eltzholtz got there she was
sitting at her desk. Griffin
was still upset, and repeated the phrase, “I’m hot.” As Eltzholtz walked
through the door, he turned to Griffin,
who was behind him, and said, “Ernie, I’d be hot too, if someone accused me of
stealing.” As Eltzholtz testified, Celmer then became angry and stated that she
had been going to rescind the warning letter for insubordination but because he
(referring to Eltzholtz) had “opened his mouth,” Griffin would be receiving it. Eltzholtz’
notes state: “Came back in & she was going to take the W/L away but I
opened mouth.” In a similar vein, Griffin testified that Celmer
said, “Well, I was going to take away the insubordination warning letter but
your shop steward got you that one, too.”
According to Celmer’s account of the initial meeting Griffin did not sit down,
but he did eventually step back. Feeling intimidated by his conduct in her
small and crowded office, she exited first, walking past Griffin, and went onto the pedestrian walkway
where one of the supervisors was standing. Griffin left the office after her, and went
to the “belt” where his package car was parked and continued to rant in front
of other employees who were working in the area. As Celmer testified: “[h]e was
very loud and boisterous. He was
grandstanding in front of other employees. And as soon as he had their full
attention he continued in a more boisterous fashion.” According to Celmer, she
was about 50 feet away from Griffin
and heard his comments. He was saying, “you come in here, you just try to do
your job. You’re just trying to work hard and you get accused of being a thief
and being a liar.” Celmer walked over to Griffin
and told him he could not be out there behaving in that fashion and instructed
him to return to her office. They returned to the office, and Eltzholtz and
Matteo, who had been standing nearby, joined them.
As Celmer testified, as they were walking into the office,
she asked Griffin
if he wanted to sit down and discuss this professionally, and stated that she
would be willing to take away the warning letter for insubordination. Griffin
was rocking back and forth on his feet; seeming very agitated and told Celmer
to “do what you got to do.” He accused Celmer of calling him a liar and a
thief. Celmer testified that Griffin
did not calm down; nor did he sit down. Eltzholtz then addressed Griffin, stating that
Celmer was calling him a liar and telling him that he was stealing, and that he
would be upset too. Celmer told Eltzholtz that he needed to stop “egging him
on.” According to Celmer, Eltzholtz made some other comments, repeating that
she could not call Griffin
a liar and that he would act the same way. At this point Celmer stated that she
would not rescind the warning letter. Celmer testified that it was not because
of anything Eltzholtz had said, but because Griffin would not calm down. She denied
telling Eltzholtz that her decision to issue the warning letter had anything to
do with what he said.
According to Matteo, after Celmer ended the first meeting,
he and Eltzholtz remained behind. He heard Griffin’s voice, describing it as “animated,”
as he continued to protest that he did not steal, and he came to do a job.
Celmer directed everyone to return to the office and Matteo entered and stood
by Celmer’s desk. According to Matteo, Griffin
was still angry and continued to insist that he had delivered the packages, and
had not stolen them. Celmer told Griffin
that he needed to calm down and Eltzholtz said that he did not blame the guy,
because you are accusing him of stealing. Eltzholtz added that he’d be mad too,
if it were him. Matteo quotes Celmer as stating to Eltzholtz: “If you keep
egging him on, I’m going to have to give him a warning letter for improper
behavior.”
After this meeting concluded both Griffin and Eltzholtz exited the office and
went to their trucks, which were the only ones left in the dock. A few minutes
later, Eltzholtz observed Celmer standing by Griffin’s truck. Although he could see the
two of them, he did not hear what was said. Griffin testified that during the exchange
Celmer told him that his shop steward was getting him the warning letters.
Later that evening Eltzholtz ran into Griffin
at the facility and asked him what had occurred during the discussion with
Celmer at the truck. Griffin
told him that Celmer had repeated her earlier statement that he was getting the
warning letter because of what Eltzholtz had said. Celmer denied walking out to
Griffin’s truck
and further denied making any such comment to him.
On March 1, Griffin
received two warning letters. One referred to “your unacceptable behavior on
February 9, 2007 when you were insubordinate and wagged your finger toward the
face of a Manager. This is unacceptable behavior.” The second concerned “your
failure to follow the proper delivery methods by not scanning a package for 14 Mill St. Lodi
on February 9, 2007.”
iii. analysis and conclusions
A. The Deferral Issue
In its answer to the complaint, and again at hearing and
in its posthearing brief, Respondent contends that the instant matter should be
deferred to arbitration pursuant to the principles of Collyer Insulated Wire Co., 192 NLRB 837(1971) and United Technologies Corp., 268 NLRB 557
(1984).
It appears from the record that Respondent and the Union have had a long bargaining history. Both the
national master united parcel agreement (NMA) and the Local 177 Supplement,
which apply to the circumstances herein, contain broad grievance and
arbitration provisions. Article 4 of the NMA contemplates that the
responsibilities of job stewards shall include: “The investigation and
presentation of grievances with the Employer or the designated company
representative in accordance with the provisions of the collective-bargaining
agreement.” In relevant part, article 4 also provides:
Stewards and/or alternate stewards shall not be subject to
discipline for performing any of the duties within the scope of their authority
as defined in this section, in the manner permitted by this Section.
Recognizing the importance of the role of the union steward in resolving
problems or disputes between the Employer and its employees, the Employer
reaffirms its commitment to the active involvement of union stewards in such
processes in accordance with the terms of this article.
Further, article 4 makes clear that “[t]he Employer recognizes
the employee’s right to be given requested representation by a steward, or the
designated alternate, at such time as the employee reasonably contemplates
disciplinary action.”
In addition, Article 21, entitled “Union Activity,”
provides in pertinent part as follows:
Any employee member of the Union acting in any official capacity
whatsoever shall not be discriminated against for acts as such officer of the Union so long as such acts do not interfere with the
conduct of the Employer’s business, nor shall there be any discrimination
against any employee because of union membership or activities. . .
Article 47 of the Local 177 Supplement, entitled “Discharge,”
specifically references warning letters:
Section 1
The following shall be causes for immediate suspension or
discharge of an employee: drinking, or proven or admitted dishonesty.
Section 2
In all other cases involving the discharge or suspension
of an employee, the Company will give three (3) working days’ notice to the
employee of their discharge or suspension and the reason therefore. Such notice
shall be also given to the Shop Steward and the Local Union office. Any warning
notice shall not remain in effect more than twelve (12) months.
On April 1, 2005, Respondent and the Union appeared before
Arbitrator Carol Wittenberg to arbitrate a grievance brought under the
collective-bargaining agreement concerning the Union’s
challenge to the Company’s issuance of a warning letter to an employee on a
matter unrelated to the instant proceeding. Of note to the instant case,
however, was the issue presented to the arbitrator which was whether, under the
collective-bargaining agreement, warning letters “standing alone” could be
arbitrated, or whether they were subject to arbitration only when subsequent
more severe discipline, i.e., suspension or discharge, was issued and based in
part on progressive discipline stemming from the earlier warning letter. In
that instance, the Union took the position
that it was entitled to arbitrate the warning letter. The Employer argued to
the contrary: that a warning letter standing alone was not arbitrable, and
that, consistent with article 47, the only disciplinary matters which may be
referred to arbitration are discharge and suspension.
In an opinion and award dated July 16, 2005, Arbitrator Wittenberg
held that warning letters, standing alone, may not be arbitrated. In so
concluding, the arbitrator looked to the language of the collective-bargaining
agreement, the history and practice of the parties since at least 1990 and the Union’s apparent agreement to the parties’ rebuttal procedure, which was found by the arbitrator to
provide an adequate remedy should the employee in question be subject to more
severe discipline.
Respondent contends that the allegations of the complaint
are covered by the foregoing contractual provisions and are subject to
grievance and arbitration under the conditions adopted by the parties, as
described by Arbitrator Wittenberg. Both the General Counsel and the Union argue, to the contrary, that the matter is not
amenable to deferral.
It is well-settled that the Board has “considerable
discretion to defer to the arbitration process when doing so will serve the fundamental
aims of the Act.” Wonder Bread, 343 NLRB 55, 55 (2004) (citations omitted). As the
Board has held, deferral is appropriate when the following factors are present:
[T]he dispute arose within the confines of a long and
productive collective-bargaining relationship; there is no claim of employer
animosity to the employees’ exercise of protected statutory rights; the parties’
agreement provides for arbitration of a very broad range of disputes; the
arbitration clause clearly encompasses the dispute at issue; the employer has
asserted its willingness to utilize arbitration to resolve the dispute; and the
dispute is eminently well suited to such resolution.
Id. (citing United
Technologies Corp., 268 NLRB 557, 558 (1984))
In support of its argument that deferral is appropriate, Respondent
argues that no claim of employer animosity to employee exercise of protected rights
has been asserted in this case. Further, Respondent contends that: “UPS has
expressed its willingness to arbitrate the issue of these letters as provided
for in the collective bargaining agreement and as Arbitrator Wittenberg found—once a subsequent disciplinary action has
been taken” (emphasis supplied). In support of its position, Respondent
relies upon August A. Busch & Co. 309
NLRB 714, 716 (1992), where the Board found that while the contract at issue
did not obligate either party to resort to the grievance and arbitration procedures,
it was the availability of that machinery which triggered the deferral doctrine.
In that case the Board determined that the dispute was cognizable by the
grievance arbitration procedure and all other factors favoring deferral were
present.
In disagreement with the Respondent, I find that all the
factors called for by Collyer, United
Technologies and their progeny are not present here. In particular, I find
that the relevant provisions of the parties’ collective-bargaining agreement,
as interpreted by the arbitrator (in apparent agreement with arguments advanced
by Respondent), fail to provide a mechanism to resolve the underlying statutory
issue and further fail to provide an appropriate remedy for the alleged violations.
The General Counsel argues, in its brief, that Article 21
of the NMA does not apply to Griffin insofar as
this provision protects employees only insofar as they function as an officer
of the Union. I do not agree with this assertion,
and find that the second clause of article 21, which is a general nondiscrimination
provision, arguably would cover Griffin
in this instance. Nevertheless, I further conclude that the dispute is not amenable
to resolution through the collective-bargaining process. In particular,
Arbitrator Wittenberg has specifically ruled that “stand alone” warning letters
are not arbitrable. Thus it would appear that the issue of whether Respondent’s
issuance of (or, as presented by the General Counsel, its failure to rescind)
the warning letter stemmed from Griffin’s
insubordination or because of protected conduct cannot be considered under the
collective-bargaining agreement. I note
that Respondent does not take the position that this issue could or should be
considered by the case in its present posture, but argues only that the warning
letter could be arbitrated in conjunction with subsequent discipline, in the
event any should be issued to Griffin.
In a variety of contexts, the Board has held that deferral
is not appropriate where the issue involved is not arguably covered under the
contract. See Pepsi Cola Co., 330 NLRB 474 (2000) (deferral not appropriate where
arbitrator decided case on procedural grounds without consideration of the
merits); see also Stephens Graphics, Inc.,
339 NLRB 457, 461 (2003) (deferral of Section 8(a)(1) charge not appropriate
where there was no specific contractual provision covering the dispute and
there was no assurance that the alleged Section 7 rights were covered by the
contract); Western Massachusetts Electric Co., 228 NLRB 607, 610 (1977), enf.
denied on other grounds 573 F.2d 101 (1st Cir. 1978) (no deferral where
arbitrator determined unilateral suspension of employee benefit not
arbitrable).
Here, while the arbitrator found that the parties’
agreed-upon procedure protected employee rights under the collective-bargaining
agreement, this finding does not answer the question of whether employees’
statutory rights are adequately protected by such a procedure. Because it
appears, (and no party contests otherwise), that the issuance of the warning
letter to Griffin
would not be arbitrable under the contract, as interpreted by the arbitrator,
such a factor strongly militates against deferral.
I further note that the Board has declined to defer in instances
where an appropriate remedy cannot be fashioned through the arbitral forum. For
example, in Clarkson Industries, 312
NLRB 349, 351 (1993), the Board considered whether alleged violations of Section
8(a)(1) and (3) should be deferred to arbitration. That case involved a warning
issued to a shop steward and an alleged threat to hold that steward to a higher
standard of conduct than that demanded of other employees. In that case, the
shop steward was arguably covered by contract language prohibiting discrimination
on the basis of union membership or activity. However, the arbitration
provision provided that the arbitrator “shall not have the right or authority
to subtract to or alter any provision of this Contract, nor may the arbitrator
make any recommendations for future actions by the company or the Union.” The Board found that this provision would prevent
an arbitrator from imposing the functional equivalent of a “cease and desist”
remedy, which is directed at future actions. The arbitrator would be,
therefore, precluded from fashioning an appropriate remedy for the alleged
threat and, as the Board held, deferral was not warranted. See also Ramey Supermarkets, 314 NLRB 9,10
(1994), where the Board affirmed the administrative law judge’s refusal to defer
a discharge case to arbitration under Collyer because the contract’s grievance
arbitration procedure limited back pay awards to 20 days.
Similarly, in this instance, the contractual forum fails
to offer a remedy which would be consistent with the purposes of the Act. To
the contrary, it appears that an arbitrator would be precluded from issuing an
award pertaining to the propriety of the warning letter issued to Griffin or to direct the Respondent
to take any remedial action with regard thereto. In this regard, the Respondent’s
stated position that the warning letter may be arbitrated in the event it forms
the basis for some future discipline offers nothing by way of remedy to any
unfair labor practices which may be found herein.
With regard to whether the alleged 8(a)(1) statement could
or should be subject to deferral, “[t]he
Board has consistently held that it will not defer one issue if it is closely
related to another issue that is not deferrable.” Clarkson Industries, supra at 352 (citing Everlock Fastening Systems, 308 NLRB 1018 fn. 8 (1992); 15th Avenue Iron Works, 301 NLRB 878,
879 (1991) enfd. 964 F.2d 1336 (2d Cir. 1992)).
Here too, the alleged 8(a)(1) statement arises from the same set of
circumstances and is entwined with the Respondent’s alleged unlawful failure to
rescind the warning letter. To defer this aspect of the complaint to
arbitration, therefore, would result in precisely the sort of “piecemeal”
approach disfavored by the Board.
In support of its argument for deferral, Respondent cites
to United Technologies Corp., supra
at 560. There, the Board overruled existing Board precedent and held that it
would be appropriate, given certain conditions, to defer alleged violations of
Section 8(a)(1) of the Act. It is true, as Respondent contends, that in that
case, “the dispute center[ed] on a statement a single foreman made to a single
employee and a shop steward . . . ” The Board found that the facts of that case
made it “eminently well suited for deferral.” Id. In United
Technologies, however, the threat alleged to be violative of Section
8(a)(1) was “clearly cognizable” under the broad grievance-arbitration
provisions of the parties’ collective-agreement. In the instant case, by contrast,
there is no support for the proposition that the grievance-arbitration process
could be invoked either to address or to offer a meaningful remedy for the
dispute in question. As discussed above, Respondent has predicated its argument
for deferral on contractual provisions which may become applicable only should
unforeseen events come to pass. And, as noted above, Respondent has consistently
taken the position that “stand alone” warning letters are not arbitrable which,
in my view, not only fails to evince a willingness to arbitrate the instant
dispute but suggests exactly the opposite.
Accordingly, based upon the foregoing, I find that the
allegations of the complaint are not suitable for deferral under Collyer, United Technologies and their
progeny, and will proceed to evaluate the merits of the case.
B. Applicable Legal Principles
Under Section 8(a)(1) of the National Labor Relations Act
(the Act), it is an unfair labor practice for an employer to “interfere with,
restrain or coerce employees in the exercise of the rights guaranteed” by
Section 7 of the Act.
Section 8(a)(3) provides that it shall be an unfair labor practice for an employer
to “discriminate in hiring, or any term of condition of employment, [or] to
encourage or discourage membership in a union.”
Any conduct found to be a violation of Section 8(a)(3) would also
discourage employees’ Section 7 rights, thereby constituting a derivative
violation of Section 8(a)(1). Chinese Daily News, 346 NLRB 906, 933
(2006).
As noted above, the complaint alleges that Respondent refused
to rescind the warning letter issued to Griffin
because of the protected conduct of his shop steward. Respondent has asserted that its
refusal to rescind the warning letter stemmed, not from Eltzholtz’s protected
conduct, but from Griffin’s
insubordination. Thus, under the General Counsel’s theory of the case, and
Respondent’s corresponding defenses to the allegations of the complaint, the
reasons for Respondent’s actions in disciplining Griffin are in dispute. The General Counsel,
in its brief, argues that the instant case should be evaluated under the principles set forth in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Similarly, Respondent argues that under a Wright Line analysis, the complaint
should be dismissed. Inasmuch as the
parties have placed the employer’s motivation at issue, I find that an
analysis under Wright Line is
appropriate. In addition, however, because I also have concluded that Griffin’s
conduct, or alleged misconduct, was intertwined with protected activity, the
circumstances of this case render it amenable to analysis under the factors set
forth Atlantic Steel, 245 NLRB 814
(1979). See Felix Industries, 331
NLRB 144, 146 (2000), enf. denied and remanded 251 F.3d 1051(D.C. Cir. 2001),
on remand Felix Industries, 339 NLRB
195 (2003), as will be discussed below.
C.
Application of the Wright Line Standards
In cases which turn
on employer motivation, to establish a violation of the Act under Section
8(a)(3) the General Counsel must first show, by a
preponderance of the evidence, that the employee engaged in protected concerted
activity, the employer was aware of that activity, and the activity was a
substantial or motivating reason for the employer’s action. Wright Line, supra; Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). Proof of an
employer’s motive can be based upon direct evidence or can be inferred from
circumstantial evidence, based on the record as a whole. Ronin Shipbuilding, 330 NLRB 464 (2000); Robert Orr/Sysco Food
Services, 343 NLRB 1183 (2004); enfd. mem. 179 LRRM (BNA) 2954 (6th Cir.
2006); Embassy Vacation Resorts, 340
NLRB 846, 848 (2003). The Board has long held that, where adverse action occurs
shortly after an employee has engaged in protected activity, an inference of
unlawful motive is raised. See McClendon
Electrical Services, 340 NLRB 613 fn. 6 (2003) (citing La Gloria Oil, 337 NLRB 1120 (2002), enfd. mem. 71 Fed Appx. 441
(5th Cir. 2003).
Once
the General Counsel has made out the elements of a prima facie case, the burden
of persuasion then shifts to the employer to “demonstrate that the same action
would have taken place even in the absence of the protected conduct.” Septix Waste, Inc., 346 NLRB 494 (2006); Williamette
Industries, 341 NLRB 560, 563 (2004); Wright Line, supra. To meet
its Wright Line burden, “[a]n
employer cannot simply present a legitimate reason for its action but must
persuade by a preponderance of the evidence that the same action would have
taken place even in the absence of the protected activity.” W. F. Bolin Co., 311 NLRB 1118, 1119
(1993), petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99
F.3d 1139 (6th Cir. 1996). See also Manno Electric, Inc., 321 NLRB 278, 280
fn. 12 (1996).
As noted above, a
prerequisite for finding a violation under Section 8(a)(3) of the Act is
protected conduct. Here, I find that the General Counsel has established that
both Griffin
and Eltzholtz were engaged in union activity and conduct otherwise protected
under the Act.
The Board historically has held that processing and presenting
grievances is concerted activity protected by Section 8(a)(1) and (3) of the
Act. Bowman Transportation, Inc., 134
NLRB 1419 (1961). This is true even when the grievance in question is not
formally stated or does not take place under the auspices of a contractual grievance
procedure. Clara Barton Terrace
Convalescent Center,
225 NLRB 1028, 1033 (1976) (and cases cited therein). The term “grievance,” as
used in Section 9(a) of the Act, refers “to both disputes over interpretation
and application of a collective-bargaining agreement and those matters
delimited in Section 9(a) of the Act: rates of pay, wages, hours of employment,
or other conditions of employment.” Dow
Chemical Co., 227 NLRB 1005
(1977). Here, the meetings in question were held pursuant to delineated
contractual provisions for the purpose of discussing discipline to be issued to
a bargaining unit employee. Clearly, both Eltzholtz and Griffin were thereby engaging in union and
concerted, protected activities by virtue of their participation in such meetings.
Moreover,
in Union Fork & Hoe Co., 241 NLRB
907 (1979), the Board reaffirmed the principle that in presenting and
processing grievances shop stewards retain the protection of the Act except for
extreme misconduct in the performance of their union duties.
As discussed above,
the circumstances which led to the meeting in Celmer’s office on February 9 are
essentially not in dispute. Griffin
was called into the office to discuss and receive a written warning for a
discrepancy between a scan audit and his delivery records. It is also essentially
undisputed that during the course of this meeting, Eltzholtz, acting in his
representational capacity, asked to review the company records and questioned
whether such discipline was warranted. It is also not disputed that when Griffin was accused of
theft, a dischargeable offense, he became distressed and argumentative and refused
to follow Celmer’s instructions to step back and sit down. Celmer ended the
meeting.
The central feature
of the instant dispute concerns what happeded subsequent to this initial
meeting. The General Counsel and the
Charging Party contend that Celmer refused to rescind Griffin’s insubordination warning because of
Eltzholtz’s protected conduct. Respondent, contends that the reason for the
refusal to rescind the warning was due to Griffin’s
continued insubordinate behavior. In this regard, Respondent relies upon Tradewaste Incineration, 336 NLRB 902,
905–906 (2001), where the Board affirmed an administrative law judge’s
conclusion that a suspension of an employee was not unlawful when it occurred
in response to that employee’s use of profane language and threatening conduct.
For the reasons discussed below, I find that Eltzholtz’
entire course of conduct and, in particular, his intervention during the second
meeting, was not only sanctioned by the express terms of the parties’
collective-bargaining agreement (as described above) but also continued to
warrant the protections of the Act.
I further find that the General Counsel
has met its burden of showing that this protected conduct was a motivating or
substantial factor leading to Respondent’s refusal to rescind Griffin’s warning for insubordination.
D. Credibility Determinations
Respondent argues that neither Eltzholtz nor Griffin can be
credited. With regard to Eltzholtz,
Respondent cites to purported discrepancies in his testimony. As Respondent
notes, Eltzholtz testified that Celmer, “[B]asically said that I was going to
take the warning letter for insubordination, but because he opened his mouth,
you’re getting it.” Respondent further notes that in his pretrial affidavit,
Eltzholtz similarly stated that Celmer said, “I was going to take away the
letter for insubordination but because he opened his mouth, you still have a
warning letter.” According to Respondent, the references to “you” and “he” in
Eltzholtz’ testimony and affidavit demonstrate that Celmer’s comment was
addressed to Griffin.
Respondent then points to the fact that, during his cross examination,
Eltzholtz initially testified that Celmer addressed Griffin, but then equivocated on this point,
stating that Celmer, “. . . said it to both of us, I guess.” Respondent thus
challenges the veracity of Eltzholtz’ testimony and the reliability of his memory.
I find Respondent’s arguments in this regard to be unpersuasive. This is
nothing more than a minor inconsistency. Moreover, as Respondent apparently
concedes, Eltzholtz’s testimony was consistent with his pretrial affidavit, and
his apparent indecision on cross-examination regarding whether Celmer addressed
her comments to Griffin
or to both men is insufficient to rebut it. Moreover, Eltzholtz’ testimony on
this issue generally is consistent with the underlying facts and the inherent
probabilities of the situation.
Respondent additionally challenges the notations made in
Eltzholtz’s notebook on two grounds. One concerns the fact that the first
comment attributed to Celmer in conjunction with the February 9 meeting appears
in quotation marks, while the second does not. Respondent also contends that a
physical examination of the document indicates that Eltzholtz fabricated the
second statement, and made the notation after-the-fact, to generate support for
the charge. Again, I find these arguments
to be unconvincing. As an initial matter, Eltzholtz credibly explained that he
took his notes regarding the second statement made by Celmer in a hurry, as he
was exiting the room. This
explanation makes sense, and corroborates Eltzholtz’ account of events to the
extent he testified that the second meeting was of a very brief duration. Moreover, with regard to Eltzholtz’ credibility
in general, I find that as a long-term employee of the Respondent and the shop
steward, he would have no reason to fabricate statements attributable to
Celmer, especially where the interaction in question had been witnessed by
another manager. Indeed, such falsehoods would surely work against Eltzholtz’
interests both as an employee and with regard to the future representation of
employees at the facility. I
additionally found that, for the most part, Eltzholtz testified in a forthright
manner and withstood a vigorous cross-examination by Respondent’s counsel.
Respondent challenges Griffin’s credibility by noting certain
inconsistencies between the record and his pretrial affidavit. Certain of these inconsistencies are
inconsequential, such as whether Celmer actually used Eltzholtz’ name or
referred to him as the shop steward. There are other, more significant inconsistencies
which pertain to his accounts of the first and second meetings with Celmer. As
Respondent notes, paragraph five of Griffin’s
pretrial affidavit deals with the second meeting. Nowhere in that paragraph is
any discussion of whether Celmer stated anything to Griffin about issuing him a warning letter or
not removing a warning letter because of the conduct of the shop steward.
Rather, Griffin’s
references to such statements occur in his description of what occurred
subsequently, when he spoke with Celmer at his truck. This is a significant
discrepancy from Griffin’s testimony at the
hearing, to be sure, but based upon my observation of Griffin’s
testimony and the record as a whole, I do not find it a sufficient basis to
discredit Griffin’s
testimony in its entirety. Griffin
explained this omission by contending: “You got to remember, sir, a lot of this
stuff is lumped in together, that’s what I did.” I credit that explanation,
because it is consistent with Griffin’s
demeanor and his manner of testimony generally. Griffin appeared to make an effort to testify
truthfully, to the best of his recollection. He, too, was subjected to a
rigorous cross-examination and he was respectful and cooperative throughout.
In contrast, I find that Celmer was not a credible witness
in many respects. As an initial matter, I fail to credit her testimony
regarding the nature and extent of Griffin’s
alleged insubordinate behavior. By way of example, Celmer testified that after
walking out of her office after the first meeting, Griffin proceeded to the
belt where his package car was situated, grandstanding for his coworkers in a
loud and boisterous manner. It is inherently improbable, in my view, that had Griffin been acting in
such an uncontrolled and inappropriate manner, as described by Celmer, that she
would have wanted him to return to her small office, where she had previously
found his conduct to be intimidating. I additionally find it inherently improbable
that Celmer would have then broached the subject of rescinding the warning for
insubordination had Griffin
been acting in such a fashion. It is
far more likely that the level of discipline issued to him would have increased
in its severity in such an instance. Further, the warning letter issued to Griffin describes his
misconduct as consisting of insubordination and “wagg[ing] [his] finger toward
the face of a Manager.” There is no reference to grandstanding or loud or
boisterous conduct in the presence of other employees, or any other conduct
generally disruptive of the work environment, conduct which surely would have
been subject to discipline had it occurred. Accordingly, for the above reasons,
I fail to credit Celmer’s account in this regard.
In the same vein, I do not credit Celmer’s version of what
transpired once the parties reconvened in her office. Again, there is no
specific reference to any misconduct on the part of Griffin, as testified to by Celmer, in the
warning letter that was issued to him. In this regard, I note that Matteo
acknowledged, contrary to Celmer, that she made an express connection between
Griffin’s discipline and the activities of his shop steward when she said to
Eltzholtz: “If you keep egging him on, I’m going to have to give him a warning
letter.” This testimony is fundamentally corroborative of that offered by
Eltzholtz and Griffin, and is evidence that it
was Eltzholtz’ advocacy, rather than Griffin’s
behavior, which prompted Celmer’s decision to proceed with the warning for insubordination.
I further credit Griffin’s
testimony about his subsequent conversation with Celmer at his truck. Again, I
find that, as a 20-year employee, it would not be in his interest to fabricate
false testimony regarding statements made by his manager. I further note that Griffin’s account is at least partially
corroborated by Eltzholtz, who witnessed the two speaking, although he did not
overhear what was said.
Thus, I find that the General Counsel has established that
Eltzholtz’s protected conduct in his role as Griffin’s
shop steward was a substantial or motivating factor in Respondent’s determination
not to rescind the warning letter issued to Griffin for insubordination. Based upon my
assessment of the credibility of the witnesses, coupled with the inherent probabilities
of the situation, I find that Respondent has failed to meet its burden of
proving by a preponderance of the evidence that it would have issued the
warning to Griffin in the absence of Eltzholtz’ protected conduct. Thus, under
the Wright Line analysis urged by
both the General Counsel and the Respondent, I find that by failing to rescind
Griffin’s warning for insubordination, Respondent violated Section 8(a)(1) and
(3) of the Act.
E. The Atlantic Steel Criteria
Even if I were to accept the fundamental premise of Respondent’s
defense, that Griffin
was disciplined due to his behavior and not as a result of anything Eltzholtz
might have said or done, I would still be constrained to find that Respondent
violated the Act. There is no dispute that the warning letter at issue grew out
of events at the February 9th meetings with Celmer and Matteo concerning a perceived
scanning error, for which Griffin
was subject to discipline. As discussed above, I have found that both Eltzholtz
and Griffin
were engaging in protected conduct during these meetings. Thus, even under Respondent’s
theory of the case, the imposition of discipline can be found lawful only if Griffin’s conduct is found
to have lost the protections of the Act.
Inasmuch as Respondent has contended that Griffin’s conduct was provoked by Eltzholtz,
I will undertake an analysis of his conduct under the Atlantic Steel criteria, as well.
The Board has long
held that, “in the context of protected concerted activity by employees, a
certain amount of leeway is allowed in terms of the manner in which they
conduct themselves. Although flagrant, opprobrious
conduct may sometimes cause an employee’s concerted activity to lose the
protection of the Act, impropriety alone does not strip concerted conduct of
statutory protection.” Aroostook County
Regional Ophthalmology Center, 317 NLRB 218, 220 (1995), enf. denied in
part 81 F.3d 209 (D. C. Cir. 1996) (footnotes and citations omitted). Here, I
find that neither Eltzholtz nor Griffin engaged
in conduct which would have caused either of them to lose the protections of
the Act or for any such misconduct to have been lawfully imputed to Griffin.
Under Atlantic Steel, supra, four factors are
analyzed to determine whether conduct has lost the protection of the Act: (1)
the place of the discussion; (2) the subject matter of the discussion; (3) the
nature of the employee’s outburst and (4) whether the outburst was, in any way,
provoked by an employer’s unfair labor practices. Addressing the first factor—the place of the
discussion—I note that the conduct at issue occurred at a meeting, called by
Respondent, in a private office outside the earshot of other employees, to discuss discipline to be issued to
a bargaining unit member. Clearly, this meeting was an appropriate forum to
discuss, and to dispute, whether such discipline was warranted.
As to
the second Atlantic Steel factor—the
subject matter of the discussion—I find that Eltzholtz was acting squarely
within his role as union representative by questioning Celmer about whether
Griffin had, in fact, missed a scan; by disputing her suggestion that Griffin
had stolen the package, an offense for which he could be discharged; and
subsequently by attempting to explain the basis for Griffin’s angry reaction to
Celmer’s accusation, a reaction for which he had been disciplined. Similarly, Griffin’s protestations that he had not
stolen the package, something he could well have suffered serious discipline
for, was protected in this context.
The
third Atlantic Steel factor concerns
the nature of the conduct at the meeting. Addressing the initial meeting, I
find that the conduct exhibited by Eltzholtz was neither provocative nor
unreasonable and was far within the bounds of conduct which has been sanctioned
by the Board as regards shop steward advocacy generally. Union Fork & Hoe, supra; see also Severance Tool Industries, 301 NLRB 1166, 1170 (1991); Noble Metal Processing, Inc., 346 NLRB
795, 800 (2006) (and cases discussed therein). While Griffin admittedly became angry and refused instructions
to step back and sit down, the Board has held that “there are certain
parameters within which employees may act when engaged in concerted
activities.” Consumers Power Co., 282
NLRB 130, 132 (1986). In particular, the Board has noted that “disputes over
wages, hours and working conditions are among the disputes most likely to engender
ill feelings and strong responses.” Id.
In assessing whether an employee’s protected, concerted activity loses the
protection of the Act, the Board has found that a line “is drawn between cases
where employees engaged in concerted activities that exceeds the bounds of
lawful conduct in a moment of animal exuberance or in a manner not motivated by
improper motives and those flagrant cases in which the misconduct is so violent
or of such a character as to render the employee unfit for further service.” Prescott Industrial Products Co., 205
NLRB 51, 51–52 (1973). Here, I do not believe that Griffin’s conduct crossed that line. My conclusions in this regard are buttressed
by the undisputed evidence that Celmer considered withdrawing the warning
letter for insubordination even after
this conduct occurred.
With
regard to the second meeting, even if I were to credit Celmer that Griffin entered the
office, remained agitated, rocked back and forth on his feet and continued to
protest that Celmer had called him a liar and a thief, I would not find that
this conduct exceeded permissible bounds. In this regard, I note that there is
no evidence that Griffin
at any time during this encounter made any threatening gestures or directed any
profanity or derogatory statements toward Celmer or any other management
official. Eltzholtz’s statement to Celmer, to the effect that he’d be angry
too, if accused of theft, must be considered in context, as he was acting as Griffin’s official representative
during the meeting. I do not find this statement was insubordinate or that it
somehow sanctioned insubordinate behavior on Griffin’s part.
Regarding
the fourth Atlantic Steel factor,
whether the conduct at issue was provoked by the Respondent’s unfair labor
practices, I note that the General Counsel has not alleged that the initial
announcement of the warning letter was unlawful. I find therefore that any
unfair labor practices here occurred after the fact, as a consequence of
Eltzholtz’ advocacy, and were not a precipitating factor.
On
balance however, the application of the Atlantic
Steel criteria strongly suggests that neither Eltzholtz nor Griffin lost the
protections of the Act by any of their conduct on February 9.
Thus,
the very conduct to which Respondent attributes the issuance of Ernest Griffin’s
warning for insubordination was and remained, in and of itself, protected
conduct. Under its own theory of the case, therefore, Respondent’s defense to
the allegations of the complaint lacks merit.
Based
upon the foregoing, I conclude that Respondent’s refusal to rescind Griffin’s warning letter
for insubordination violated Section 8(a)(1) and(3) of the Act.
I
further find that Celmer’s statement to Griffin that, his receipt of the
warning letter for insubordination was because of the activities of his shop
steward reasonably tended to coerce, restrain and interfere with Griffin’s
right to seek union representation and therefore independently violated Section
8(a)(1) of the Act, as alleged.
Conclusions of Law
1. United Parcel
Service, Inc., is an employer engaged in commerce within the meaning of Section
2(2), 2(6), and (7) of the Act.
2. Teamsters Local
177 is a labor organization within the meaning of Section 2(5) of the Act.
3. By stating that
a warning letter issued on March 1 to Ernest Griffin would not be rescinded
because of the protected conduct of his union representative, Respondent
violated Section 8(a)(1) of the Act.
4. By failing and
refusing to rescind the warning letter for insubordination issued to Ernest
Griffin on March 1, Respondent violated Section 8(a)(1) and (3) of the Act.
Remedy
Having found that
the Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent,
having discriminatorily disciplined Ernest Griffin must, to the extent it has
not already done so, rescind the March 1
warning letter for insubordination, remove all references to such discipline
from Griffin’s personnel file and notify him in writing that it has done so and
that the discipline will not be used against him in any way.
On these findings
of fact and conclusions of law and on the entire record, I issue the following
recommended
ORDER
The Respondent, United Parcel Service, Inc., Secaucus, New
Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Telling employees that discipline will not be rescinded
because of the protected conduct of their union representatives.
(b) Disciplining employees because of the protected
conduct of their union representatives.
(c) In any like or related manner interfering with, restraining
or coercing employees in the exercise of the rights guaranteed by Section 7 of
the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, remove
from its files any reference to the unlawful discipline issued to Ernest
Griffin, and within 3 days thereafter notify Griffin in writing that this has been done
and that the discipline will not be used against him in any way.
(b) Within 14 days after service by the Region, post at
its facility in Secaucus, New Jersey, copies of the attached notice
marked “Appendix.” Copies
of the notice, on forms provided by the Regional Director for Region 22 after
being signed by the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since
February 9, 2007.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible official on a form
provided by the Region attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C.
June 20, 2008.
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the United States Government
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.
We will not tell
our employees that discipline will not be rescinded because of the protected
conduct of their union representatives.
We will not
discipline or otherwise discriminate against employees because of the protected
conduct of representatives of Teamsters Local 177 or any other Union.
We will not
in any like or related manner interfere with, restrain or coerce employees in
the exercise of the rights guaranteed by Section 7 of the Act.
We will,
within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discipline issued to Ernest Griffin, and we will within 3 days thereafter notify
Ernest Griffin in writing that this has been done and that the discipline will
not be used against him in any way.
United Parcel Service, Inc.
