United Parcel Service

National Labor Relations Board - Administrative Judge Opinions

Dec 18, 2008

17-CB-006356 (N.L.R.B. Dec. 18, 2008)

JD(SF)–52–08
Oklahoma City, Okla.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA
TEAMSTERS LOCAL NO. 886, affiliated with
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
(United Parcel Service)
and
MICHAEL D. REYNOLDS, An Individual
Case 17–CB–6356
Charles T. Hoskin, Jr., Tulsa, Oklahoma, for the General
Counsel.
George McCaffrey, Oklahoma City, Oklahoma for
Respondent.
Michael D. Reynolds, Choctaw, Oklahoma, pro se
DECISION
Statement of the Case
JAMES M. KENNEDY, Administrative Law Judge: This case was tried in Oklahoma
City, Oklahoma on July 22 1 and October 3, 2008 2 based upon a complaint issued May 29, by
the Regional Director for Region 17 and amended at the hearing. 3 The underlying unfair labor
practice charge was filed by Michael D. Reynolds, an individual (Reynolds or the Charging
Party), on February 28 and amended on April 29. As amended, the complaint alleges only that
Teamsters Local No. 886, affiliated with International Brotherhood of Teamsters, (Respondent)
made a threat in violation of §8(b)(1)(A) of the National Labor Relations Act. Respondent avers
that the conduct never occurred or, if it did, it is not legally responsible, as the utterance was
made by an individual who was not its employee, its agent or its apparent agent.
Issues
The first issue, one of credibility, is whether shop steward Wes Pruitt told Reynolds that
Respondent had not processed certain grievances because Reynolds was a political opponent
of Respondent’s then newly elected officers and because the Employer did not like him. Only if

1 On the hearing’s first date, July 22, I approved a settlement agreement. After
reconsideration, I withdrew my approval and permitted the matter to go forward.
2 All dates are 2008 unless otherwise stated.
3 On October 3, upon the resumption of the hearing, the General Counsel amended the
complaint by striking Paragraph 6 in its entirety. Thus, only the allegation found in Paragraph 5
remains.
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one concludes that the utterance was made is it necessary to determine whether Respondent is
legally responsible for it and obligated to remedy it, but even in that event, one must first
determine whether the statement restrained or coerced Reynolds as defined in §8(b)(1)(A). 4
I. Jurisdiction
Respondent admits that the employer, upon whose premises the alleged unfair labor
occurred is United Parcel Service, an Ohio corporation, and that UPS is an interstate shipper
which has operations in and around Oklahoma City. As the employer’s operation in Oklahoma
derives gross revenue in excess of $50,000 for freight shipments sent directly out of Oklahoma
Respondent admits that the employer is engaged in commerce within the meaning of §2(2), (6)
and (7) of the Act. Additionally, Respondent admits it is a labor organization within the definition
of §2(5) of the Act. Therefore, the Board has jurisdiction over this matter.
II. The Unfair Labor Practice Evidence
A. The Testimony
As amended the complaint now makes only one discrete allegation. Paragraph 5
alleges: "On or about January 29, 2008, Respondent, by Pruitt, at the Employer's Oklahoma
City facility, told employee[ ] [Reynolds] that Respondent refused to process certain grievances
because the employee involved [Reynolds] previously opposed the current officials of
Respondent in an intra-union election and because the Employer's officials did not like the
employee [Reynolds]."
Respondent is the collective bargaining representative of United Parcel Service's
employees employed in Oklahoma City. It has held that status for many years, certainly before
its Bylaws were amended in 1977. UPS’s Oklahoma City operation employs about 1000
represented employees in eight different locations. Altogether, Respondent serves its
membership there through 20 to 25 working stewards. At one of those locations alone, the
Oklahoma City hub, there are about 12 to 13 stewards. Both the Charging Party and Pruitt work
at the Oklahoma City hub on nighttime shifts, although their workstations are not very close.
Reynolds has worked for UPS about 5 years, currently working as a loader/unloader and
pre-loader. Reynolds had been a union steward or alternate steward at UPS for roughly the
same amount of time. He has been a member of Local 886 for 23 years, covering earlier
employment by Leeway Motor Freight/Consolidated Freightways. He had served as a steward
at that employer as well. His total experience as a steward is approximately 6 years. In June
2007, he resigned his steward status as a condition of settling a grievance which arose after he
lost his job over the manner in which he had handled a fellow employee's grievance. UPS had
accused him of dishonest conduct in the manner in which he had performed that task. The

4 The pertinent portions of the statute: Section 8(b) It shall be an unfair labor practice for a
labor organization or its agents—(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7: . . . .
Section 7 states: “Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection, and shall also have the right to refrain from any or all such activities except to the
extent that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in section 8(a)(3).”
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Company offered reinstatement without backpay if he agreed to no longer serve as a steward.
Both Reynolds and the Union accepted the condition.
In November 2007, an internal union election took place. Reynolds chose to support the
so-called Stetson slate, seeking membership on the executive board as a trustee. That slate
was defeated by the Loewenkamp slate, which currently holds office. The incumbents at that
time were part of a third slate, known as the Robert Young group. Although the Loewenkamp
winners were to take office in January 2008, there was a transition period during which the
Loewenkamp group served as interim officials when the Young group declined to remain in
office. Although the dates are not entirely clear, it seems that changes began taking place as
early as December as interim assistant business agents began replacing the previous business
agents. These interim (assistant) business agents included Steve St. Cyr and Tommy Kitchens,
who later became the actual assistant business agents. St. Cyr had had previous experience
as a business agent while Kitchens had been a steward for 27 years. The head of the slate,
Randy Loewenkamp, became president and business agent.
Reynolds's Stetson slate, at least, harbored serious concerns over its loss and it
eventually filed a protest with the United States Department of Labor challenging the results of
the election. Hard feelings were/are no doubt involved. At the time of the instant hearing that
challenge remained unresolved.
On November 18, 2007 Reynolds filed a grievance which has been variously styled as a
"job bid grievance" or the "small sort grievance." In this grievance Reynolds contended that he
was entitled, due to seniority, to a job in the small sort department which had been held for
about 3 years by Wes Pruitt. Pruitt, it will be recalled, is a union steward and had been for
about 8 years. Pruitt had also been a part of the Loewenkamp slate. If successful, Reynolds
would have displaced Pruitt in the small sort department, a job Reynolds described as “cushy.”
There are a number of problems with this grievance visible at first glance. The first is
timeliness. It targeted a job another employee had held for 3 years without complaint; Pruitt had
obtained it through the normal bid process which was open for all to see. And, if successful,
where would the incumbent, Pruitt, go? St. Cyr said that if Pruitt had been ousted, he would
have suffered a severe financial reverse. Second, both the timing and the target of the
grievance suggest that it was filed in retaliation over the intra-union election, since Reynolds
had campaigned for the loser and Pruitt for the winner. In addition, Reynolds well knew Pruitt
was a Loewnkamp supporter because he had asked for Pruitt’s vote and Pruitt had declined,
saying he was voting for the Loewenkamp slate.
Reynolds filed the grievance by physically handing the completed form to the union
steward responsible for his area, an individual named Tim Deckard. Because it was not a
grievance which related to something which had happened on the floor, Deckard, following
procedure, turned it into the union office where it would be handled by one of the assistant
business agents. 5
Then, on November 25, 2007, Reynolds filed a second grievance. This one concerned
the assignment of work to a more junior employee, alleging that the work should have been
assigned to him. Again, he gave the grievance form to Deckard. Since this was something
which had occurred on the floor, Deckard took it to one of the company managers, Chris

5 Deckard, at the time, expressed doubt about remaining a steward under Loewenkamp.
Later, after resolving whatever concerns bothered him, he decided to remain in the position.
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Blessington. Blessington considered it without merit and told Deckard to "go ahead and
process it." As a result Deckard, as before, turned it in to the Union's office for processing in the
usual manner.
Under the collective bargaining agreement, this placed both grievances into the Local
Level Hearing stage. This stage is sometimes called the Pre-Hearing. At this stage, twice a
month Respondent's business agents -- now St. Cyr and Kitchens -- would meet with the UPS
Labor Relations Manager, Matt Hoffman, to resolve the grievances which had not been resolved
on the floor. St. Cyr testified that both of Reynolds’s grievances were scheduled to be
processed on January 4, but due to the large number being presented that evening, only
Reynolds's first grievance was processed. St. Cyr testified that Hoffman asserted that the
grievance was untimely (being 3 years late) and in any event did not amount to a breach of the
collective bargaining agreement. Both St. Cyr and Kitchens said, after consulting, they agreed
that no contract violation had been made out. They chose to drop the grievance at that stage.
Kitchens did not recall Hoffman making the timeliness argument.
Three days later, on January 7, according to Reynolds, he and Pruitt had a conversation
in the break room. Pruitt denies the conversation ever occurred. Reynolds says Pruitt initiated
it, telling him that he was being appointed the 'chief steward.' He went to on to say that he was
the "new sheriff in town," given the fact that Loewenkamp had won the election, and he would
be taking over the investigation of Reynolds's grievances. Reynolds says he responded by
saying that Deckard had already tried to settle them and he did not know what else could be
investigated.
Reynolds's testimony here is somewhat odd. First, we know that the small sort
grievance involving Pruitt’s job had actually been dropped two days before. Presumably, the
new ‘chief steward’ would know that he had not been assigned a dropped case, so why would
he be pursuing it? Second, Reynolds did not protest that Pruitt had a conflict of interest and
should not be processing Reynolds's grievance at all since it sought to oust Pruitt from his job.
The conflict was manifest. Why didn’t Reynolds protest? Third, the union officials and Pruitt, as
well as Reynolds, all testified that there had never been a chief steward position, that all the
stewards were essentially the same and worked as a team. Reynolds, former steward that he
was, and a political activist, did not question the creation of a ‘chief’ steward position. He knew
the collective bargaining contract didn’t provide for it, so what role would it play on the floor?
Yet he did not ask Pruitt about the scope of this strange new union position. Reynolds’s later
testimony about the nature of the steward’s duties demonstrated rather clearly that he knew
stewards had limited authority. Did the new chief steward have greater authority in grievance
processing than ordinary stewards? Would regular stewards report to Pruitt in some manner?
Despite these obvious changes, Reynolds was incurious about all of them and asked Pruitt no
questions.
On cross examination, Reynolds added that Pruitt told him that he had the power to
remove stewards from their job and that shortly afterwards two were. Reynolds says that Pruitt
explained that they would be removed because he “didn't like them.” 6
As noted, Pruitt denied that this conversation occurred. He said he had no
conversations with Reynolds on January 7. In addition, he gave the following testimony:

6 Apparently two stewards were relieved of their duties during this time frame, but the
evidence is that the decision to remove them was made by a business agent, not Pruitt.
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Q (By Mr. McCAFFREY) Now, I'm going to ask you some other things that he said that
you said. Mr. Reynolds said that on January the 7th or thereabout that you came up to
him and told him that you were the new Sheriff, that you were going to be the chief
Steward. Did you ever say that to anybody, Mr. Reynolds or anybody else?
A (Witness PRUITT) No. We don't have a chief Steward. Every Steward is equal.
Q But did you ever say anything like that?
A No.
Q I'm going to be the head-knocker Steward or anything like that?
A No.
Q Did you tell him that you were going to be the new Sheriff or the new Police Officer?
A No.
Q Or anything like that?
A No. No, I did not, would not have.
Q Did you ever tell him or anybody else that you were going to take over? This was in
January of '07. You were going to take over the investigation of his two Grievances.
A No.
Q Okay. Had you had anything to do -- from the time the Grievance was filed to the time
the Grievances were dropped in January of 2008 did you have anything whatsoever to
do with the handling of either one of those two Grievances?
A No, I've never had possession of the Grievances and never saw the Grievances.
Aside from Reynolds’s testimony, there is no evidence that the Union ever created the
position of chief steward. Certainly there is no evidence that Pruitt was ever appointed to such
a position. Indeed, the steward structure remained the same as it had been before.
Reynolds also contends that a few days later Pruitt spoke to him in the break room and
told him that he had spoken to Chris Blessington about the second grievance and that
Blessington had told him that since everyone had appeared for work on the night in question, he
didn't believe he had to pay anyone else. As noted before, however, Pruitt denies any
involvement whatsoever in either of the two grievances Reynolds had filed. Furthermore, it
appears odd that Pruitt, rather than Deckard would be reporting back the results of a
conversation with Blessington. Since Deckard had taken the grievance initially, in all likelihood
the only steward who spoke to Reynolds about it would have been Deckard. Deckard had
remained in his steward’s role despite his initial thought of resigning. I believe Reynolds to be
mistaken about Pruitt's involvement here.
On January 25, another Local Level Hearing occurred. Once again the participants were
assistant business agents Kitchens and St. Cyr for the Union and Hoffman for UPS. During the
session, Reynolds's second grievance was discussed. During the conference, the Union
withdrew it convinced that what had occurred was not in violation of the collective bargaining
agreement.
According to Reynolds, on January 23 he had a conversation with Kitchens at the union
hall about the status of his grievances. He says Kitchens informed him that the first grievance
had been dropped and that there was 'no grievance' with respect to the second. This
conversation would appear to have occurred, not on January 23, but sometime after the
January 25 Local Level Hearing. In any event, Reynolds asserts that when he protested,
Kitchens agreed to investigate the matter further. Kitchens does not concur.
Kitchens testified that Reynolds asked him on January 28 about the status of both
grievances. He says he told Reynolds that both had been dropped as there had been no
contract violations. In fact, both grievance forms contain Kitchens's initialed note "NCV" ("no
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contract violation") at the bottom dated January 4 and January 25 respectively. He said that
when he told Reynolds both grievances had been dropped, Reynolds responded he didn’t have
a problem with one of them, but he would file [unfair labor practice] charges over the other.
When Reynolds then observed that he had not received any notification, Kitchens told him that
the letters were being processed and would be sent out shortly. The Reynolds grievances were
part of a large group of grievances and apparently about 70 letters needed to be prepared.
On January 31 Reynolds sent a certified letter to Respondent demanding to know the
status of his two grievances. That letter appears to have crossed in the mail with the Union's
letter to him that same day advising that the grievances had been heard and had been
determined not to constitute a contract violation.
Meanwhile, on January 29 about 3 a.m., according to Reynolds, he was once again in
the breakroom. While there he encountered Pruitt. Sitting with Pruitt at the same table was
Thomas Hawkins who gave testimony regarding what he overheard 7 and another individual
who may or may not have heard, Aaron Veasey. Veasey was not called to testify.
Saying he was aware that Pruitt had been involved in some 'intent to term[inate]'
grievances, Reynolds opened his conversation with Pruitt by saying, "I hope you didn't get
fucked like I did." Pruitt responded that all of them had been reduced to a final warning. Then,
according to Reynolds,
[Pruitt] said -- as to my Grievances he said -- as to the one about him working in a cush job
over me he said that his bid said other duties as assigned.
I responded to Mr. Pruitt, said ‘no, that's bullshit. All bids say other duties as assigned.’
I moved forward to him and he looked at me and said ‘You lost your Grievances because
the Company doesn't like you and you ran against them.’
The transition from the discussion about what success Pruitt had had in dealing with
other grievances to Pruitt’s comment about the lack of merit in Reynolds's grievance which
sought to take Pruitt's job is ill-explained. By that date, Reynolds knew his grievance involving
Pruitt's job had failed. Moreover, despite Reynolds's testimony that Pruitt had somehow
become involved in that grievance as a steward, there is really no credible evidence that Pruitt
ever had. Both St. Cyr and Kitchens testified that to their knowledge Pruitt played no role in the
processing of either of Reynolds's grievances. Pruitt does acknowledge that at some point he
learned that Reynolds had filed a grievance which if successful would have caused him to lose
his job. 8 He also acknowledges that he does not "particularly like" Reynolds. Therefore, it is
entirely possible that Pruitt could have raised the subject of the grievance with Reynolds.
Pruitt's seatmate in the breakroom, Hawkins, corroborates Reynolds. Hawkins's
testimony:
A . . . I was in the break room at UPS. It was a few days later. I was talking with Wes
about some things that were going on at work and Mr. Reynolds did walk into the break
room and started talking to Wes and about these Grievances.
Q Did you recall what Mr. Reynolds said?

7 Hawkins had also been present during the January 28 conversation which occurred
between Kitchens and Reynolds.
8 Q Were you aware, in fact, he tried to get your job?
A [Witness Pruitt] I was informed of that, yes, through a Grievance.
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A Not exactly. I do know he asked him why the union dumped his Grievances.
Q And did Mr. Pruitt respond to that?
A He said that they had dumped them because he ran against them and the Company
didn't like him.
Each of the witnesses who had knowledge about the manner in which stewards perform
their duties said that stewards were obligated to accept and to take at least some preliminary
steps to address every grievance filed on the floor, usually by taking it up with a manager. This
was the accepted procedure even if the steward believed that the grievance was without merit.
Once that step failed or received a rejection, the steward was to transmit the grievance to the
union office where it would be assigned to an assistant business agent. At that point, the
steward's duties were over. Thus, it would appear that there is a well-ensconced culture that
stewards accept every grievance which an employee insists upon filing. This is done without
regard to personal likes or dislikes, without regard to race, gender or union membership and
without regard to the steward's personal opinion of the validity of the grievance. In that context,
Pruitt denied making the statement attributed to him by Reynolds as supported by Hawkins.
Pruitt testified:
Q [By Mr. McCAFFREY] Mr. Pruitt, Mr. Reynolds is saying that you said a bunch of things
and I want to ask you. He basically said that on January the 28th or 29th, somewhere
along in there that you told him that his Grievances had been dropped because the
Company didn't like him and because he ran against them.
I want to ask you. I want you to turn to the Judge. Just look him in the eye and tell him.
Did you ever have a conversation with Mr. Reynolds or anyone else in which statements
like that were made?
A [Witness PRUITT] At any time I never made a statement like that to Mr. Reynolds. That
would be detrimental on my part. Never would I make a statement like that. First off is
that would be damaging the Local Union and that's against every -- everything that a
Steward is doing. We're supposed to support the Local Union. I wouldn't make a
statement like that towards him.
Standing by itself, I find Pruitt's response to be eminently reasonable and perfectly
credible. It is consistent with the culture of the Employer's workplace insofar as stewards are
concerned. Had Hawkins not corroborated Reynolds, I would have no difficulty crediting Pruitt
over Reynolds. However, Hawkins did so. Furthermore, there is no evidence that Hawkins is in
league with Reynolds. His presence that evening discussing matters with Pruitt was unrelated
to anything that Reynolds had done previously, although it is true that Hawkins happened to be
present at the union office the day before when Reynolds asked Kitchens about the status of his
grievances. Hawkins therefore might have had an inkling of Reynolds's purpose.
Nevertheless, the record does not permit an outright rejection of Reynolds's testimony
about what Pruitt told him. Given the fact that Reynolds's small-sort grievance was designed to
oust Pruitt from his job, it is not unreasonable that Pruitt would harbor some sort of animosity
toward Reynolds. That animosity did not arise from the fact that Pruitt was the steward, but
from the fact that he perceived Reynolds was trying to steal his job; furthermore from Pruitt's
point of view Reynolds was abusing the grievance procedures. Pruitt no doubt believed, rightly,
that his 3–year incumbency warranted no inquiry into the bid process at that late date. Given
such concerns, it does appear likely that Pruitt made the remark attributed to him by Reynolds
and Hawkins.
Accepting as a fact that Pruitt told Reynolds that he had lost his grievances because he
had run against the current union administration and because the Company didn't like him, we
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must now make an inquiry concerning whether the Union is legally responsible for his
statement. I have already, in passing, discussed the general manner in which stewards perform
their duties. Additional facts relating to union responsibility requires a discussion of not only
those already-adduced facts, but an inquiry into the Union's Bylaws and the collective
bargaining contract, because both of those documents delineate the extent of a steward's
authority.
B. The Union’s By-Laws and Collective Bargaining Contract Provisions
Concerning the Agency Status of its Stewards
In 1977, Respondent was found to have committed an unfair labor practice in almost the
same circumstances as those alleged here. The case is Teamsters Local 886 (Lee Way Motor
Freight), 229 NLRB 832 (1977), enfd. 589 F.2d 1116 (D.C. Cir. 1978). Judge Henry L. Jallette
had recommended that the complaint be dismissed on the grounds that the steward who had
made the threats in question was acting outside the scope of his authority. The Board, applying
agency law, reversed and found a violation of §8(b)(1)(A) of the Act. Among other things, the
Board reviewed Respondent's Bylaws and the applicable collective bargaining contract where
the authority of stewards was described. The Board found that there were no real limitations on
a steward's authority, and applied ordinary principles of agency, including the familiar implied
and apparent authority concepts.
The Union's general counsel then was George McCaffrey. McCaffrey served as its
general counsel from 1967 to 2002. Indeed, it is Mr. McCaffrey who represents Respondent
here. He called himself as a witness and gave testimony concerning the modifications made to
the Bylaws as a result of the decision in the Lee Way case. The purpose of the changes, he
said, were to clearly specify that stewards were not union agents and to ensure that the Union
would not be held liable for unauthorized statements uttered by its stewards. In 1977, he said,
the Union took steps to change its Bylaws to more clearly demonstrate the limited authority
stewards actually have. As of the date of the instant alleged unfair labor practice, January
2008, the amended Bylaws had been in effect for over 30 years. Indeed, it appears that
Reynolds has been a member of the Union for 23 of those years, six as steward (one for
Consolidated Freightways and five for UPS).
Section 13 of the Bylaws describes the authority and duties of business agents and
stewards. Subparagraph B focuses on stewards. Under that section the steward can either be
elected or appointed. He has responsibility for the union membership of the people with whom
he works as determined by the collective bargaining contract, but is not authorized to collect
dues or handle funds. He is to post on the bulletin board notices and information received by
him from the Local. More specifically, the paragraph goes on to say "job stewards have no
authority to take strike action or any other action interrupting the employer's business, except as
official action authorized by the Local Union. A steward may take action to represent an
aggrieved member by presenting the member’s grievance to the Employer's designated
representative. If this does not result in an answer that is satisfactory to the member, the
member may request for the representation by his business agent or the President. A steward
shall have his dues paid as compensation for performing the duties outlined herein. Any other
action of a steward by oral or written communication shall not be authorized by this Local Union
nor shall this Local Union be liable for any such written or oral communications. . . . " (Italics
supplied.)
Similarly, the collective bargaining contract between Respondent and UPS also
delineates a steward's authority. Article 4, entitled “Stewards” is slightly different but still to the
same general tenor. In pertinent part it reads:
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The Employer recognizes the right of the Local Union to designate Job Stewards and
alternates from the Employer's seniority list. The authority of Job Stewards and alternates
so designated by the Local Union shall be limited to, and shall not exceed, the following
duties and activities:
(a) The investigation and presentation of grievances with the Employer or the
designated company representative in accordance with the provisions of the collective
bargaining agreement:
(b) The collection of dues when authorized by appropriate Local Union action; and
(c) The transmission of such messages and information, which shall originate with,
and are authorized by the Local Union or its officers, provided such messages and
information:
(1) have been reduced to writing; or
(2) if not reduced to writing, are of a routine nature and do not involve work
stoppages, slowdowns, refusal to handled goods, or any other interference with the
Employer's business. . . . (Italics supplied.)
The upshot of these two sources is that union stewards are obligated to carry out
representational functions relating to grievances, but their authority is very limited. If they
cannot resolve an issue on the floor, they must turn the matter over to the business agents.
Clearly they have no authority to make oral or written communications on behalf of the Union;
furthermore, they may not carry messages for the Union unless it has originated or been
authorized by the union's officers and are also in writing. The only exception is that routine
matters may be transmitted so long as they do not involve interference with the employer's
business.
Initially, Reynolds asserted that he was familiar with Respondent's Bylaws. Yet, he also
said that he was unfamiliar with that portion of the Bylaws dealing with the powers and duties of
stewards. He even went so far as to say that he had never seen a copy of the Bylaws. He
claimed ignorance regarding the language imposing limitations on the authority of job stewards.
He was more familiar with the language found in Article 4 of the collective bargaining contract.
Curiously, that is the language which imposes the strongest limitation. There, a steward may
not speak for the Union and may not even transmit messages unless they are in writing or are of
a routine nature.
I find that Reynolds's testimony concerning his knowledge of the duties and powers of a
union steward to be either disingenuous or the product of true indifference toward an institution
which he has sought to help govern. I find the latter to be unlikely. Based on McCaffrey’s
testimony, it is quite clear that stewards are regularly trained by the Union hierarchy and that
mandatory classes are given regularly to bring stewards up to speed; not only does the Union
encourage its stewards to attend, but it pays them for their time in doing so. Given his high
interest and his reasonably lengthy steward experience and the mandatory nature of the
training, I am confident the Charging Party has attended those classes and read the Bylaws.
Reynolds does agree that based on the Bylaws, stewards are not officers of the Union.
With that amount of understanding, his claim of ignorance concerning those provisions of the
Bylaws describing the steward’s duties and authority seems insincere. I find, therefore, despite
his protestations to the contrary, that he knows exactly what limitations the Bylaws and the
collective bargaining agreement impose on stewards.
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III. Legal Analysis
Having found, as the General Counsel has alleged, that Pruitt made the statement
attributed to him by Reynolds, and corroborated by Hawkins, the next question is whether it had
a reasonable tendency to restrain or coerce the employee to whom the remark was directed.
First, I am of the view that the remark was not truly perceived by Reynolds as something
the Union actually did. In fact, because Reynolds well knew that Pruitt had been the target of
Reynolds's small sort grievance, he must have known that Pruitt knew what Reynolds had been
attempting to do. Any minimal understanding of human nature would lead one to understand
that the acknowledged victim of such a move would harbor some resentment toward the
individual responsible. That would be true whether the target of the grievance was a rank-and-
file employee or a union steward. Furthermore, there is no evidence whatsoever that Pruitt
participated in Reynolds's grievances at any stage or in any way. Plus, Reynolds was fully
aware that the steward on the floor did not normally participate in that upper-level of the
decision-making process. He had never done so when he was a steward and he knew Pruitt
would not have done so, either.
Second, I find that Pruitt, when he made the statement, was speaking only for himself,
not the Union and that Reynolds knew it. It was certainly not something of a routine nature
which a steward might say. Pruitt was responding to what he perceived as, probably correctly,
Reynolds's unbrotherly (in a union sense) behavior. At the same time, Reynolds was going
through a bitter calculus of his own. He was still resentful over losing his stewardship and losing
his bid for election to union office. Pruitt, conveniently, was a symbol of both – part of the
Loewenkamp group and a steward. And, just the day before, he had learned from Kitchens that
his grievances had been found to be without merit, prompting him to protest that he would file
charges. The next day, when the equally-provoked Pruitt made his remark, it gave Reynolds
grounds to retaliate. He realized he could spank the Union with Pruitt's words. To do that,
however, he had to characterize Pruitt as a union agent, so that the Union would become
vicariously liable for what Pruitt had said. 9
The simple way to do that was to claim that stewards are agents of the Union for whom
they provide service, but he needed to conceal what he actually knew about their authority to
make himself more appealing as an innocent victim. Reynolds therefore claimed ignorance of
any union rules concerning whether stewards are agents whose acts may be imputed to the
Union.
But, it will be recalled, there is more to Reynolds's claim. At this point, it is appropriate to
recall Reynolds's testimony that Pruitt had declared himself to be in a special status -- that of
"chief steward." As before, I find this assertion to be part of Reynolds's carefully thought-out
calculus. To make his story more credible, he had to suggest that Pruitt was not just a regular
steward whose duties were circumscribed by both the Bylaws and the collective bargaining
contract. He had to inflate Pruitt’s authority. He accomplished that by claiming, falsely, that
Pruitt had told him that he was going to be the chief steward who had so much power he could
relieve stewards of their duty. But, this was a job which had never existed before, was not

9 Although in the abstract this sounds improbable for someone of Reynolds’s background,
he should not be underestimated. I note that he is reasonably steeped in Local 886 lore. As a
trained steward he undoubtedly knew of the 1977 case against the Union where a steward was
found to be an agent for statements he made and the Union liable therefor. It was an easy
script to replicate.
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created, and does not exist now except as part of Reynolds's plan to get even. He also pointed
out (for he had lost the benefit) that stewards receive an emolument for their services in the
form of credit for union dues. That fact made it appear as if the stewards have special status,
one that approaches being an employee of the Local. More likely, it is only an inducement to
encourage members to perform this time-consuming task.
In reality, Reynolds was under no illusions that Pruitt was speaking for the Union. He
knew Pruitt was speaking only for himself. It is true that Pruitt pretended to have inside
information concerning why Reynolds's grievances had been denied. And it is no doubt true
that Pruitt wanted to harshly chastise Reynolds. But that does not help the General Counsel’s
case. To paraphrase §§ 2.03 and 3.03 of the RESTATEMENT OF LAW (THIRD) — AGENCY (2006),
describing the concept of apparent authority and the creation of apparent authority, one must
show a manifestation by the principal, here Respondent, that the putative agent has the
authority to act on the principal’s behalf and the third party (Reynolds) reasonably believes the
actor (putative agent, here Pruitt) is authorized and the third party’s belief is traceable to the
manifestation. Reuschlein and Gregory on AGENCY AND PARTNERSHIP (1978), §97, p. 163, say
the same thing, slightly differently: Where a third party has actual knowledge that the agent is
not authorized, the principal will not be liable * * * If the third party is aware of the principal’s
specific directions to his agent (here, the Bylaw rules and the collective bargaining contract’s
limitations), he cannot recover.
Therefore, the mere fact that Pruitt utilized his status to make his remark sting the harder
is not evidence that he was speaking on behalf of the Union. In a way, this is nothing more than
an application of the old black letter rule in law that one cannot prove agency out of the mouth of
the putative agent. 10
As I have found, Reynolds already knew the truth. Kitchens had informed him of the
reasons his grievances were found to be without merit. Kitchens was a source of accurate
information. He was a business agent; he participated in the local area hearing; and it was he,
together with St. Cyr, who decided that the Employer's responses to the grievance were valid.
Reynolds knew, or should have known, that Kitchens could be relied upon for accuracy. But he
was mad at Kitchens and he wanted Kitchens (and the new union officers) to feel his anger, too.
Whatever Pruitt had said, Reynolds knew it came from an individual who had no knowledge
whatsoever about the reasons for the Union's decision; he also knew Pruitt had no actual
authority to speak. Finally, Reynolds did not in any way believe that the Union had given any
sort of manifestation that Pruitt was authorized to speak for the Union; certainly there was none
for him to rely on.
Moreover, Reynolds knew Pruitt had said nothing which would actually have an impact
on his exercise of the rights guaranteed him by §7 of the Act. I find that it is not reasonable, in
these unusual circumstances, to conclude that Pruitt's statements somehow interfered with and
restrained Reynolds in the exercise of his §7 right to file grievances.
Accordingly, the contention that the Union is responsible under a vicarious liability theory
of Pruitt's agency does not hold water. On the most basic level, the Union never authorized
Pruitt to make such a statement to Reynolds. It had no idea that he would do so. In that regard,
it is unlikely that anyone, aside from persons connected to Reynolds, would perceive that
Reynolds's grievance would provoke Pruitt in the manner that it did. In addition, no one could

10 See, for example, Judge Thomas A. Ricci’s statement in Gilberton Coal Co., 291 NLRB
344, 357 (1988) and his similar statement in Corry Contract, Inc., 289 NLRB 396, 403 (1988).
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reasonably anticipate that Reynolds would take advantage of that in order to deliver his own
blow which combined elements of vengeful animosity aimed in several directions. First,
Reynolds was unhappy about the loss of his campaign slate, costing him an opportunity to be a
union trustee. Second, this was followed by the Union, through Kitchens, finding no merit in
either of his grievances, one of which was his effort to obtain Pruitt's job. Third, he was
unhappy with Pruitt generally, because Pruitt held the job that Reynolds believed he should hold
and because Pruitt was part of the winning group and was a steward having the winners’
support. All of these factors conflated themselves into a scheme whereby he could regain some
measure of self-worth. If he couldn't have Pruitt's job, at least he could slap Pruitt and Union
simultaneously with one accusation.
As Pruitt was acting only for himself and since Reynolds knew it, the General Counsel’s
implied/apparent authority argument relating to Pruitt’s purported agency status is not viable.
Reynolds was not misled about Pruitt’s apparent authority by virtue of his stewardship. Instead,
he took advantage and manipulated the facts to make it appear he had no knowledge of Pruitt’s
lack of authority.
I find that the evidence supplied by Reynolds in support of the General Counsel's case is
made of whole cloth. I shall recommend that the complaint be dismissed.
Based upon the foregoing findings of fact, legal analysis, and the record as a whole I
hereby make the following
Conclusions of Law
1. United Parcel Service is an employer engaged in commerce and in an industry affecting
commerce within the meaning of §2(2), (6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of §2(5) of the Act.
3. The General Counsel has failed to prove that the statement Pruitt made to the Charging
Party had the reasonable tendency to restrain or coerce him in the exercise of his rights
guaranteed by §7 of the Act and therefore the statement cannot constitute a violation of
§8(b)(1)(A) of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 11
ORDER
The complaint is dismissed.
____________________________________
James M. Kennedy
Administrative Law Judge
Dated, Washington, D.C. December 18, 2008

11 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in §102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.