United Parcel Service

National Labor Relations Board - Administrative Judge Opinions

Nov 25, 2016

06-CA-143062 (N.L.R.B. Nov. 25, 2016)

JD–112–16
North Apollo, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
UNITED PARCEL SERVICE, INC.
and Case 6–CA–143062
ROBERT C. ATKINSON, JR. an individual
Julie Stern, Esq.,
for the General Counsel.
Catherine Highet, Esq.,
for the Charging Party.
Jennifer Asbrock, Esq.,
for the Respondent.
DECISION
GEOFFREY CARTER, Administrative Law Judge. In this case, the General Counsel
alleges that United Parcel Service, Inc. (Respondent or UPS) violated Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act) by discharging Robert C. Atkinson, Jr. (Atkinson or
Charging Party) on June 20 and October 28, 2014 (it was possible to discharge Atkinson twice
because Atkinson continued working while his grievance for the June 20 discharge was
pending). Although Respondent maintains that it lawfully discharged Atkinson on both dates for
not following UPS’s methods and procedures, as explained in more detail below, I have found
that Respondent’s decisions to discharge Atkinson violated the Act because they were tainted by
a plan among Atkinson’s supervisors to use UPS’s methods and procedures to get rid of
Atkinson because of his union and protected concerted activities. However, based on evidence
of misconduct by Atkinson that Respondent acquired after Atkinson’s discharge, I have also
found that Atkinson is not entitled to reinstatement, and is not entitled to backpay beyond June
21, 2016.
STATEMENT OF THE CASE
This case was tried in Pittsburgh, Pennsylvania on June 20–24 and August 22–25, 2016.
Atkinson filed the charge in Case 6–CA–143062 on December 18, 2014.1
The General Counsel issued the complaint in Case 6–CA–143062 on March 29, 2016. In
the complaint, the General Counsel alleged that Respondent violated Section 8(a)(3) and (1) of

1 All dates are in 2014, unless otherwise indicated.
2
the Act by discharging Atkinson on or about June 20, 2014, and by discharging Atkinson on or
about October 28, 2014, because Atkinson refrained from supporting and assisting Teamsters
Local Union 538 (Teamsters Local 538) and engaged in protected concerted activities.
Respondent filed a timely answer denying the alleged violations in the complaint.
5
On the entire record,2 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Charging Party and Respondent, I make
the following
FINDINGS OF FACT310
I. JURISDICTION
Respondent, a corporation with an office and place of business in North Apollo,
Pennsylvania, engages in the business of receiving, sorting and delivering packages. In 15
conducting its operations during the 12–month period ending on November 30, 2014,
Respondent performed services valued in excess of $50,000 in States other than the
Commonwealth of Pennsylvania. Respondent admits, and I find, that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent
also admits, and I find, that Teamsters Local 538 is a labor organization within the meaning of 20
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. UPS Background25
1. General overview
UPS primarily is in the business of picking up and delivering small packages in the
United States and internationally. To provide those services, UPS uses several facilities, 30
including larger facilities (hubs) where packages are sorted and routed, and smaller delivery

2 The transcripts and exhibits in this case are generally accurate. However, both the General
Counsel and Respondent filed motions to correct the trial transcript in this matter. In addition, during my
review of the record, I also identified transcript corrections that are warranted.
Given the absence of any objections and (for the most part) the lack of any conflicts between the
parties’ requested corrections, I hereby grant in part and deny in part the General Counsel’s and
Respondent’s motions to correct the trial transcript as indicated in Appendix B, which is a list of
transcript corrections that is attached to this decision. Where the transcript corrections relate to the
spellings of the names of nonsupervisory employees who did not testify in the trial, I have granted the
corrections as indicated in Appendix B, but to provide a measure of privacy I did not include the
employee names in Appendix B.
3 Although I have included several citations in this decision to highlight particular testimony or
exhibits in the evidentiary record, I emphasize that my findings and conclusions are not based solely on
those specific citations, but rather are based on my review and consideration of the entire record for this
case. I also note that in the interest of preserving a measure of privacy, I have used employee initials
when discussing comparators to Atkinson, unless the comparator in question testified as a witness during
the trial (in which case I use the comparator’s full name).
JD–112–16
3
centers where drivers take packages to their final destinations and pick up packages to be
shipped elsewhere. The International Brotherhood of Teamsters represents approximately
230,000 hourly employees who work for UPS in its package delivery operations. (Tr. 660–661,
726–727, 712–716, 1154.)
5
2. Collective-bargaining history
UPS drivers are covered by two collective-bargaining agreements: a national master
agreement that covers all UPS drivers; and a local supplement agreement (of which there are
approximately 36) that covers UPS drivers in the relevant geographical area. Historically, the 10
national master agreement and the local supplement agreements have been linked for purposes of
ratification, such that union members must ratify both the national master agreement (in a vote
by all union members) and all local supplements (in separate votes by union members covered
by each respective local supplement) before the agreements can take effect. (Tr. 87–88, 495–
496, 663, 672–673.)15
3. UPS package car driver procedures
UPS package car drivers are on the front lines of delivering and picking up packages
to/from UPS customers. Because of that fact, UPS has implemented an extensive set of 20
procedures that are aimed at ensuring that drivers complete their delivery routes in a
professional, safe and efficient manner. UPS expects its drivers to do the following (among
other things) before leaving the UPS facility: meet appearance standards (e.g., by having
trimmed hair and a clean and neat uniform); attend pre work communication meetings (PCMs) at
the start of their shift to hear announcements and receive instructions; inspect their trucks for 25
leaks, damage and mechanical problems; and use their Delivery Information Acquisition Device
(DIAD or “board”)4 to download and review the stops on their assigned route (a procedure called
“get EDD” (Enhanced DIAD Download));. (Jt. Exhs. 3, 4; R. Exh. 44; Tr. 47–48, 493–494,
567–568, 803, 957–960, 1215–1216; see also Jt. Exh. 5 (defining DIAD, EDD and PCM).)
30
When UPS drivers are on the road and running their routes, UPS expects them to
determine the best path to make the deliveries on their route in a timely manner and generally in
the package delivery order specified by EDD, and comply with all applicable traffic and safety
laws. To facilitate driver efficiency and safety, UPS expects its drivers to follow various
methods, procedures and instructions (known as the “340 methods”),5 including but not limited 35
to: planning ahead (e.g., knowing the next few stops and thinking about the most effective way
to complete them); having a smooth routine in the car (i.e., a routine that has no wasted motion);
and making deliveries quickly and professionally (e.g., by minimizing time with the customer
and having all necessary materials at hand to complete the delivery in one trip). Drivers must
also ensure that they deliver Next Day Air packages by the designated time (usually by 10:30 am 40

4 A DIAD is a handheld device that UPS drivers use to, inter alia, scan packages, download and
review the stops on their assigned route, complete assigned training modules, and communicate with UPS
supervisors. (Jt. Exh. 5.)
5 Although UPS drivers are familiar with the term “340 methods,” and UPS periodically
communicates with and trains drivers about methods, procedures and instructions, UPS does not
distribute a particular document to drivers about the 340 methods. (Tr. 55–56, 246, 357, 409–410, 523–
525, 581, 610, 730–731, 767–768, 779–780, 804; R. Exh. 2.)
JD–112–16
4
for the highest level of Next Day Air), since next day air delivery is a premium service that UPS
provides. (Jt. Exhs. 3, 4; GC Exh. 3; Tr. 49, 55–56, 113, 246–247, 409–410, 435, 898–907,
1304.)
In part because its package car drivers are unsupervised when they are out making 5
deliveries, UPS uses a “Telematics” system to collect and monitor information about how the
drivers are using its trucks. For example, the Telematics system collects data on: the speed and
location of the truck; whether the driver is wearing a seatbelt; how many times the driver backed
the truck up each day; and whether and when the bulkhead door (the door between the cabin and
package storage areas of the truck) is open. UPS generally may not take disciplinary action 10
against employees based on information from Telematics alone, but where employee dishonesty
is at issue, UPS may use Telematics to corroborate other evidence. (Tr. 56–57, 257, 351–352,
478–479, 549–550, 587, 615–616, 803–804, 1101–1102, 1258–1259, 1297.)
Finally, when drivers return to the UPS facility, they must remove any Next Day Air 15
packages from the truck and drop them off with a Next Day Air clerk (to avoid having those
time-sensitive packages getting lost in the shuffle of other packages that do not have such a short
delivery commitment). (Tr. 51.)
4. Disciplinary, grievance and arbitration procedures20
In general, UPS follows a progressive discipline policy (though UPS reserves the right to
forego progressive discipline for certain “cardinal” infractions involving, inter alia, dishonesty,
substance abuse or recklessness causing a serious accident while on duty, and also has the
discretion to handle some issues informally with a “documented talk-with” or coaching).6 Under 25
the progressive discipline policy, UPS will first issue a written warning notice to an employee
who commits an infraction, with the warning remaining in effect for a period of up to nine
months. If the employee commits another infraction of any kind while the warning is still in
effect, then UPS may suspend the employee (typically for three days). Further infractions that
occur while prior discipline remains in effect may result in UPS issuing a longer suspension 30
(typically for ten days), and ultimately, in UPS discharging the employee. (Jt. Exh. 2 (Article
52); Tr. 86–87, 249–250, 351, 373, 431, 549, 616–617, 775–777, 802–803, 840–841, 875, 1439;
see also Tr. 780–781 (noting that if an employee committed multiple procedural, or “methods,”
infractions on one day, the business manager would have the discretion to use one disciplinary
action to address those infractions (instead of separate discipline for each infraction).)35
Employees may file grievances to contest disciplinary action, including disciplinary
action that the employee maintains is discriminatory and thus in violation of federal and/or state
law. At step one of the grievance process, generally a manager from the facility meets with the
union steward to discuss the discipline at issue and attempt to reach an agreed resolution (such as 40
a “settlement” where the employee and UPS agree to a shorter suspension or a lower form of
discipline). The process is similar at step two, but often the local union business agent will
participate in the meeting in support of the employee, and a representative from UPS’s labor
department will participate in support of management. If the dispute persists, then the grievance

6 The question of whether a documented talk-with or coaching qualifies as a form of discipline under
the Act is not before me in this case.
JD–112–16
5
will proceed to step 3, where a panel composed of two UPS representatives and two union
representatives will consider evidence and arguments from each side and then decide whether to
uphold, modify or rescind the discipline. Finally, at step 4, an aggrieved party can submit the
dispute for arbitration. Notably, an employee who has been suspended or discharged may
continue working for UPS while his or her grievance of that disciplinary action is pending, 5
unless the suspension or discharge was based on a “cardinal” infraction (i.e., an infraction that is
sufficiently serious to warrant the suspension or discharge taking effect immediately). (Jt. Exh. 1
(Articles 7, 36); Jt. Exh. 2 (Articles 49, 52); Tr. 46–47, 86–87, 494–495, 801–802, 872–875,
1049–1051.)
10
B. The New Kensington Center
1. New Kensington center management overview
The New Kensington center (a.k.a. “New Ken” center) is one of UPS’s package delivery 15
centers, and is located in North Apollo, Pennsylvania. Generally speaking, a business manager
(a.k.a. center manager) leads the New Kensington Center, and receives managerial support from
an on road supervisor who supervises the drivers at the center, and from a dispatch supervisor
who supervises the pre load employees at the center (i.e., the employees who load the package
delivery trucks in the morning before drivers leave for their routes) and sets the routes for drivers 20
each day. During most of the relevant time period in 2013, and 2014, Jeremy Bartlett served as
the business manager at the New Kensington center (though he simultaneously served as
business manager at the Zelionople package delivery center, and spent the majority of his time at
that location),7 while Matt DeCecco served as the on road supervisor and Ray Alakson served as
the dispatch supervisor. Keith Washington served as the division manager over the geographic 25
region that includes the New Kensington center, and thus was Bartlett’s supervisor. (Tr. 44–45,
1046–1047, 1091, 1254, 1257, 1345–1348, 1422, 1569–1571, 1625–1626, 1629–1631; see also
Jt. Exh. 6.)
2. UPS’s labor department and the New Kensington center30
Among its various departments, UPS has a labor department that: handles contract
negotiations; provides advice to UPS managers about labor-related issues; and represents UPS
during disciplinary grievance proceedings (assuming the grievance is not resolved at step one of
the grievance process). During most, if not all, of the relevant time period, Rob Eans served as 35
UPS’s district labor manager and Tom McCready served as UPS’s labor manager for geographic
area that includes the New Kensington center. In those capacities, both Eans and McCready
consulted with New Kensington management about labor issues, and also served as UPS’s
spokesperson in the grievance process if a dispute about employee discipline proceeded past the
first step of the grievance process. Eans and McCready also represented UPS in contract 40
negotiations with local unions, including negotiations for the Western Pennsylvania supplement
to the national master collective-bargaining agreement between UPS and the International
Brotherhood of Teamsters. (Tr. 92–93, 662–665, 787–790, 841, 869–875, 1047–1051; Jt. Exh.
6.)

7 Bartlett was the business manager for the New Kensington and Zelionople centers from June 1 to
August 1, 2013, and from April 1 to August 1, 2014. (Jt. Exh. 6; see also Tr. 1422.)
JD–112–16
6
3. Robert Atkinson, Jr. – background
Robert Atkinson, Jr. began working for UPS at the New Kensington center in April 1988,
and became a package car delivery driver in 1995. The most recent time Atkinson was 5
disciplined at UPS before 2014, was in 2011, when Atkinson was disciplined in connection with
an automobile accident. (Tr. 44–45, 93–94, 807–809, 876, 1350; R. Exh. 2 (p. 1).)
During his tenure with UPS, Atkinson was a member of Teamsters Local 538, and served
as the shop steward for approximately 17 years until his employment with UPS ended in January 10
2015. As shop steward, Atkinson acted as a liaison between the managers at the New
Kensington center and employees, and represented employees at disciplinary meetings. (Tr. 45–
47, 86, 278–279, 807–808, 875–876.)
C. Fall 2012 to April 2013 – Collective-Bargaining Agreement Negotiations15
In the fall of 2012, UPS began negotiating with the International Brotherhood of
Teamsters for a successor national master collective-bargaining agreement. In the same time
period, UPS also began negotiating with local Teamsters negotiating committees for successor
agreements to the local supplement collective-bargaining agreements. (In practice, UPS 20
alternated every few weeks between bargaining sessions for the national master agreement and
bargaining sessions for the local supplements.) (Tr. 663–665, 718–719, 871.)
By April 2013, UPS reached handshake agreements with the International Brotherhood of
Teamsters on the terms of the national master agreement and with the local Teamsters 25
negotiating committees on the terms of each local supplement agreement. Under the proposed
new national master agreement (among other changes), any employees who were covered by the
UPS health care plan would be switched to the Central States Health and Welfare plan (a.k.a.
“Teamcare”).8 Through this change to employee healthcare, UPS expected to reduce its
healthcare costs without imposing new out-of-pocket healthcare costs on employees. (Tr. 663–30
664, 668–671, 674, 722–723, 748, 792; Jt. Exh. 1 (Article 34, Section 2).)
D. May 2013 – Contract Ratification Efforts and the “Vote No” Campaign
With contract negotiations complete, in or about May 2013, UPS and the International 35
Brotherhood of Teamsters planned to present the national master agreement and the local
supplements to union members for ratification votes. In connection with that plan, the
International Teamsters Union recommended that bargaining unit members vote “yes” to
approve the national master agreement and the local supplements, and circulated letters and
flyers to outline some of the highlights in the national master agreement. UPS, meanwhile, 40
circulated memoranda to UPS managers to explain the changes in the national master agreement,
and to advise managers about the “Do’s and Don’ts for management during the contract
education and voting process.” (Tr. 697–699, 748–750, 1205–1206, 1655–1656; GC Exh. 38

8 Employees who already were covered by a non-UPS healthcare plan were not affected by this
change to employee healthcare, since they could simply continue with their non-UPS healthcare plan.
(Tr. 668–669, 722–723.)
JD–112–16
7
(pp. 7, 12); R. Exh. 52 (UPS memoranda about the national master collective-bargaining
agreement and the contract ratification process).)
Several employees from around the country, however, opposed ratifying the national
master agreement, with many citing the proposed change in employee healthcare plans as a 5
major point of concern. In addition, several employees opposed ratifying their local supplement
agreement, in part as a strategy to force UPS and the International Brotherhood of Teamsters to
renegotiate the employee healthcare changes in the national master agreement, and in part as a
strategy to demand concessions in the local supplement (including concessions that might offset
some of the changes in the national master agreement). Collectively, employees who advocated 10
against ratifying the proposed collective-bargaining agreements titled their efforts as the “Vote
No” campaign. Supporters of the Vote No campaign, including a group organized under the
name Teamsters for a Democratic Union (TDU), used a variety of methods to advocate against
ratifying the national master agreement and the local supplements, including: social media
postings; petitions; flyers; and verbal communication between bargaining unit members. (Tr. 15
296, 302–303, 688–689, 792–795, 799, 1204–1205; GC Exh. 38 (p. 3); R. Exh. 51 (pp. 1–15);
CP Exh. 6 (pp. 48-54, 61–73, 77–88, 92–93, 97–100, 113).)
A number of bargaining unit members covered by the Western Pennsylvania supplement
joined and supported the Vote No campaign, including Atkinson, who started the Vote No 20
campaign in the New Kensington center. Like Vote No campaign supporters in other locations,
Atkinson and other bargaining unit members in Western Pennsylvania used social media
postings, petitions, flyers and verbal communication to advocate that bargaining unit members
reject the national master agreement and the Western Pennsylvania supplement. UPS was aware
of and made an effort to monitor the Vote No campaign to gain a sense of what issues or 25
concerns union members had about the national master agreement and Western Pennsylvania
supplement. (Tr. 90–91, 297, 388–389, 444–445, 485, 495–496, 568–569, 689, 792–795, 833–
835, 872; R. Exhs. 1 (Bates 01839), 22 (Bates 01839–01840, 02101); GC Exh. 38 (p. 4); CP
Exh. 6 (p. 8–9).)
30
E. June 2013 – Bargaining Unit Ratifies National Master Agreement but Rejects Local
Supplements in Western Pennsylvania and Several Other Locations
In late June 2013, bargaining unit members voted to ratify the national master collective-
bargaining agreement negotiated by UPS and the International Teamsters Union. The national 35
master agreement could not take effect, however, because bargaining unit members in 18
geographic areas (including Western Pennsylvania) did not ratify their applicable supplemental
collective-bargaining agreements.9 (Tr. 88–89, 206–207, 296–297, 303, 673–676; CP Exh. 7; R.
Exh. 41; GC Exh. 38 (p. 9).)
40
In light of those results, on or about June 28, 2013, UPS and the Teamsters UPS national
negotiating committee agreed to extend the existing national master collective-bargaining
agreement and all supplements “for an indefinite period of time subject to thirty (30) days
written notice by either party.” UPS agreed that any increases in hourly wage rates,

9 Bargaining unit members covered by the Western Pennsylvania supplement had rejected
supplements in the past, including in 1993, 1997, 2002 and 2007. (Tr. 303–304, 689–690, 790–791.)
JD–112–16
8
contributions and economic benefits that the parties negotiated would be retroactive to August 1,
2013. (Tr. 676–677, 755; Jt. Exh. 7.)
F. Summer 2013 – UPS and the International Brotherhood of Teamsters Begin Efforts to
Persuade Bargaining Unit Members to Ratify the Remaining Supplemental Collective-5
Bargaining Agreements
After learning that bargaining unit members did not ratify 18 supplemental agreements,
UPS and the International Brotherhood of Teamsters began an effort to persuade those
bargaining unit members to ratify the supplements in a second vote. In connection with that 10
effort, UPS communicated with local Teamsters officials and monitored Vote No campaign
activities to gain a better sense of what issues or concerns led bargaining unit members to vote
against ratifying the supplements, and to assess whether the parties could address those issues
and concerns through further communication and negotiation. UPS also renewed negotiations
with the applicable local union negotiating committees (including the negotiating committee for 15
the Western Pennsylvania supplement). (Tr. 678–682, 690–692, 745–746, 798–799, 822–823,
833–834, 852–854; See also, e.g., CP Exh. 6 (pp. 74–75).)
The Teamsters UPS national negotiating committee, meanwhile, sent a letter dated July
29, 2013, to bargaining unit members covered by supplemental agreements that were not ratified. 20
The letter stated, in pertinent part, as follows:
Dear UPS Members:
I am writing to bring you up to date on the status of the 2013 UPS contract and your Area 25
Supplement or Rider.
As you know, the National UPS Agreement covering more than 220,000 Teamster
members throughout the country has been approved by a majority of UPS Teamsters who
voted. This contract will take effect after all Area Supplements and Riders, including 30
yours, are also passed. . . .
It is important to clarify that while you or your fellow members covered by your Area
Supplement may have voted against the National Agreement, a majority of Teamsters
around the country voted to pass it. It is, therefore, a binding agreement between UPS 35
and the Teamsters Union, and cannot be reopened.
A majority of Teamsters voting in your area voted against your Area Supplement. Many
voted against the Area Supplement because they were unhappy with the change to a new
health care plan that was negotiated in the National Agreement. Because health care is 40
contacted in the National Agreement, another vote against the Supplement will not
impact health care. The Supplement deals strictly with local area issues, not the broader
economic and language issues that are covered by the National Agreement that has
already been approved.
45
At the same time, there were local issues that people voting against the Area Supplement
were concerned with. Your supplemental negotiating committee is now bargaining with
JD–112–16
9
the company to address these issues. Once a modified agreement is concluded we will
bring that to you for a new vote. . . .
(R. Exh. 47; Tr. 678–679; see also 684 (noting that UPS agreed with the Teamsters UPS national
negotiating committee that the national master agreement that bargaining unit members ratified 5
was a binding agreement).)
G. Summer/Fall 2013 – the Vote No Campaign in Western Pennsylvania Continues
In the same time period, supporters of the Vote No campaign continued to advocate 10
against ratifying the Western Pennsylvania supplement.10 In various Western Pennsylvania
locations, Vote No supporters distributed flyers, displayed Vote No signs and/or clothing in
vehicles parked at UPS facilities, and verbally advocated for bargaining unit members to reject
the Western Pennsylvania supplement again when it came up for another ratification vote. (CP
Exh. 6 (pp. 1–6, 16, 18–28, 36–39, 109–112); GC Exh. 38 (pp. 1, 13).)15
Atkinson became more involved in the Vote No campaign by, among other activities,
distributing flyers, establishing a Vote No web page where area union members could learn
about and discuss the Western Pennsylvania supplement, and later establishing a web page about
Teamsters Local 538. (Tr. 90–91, 297–300, 392, 448, 485, 591, 1379–1380, 1382–1383.) 20
Managers at the New Kensington center were aware of Atkinson’s ongoing activities in
support of the Vote No campaign. In late 2013, dispatch supervisor Ray Alakson warned
Atkinson and Mark Kerr (another UPS driver in the New Kensington center) that they should be
careful about what they posted on the Vote No webpage because the UPS labor department was 25
monitoring the posts.11 (Tr. 91–93, 300–302, 390–392, 445–448, 485, 488–489, 1379–1380,
1382–1383.)
H. January 22, 2014 – Atkinson Disciplined for Mishandling a Next Day Air Package
30
On January 22, 2014, on road supervisor Matt DeCecco12 called Atkinson to a meeting
(Alakson attended as an additional UPS representative, and UPS driver Dan Morris attended as

10 The Vote No campaign also continued in various other locations in the United States where
bargaining unit members had not yet ratified the applicable local supplement. (See, e.g., CP Exh. 6 (pp.
55–60, 94–95).)
11 Alakson denied making these remarks (see Tr. 1390), but I do not credit that testimony. As a
general matter, UPS drivers in the New Kensington center viewed Alakson as one of the more relaxed
managers. (Tr. 473, 592; see also Tr. 1350 (Alakson agreed that he had a good working relationship with
Atkinson).) Consistent with that reputation of being relaxed (and therefore approachable), Alakson
admitted that Atkinson and Kerr spoke with him about the Vote No campaign and what they were
fighting for. Given Alakson’s relationship with Atkinson and Kerr, and Alakson’s knowledge that
managers were aware of the Facebook page where Atkinson posted remarks in support of the Vote No
campaign (see Tr. 1379–1380, 1382–1383), Atkinson’s and Kerr’s testimony that Alakson warned them
about posting on Facebook about the Vote No campaign rings true.
12 DeCecco became the on road supervisor at the New Kensington center on or about January 15,
2014. DeCecco placed a higher level of emphasis on UPS rules and methods infractions than other
previous supervisors. (Tr. 432–433, 435, 451, 472–473, 593, 1087, 1253; Jt. Exh. 6.)
JD–112–16
10
assistant shop steward). At the meeting, DeCecco issued Atkinson a written warning notice for
failing to follow proper procedures, methods and instructions because at the end of Atkinson’s
previous shift, Atkinson left a Next Day Air package on his truck instead of taking the package
to the Next Day Air drop off area in the UPS facility.13 In addition to being a Next Day Air
package, the package required premium service because it was being shipped internationally and 5
weighed more than 70 pounds. Due to Atkinson’s oversight, UPS failed to deliver the package
by the promised deadline, and thus had to deliver the package to the customer late and free of
charge. Atkinson told DeCecco that he did not remember leaving a Next Day Air package on his
truck, but apologized if that indeed happened. (Tr. 96–97, 247, 321–322, 1096, 1257–1258; GC
Exh. 5; see also Tr. 502–503, 811, 876–877.)10
Atkinson did not file a grievance to contest the January 22, 2014 written warning notice.
(Tr. 248, 877.) In 2014 and 2015, UPS disciplined eight employees (including one supervisor)
for mishandling Next Day Air packages, with five of those employees receiving written warning
notices, two employees receiving suspensions, and one employee being discharged. Two 15
additional employees received a documented talk-with for mishandling a Next Day Air package.
(R. Exhs. 7, 65; Tr. 248, 877–878, 880–882, 1098–1100, 1659–1661.) Before 2014, UPS often
used a verbal coaching or documented talk-with to correct New Kensington center employees
when they mishandled Next Day Air packages, though employees who committed that infraction
on multiple occasions could receive a written warning notice. (Tr. 97–98, 208–209, 415, 430–20
431, 483–484, 488, 503–504, 532–533, 586; see also Tr. 1395.)
I. Late January 2014 – Bargaining Unit Again Rejects Western Pennsylvania Supplement
In late January 2014, bargaining unit members again voted against ratifying the Western 25
Pennsylvania supplement, notwithstanding the recommendation of Teamsters Local 538 and
other locals that members should ratify the supplement. Only a few (approximately 4–5) other
supplements across the country remained unratified at that time. (CP Exh. 6 (pp. 107–108); R.
Exh. 48; CP Exhs. 5 (pp. 66, 68), 7; GC Exh. 38 (p. 11); Tr. 89, 206–207, 682–683, 726–727.)
30
The Vote No campaign was active both before and after the second ratification vote, as
supporters continued to use social media, flyers and verbal communication to advocate against
ratifying the Western Pennsylvania supplement. UPS was aware that Atkinson and employee
Mark Kerr were active in the Vote No campaign in the New Kensington center. (R. Exh. 1
(Bates 01871 – front and back of page); CP Exhs. 1, 5 (pp. 66–69), 6 (p. 104); Tr. 187–191.) 35
J. March 2014 – Disputes about Vote No Literature and Signs
For much of the Vote No campaign in the New Kensington center, Vote No supporters
used a UPS employee safety bulletin board in the men’s locker room to post Vote No flyers and 40

13 The witnesses presented conflicting testimony about whether, in the same January 22 meeting,
DeCecco rescinded a warning that Atkinson testified he received from on road supervisor Robert (Bob)
Clark in December 2013, for not wearing a seatbelt while operating his truck. (Compare Tr. 94–96, 207–
208, 340–341, 609–610, 614–615 with Tr. 1101; see also Jt. Exh. 6; Tr. 239.) I note that there is no
documentation in the evidentiary record that UPS issued or rescinded such a warning. In any event, I
need not resolve this factual dispute because the seatbelt warning issue is not material to my analysis of
the allegations in the complaint.
JD–112–16
11
literature. Employees also used the bulletin board to post non union-related materials such as
jokes, raffle tickets and announcements about charity fundraisers. UPS managers rarely entered
the men’s locker room because they could only reach it by exiting the main building and walking
outside to the locker room, and because there was another bathroom (a women’s bathroom that
was rarely used) adjacent to their office. (Tr. 151–153, 158, 341, 367–368, 394–395, 440, 449–5
450, 453–455, 499–500, 555–556, 569–570, 593–594, 1210, 1213–1215, 1385–1386, 1555–
1556, 1657–1659; GC Exhs. 19(a), 38; see also 561–564.)
In March 2014, DeCecco saw Atkinson and asked to speak with him. The following
conversation ensued:10
DeCecco: That bulletin board out in the locker room, who’s been posting stuff on it?
Atkinson: Well, a lot of people post things on there.
15
DeCecco: Well, who is it?
Atkinson: I’m not going to tell you names of who posts on that board.
DeCecco: Well, that bulletin board is not for union material. I took a lot of stuff 20
down off of there today, and from now on, anything that is posted on that
board is posted through me, so show it to me and I’ll tell you whether you
can put it on that board or not.
(Tr. 153–154; see also Tr. 316–317, 1210, 1286.) DeCecco added that Atkinson could post 25
literature on the union bulletin board (a bulletin board in a different location at the facility), but
only if the literature was printed on union letterhead. (Tr. 1210–1212; see also Tr. 396, 398,
449–450, 1217–1218 (DeCecco gave similar instructions to Kerr regarding the locker room
bulletin board and the union bulletin board).)14 Later in the week, DeCecco told UPS drivers at
the morning PCM that the locker room bulletin board was intended for UPS health and safety 30
information, and that employees should not place any literature on the locker room bulletin board
without UPS approval.15 (Tr. 155, 396, 398–399, 500–501, 570–571, 1215–1217.)

14 According to Atkinson, DeCecco stated that he would consider allowing employees to post union
literature on the locker room bulletin board if the literature was printed on union letterhead. (Tr. 154–
155.) I did not credit that aspect of Atkinson’s testimony because it was not consistent with the credible
testimony that Kerr and DeCecco provided regarding what DeCecco expressed about bulletin board
postings. (See, e.g., Tr. 396, 398, 450, 1210–1212, 1217–1218.)
On a related point concerning union literature and union letterhead, I note that the evidentiary record
shows that Teamsters Local 538 supported ratifying the Western Pennsylvania supplement. Thus,
although Atkinson had access to the union bulletin board as the shop steward, it is questionable as to
whether Teamsters Local 538 would have permitted Atkinson to print Vote No campaign literature on
union letterhead or to post such materials on the union bulletin board. (Tr. 317, 481, 486, 571, 1212,
1217; see also Tr. 1658.)
15 I do not credit Kerr’s and Larimer’s testimony that DeCecco also prohibited employees from
passing out literature that was not on union letterhead. (See Tr. 393–394, 450–451, 570–571.) Instead, I
credit DeCecco’s testimony that, after consulting UPS’s labor department, he told employees that they
could distribute literature, but only at the entrance to the building or during nonwork time in nonwork
JD–112–16
12
Given the limitations that DeCecco outlined for Vote No literature and the bulletin boards
in the facility, Atkinson and Kerr made Vote No signs on posterboard and provided them to
employees to post in their automobile windshields while their cars were parked in the UPS
facility parking lot. Approximately 15–25 employees joined Atkinson and Kerr in placing Vote 5
No signs in their automobile windshields. (Tr. 155–157, 193–194, 300, 315–316, 366, 399–400,
452, 497, 501, 529–530, 600, 1218–1219, 1385, 1553, 1654; GC Exhs. 19(a)–(b); CP Exh. 3.)
The Vote No signs prompted some reactions from UPS management. For example, when
Atkinson and UPS labor manager Tom McCready encountered each other in the UPS office, the 10
following exchange occurred:
McCready: I see you are putting signs in your cars out there.
Atkinson: Yes, I guess we are.15
McCready: I guess you can do whatever you want.
Atkinson: Yeah. That’s what we’re left with. We can’t put stuff in the bulletin
board anymore.20
(Tr. 209.)16 In addition, both Alakson and DeCecco took photographs of the Vote No signs and
sent them to the UPS labor department for guidance. When Atkinson called DeCecco to ask why
he was seen taking photographs (another driver had tipped Atkinson off about that), DeCecco
replied “This is my parking lot. I can take pictures of whatever I want. Labor [is] interested in 25
what’s going on right here and it’s my right to send them these pictures.” DeCecco added that he
was taking photographs because he needed to find out whether the Vote No signs in employee
vehicles were permitted.17 (Tr. 160, 1218–1221.)

areas. I also credit DeCecco’s explanation that the union letterhead requirement was only for materials
that employees wanted to post on the union bulletin board. (Tr. 1210–1212.) Although Atkinson could
not remember DeCecco’s instructions about passing out literature, Atkinson agreed that he did distribute
literature in nonwork areas and nonwork time without being stopped by UPS. (Tr. 318.)
16 McCready testified that he did not threaten Atkinson about putting Vote No signs in his
automobile. (Tr. 1027.) That limited denial does not undermine or rebut Atkinson’s testimony about
what McCready said – instead, McCready’s testimony at most only sets forth McCready’s subjective
opinion that his remarks to Atkinson were not threatening.
17 Witness Bill Lange testified that when DeCecco was taking photographs of employee cars with
Vote No signs, he (Lange) overheard DeCecco remark “labor isn’t going to like this.” (Tr. 502.)
Similarly, Atkinson testified that he spoke with Alakson about the Vote No signs, and Alakson stated
“those signs that you have in the vehicles out there are a problem. Labor knows about them and I just
want you to know that that’s a topic of conversation in labor right now.” (Tr. 159.) Both DeCecco and
Alakson denied making those remarks (although DeCecco’s denials were somewhat off the mark since he
denied speaking to Lange directly, and he denied making a slightly different statement than the one Lange
said he overheard). (Tr. 1222, 1295, 1389.) I have not given weight to the testimony about DeCecco’s
and Alakson’s remarks as described in this footnote because I find that the evidence is cumulative (i.e.,
the reaction of New Kensington and UPS labor department managers is clear enough from other
testimony in the record that I have described in this section).
JD–112–16
13
In late March 2014, UPS assigned Jeremy Bartlett to be the business manager for the
New Kensington and Zelionople centers.18 When Bartlett visited the New Kensington center, he
saw the Vote No signs posted in employee automobiles and took photographs to send to the UPS
labor department for guidance. Bartlett also met with New Kensington supervisors to get up to
speed on what was happening at the facility. In that conversation, the supervisors explained why 5
there were Vote No signs posted on employee automobile windshields, and identified Atkinson
and Kerr as the employees who were involved in the Vote No campaign. (Tr. 1547–1549, 1551–
1552; CP Exh. 3; see also Jt. Exh. 6; Tr. 1348.)
Ultimately, in various communications, the UPS labor department advised managers at 10
the New Kensington center that they should keep an eye on the issue but avoid doing anything
improper regarding employees posting Vote No signs in their cars. Accordingly, DeCecco
notified Atkinson that the Vote No signs in employee vehicles were permitted. (Tr. 829, 1022–
1023, 1221, 1386–1387, 1549; CP Exh. 5 (p. 19).) There is no evidence that UPS ever required
any employees to remove Vote No signs from their cars. (See, e.g., Tr. 606, 1223, 1387–1388.) 15
K. April 1, 2014 – Atkinson Receives Documented Talk With
for Scanning the Same Delivery Notice Twice
On or about March 30, 2014, Atkinson attempted to deliver a package on his route, but 20
was not able to complete the delivery because the resident at the address was not home to sign
for the package. Consistent with UPS practice, Atkinson posted a delivery notice on the front
door of the residence and scanned the notice with his DIAD. (Tr. 98–99, 400, 504, 571–572,
1291; see also CP Exh. 15 (example delivery notice).)
25
The next day, Atkinson made another attempt to deliver the same package, but again
found that the resident was not at home to sign for the package. Consistent with his practice and
the practice of other drivers, Atkinson filled out a second delivery notice and posted it next to the
first notice on the front door of the residence. However, when Atkinson attempted to scan the
second delivery notice, he accidentally scanned the first delivery notice instead. By making this 30
mistake, the second delivery notice was not logged into UPS’s electronic records, thereby
creating the possibility that the resident at the address might receive inaccurate information about
UPS’s delivery efforts if the resident called UPS customer service to inquire about the package.
(Tr. 99–101, 248–249, 400, 504–505, 572, 595, 1102–1106, 1288–1292.)
35
On April 1, DeCecco met with Atkinson to give him a documented talk with about
erroneously scanning the first delivery notice when Atkinson was making a second delivery
attempt.19 Dan Morris attended the meeting as Atkinson’s union representative. In the meeting,
DeCecco asserted that Atkinson should have removed the first delivery notice and left the second
delivery notice in its place. DeCecco did not seek to suspend Atkinson (the next step under 40
UPS’s progressive discipline policy) based on the delivery notice incident, and Atkinson did not

18 Although Bartlett was assigned as the business manager for both New Kensington and Zelionople,
Bartlett spent the majority of his time at the Zelionople center because it was a larger facility. (Tr. 1348,
1423.)
19 Before Atkinson’s delivery notice incident, UPS coached or gave a documented talk with to other
drivers who erroneously scanned the first delivery notice when they were making a second delivery
attempt. (Tr. 401, 505–506, 573–575; see also Tr. 533–534.)
JD–112–16
14
file a grievance to contest the documented talk with. At the PCM the next day, DeCecco
announced that drivers should remove the previous day’s delivery notice whenever they were
going to post a new delivery notice. (Tr. 98–100, 249–250, 505, 572–573, 596–597, 879, 1102–
1103, 1106–1107, 1287–1288; GC Exh. 6.)
5
A few days later, Atkinson encountered DeCecco when Atkinson returned to the UPS
facility at the end of his day. During the conversation, DeCecco asked Atkinson a procedural
question about whether Atkinson would drive to a delivery location if Atkinson knew that the
recipient was not available. When Atkinson said that he would still drive to the delivery
location, DeCecco remarked that he “could have every driver on a working discharge” based on 10
infractions for failing to follow UPS methods, procedures and instructions.20 Atkinson
responded by saying that it was a shame that DeCecco would make that remark because a lot of
good people worked at the New Kensington center. (Tr. 102; see also GC Exh. 13 (indicating
that Atkinson reported DeCecco’s remark to the UPS integrity hotline); R. Exh. 55 (Bates
01781); Tr. 103, 107.)15
L. April 2014 – The Vote No Campaign Ends but Atkinson’s Activities Continue
In late March and early April 2014, Atkinson continued his work in support of the Vote
No campaign, including posting on social media. UPS management was aware of Atkinson’s 20
activities. (Tr. 199, 358, 860–861, 1019–1022; CP Exh. 5 (pp. 20–43 (emails between UPS labor
department managers McCready and Eans with Atkinson’s, Kerr’s and other individuals’ Vote
No Facebook postings attached); R. Exhs. 22 (Bates 1887–1888), 55 (Bates 01781).
In addition, Atkinson and other UPS drivers posted on Facebook to voice their frustration 25
and disagreement with UPS’s procedural methods and decisions to discipline drivers for methods
infractions. For example, Atkinson, Kerr and other drivers posted their objections to UPS using
Telematics as a source of information that could lead to discipline. Atkinson and other drivers
also took issue with UPS’s performance standards, with Atkinson posting “I was 2 hours over
yesterday . . . [laugh out loud] . . . their ‘standards’ are insane!” New Kensington center manager 30
Bartlett received and saved screenshots of Atkinson’s posts. (R. Exh. 55; Tr. 259, 262–265,
358–359, 1561–1564.) Once again, Alakson (through a passing conversation with Bill Lange in
this time period) warned that UPS drivers should watch what they posted on Facebook.21 (Tr.
498–499, 526, 530; see also Tr. 1382–1383.)
35
On or about April 25, 2014, the Vote No campaign came to an abrupt end when the
International Brotherhood of Teamsters amended its constitution in manner that enabled it to
accept UPS’s last, best, final offers on the Western Pennsylvania supplement and two other
supplements even though bargaining unit members had not ratified those agreements.22

20 In response to a question by Atkinson’s attorney, DeCecco initially denied making the statement
about being able to have every driver on a working discharge, but then stated that he did not remember
making the statement. (Tr. 1295.) In light of DeCecco’s equivocal testimony, I have credited Atkinson’s
testimony on this point.
21 For the reasons set forth in footnote 11, supra, I do not credit Alakson’s testimony (see Tr. 1390)
that he did not warn the drivers to watch what they posted on Facebook.
22 The amended clause in the constitution stated as follows, in pertinent part:
JD–112–16
15
Accordingly, both the national master agreement and all 36 supplements immediately took
effect, notwithstanding the persisting objections of bargaining unit members who supported the
Vote No campaign. (GC Exh. 4; Jt. Exhs. 1–2, 5 (par. 1), 8; R. Exh. 50; Tr. 89–90, 188, 684–
685, 800–801.)
5
With the Vote No campaign concluded (except for efforts to reverse the International
Brotherhood of Teamsters’ decision to amend its constitution and approve the contracts),
Atkinson turned his attention towards a new goal: running to be elected as the new business
agent of Teamsters Local 538. Atkinson therefore remained active on social media by, among
other things, making posts about his dissatisfaction with the incumbent leadership of Teamsters 10
Local 538 and his view that the leadership was not standing up for UPS drivers on discipline, the
Western Pennsylvania supplement, and other matters. (Tr. 45–46, 210–211, 302, 364–365, 451;
GC Exh. 38 (p. 5); CP Exh. 5 (pp. 3–9, 12–14, 50–56); R. Exh. 22 (Bates 01913, 02036–02037);
see also CP Exh. 5 (pp. 47–49) (Atkinson also used social media to voice his displeasure with the
International Brotherhood of Teamsters regarding its decision to amend the union constitution 15
and approve the national master agreement and Western Pennsylvania supplement).) UPS’s
labor department was aware of Atkinson’s developing campaign to become the business agent of
Teamsters Local 538 because the incumbent business agent Betty Fischer emailed copies of
Atkinson’s Facebook posts to McCready, and McCready forwarded the posts to other members
of the labor department. (CP Exh. 5 (pp. 3–9, 12–14, 50–56).)20
M. April/May 2014 – New Kensington Center Management Concerns
about Driver Productivity
Also in April 2014, UPS managers were concerned about the production of drivers in the 25
New Kensington center because UPS data on “over allowed hours” showed that, on average,
drivers in the New Kensington center were exceeding the estimated times for their routes by a
larger margin than the previous year. At a PCM shortly after he was reassigned to the New
Kensington and Zelionople centers, Bartlett asked the drivers to look at how they were running
their routes and see if they could assist with reducing over allowed hours (e.g., by minimizing 30
the time they spent handling packages). In addition, after a grievance meeting on or about April
18,23 McCready, Eans and Bartlett asked Atkinson and Fischer to speak with the New

[I]n the event that the master agreement has been approved pursuant to the provisions of this
Article, but the members covered by a supplement or rider do not approve the employer’s
last, best and final offer, as determined by the master negotiating committee, and the
supplemental or rider negotiating committee reports that the members have rejected the
supplement or rider because of a provision in the ratified master agreement, then the master
negotiating committee shall have the authority to declare the master agreement and all
supplements to be in effect.
(R. Exh. 50 (p. 2).)
23 The grievance meeting concerned UPS’s decision to discharge employee B.C., and was a point of
contention between certain drivers and managers in the New Kensington center because UPS predicated
the discharge in part on claims that B.C. had been dishonest in handling a Next Day Air package.
Atkinson and Eans had such a strong disagreement in the grievance meeting that afterwards, Dan Morris
took over in handling B.C.’s grievance. In that role, Morris asked DeCecco what could be done to
address B.C.’s discharge. DeCecco responded that the matter was out of his hands, but noted that if the
JD–112–16
16
Kensington drivers about improving efficiency. The UPS managers added that they might need
to conduct OJS rides if driver efficiency did not improve. (Tr. 255–256, 259, 812–814, 846–847,
854, 922–923, 955, 1054, 1117–1119, 1260, 1296, 1431–1435, 1554; R. Exh. 24 (p. 1).)
In the same time period DeCecco told driver (and occasional assistant union steward) 5
Dan Morris that he (DeCecco) needed every driver in the New Kensington center to finish their
routes 15 minutes earlier to solve the problem with over allowed hours. (Tr. 613–614, 617–618,
1226–1227; see also Tr. 1431–1432, 1558 (Bartlett made a similar remark to Atkinson about
needing 15 minutes of improvement from each driver).) And, more ominously, Alakson warned
driver Robert Larimer on multiple occasions that things were going to get bad at the New 10
Kensington center unless drivers improved their numbers.24 (Tr. 586–587.)
On or about May 19, supervisor Joe Iaquinta provided Bartlett with a screenshot of
Facebook postings made by various UPS drivers, including Atkinson, on the same Facebook
page where Atkinson joked about being two hours over in running his route. (R. Exh. 55; Tr. 15
1561–1562; see also Findings of Fact (FOF), Section L (discussing R. Exh. 55 (Bates 01782); Jt.
Exh. 6 (noting that Iaquinta worked as a supervisor at another UPS facility).) The postings on
the screenshot stated as follows:
J.B.: New Ken walk out coming soon?20
Atkinson: I think we’ll jus[t] stay and make sure we really start doing our jobs to the
best of our abilities [smiley face indicated by semicolon and parenthesis]
Kerr: It takes a very long time to do the job correctly25
J.B.: Some of the safety stuff is just plain dumb like crossing behind the vehicle
instead of in front. But play the game their way
Atkinson: Fair days work for a fair days pay [three smiley face symbols] . . . we ain’t 30
walking out . . . jus[t] walkin . . . like up long driveways . . . at a nice safe
pace . . . doin this job jus[t] like . . .

drivers and managers at the center could work together to improve over allowed hours, then management
might be more receptive to a compromise in B.C.’s case. DeCecco added that the drivers’ performance
was bringing a lot of unwanted attention to the New Kensington center. Later, Morris participated in a
meeting in which UPS and B.C. settled the grievance by reducing the discharge to a suspension and “last
chance” agreement. (Tr. 337–340, 620–623, 823–826, 854–855, 861–863, 1224–1229, 1558, 1662; CP
Exh. 5 (pp. 3, 44–46); R. Exh. 22 (Bates 01906–01907).)
In this connection, I note that I do not credit Morris’ testimony that DeCecco referred to the Vote
No signs in car vehicles when DeCecco said drivers were bringing unwanted attention to the New
Kensington center. Morris’ testimony on that point was inconsistent, rendering it unreliable. (Tr. 620,
624–635.)
24 Alakson testified that he did not recall making these statements to Larimer (see Tr. 1395), but I
credit Larimer’s testimony because it is consistent with other evidence in the record that Alakson had a
tendency to give casual tips or warnings to employees about what was happening in the New Kensington
center.
JD–112–16
17
(R. Exh. 55 (Bates 01783); see also Tr. 265–266 (Atkinson explaining that in these posts, he was
expressing his view that it takes additional time for drivers to follow all of UPS’s methods); Tr.
441–443, 1563 (noting that J.B. is a UPS employee and Vote No supporter at another facility); Jt.
Exh. 3 (Bates 00870, instructing drivers to “walk with a brisk pace”); Jt. Exh. 4 (Bates 00947,
same).) Bartlett was concerned by these posts because he believed the posts indicated that 5
bargaining unit members were planning a work slowdown or voluntary work stoppage at a time
when the New Kensington center already was having problems with over allowed hours.25 (Tr.
1564–1565.)
N. May 19, 2014 – Atkinson Receives Three-Day Suspension for Failing to Complete DIAD 10
Training in a Timely Manner
On or about May 15, Atkinson received a message on his DIAD to complete a training
module.26 Atkinson did not complete the training on May 15, and thus received another DIAD
message on May 16 that the training was still available and needed to be completed. Upon 15
receiving the second message, Atkinson contacted Alakson and suggested that UPS send future
messages about training after 10:30 am, because drivers were busy delivering Next Day Air
packages in the early morning hours. Alakson promised to speak to DeCecco about Atkinson’s
suggestion. Atkinson completed the DIAD training later in the day on May 16. (Tr. 112–115,
250–253, 357–358, 884–889, 1110–1112, 1352–1353; R. Exh. 8 (pp. 2–3) (DIAD messages sent 20
on May 15 and 16); see also Tr. 401–402, 431–432, 575, 598–599 (describing how UPS provides
training modules through the DIAD).)
On May 19, Atkinson met with Bartlett and DeCecco to discuss Atkinson’s delay in
completing the assigned DIAD training. UPS classified Atkinson’s delay in completing the 25
training as a failure to follow proper methods, procedures and instructions, and issued Atkinson a
three day suspension (the next step in the progressive discipline process since Atkinson’s
January 27 warning letter was still active). (GC Exh. 7; Tr. 110, 114–116, 1107, 1112, 1356,
1425–1426.) Atkinson posted on Facebook to complain about the suspension and Teamsters
Local 538’s failure to prevent it. UPS labor department managers were aware of Atkinson’s 30
Facebook posts about the suspension. (CP Exh. 5 (p. 55–56).)

25 The collective-bargaining agreement requires employees to give a fair days work for a fair days
pay, and thus UPS’s position is that work slowdowns are not permitted. (Tr. 777; Jt. Exh. 1 (Article 37,
Section 1(a) (stating, inter alia, that the “parties agree that the principle of a fair day’s work for a fair
day’s pay shall be observed at all times and employees shall perform their duties in a manner that best
represents the Employer’s interest”).)
26 Respondent maintains that Alakson verbally instructed Atkinson to complete the DIAD training on
May 14. I do not credit the evidence that Respondent provided in support of that assertion. (See Tr. 884,
1108, 1350–1351, 1424–1425, 1516–1517, 1572–1753; R. Exh. 8 (p. 1).) Respondent submitted copies
of the DIAD transmissions about the training in question, and there is no record of a DIAD transmission
about training on May 14 or at any other point before May 15. Instead, the first DIAD transmission about
training is dated May 15, and the reminder transmission is dated May 16. Those transmissions are
consistent with Atkinson’s testimony about when he received communications on his DIAD to complete
the training, and are also consistent with credible testimony from other witnesses that UPS generally
initiates DIAD training requests by sending a message to the drivers on their DIADs. (See Tr. 115, 251,
431–432, 507–508, 575, 598–599; R. Exh. 8 (pp. 1–2).)
JD–112–16
18
On May 20–21, Atkinson filed a grievance to contest the three day suspension as unfair
and as discrimination against him for engaging in union activity as the union steward. (R. Exh. 9
(pp. 1–2); GC Exh. 14(a); Tr. 117, 892.) Before Atkinson was disciplined on May 19, UPS
disciplined one other employee for failing to complete DIAD training in a timely manner
(employee M.R., who received a suspension in or about August 2013, after stating that he was 5
not going to complete DIAD training because he was too busy on the day in question). Apart
from that example, UPS generally relied on verbal reminders when other employees did not
complete DIAD training, though DeCecco was perhaps more of a stickler for completing
employee training after he arrived at the New Kensington center in January 2014. (Tr. 116, 254,
1354–1355; see also Tr. 351, 402, 484, 508–511, 534–535, 575–577, 599.)10
O. May 22, 2014 – Atkinson Receives Documented Talk With for Failing to Meet UPS
Appearance Standards
As one of its company policies, UPS maintains “Uniform and Personal Appearance 15
Guidelines” that set forth general expectations for employees who interact with the public while
on duty. For male employees, the appearance guidelines state that except for a neatly trimmed
mustache that does not extend below the corners of the mouth, employees must be clean shaven.
Atkinson was aware of the policy, among other reasons for having signed a UPS Driver Uniform
and Personal Appearance Standards Form on or about May 9, albeit under protest. The standards 20
form included the facial hair guidelines noted above. (R. Exh. 10; Tr. 254–255, 895–896, 1115;
see also R. Exh. 44 (DeCecco presented the form to other UPS drivers at the New Kensington
center in a PCM on or about April 28, a day when Atkinson was not at work); Tr. 1113–1115.)
On or about May 22, district manager Keith Washington was visiting the New 25
Kensington center when he and Atkinson discussed whether Atkinson was properly clean
shaven. (Tr. 119–120, 254, 1632–1633.) After the conversation, Washington prepared the
following memo that was placed in Atkinson’s file:
Re: Robbie Atkinson Unshaven30
On May 22, 2014, I had a conversation with Robbie Atkinson in reference to his
unshaven face. I asked Robbie if he was familiar with the UPS Driver Uniform and
Personal Appearance [Guidelines] and he replied yes. I asked Robbie if it had been
reviewed with him and he replied yes. I then asked Robbie if that was the case then why 35
is he not clean shaven. Robbie replied that he had forgot to shave. I explained Robbie to
let this be a warning and moving forward he is to arrive to work in accordance with the
UPS Driver Uniform and Personal Appearance guidelines.
(GC Exh. 8; see also Tr. 1632.)27 Atkinson did not receive a copy of Washington’s memo and 40
was not aware that Washington characterized their discussion as a documented talk with. On the

27 Atkinson and Washington dispute the content of their May 22 discussion, and also dispute whether
Atkinson was clean shaven. (Compare Tr. 119–120 with Tr. 1632–1634 and GC Exh. 8.) Be that as it
may, the result was the same – that is, Washington placed the memo in Atkinson’s file, and UPS cited to
the memo as evidence of a documented talk with when discussing Atkinson’s prior rules infractions in
grievance proceedings concerning UPS’s subsequent decisions to suspend and discharge Atkinson. (Tr.
894–895.)
JD–112–16
19
other hand, UPS has given documented talk withs to other UPS employees for failing to comply
with the facial hair rules set forth in UPS’s Driver Uniform and Personal Appearance Guidelines.
(Tr. 120–121, 254, 1115–1116, 1634–1635; see also Tr. 896 (noting that Atkinson did not file a
grievance about this interaction with Washington).)
5
P. Late May/Early June 2014 – UPS Prepares for On the Job Supervision (OJS) Rides with
Atkinson and Five Other Drivers at the New Kensington Center
1. Late May/Early June – UPS prepares for the OJS rides
10
In May 2014, UPS decided to schedule a group of on the job supervision (OJS) rides
(a.k.a. an OJS ride blitz – see Tr. 806, 1637) at the New Kensington center in an effort to
improve driver efficiency. Accordingly, UPS reviewed the over allowed hours of each driver, as
well as additional data and factors, and exercised its discretion to select Atkinson and five other
drivers (R.B., D.H., S.H., Lange and R.Sc.) to participate in OJS rides that would be conducted 15
by supervisors from various facilities in the area. DeCecco and Alakson (with Bartlett’s and
Washington’s approval) selected drivers for the OJS rides based at least in part on the following
data and factors:
Driver Over Allowed Hours
(Average from
January – April
2014)
Other Factors
Considered
Selected for June
2014 OJS ride?
Robert Atkinson 1.30 None identified Yes
R.B 0.95 UPS believed the
route “could do more”
Yes
J.B. 0.97 Average over allowed
hours improved in
March and April (as
compared to January
and February)
No
B.C. 0.38 None identified No
J.G. 1.13 Driver was on leave
for much of the
relevant time period
and thus the over
allowed hours might
not be representative
of the driver’s
efficiency
No
D.H. 0.79 UPS wished to assess
D. H.’s assertion that
his route was too
heavy (in general and
as to Next Day Air
packages)
Yes
S.H. 1.24 None identified Yes
JD–112–16
20
Driver Over Allowed Hours
(Average from
January – April
2014)
Other Factors
Considered
Selected for June
2014 OJS ride?
William (Bill) Lange 1.23 UPS wished to assess
the accuracy of the
planned day for this
route, and whether
Next Day Air drivers
needed to be assigned
to the area
Yes
E.M. 0.31 None identified No
D.Mc. 1.71 Rural route that might
not produce a
significant and
immediate
improvement in
efficiency
No
T.M. 0.33 None identified No
D.Mo. 0.35 None identified No
W.M. 0.02 None identified No
T.O. 0.18 None identified No
E.S. 1.51 Route needed an
updated time study
No
A.S. 1.19 Rural route that might
not produce a
significant and
immediate
improvement in
efficiency
No
R.Sc. 1.14 UPS wished to assess
R.Sc.’s assertion that
he could not take on
any more work and
had difficulty
delivering Next Day
Air packages on time
Yes
D.V. 1.01 Average over allowed
hours improved in
March and April (as
compared to January
and February)
No
(R. Exh. 25;28 Tr. 62–63, 738–739, 804–805, 842–843, 1123–1131, 1263–1264, 1357–1358,
1429, 1435–1436, 1639–1640; Jt. Exh. 5; see also Tr. 1356–1357, 1635–1636, 1639 (noting that

28 UPS did not analyze over allowed hours for drivers who handled multiple routes on an as-needed
JD–112–16
21
UPS decided to conduct OJS rides at the New Kensington center because over allowed hours had
increased in comparison to 2013); R. Exh. 24 (chart showing over allowed hours at the New
Kensington center in 2013 and 2014).)29
To have a sense of each OJS ride driver’s efficiency before the OJS rides, DeCecco5
reviewed the performance of each OJS ride driver on their usual route to calculate their baseline
“stops per on road hour” (SPORH – i.e., the number of stops that the individual driver makes per
hour on his or her route).30 DeCecco calculated the following SPORH’s for the drivers who
would participate in the OJS rides:
10
Driver Baseline SPORH
Robert Atkinson 10.26
R.B 17.43
D.H. 15.65
S.H. 16.71
William (Bill) Lange 10.83
R.Sc. 16.63
(R. Exhs. 34–39; see also Tr. 1429.) UPS’s hope was that with some on road supervision, each
OJS driver would be able to move through their route more efficiently, and thus both increase his
or her SPOHR while on the OJS rides and develop the ability to maintain the higher SPOHR
while unsupervised. (Tr. 701–702, 744, 781, 1436–1437.)15
On or about May 27, the UPS supervisors who would be conducting the OJS rides
(Bartlett, DeCecco, Mark Goodwin, Iaquinta, Jason Rezak and Shaun Witherow)31 participated in
a conference call. Eans joined the call to answer any labor-related questions that might arise, and
Washington participated as the division manager. During the call, Washington explained why 20
UPS was conducting the OJS rides and stated that he wanted the supervisors to conduct the rides
in a professional manner. Bartlett explained how to complete the procedures and methods
checklist that would be used during the rides. Eans, meanwhile, outlined dos and don’ts for

basis (regular temporary drivers, a.k.a. cover drivers). (Tr. 1124–1125.)
29 Also in late May 2014, Alakson asked Atkinson to “clean up,” or review, his (Atkinson’s) EDD to
see if the delivery order could be improved. Alakson made a similar request of the other five drivers who
were selected for OJS rides (though the drivers were not aware of the forthcoming OJS rides at the time).
Atkinson did not fulfill Alakson’s request due to lack of time. (Tr. 211–213; 1371–1372; see also Tr.
1298–1299, 1369–1371, 1621.)
30 Although UPS used over allowed hours as a primary statistic to assess how efficiently drivers were
completing their routes, UPS used SPORH as the primary statistic to assess driver efficiency on OJS rides
because the union viewed over allowed hours as a “company number.” By contrast, the union viewed
SPORH as a more acceptable measure of driver efficiency because SPORH indicated how quickly the
driver was moving through his or her route each day and is based on an objective, and simpler, standard
of how many stops the driver makes per hour when driving the same route. (See Tr. 83–85, 184–185,
703–705, 731–734, 771–773, 782, 785–786, 1072–1073, 1139–1140, 1401–1402, 1523–1524, 1594–
1595, 1682–1684; see also Jt. Exh. 5.)
31 Goodwin, Iaquinta, Rezak and Witherow were assigned to other UPS facilities but were brought in
to the New Kensington center to assist with the OJS ride blitz. (Tr. 161, 1132, 1439, 1640–1641; Jt. Exh.
6.)
JD–112–16
22
supervisors to keep in mind during the rides (such as not assisting the driver during the rides and
thereby artificially inflating the driver’s statistics), advised the supervisors to familiarize
themselves with the driver’s assigned route, and encouraged the supervisors to call for guidance
if any problems arose. (Tr. 814–815, 818–819, 848, 1135–1139, 1265–1266; R. Exh. 33; see
also Jt. Exh. 6.)5
Q. June 2014 – UPS Conducts OJS Rides at the New Kensington Center32
1. UPS notifies drivers of the OJS rides
10
In the morning on June 3, UPS notified Atkinson and the other five drivers that they
would be having OJS rides.33 Bartlett decided which supervisor would be paired with each
driver, and decided that he would conduct Atkinson’s OJS ride because Atkinson was a veteran
driver and also was an influential employee and a leader in the New Kensington center. (Tr. 124,
160, 231, 417–418, 511–512, 1132, 1439–1441, 1444–1445, 1471, 1641; see also Tr. 1429–1430 15
(explaining that UPS did not provide drivers with advance notice that they would be doing OJS
rides because UPS wanted to avoid giving the drivers an incentive to change how they ran their
routes before the OJS rides).)
Each of the drivers doing OJS rides drove their usual route, but with some modifications 20
that Alakson made to ensure that the number of stops on the route was comparable to the number
of stops that the driver had when DeCecco calculated the driver’s baseline SPORH. Alakson
made additional modifications to driver routes (including Atkinson’s route) on each subsequent
day of the OJS rides based on feedback from the supervisors who were conducting the OJS rides.
(Tr. 1358–1359, 1364–1366, 1495–1499; see also Tr. 1364, 1403–1405, 1407 (noting that 25
Alakson adjusts the routes of all drivers on a daily basis to make sure that the load of stops is
evenly distributed between the drivers).)
2. June 3–5, 2014 – Atkinson’s OJS ride
30
There was some friction between Atkinson and Bartlett during Atkinson’s OJS ride.
Before starting Atkinson’s route on June 3, Bartlett warned Atkinson that if Atkinson
demonstrated a malicious intent to deviate from the way he would normally run his route (e.g.,
by running the route in a manner that was intentionally slow), Bartlett would view that as an act

32 On various occasions during trial, Atkinson and Bartlett differed somewhat about what they said to
each other during the OJS rides. Since their accounts of the OJS ride conversations were equally credible,
I have given the benefit of the doubt regarding that conflicting testimony to Respondent because the
General Counsel bears the burden of proving the allegations in the complaint by a preponderance of the
evidence. See Central National Gottesman, 303 NLRB 143, 145 (1991) (finding that General Counsel
did not meet its burden of proof because the testimony that the allegation occurred was equally credible as
the testimony that denied the allegation); Blue Flash Express, Inc., 109 NLRB 591, 591–592 (1954)
(same), questioned on other grounds, Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354 (D.C. Cir. 1997).
Consequently, I did not credit (for example) Atkinson’s testimony that Bartlett warned him about
drinking water while running his route, or Atkinson’s testimony that Bartlett muttered “Joe Iaquinta”
repeatedly after Atkinson had an argument with Iaquinta. (Compare Tr. 162, 166–167, 173, 360–361
with Tr. 1448, 1451–1452.)
33 Atkinson did not file a grievance to challenge his selection for an OJS ride. (Tr. 274–275.)
JD–112–16
23
of dishonesty. Bartlett was also impatient whenever Atkinson took more time in carrying out a
task on his route (such as looking for and sorting packages) than Bartlett thought was necessary,
and Bartlett demonstrated his frustration by pacing backwards and forwards and sighing heavily
while he waited. (Tr. 167, 170, 1449–1450, 1471–1472; see also Tr. 325, 1512 (Bartlett told
Atkinson that if every driver finished their routes 15 minutes earlier then “this would all go 5
away”).)
In addition to his friction with Bartlett, Atkinson had an argument with Iaquinta, who was
brought in from another facility to conduct another driver’s OJS ride. The following exchange
occurred on or about June 4 before drivers left the UPS facility to begin their routes:10
Iaquinta: You don’t want me in this building.
Atkinson: I don’t know who you are. I don’t know why you’re saying that to me.
15
Iaquinta: Just trust me. You don’t want me in this building. [Proceeds to tell
Atkinson to remove a necklace that Atkinson was wearing, and asks
Atkinson if he shaved, ironed his pants, and polished his boots.]
Atkinson: Who are you? Are you a supervisor?20
Iaquinta: You don’t worry about who I am.
(Tr. 164–165.)34 Bartlett approached after the end of Atkinson’s argument with Iaquinta and
instructed Atkinson to comply with Iaquinta’s direction to take off the necklace in question. (Tr. 25
165, 324–325, 1445–1448.)
Over the course of the three days that Bartlett conducted Atkinson’s OJS ride, Bartlett
made notations about each stop on a “Package Driver Methods Checklist.” The checklist gives
the OJS ride supervisor the option to indicate one of the following for each of 21 methods (many 30
of which have multiple subparts): driver used proper method (box left blank); driver used proper
method and was commended (box marked with a checkmark); driver did not use proper method,
should have (box marked with an “x”); and driver did not use proper method, should have, and
was instructed on proper method (box marked with an “x” inside of a circle). (See GC Exh. 3
(example checklist); Tr. 511, 1472–1473, 1488–1489, 1582–1583, 1607–1609.) 35
The primary area where Bartlett believed Atkinson did not use the proper method was
“minimum handling,” because Bartlett noted various occasions where Atkinson was delayed on
his route because he was having trouble finding packages (including times when Atkinson had
recently sorted the packages in the truck and/or when the truck only had a few packages left to be 40
delivered). Indeed, Bartlett’s frustration about this issue led him to tell Atkinson on June 5 that
methods infractions (and specifically, delays caused by handling packages too much) would be
the death of him (Atkinson). (Tr. 1468–1469, 1474–1476, 1481–1482, 1486, 1499–1500, 1504–
1505, 1507–1508; R. Exh. 27 (pp. 1–9) (indicating that Atkinson also occasionally failed to use

34 None of the parties called Iaquinta to testify as a witness, and thus Atkinson’s testimony about this
conversation is unrebutted.
JD–112–16
24
proper methods for “planning ahead,” “smooth on car routine,” “moving out without delay” and
other areas).)
3. June 6, 2014 – meeting to discuss results of Atkinson’s OJS ride
5
On June 6, Bartlett and Atkinson met to discuss the results of Atkinson’s OJS ride. Kerr
attended the meeting as Atkinson’s union representative. Bartlett described in general terms
some of the methods infractions that he found Atkinson committed on the OJS ride, and advised
Atkinson that with supervision during the OJS ride, Atkinson increased his SPORH from a
baseline of 10.26 to a three-day average of 13.73. Bartlett added that going forward, UPS would 10
expect Atkinson to maintain the 13.73 SPORH when running his route without a supervisor
present. Bartlett referenced the Package Driver Methods Checklist during the meeting, but did
not provide a copy of the checklist for Atkinson to review Bartlett’s notations. (Tr. 167–168,
170, 1508–1510; GC Exh. 32 (indicating that Atkinson’s SPORH was 14.03 on June 3, 13.62 on
June 4, and 13.53 on June 5).)15
During the June 6 meeting (and during trial), Atkinson maintained that he was able to
increase his SPORH because UPS made his route shorter and easier in comparison to the route
Atkinson normally handles. In support of that claim, Atkinson asserted that: on the first day of
the OJS ride, UPS did not assign Atkinson any Next Day Air deliveries that would take him 20
away from his normal route; at Bartlett’s direction, Atkinson did not drink water (and thus saved
time by not having to drink water and later make bathroom stops); and UPS deleted certain areas
that Atkinson normally handled from his OJS ride route. (Tr. 171–173, 175–176, 323–324, 359–
360, 1410–1412, 1574; see also Tr. 1364–1365, 1494–1497 (noting that Alakson added one rural
area back on to Atkinson’s route after the first day of the OJS rides); R. Exh. 64 (chart providing 25
data about Atkinson’s OJS rides, including the number of delivery stops Atkinson made each day
during the OJS rides).) Atkinson also disagreed with Bartlett’s findings that Atkinson committed
methods infractions by lacking a smooth car routine and failing to move out without delay. (Tr.
277.)
30
4. June 16, 2014 – UPS issues letter of record to Atkinson about his OJS ride
On June 16, Bartlett sent Atkinson a letter of record to Atkinson about the results of
Atkinson’s OJS ride. The letter stated as follows:
35
Dear Mr. Atkinson:
On June 3, 4, and 5, 2014, I performed OJS rides with you. During my observation, you
performed your normal delivery and pick-up routine on the Adrian (23B) Route. While
with you, we experienced normal daily delays. We experienced on call air, multiple 40
package dolly deliveries, inclement weather, and traffic delays. Listed below is a
comparison of the average daily and pick-up activities on your route for the weeks ending
(5-17-2014 and 5-24-2014)35 and the averages from the OJS rides performed on the dates
above.

35 UPS specified these dates in error, as UPS in fact calculated Atkinson’s baseline SPORH using
dates from April 18 to May 2, 2014. (Tr. 1180–1181, 1427–1429; R. Exh. 34.)
JD–112–16
25
Unsupervised Supervised
Total Packages 238 255
Total Stops 108 1145
Miles 139 129
S.P.O.R.H. 10.26 13.73
Paid Day 11.10 8.71
During the OJS ride, you demonstrated that you are capable of performing the proper 10
delivery driver methods in an effective and safe manner. When instructed on the proper
methods that would assist you while performing your daily assignment, you responded in
a positive manner. During this ride, it was determined that you must concentrate on the
following areas in order to maintain these positive gains and improve in the future:
15
Plan Ahead
Smooth on Car Routine
Minimum Handling
One Look Habit
Get Signature First20
Move Out Without Delay
Customer Contact Time
I would like to thank you for your effort and hope that you maintain these methods in
order to improve your overall job performance. If you continue to improve upon the 25
areas that I have mentioned, you should exceed the results that you demonstrated while
supervised. I will continue to follow-up on your progress and I encourage you to reach
out to me or any member of the management team with any concerns that you may have
in the future.
30
(GC Exh. 23; see also Tr. 173–176, 896–897, 1179–1181, 1426–1427.)
5. Results of other drivers’ OJS rides
Like Atkinson, the other five drivers selected for the June 3–5 OJS rides increased their 35
average SPORH while on their OJS rides. Accordingly, UPS issued letters of record to R.B.,
D.H., S.H., Lange and R.Sc. that, like Atkinson’s letter, set the expectation that the drivers would
follow proper methods and procedures and maintain their higher SPORH while unsupervised.
(GC Exhs. 34, 36, 39–42, 47–50; see also R. Exhs. 28–32 (methods checklists for the other five
drivers’ OJS rides), 40 (noting that on average, the drivers selected for OJS rides reduced their 40
daily paid hours by 1.30 hours while supervised); Tr. 327, 517, 925–926, 1155–1163, 1174–
1175, 1177–1178, 1181, 1276–1279, 1300, 1508, 1510, 1644–1645.)
Lange maintained that the route used for his OJS ride differed from his normal route
because certain areas and Next Day Air pickups were deleted from the OJS ride route. Alakson 45
admitted that he made those changes to Lange’s route during the OJS ride to level out the
workload for all drivers, and noted that after the OJS rides, the Next Day Air pickups that had
JD–112–16
26
been on Lange’s route were reassigned to another driver on a permanent basis because it was
more efficient to have the other driver handle those packages. (Tr. 328–329, 513–516, 1390–
1392.)
R. June 16, 2014 – Atkinson Accidentally Damages Gas Station Pump5
On June 16, Atkinson stopped at a gas station to put fuel in his UPS truck. In an effort to
make use of the delay associated with filling the gas tank, Atkinson left the truck and went to
deliver a package. When Atkinson returned to the truck, he forgot to remove the gas pump hose
from the gas tank, and thus pulled the hose off of the gas pump when he attempted to drive off 10
and resume making deliveries. UPS investigated the incident and determined that the accident
was avoidable and occurred because Atkinson “failed to concentrate at the task at hand and
remove the fuel pump from the vehicle before pulling away,” and “failed to scan [the] area
around the vehicle when walking back to car.” (R. Exh. 12; Tr. 121–123, 128–129, 927–929,
1055, 1517–1518; see also Tr. 165–166, 535–536, 556 (noting that during the OJS rides, UPS 15
supervisors advised drivers, including Atkinson, to make effective use of the delay while
pumping gas into their trucks).)
When Atkinson reported for work on June 18, Bartlett gave Atkinson a 10–day
suspension for getting into an avoidable accident at the gas station. In connection with the 20
suspension, Bartlett sent Atkinson a letter (dated June 20) that stated as follows:
Dear Mr. Atkinson:
On June 18, 2014, a meeting was held in the New Kensington facility. Present were you, 25
Union Representative Mark Kerr, and myself. Discussed was the avoidable accident in
which you were recently involved.
On June 16, 2014, while operating a UPS vehicle you were involved in an avoidable
accident. This accident could have been avoided had you followed the proper safe-30
driving methods in which you have been trained. It is of the utmost importance that you
exercise the Space and Visibility Training that you have received; be aware of your
surroundings, and utilize the five (5) seeing habits; however you failed to do so. Actions
such as yours will not be tolerated.
35
It is apparent by your actions and blatant disregard for your job responsibilities that you
have no intention of correcting this problem; therefore, it is my decision to issue you a
ten (10) day suspension.
Your responsibilities regarding this matter have been clearly reviewed with you. If in the 40
future, should you fail to follow the proper safe-driving methods at all times and be
involved in another avoidable accident, further disciplinary action will be taken, up to
and including discharge.
This is an official suspension letter as outlined in our current labor agreement between 45
UPS and the International Brotherhood of Teamsters, Local #538.
JD–112–16
27
(GC Exh. 9; see also Tr. 124–125, 926–927, 929–930, 1518–1519, 1601.)
Atkinson filed a grievance to contest the 10–day suspension. In the grievance, Atkinson
asserted that UPS was “engaging in disparate treatment of the shop steward [Atkinson] and is
discriminating and retaliating against the steward for his union activity. This is additionally 5
believed to be a violation of Section 8(a)(3) of the NLRA.” (GC Exh. 15(a) (p. 1); see also Tr.
930.)
In the time frame of Atkinson’s incident at the gas station, UPS disciplined drivers for
automobile accidents if UPS deemed the accident to be avoidable (e.g., an accident that the 10
driver could have avoided if the driver followed UPS’s methods, procedures and instructions).
By contrast, UPS did not discipline drivers if they were involved in unavoidable accidents.
When it disciplined a driver for getting into an avoidable accident, UPS generally imposed the
next level of discipline under its progressive discipline policy. The center manager, however,
retained some discretion about whether to impose discipline for avoidable accidents. (Tr. 283–15
284, 931–932, 1240, 1388, 1663.) The following table provides some examples of how UPS
handled accidents in and before 2014:
Driver Nature of Accident Accident Avoidable
(per UPS)?
Discipline Imposed
Bill Lange Swerved to avoid
hitting a deer and thus
drove truck into a ditch,
requiring a tow truck to
get out (Tr. 229, 537–
538, 556)
No None
Bill Lange Parked on a driveway in
hot weather, and truck
wheels damaged the
driveway asphalt (Tr.
230, 538–540, 556)
No None
Bill Lange Drove truck into a ditch
to avoid hitting a snow
plow that veered into
his lane of traffic (Tr.
230, 536–537)
No None
T.M. Head on collision with
another vehicle because
the other vehicle’s
driver was blinded by
sunlight and veered into
the UPS driver’s lane
(Tr. 229, 1240–1243;
see also Tr. 1026–1027
(indicating that T.M.
was not a union steward
and was not involved in
Yes – although the
police department
concluded that the
UPS driver was not
at fault in the
accident, UPS
determined that its
driver could have
avoided the collision
by using driver
training
None – center
manager exercised
discretion and did
not impose discipline
JD–112–16
28
Driver Nature of Accident Accident Avoidable
(per UPS)?
Discipline Imposed
the Vote No campaign)
C.P. Side swiped another
vehicle while driving
on a snow covered road
(Tr. 228, 1243–1245)
Yes – UPS
determined that its
driver was going too
fast given the
weather conditions
Disciplinary warning
letter (R. Exh. 15
(Bates 01706))36
J.S. Hit an overhanging
decorative flag pole
while avoiding another
vehicle that had crossed
over the center line (Tr.
230–231, 1245–1247,
1559–1560)
N/A – no property
damage resulted to
either vehicle or to
the flag pole.
Accordingly, UPS
deemed this incident
not to be an accident.
None
R.Sc. Truck was not secured
properly and rolled
away, causing property
damage (Tr. 280–281;
R. Exh. 56 (p. 2))
Yes Discharge (later
reduced to a lower
form of discipline)
R.Sy. [No evidence presented
on this point]
Yes Disciplinary warning
letter (R. Exh. 15
(Bates 01741))
S. June 18, 2014 – Bartlett Evaluates Atkinson on a “Blended” Safety
and OJS Followup Ride
In light of his June 16 accident, Atkinson was obligated to complete a safety ride to5
review safety methods (e.g., procedures for driving and delivering packages safely) when he
returned to work on June 18. Since a supervisor would have to take the time to ride with
Atkinson in his truck to do the safety ride, and since Atkinson had just had an OJS ride, Bartlett
decided to conduct a “blended” ride that would satisfy the safety ride requirement and also serve
as a followup ride to see how Atkinson was performing after his OJS ride. (Tr. 62–63, 82–83, 10
128–129, 285, 455–456, 552–553, 701, 1436–1437, 1539, 1595–1596; see also GC Exh. 25 and
Tr. 131 (explaining that, in light of the June 16 accident, UPS also required Atkinson to complete
a computer training module on driver safety).)
On June 18, Bartlett rode with Atkinson on Atkinson’s delivery route to conduct a one-15
day blended ride. During the ride, Bartlett made notations on two checklists – the “Package
Driver Methods Checklist” that is used for OJS rides, and a safety ride evaluation form. (Tr.
129–132; GC Exhs. 24, 26.) In connection with the OJS followup aspect of the blended ride,
Bartlett found that Atkinson committed various methods infractions while running his route. For

36 When asked what, if any, discipline C.P. received for this incident, Atkinson stated that he did not
recall C.P. receiving any discipline. (Tr. 229.) I have not given weight to Atkinson’s testimony on this
point because Atkinson’s testimony was equivocal and UPS presented credible evidence to demonstrate
that C.P. received discipline (see transcript and exhibits cited for C.P.’s table entry).
JD–112–16
29
example, at the first delivery stop on his route, Atkinson had trouble finding the package that he
needed to complete the delivery (Atkinson explained that the package was small and was
obscured by other packages on the shelf that shifted when he drove to the delivery stop),
prompting Bartlett to cite Atkinson for not following minimum handling procedures and ask
Atkinson if they were “going to start the day in this manner.” In addition, Atkinson (among 5
other issues): had trouble locating packages for at least three other stops on his route; rolled
through a stop sign without coming to a complete stop; and drove past a delivery stop, thereby
delaying progress on his route. (Tr. 1530–1539, 1697–1700, 1706–1708, 1711–1713; GC Exh.
26.) Overall, Atkinson completed his blended ride with an increased SPORH and in less time
than UPS’s estimated planned day for his route. (Tr. 285–286, 933–934; R. Exh. 13 (p. 1).)10
T. June 19 & 20, 2014 – UPS Discharges Atkinson Twice Following the Blended Ride
1. The June 19 discharge (for failure to maintain SPORH while unsupervised)
15
On June 19, Bartlett met with Atkinson and notified him that UPS was discharging him
for not working as quickly while unsupervised as he did while supervised. Kerr was present as
Atkinson’s union representative. Specifically, Bartlett observed that Atkinson demonstrated a
SPORH of 13.73 during the OJS rides (supervised), a SPORH of 12.12 during the week of June
8–14 (unsupervised), and a SPORH of 13.72 on the June 18 blended ride (supervised).37 Bartlett 20
decided to discharge Atkinson because discharge was the next step under UPS’s progressive
discipline system. (Tr. 133–134, 410, 1520–1522, 1525–1526, 1594, 1605; R. Exh. 34 (p. 2); see
also Tr. 734–735 (noting that UPS managers have some discretion in deciding what type of
discipline to issue to an employee who does not sustain their performance after an OJS ride),
816–817, 845, 934–935, 1525, 1602, 1648–1649 (McCready, Eans and Washington were all 25
consulted before Bartlett discharged Atkinson on June 19).)38
On June 20, UPS followed up on the June 19 meeting by sending Atkinson a discharge
letter that stated as follows:
30
Dear Mr. Atkinson:
On June 19, 2014, a meeting was held in the New Kensington Center. Present were you,
Union Representative Mark Kerr, and myself. Discussed were your level of
performance, supervised versus unsupervised, and your continued failure to follow the 35
proper methods, procedures and instructions.

37 As previously indicated, Atkinson maintains that the SPORH from the OJS ride was artificially
high because UPS removed delivery areas and certain Next Day Air deliveries from Atkinson’s normal
route. (Tr. 175–176; see also Tr. 215–226 (discussing CP Exh. 8 and asserting that it demonstrates that
Atkinson had more rural and Next Day Air deliveries on his route on June 13 than he did during the June
3 OJS ride).)
38 Atkinson testified that Bartlett also stated that the discharge was “out of my hands, and as you
know, when things get into labor’s hands, it’s out of my hands at this point, and this is what they want to
do.” I have not credited that testimony because it was only equally credible to Bartlett’s testimony
denying that he made the remark. (Tr. 133, 231, 1526.)
JD–112–16
30
While supervised, you have demonstrated the ability to work in a safe and professional
manner that provides efficient and quality service in a timely manner to our valued
customers. After a review of your performance statistics, both supervised and
unsupervised, it has been noted that you fail to obtain the same results when under direct
supervision as opposed to when you are not supervised. It is your responsibility to make 5
every effort to maintain a fair day’s work for a fair day’s pay, as you have demonstrated
under direct supervision; however, despite our efforts to assist you, you have failed to do
so.
It is apparent by your actions and blatant disregard for your job responsibilities that you 10
have no intention of correcting this problem; therefore, you have given UPS just cause to
discharge you from our employ.
This is an official discharge letter as outlined in our current labor agreement between
UPS and the International Brotherhood of Teamsters, Local #538.15
(GC Exh. 10.)
Atkinson filed a grievance to contest the June 19 discharge. In the grievance, Atkinson
asserted that UPS was “engaging in disparate treatment of the shop steward [Atkinson] and 20
retaliating against the steward for his union activity and position. The employer is attempting to
use production as their reasoning for discharge. This is additionally believed to be a violation of
Section 8(a)(3) of the NLRA.” (GC Exh. 16(a) (p. 1); Tr. 942.)
2. The June 20 discharge (for methods infractions during the blended ride)25
On June 20, Bartlett met again with Atkinson and Kerr and advised them that UPS was
discharging Atkinson, but this time for not following UPS methods, procedures and instructions
during his June 18 blended ride. In support of the discharge, Bartlett generally asserted that
notwithstanding the instructions that Atkinson received during the June 3–5 OJS rides, Atkinson 30
still did not follow proper methods and procedures concerning moving out without delay,
planning ahead and having a smooth car routine (among other areas) during his June 18 blended
ride. (Tr. 137–139, 419, 1529, 1541–1542, 1604–1605; see also Tr. 946–947, 1542, 1603
(noting that Bartlett consulted with McCready before issuing the June 20 discharge).)
35
On June 23, UPS followed up on the June 20 meeting by sending Atkinson a discharge
letter that stated as follows:
Dear Mr. Atkinson:
40
On June 20, 2014, a meeting was held in the New Kensington Center. Present were you,
Union Representative Mark Kerr, and myself. Discussed was your continued failure to
follow the proper methods, procedures and instructions along with your overall
unacceptable work record.
45
Despite our efforts to assist you, you have failed to follow the proper methods and
procedures. You have been trained on the proper methods and are expected to follow
JD–112–16
31
these methods at all times while performing your daily work assignment. Failure to do so
places our reputation as a quality service provider in jeopardy to our valued customers.
Actions such as yours will not be tolerated.
It is apparent by your actions and blatant disregard for your job responsibilities that you 5
have no intention of correcting this problem; therefore, you have given UPS just cause to
discharge you from our employ.
This is an official discharge letter as outlined in our current labor agreement between
UPS and the International Brotherhood of Teamsters, Local #538.10
(GC Exh. 11.)
Atkinson filed a grievance to contest the June 20 discharge, and thus continued working
for UPS while the grievance was pending. In the grievance, Atkinson asserted that UPS was 15
“engaging in disparate treatment of the shop steward [Atkinson] and retaliating against the
steward for his union activity and position. The employer is attempting to use methods
violations as their basis. This is all believed to be a violation of the NLRA Section 8(a)(3) in
addition.” (GC Exh. 17(a) (p. 1); Tr. 139, 952.)
20
3. Comparator evidence
UPS has an established history of disciplining drivers for failing to maintain production
while unsupervised (as compared to their production while supervised). Similarly, UPS has an
established history of disciplining drivers for failing to follow UPS methods, procedures and 25
instructions. (R. Exh. 15; Tr. 706–709, 774–775, 950–951, 1544–1546.)
Four of the other five drivers at the New Kensington center who went on OJS rides from
June 3–5 were later disciplined after followup rides. Among the five other drivers, only Lange
overtly supported the Vote No campaign, and Lange’s Vote No activity was limited to posting a 30
Vote No sign in his window. (Tr. 305–306, 1025–1026.) The following table summarizes the
discipline that UPS imposed after the followup rides, as well as any additional discipline that
UPS imposed (with all dates listed being in 2014, unless otherwise indicated):
Driver Name Discipline After Followup
Ride
Additional Discipline
R.B. July 15: Followup ride
conducted
July 17: official warning for
failing to follow procedures,
methods and instructions
July 18: 3–day suspension for
supervised vs. unsupervised
performance
October 30: 10–day
suspension for failing to
follow procedures, methods
and instructions
D.H. August 20: Followup ride None
JD–112–16
32
Driver Name Discipline After Followup
Ride
Additional Discipline
conducted
August 21: official warning
for supervised vs.
unsupervised performance
S.H. September 10: Followup ride
conducted
September 11: official
warning for supervised vs.
unsupervised performance
September 12: 3–day
suspension for failing to
follow procedures, methods
and instructions
October 29: 10–day
suspension for supervised vs.
unsupervised performance
May 5, 2015: 10–day
suspension for failing to
follow procedures, methods
and instructions
Bill Lange None (no followup ride was
conducted)
July 3: official warning for
failing to follow procedures,
methods and instructions
R.Sc. June 26: Followup ride
conducted
July 2: official warning for
supervised vs. unsupervised
performance
July 3: 3–day suspension for
failing to follow procedures,
methods and instructions
August 28: another followup
ride conducted
September 3: 10–day
suspension for supervised vs.
unsupervised performance
September 4: discharge for
failing to follow procedures,
methods and instructions
October 28: discharge for
supervised vs. unsupervised
performance
November 10: resigned
employment before his
grievances concerning
discipline were resolved
(R. Exhs. 14, 15 (Bates 01682, 01694, 01732), 64; see also Tr. 181, 305–306, 326, 333, 527–528,
938–942, 947–950, 1055–1057, 1181–1184, 1526–1529, 1543, 1546, 1645–1648.)
JD–112–16
33
U. Late June/Early July 2014 – Kerr Attempts to Request Information Concerning
Atkinson’s Discipline and Discharge
In late June 2014, Kerr prepared and submitted an information request for documents
related to Atkinson’s suspension, discharges and any other pending grievances. Kerr submitted 5
the request because he was serving as Atkinson’s union representative for those matters.
DeCecco told Kerr that the information request needed to be on union letterhead. Accordingly,
on or about July 1, Kerr sent a revised information request to Eans and the business agent for
Teamsters Local 538 (Fischer). The revised request included the heading “Union Information
Request” typed on the top of the request. (Tr. 214–215, 376, 410–413, 1223–1224; CP Exhs.10
10–11.) In a letter dated July 9, Eans responded to Kerr as follows:
Dear Mr. Kerr:
I am in receipt of two information requests you submitted on July 1, 2014. The 15
longstanding practice of the parties is that information requests are requested through the
local union business agents on official union letterhead. If you would like to submit your
request to your business agent, you can do so. Your business agent will be able to
determine what information would be appropriate to request.
20
(CP Exh. 12; Tr. 413; see also Tr. 1036–1037, 1224 (explaining that UPS requires information
requests to be submitted by the union business agent because UPS’s responses may include
sensitive documents or internal reports).) Kerr called Fischer to ask her to submit the
information request, and also filed a grievance to contest the “lack of [disclosure] of reasonably
related documents and information for pending grievances. (CP Exh. 13; Tr. 414.) Ultimately, 25
on or about October 13, 2014, UPS (through McCready) provided information in response to an
information request that Teamsters Local 538 submitted at Kerr’s request. (CP Exh. 14; Tr.
1038.)
V. July 5, 2014 – Supervisor Warns Atkinson that UPS is Aiming to Discharge Him30
On July 5, Atkinson and Kerr were on vacation with their significant others when Kerr
received a telephone call from Matt Blystone, who at the time was the preload supervisor at the
New Kensington center (Blystone went on to hold other supervisory positions after this time
frame). (Tr. 178–179, 403–406, 461–466, 1094; Jt. Exh. 6; GC Exh. 33 (Kerr’s telephone 35
records showing calls to and from Blystone on July 5).) During telephone call, a discussion to
the following effect occurred:
Blystone: [Tells Kerr that he was with Alakson and DeCecco, and that they said that
Atkinson was a troublemaker and they needed to get rid of him40
(Atkinson).]
Kerr: [Speaking to Atkinson, who was present but not yet on the phone] Hey,
Rob. You got to hear this.
45
Atkinson: [Takes phone and greets Blystone]
JD–112–16
34
Blystone: Hey, I just want you to know what’s happening to you at that building
isn’t your fault. I hear these guys talking up in the office, Jeremy Bartlett,
Matt DeCecco, Ray Alakson, and they’re singling you out and they’re
coming after you. This is because of you being a shop steward and
because of the things you have done with those window signs and 5
everything like that.
Please don’t tell them that I’m telling you this because they’ll fire me. I
just didn’t want you to not know that this is what’s happening because
you’re a good guy and, you know, I just wanted you to know what was 10
happening, but don’t tell them that I told you this.
(Tr. 179–180, 404–405, 468; see also Tr. 180, 405, 477, 487 (noting that a few days later
Blystone separately called Atkinson and Kerr to again ask them not to tell anyone about the July
5 conversation); Tr. 231–234, 343–344, 356–357.)3915
W. October 2014 – Atkinson Loses Teamsters Local 538 Election for Business Agent
In October 2014, Teamsters Local 538 held its election for the position of business agent.
Fischer prevailed over Atkinson in the election, and thus continued serving as Teamsters Local 20
538’s business agent. UPS was aware that Atkinson’s Vote No Facebook page remained up and
active during this timeframe. (Tr. 45–46, 140–141, 234, 415–416; CP Exh. 5 (p. 75) (posting on
Vote No page by Kerr to voice unhappiness about UPS management).)
X. October 27, 2014 – Atkinson Fails to Download EDD before Starting His Route25
In the morning on October 27, Atkinson reported to work and joined other drivers in the
customary routine of attending the PCM and preparing to start their routes. During the PCM,
DeCecco informed drivers that they would not be able to wear their UPS hoodies while on duty
(even in the wintertime), and thus Atkinson spent part of his morning fielding questions from 30

39 I have credited Atkinson’s and Kerr’s testimony about their telephone conversations with Blystone
because Atkinson’s and Kerr’s testimony on that issue was corroborated by Kerr’s telephone records, and
more important, was for the most part unrebutted. First, UPS did not call Blystone to testify as a witness
about the July telephone calls or otherwise. Second, although Bartlett testified, he did not in any way
address or refute Atkinson’s and Kerr’s testimony about Blystone’s July remarks. And third, when
DeCecco and Alakson testified on this issue, their testimony was exceedingly narrow and limited.
Specifically, DeCecco only testified that he did not remember having a conversation in front of Blystone
about wanting to get rid of Atkinson because Atkinson was a troublemaker. Similarly, Alakson only
testified that he never heard Bartlett or DeCecco say they would find some way to get rid of Atkinson,
and that he never heard them say they would get rid of Atkinson because no drivers can follow all of the
methods all the time. Alakson added they (Alakson, Bartlett and DeCecco) never referred to Atkinson as
a trouble maker or said that they needed to get rid of Atkinson. Those limited denials fall well short of
refuting the evidence in the record about what Blystone reported to Kerr and Atkinson. (Tr. 1296, 1389,
1392–1393; see also generally Tr. 1420–1482, 1485–1597, 1600–1624 (Bartlett’s testimony, which did
not address Blystone’s remarks to Kerr and Atkinson); Tr. 1555–1556 (while testifying about another
topic, Bartlett noted that his office at the New Kensington center was adjacent to the office space used by
Alakson, Blystone and DeCecco).)
JD–112–16
35
drivers about DeCecco’s announcement. Atkinson then left the facility to start his route, but
without first downloading EDD on to his DIAD.40 (Tr. 141–142, 289–290, 362–363; R. Exhs. 20
(Bates 00337–00338), 62; see also Jt. Exhs. 3–4 (section 1(vii), stating that drivers should
perform the “get EDD” function as part of their morning pre trip routine), 9 (explaining that
drivers must be on UPS facility premises to be connected to UPS wireless intranet and perform 5
the “get EDD” function; attempting to get EDD while not on UPS facility premises will produce
an error message).)
After making a few deliveries, Atkinson discovered that he did not have EDD on his
DIAD and communicated the problem to Kerr and Larimer (Atkinson, Kerr and Larimer were 10
already talking in a three-way telephone call about the morning PCM). Larimer offered to call
Alakson at the UPS facility because he thought Alakson might be more understanding and could
bring Atkinson a new DIAD with EDD.41 Once Larimer’s call to Alakson was connected
(thereby adding Alakson to the conference call) Alakson advised Atkinson to continue making
deliveries, and that Alakson would bring a new DIAD to Atkinson at a meeting point on 15
Atkinson’s route. (Tr. 142–145, 290, 352–353, 407–408, 421–422, 579–581, 602–603, 1187–
1188, 1373–1374; CP Exh. 16; R. Exhs. 17 (Bates 00307), 20 (Bates 00337–00338).)
After the conference call, Alakson notified DeCecco that Atkinson needed a new DIAD
with EDD. DeCecco and Alakson spoke with Atkinson again to determine where Atkinson was 20
on his route, and then, following the advice of McCready, drove together to meet Atkinson. At
the meeting point, Atkinson asserted that he tried to download EDD before leaving the UPS
facility that morning, but erroneously believed that the download was successful despite
receiving a transmission error message at the time. DeCecco verified that Atkinson did not have
EDD on his original DIAD, and provided Atkinson with a new DIAD that had EDD (Atkinson 25
also kept the original DIAD until he finished his route). Atkinson asked DeCecco what was
going to happen regarding the DIAD incident, and DeCecco responded that they would talk
about it at another time. With the new DIAD in hand, Atkinson completed the remainder of his
route without incident. (Tr. 146, 1188–1193, 1197–1198, 1279–1280, 1301–1302, 1331–1332,
1373–1375, 1378, 1681–1682; R. Exh. 17 (Bates 00307–00308), 59 (Atkinson’s two time cards 30

40 I do not credit Atkinson’s testimony that he attempted to download EDD in the morning and
received an error message. Atkinson conceded that it was a “confusing morning [with] a lot of things
going on,” so it is certainly plausible that under those circumstances Atkinson forgot to download EDD.
(Tr. 142, 290.) In addition, UPS presented credible evidence that Atkinson’s DIAD: (a) was functioning
properly and received multiple automatic downloads in the morning on October 27; (b) did not show a
record of any unsuccessful attempts to download EDD in the morning; and (c) did show unsuccessful
attempts to download EDD in the late afternoon on October 27. (R. Exh. 16, 62 (p. 1); Tr. 963–972,
1327–1328.)
I note that Atkinson denied attempting to download EDD in the afternoon on October 27. While it
certainly seems plausible that Atkinson may have tried to download EDD in the afternoon in light of the
morning’s events, that detail is not material to my analysis. Instead, what matters is that the DIAD
records unsuccessful download attempts, and did not record an unsuccessful download in the morning
before Atkinson started his route.
41 Larimer believed that Alakson would be more understanding in part because Alakson brought
Larimer a replacement DIAD in summer 2014, when Larimer discovered that one of two DIADs he was
using did not have EDD. (See FOF, Section II(Y)(2), infra.)
JD–112–16
36
for October 27, with one timecard relating to his original DIAD, and the other timecard relating
to his replacement DIAD with EDD).)
Y. October 28, 2014 – UPS Discharges Atkinson for Failing to Download EDD
5
1. The October 28 discharge
On or about October 27, Washington, DeCecco and Alakson spoke with McCready about
Atkinson’s failure to download EDD. Collectively, those managers decided to discharge
Atkinson for the incident in part because Atkinson: was already on two separate discharges; had 10
an overall unacceptable work record; and, based on his failure perform a routine task like
downloading EDD, did not appear to be trying to change his behavior. (Tr. 961–962, 1057,
1066, 1198–1199, 1279, 1301, 1650–1652.)
On October 28, Washington and DeCecco met with Atkinson and Kerr and advised them 15
that UPS was discharging Atkinson for not following UPS methods, procedures and
instructions.42 Specifically, Washington explained that UPS’s decision to discharge Atkinson
was based on Atkinson’s failure to download EDD before leaving the facility to start his route on
October 27. Atkinson asserted that UPS was singling him out for discipline because he was the
shop steward. (Tr. 140, 147–148, 291–293, 418, 1186, 1650–1651; see also Tr. 1651 (noting 20
that UPS also maintained that Atkinson should not have tied up Kerr and Larimer with
addressing his problem of not having EDD).)
On October 29, UPS followed up on the October 28 meeting by sending Atkinson a
discharge letter that stated as follows:25
Dear Mr. Atkinson:
On October 28, 2014, a meeting was held in the New Kensington Center. Present were
you, Union Representative Mark Kerr, Supervisor Matt DeCecco, and myself. Discussed 30
was your continued failure to follow the proper methods, procedures and instructions
along with your overall unacceptable work record.
Despite our efforts to assist you, you have failed to follow the proper methods and
procedures. You have been trained on the proper methods and are expected to follow 35
these methods at all times while performing your daily work assignment. Failure to do so
places our reputation as a quality service provider in jeopardy to our valued customers.
Actions such as yours will not be tolerated.
It is apparent by your actions and blatant disregard for your job responsibilities that you 40
have no intention of correcting this problem; therefore, you have given UPS just cause to
discharge you from our employ.

42 Bartlett was reassigned to another UPS facility on or about August 1, 2014, and thus did not
participate in the October 28 discharge. Washington attended the discharge meeting because John Lojas,
the new center manager at the New Kensington center, was on vacation. (Jt. Exh. 6; Tr. 962, 1057, 1651.)
JD–112–16
37
This is an official discharge letter as outlined in our current labor agreement between
UPS and the International Brotherhood of Teamsters, Local #538.
(GC Exh. 12.)
5
Atkinson filed two grievances to contest the October 28 discharge, and thus continued
working for UPS while the grievances were pending. In the grievances, Atkinson asserted that
UPS was intimidating, harassing, coercing and overly supervising/disciplining him because of
his union and steward activities. Atkinson added that UPS’s actions were retaliatory and
discriminatory and violated Section 8(a)(3) of the NLRA. (GC Exhs. 18(a)–(b); Tr. 149, 290–10
291, 962–963.)
2. Comparator evidence (concerning DIADs and EDD)
The comparator evidence is limited regarding when and whether UPS has disciplined 15
drivers at the New Kensington center for problems with their DIADs and EDD, primarily
because the issue does not arise frequently and when it does, drivers often correct the problem
without UPS’s knowledge. (Tr. 1000, 1186–1187, 1377, 1654; see also Tr. 974–975, 1000,
1069, 1378–1379, 1408, 1653 (noting that UPS does not discipline drivers when they need a new
DIAD because their original DIAD crashes, malfunctions or loses battery power); Tr. 553–554, 20
558–559 (noting that Lange neglected to download EDD, but returned to the UPS facility on his
own to complete the download); R. Exh. 20 (Bates 00336) (same, regarding Morris).)43
However, in summer 2014, UPS did not discipline Larimer when he discovered that one
of two DIADs he was using did not download EDD properly (Larimer was running a 25
“combination route” that had a few bulk delivery stops on one DIAD, and Larimer’s usual route
on a second DIAD). In that instance, Alakson agreed drive out from the facility and meet
Larimer to give him a replacement DIAD, in part because Alakson believed that the replacement
DIAD would assist with Alakson’s recordkeeping (as opposed to Larimer making the bulk
deliveries without a DIAD).44 (577–579, 603–604, 1393–1394, 1408–1409; R. 20 (Bates 30
00338))
Z. Comparator Evidence (Treatment of Other Employees in Western Pennsylvania Who
Were Union Stewards and/or Vote No Campaign Supporters
35
The evidentiary record includes some information about the extent to which UPS
disciplined certain other employees who UPS knew were union stewards and/or were active

43 UPS provided testimony about one driver who was disciplined in summer 2016, for failing to
download EDD, and another driver who was disciplined on an unspecified date for losing his DIAD. I
have given little weight to that testimony because the incidents are too remote in time and location (there
is no evidence that either driver worked in the New Kensington center) from the events at issue in this
case. (See Tr. 1546–1547, 1653–1654.)
44 Kerr also testified that Alakson brought him a replacement DIAD (in summer 2013) because Kerr
did not have EDD. Alakson denied that this incident occurred. (Compare Tr. 408–409 and R. Exh. 20
(Bates 00337) with Tr. 1377, 1393.) I have not given weight to Kerr’s testimony on this point because it
was only equally credible to Alakson’s denial.
JD–112–16
38
participants in the Vote No campaign in Western Pennsylvania. Those employees include, but
are not limited to:45
Employee Type of Activity (with date if
available)
Discipline in 2013–2015?
J.B. Social media postings in
support of Vote No campaign
(R. Exh. 22 (Bates 01887–
01888)
April 2014 – Social media
posting expressing frustration
with UPS methods and
procedures (R. Exh. 55 (Bates
01783); see also FOF, Section
M, supra)
Generally active in the Vote
No campaign (Tr. 1553, 1563)
January 10, 2014 – Warning
letter for failing to follow
proper methods, procedures
and instructions (R. Exh. 66)
Otherwise still employed (Tr.
820–821, 1680–1681.)
R.DiF. Union steward (Tr. 819, 1006–
1008, 1680)
Generally active in the Vote
No campaign (Tr. 1012–1013,
1018)
None (Tr. 1680–1681)
M.F. Union steward (Tr. 819, 1680) None (Tr. 1680–1681)
M.H. Posted Vote No literature on a
UPS bulletin board (Tr. 1016–
1017, 1032–1033; R. Exh. 58
(Bates 002374–002375))
Generally active in the Vote
No campaign (Tr. 1012–1013)
None (Tr. 1033)
D.L. December 2013 – Displaying
Vote No signs (R. Exh. 22
(Bates 01824))
July 26, 2013 – Warning letter
for unacceptable attendance
record (R. Exh. 66)
Otherwise still employed (Tr.
820–821, 1680–1681.)
G.P. Social media postings in
support of Atkinson’s
None (See (R. Exh. 58 (Bates
002356); Tr. 820–821, 1030)

45 In my view, it is not necessary to include an exhaustive list here of every UPS employee
mentioned in the record who supported the Vote No campaign and/or served as a union steward. (See R.
Posttrial Br. at 23–24 (listing some additional employees who were Vote No campaign supporters and/or
union stewards).) The list of employees here is sufficient to make the point (which does not appear to be
in dispute) that UPS did not discipline all Vote No campaign supporters or union stewards.
JD–112–16
39
campaign to be the new Local
538 business agent (R. Exh.
22 (Bates 01913, 02036)
July 2013 – quoted and
photographed for a Vote No
flyer (R. Exh. 58 (Bates
002355); Tr. 1013–1015,
1028–1029)
March 2014 – quoted in article
about the Vote No campaign
(CP Exh. 2)
April 2014 – social media
posting indicating that UPS
management is hypocritical
with its rules (R. Exh. 55
(Bates 01779))
Generally active in the Vote
No campaign (Tr. 820, 1012–
1013.)
Union steward (Tr. 1006–
1008)
K.M. May 2013 – distributing Vote
No petition (R. Exh. 22 (Bates
01839–01840, 02101); Tr.
1018)
January 2014 – expressing his
displeasure with local union
officials who recommended
voting yes on the supplement
(R. Exh. 22 (Bates 01867)
Union steward (Tr. 1006–
1007, 1680)
Generally active in the Vote
No campaign (Tr. 1012–1013)
None (Tr. 820–821, 1680–
1681)
M.M. Union steward (Tr. 1006–
1008, 1680)
Generally active in the Vote
No campaign (Tr. 1012–1013)
None (Tr. 1680–1681)
JD–112–16
40
R.N. Union steward (Tr. 1006–
1007, 1018)
Generally active in the Vote
No campaign (Tr. 1012–1013,
1018–1019)
January 14, 2014 – Warning
letter for failing to follow
proper methods, procedures
and instructions (R. Exh. 66)
October 29, 2015 – Warning
letter for failing to follow
proper methods, procedures
and instructions (R. Exh. 66)
Otherwise still employed (Tr.
1006, 1680–1681.)
R.S. August 2013 – distributing
Vote No flyer (R. Exh. 58
(Bates 002370); Tr. 1017,
1030–1031)
Generally active in the Vote
No campaign (Tr. 1012–1013)
None (See (R. Exh. 58 (Bates
002360); Tr. 820–821, 1033)

AA. November 4, 2014 – Grievance Panel Rules on Atkinson’s May/June Grievances
On November 4, a grievance panel issued its rulings on the Atkinson’s grievances for the
following disciplinary actions: May 19 (3–day suspension for not completing DIAD training in a 5
timely manner); June 18 (10–day suspension for avoidable accident); June 19 (discharge for
supervised vs. unsupervised performance); and June 20 (discharge for methods infractions during
June 18 blended ride). The grievance panel did not find that UPS retaliated or discriminated
against Atkinson for engaging in protected activity, and reached the following decisions:
10
Original discipline imposed Grievance panel decision
3–day suspension (May 19) Reduced to a written warning letter
10–day suspension (June 18) Reduced to a 3–day suspension15
Discharge (June 19) Reduced to a 45–day suspension with a final
warning
Discharge (June 20) Deadlocked (no decision – grievance may 20
proceed to arbitration)
(GC Exhs. 14–17; see also Tr. 117–118, 134–137, 139, 893, 931, 942–944, 953–954.) UPS was
aware that Atkinson and other individuals posted on Atkinson’s Facebook page about the
grievance panel’s decisions. (CP Exh. 5 (pp. 63–65).)25
JD–112–16
41
BB. Late 2014 – Atkinson Serves His Suspension and Hears an Explanation from the Center
Manager of the New Kensington Center
In late 2014, Atkinson began serving the suspensions (a total of 48 days) set forth by the
grievance panel. Towards the end of the suspension period, Atkinson spoke with John Lojas, 5
who had become the center manager for the New Kensington center in August 2014. (Tr. 150,
180, 1544; Jt. Exh. 6.) The following conversation occurred:
Atkinson: Hey. You know, you seem like a nice guy. I’m sorry that you seem to be
caught up in a lot of stuff here that you probably didn’t want to be caught 10
up in.
Lojas: Yeah, yeah. It’s tough.
Atkinson: You know, it started with those window signs back in January.15
Lojas: I definitely agree that’s what put you on the radar. 46
(Tr. 180–181.) 47
20
CC. December 18, 2014 – Atkinson Files Unfair Labor Practices Charge in Case
06–CA–143062
On December 18, 2014, Atkinson filed an unfair labor practices charge against UPS in
Case 06–CA–143062. The charge set forth the following statement of facts constituting the 25
alleged unfair labor practices:
[UPS], through its officers, agents, and representatives:
(1) discriminatorily enforced a bulletin board policy;30

46 UPS did not call Lojas as a witness during trial, and thus Atkinson’s testimony about this
conversation is unrebutted. I also note that although Atkinson quoted himself as saying that window
signs were posted in January (2014) and I have found that Atkinson and other drivers posted Vote No
signs in their vehicle windows in March 2014 (see FOF, Section II(J), supra), I do not find that difference
in dates to be material to my analysis.
47 The General Counsel presented testimony from Lange that in or about February 2015 (and thus
after Atkinson’s discharge was finalized), manager Nicholas Passaro told Lange and Kerr that the New
Kensington center “was a problem center, and I’m here to fix the problem. We already got rid of one
problem.” Passaro denied making that remark. (Tr. 523, 560–561, 1598–1599; see also Jt. Exh. 6.) I
have not given weight to Lange’s testimony on that point because (among other reasons): it was at most
only equally credible to Passaro’s; and Kerr did not corroborate Lange’s testimony about what Passaro
said. (See Tr. 541–548.)
The General Counsel also presented testimony from former UPS driver Mitchel Rodriguez that in or
about July 2015, Rodriguez was speaking to DeCecco about seniority concerns when DeCecco stated
“You’re really trying to be like Rob Atkinson, aren’t you. I can take your job just like I did to him.”
DeCecco denied making that remark. (Tr. 637–638, 1239–1240, 1296.) I have not given weight to
Rodriguez’s testimony on this point because it also was at most only equally credible to DeCecco’s.
JD–112–16
42
(2) discriminatorily issued the disciplines described in ULP Charge No. 06–CA–131900;
(3) discriminatorily terminated Mr. Atkinson again on October 28, 2014; and
(4) On or about November 4, 2014, explicitly relied on Mr. Atkinson’s filing of Charge
No. 06–CA–131900 as a justification for his termination.
5
All of the above-listed actions were taken because Mr. Atkinson’s protected activities
including vigorously representing co-workers as a steward, organizing opposition to a
proposed CBA, running for union office, and filing a ULP against the Employer. They
constitute part of a pattern and practice of interference with his protected activity.
10
(GC Exh. 1(a); see also R. Exh. 54 (explaining that in the charge in Case 06–CA–131900,
Atkinson alleged that UPS violated the Act by suspending him on May 19 and June 18, 2014,
and by discharging him on June 19 and 20, 2014).)
DD. January 15, 2015 – Grievance Panel Rules on Atkinson’s Grievances15
Regarding the October 28 Discharge
On January 14, 2015, a grievance panel conducted a hearing and ruled on Atkinson’s
grievances regarding UPS’s decision to discharge him on October 28 for not downloading EDD
onto his DIAD. UPS, through McCready, contested Atkinson’s allegations that UPS retaliated 20
against him (Atkinson) for engaging in union activities. (R. Exhs. 17, 20; Tr. 293, 295–296,
962–963, 975–976, 978–985, 999–1000.) Ultimately, the grievance panel denied Atkinson’s
grievances and upheld Atkinson’s October 28 discharge, stating its decision (in its entirety) as
follows:
25
Based on the facts presented and the grievant’s own testimony the committee finds no
violations of any contract articles therefore the grievances (#22310 and #22311) are
denied. NRNP.
(GC Exh. 18; R. Exh. 21; Tr. 1062; see also Tr. 151 (noting that Atkinson learned of the 30
grievance panel’s decision the evening before he was scheduled to return to work after serving
his suspensions); Tr. 136–137 (explaining that the notation “NRNP” stands for non-referencing,
non-precedent setting).)
EE. May 9, 2015 – Atkinson Posts on Facebook about Eans and McCready35
On May 9, 2015, Atkinson made the following post on Facebook in response to posts by
other individuals:
Here’s a couple more names for people to watch out for:40
Rob Eans . . . this piece of garbage is the District Labor manager that has insinuated
himself into every step of my discipline . . . a condescending, self righteous little man
who’s creepy demean[or] will just plain make your skin crawl . . . I have to say I have
never seen a man sit in a chair and cross his legs in a more dainty and effeminate way, he 45
legitimately looks like he should be sitting on a tuffet eating his curds and whey! . . . he
definitely gives off the impression that he’s trying as hard as he can to compensate for
JD–112–16
43
something. . . . my guess, erectile dysfunction [smiley face indicated by semicolon and
parenthesis]
Tom McCready . . . this knuckle dragger is the Division Manager who [buffoons] his way
along trying to do his master Rob Eans bidding . . . he’s a cross between Barney Rubble, 5
Shrek, and Captain Caveman . . . listening to him talk is actually quite humorous, it
sounds like he’s chewing on cotton balls and marbles . . . I’ve yet to hear him ever say
one intelligent thing, but then again, it’d be difficult to decipher it if he did [smiley face
indicated by semicolon and parenthesis]
10
(R. Exh. 5.) Atkinson admitted to (and said he was sorry for) making the Facebook posting
about Eans and McCready, and explained that he made the statements because he believed Eans
and McCready lied about Atkinson and took away his career. McCready saw Atkinson’s post
and believed Atkinson’s remarks were attacks on his disability (McCready’s voice and difficulty
with pronunciation). (Tr. 345, 378–380, 383, 1039–1040.)15
UPS has issued an “Equal Opportunity Statement” that outlines its policies concerning
discrimination, harassment and other misconduct. The equal opportunity statement reads, in
pertinent part:
20
UPS is committed to a policy of treating individuals fairly and recruiting, selecting,
training, promoting and compensating based on merit, experience and other work-related
criteria. We comply with all laws governing fair employment and labor practices. We do
not discriminate against any applicant for employment or any employee in any aspect of
their employment at UPS because of age, race, religion, sex, disability, sexual orientation, 25
gender identity, military status, pregnancy, national origin or veteran status. . . .
Freedom from wrongful discrimination includes freedom from any form of
discriminatory harassment. Prohibited harassment includes conduct that is intended to
interfere or that has the effect of unreasonably interfering with a fellow employee’s work 30
performance or creating an environment that is intimidating, hostile or offensive to the
individual.
Additional information can be found in the UPS Professional Conduct and Anti-
Harassment Policy available from Human Resources. . . .35
(R. Exh. 6 (p. 1); see also Tr. 1042.)
As indicated in its Equal Opportunity Statement, UPS also has issued a Professional
Conduct and Anti-Harassment Policy. That policy states, in pertinent part:40
UPS is proud of its professional and congenial work environment and will take all
necessary steps to ensure that our workplace remains pleasant for everyone. In order to
remain a positive work environment, all employees must treat each other with courtesy,
consideration, and professionalism. The Company prohibits unprofessional and 45
discourteous actions, even if those actions do not constitute unlawful harassment.
JD–112–16
44
In addition, harassment of any person or group of persons on the basis of race, sex,
national origin, disability, sexual orientation, gender identity, veteran/military status,
pregnancy, age or religion is a form of unlawful discrimination which is specifically
prohibited in the UPS community and which may subject the Company and/or the
individual harasser to liability. Accordingly, derogatory or other inappropriate remarks, 5
slurs, threats or jokes will not be tolerated. . . .
(R. Exh. 6 (p. 2); see also Tr. 1042.)
In 2013, and 2014, UPS discharged several employees covered by the Western 10
Pennsylvania supplement for engaging in conduct that violated UPS’s Professional Conduct and
Anti-Harassment Policy. The discharge letters in the evidentiary record do not provide any
specific factual details about the nature of the misconduct/harassment that led UPS to discharge
the employees. Atkinson was not aware of, and the record does not include evidence of, any
employees in the New Kensington center who were disciplined or discharged for engaging in 15
conduct that violated UPS’s Professional Conduct and Anti-Harassment Policy. (R, Exh. 23; Tr.
381–382, 1043.) McCready testified, however, that UPS would not tolerate the types of remarks
that Atkinson made in his May 9, 2015 post because UPS has a zero-tolerance policy and issues
immediate discharges for remarks such as Atkinson’s. (Tr. 1041–1042; see also R. Exh. 23.)
20
FF. NLRB Region 6’s Deferral Decisions
1. March 30, 2015 – Region 6 dismisses the charges in Cases 06–CA–131900
and 06–CA–143062
25
In a letter dated March 30, 2015, the Regional Director for Region 6 of the NLRB
contacted counsel for the Charging Party about unfair labor practice charges filed in Cases 06–
CA–131900 and 06–CA–143062 (as well as additional charges in cases not at issue here). The
Regional Director advised counsel that the charges in those cases would be dismissed, stating as
follows:30
We have carefully investigated and considered [the charges filed in Cases 06–CA–
131900 and 06–CA–143062] that United Parcel Service . . . [has] violated the National
Labor Relations Act.
35
Decision to Dismiss: Based on that investigation, I have decided to dismiss these
[charges because] there is insufficient evidence to establish a violation of the Act.
(R. Exh. 26; see also id. (notifying counsel of the right to appeal the decision to the General
Counsel); Tr. 1565–1566.)40
2. December 24, 2015 – the General Counsel sustains the Charging Party’s appeal in part
and denies the appeal in part
On December 24, 2015, the General Counsel sent a letter to counsel for the Charging 45
Party to advise (among other things) that the General Counsel would sustain in part and deny in
part the Charging Party’s appeal of the Regional Director’s decision to dismiss the unfair labor
JD–112–16
45
practice charges in Cases 06–CA–131900 and 06–CA–143062. The General Counsel stated as
follows in his letter:
This office has carefully considered your appeal in the above captioned cases. We are
sustaining the appeal in part and denying the appeal in part.5
In Case 06–CA–131900, we are denying the appeal. In this regard, we agree with the
Regional Director’s decision to defer to the first [grievance] panel decision addressing the
discipline of the alleged discriminatee in May and June [2014]. There is insufficient
evidence to establish that the panel decision did not meet the standards set forth under 10
Spielberg Manufacturing Co., 112 NLRB 1080 (1955) and Olin Corporation, 268 NLRB
573 (1984).
. . .
15
In Case 06–CA–143062, we are sustaining the appeal in part and denying the appeal in
part. . . . To the extent that you reiterated conduct alleged in 06–CA–131900, such
allegations are encompassed by the deferral decision in that case. However, we are
remanding the Section 8(a)(3) allegation that the Employer unlawfully discharged the
alleged discriminatee on October 28, 2014, back to the Regional Office for further 20
proceedings, including possible deferral to the parties’ grievance and arbitration
proceedings.
(R. Exh. 45; see also id. (noting that absent a settlement of the charges in the sustained appeals,
the Regional Director would issue a complaint and an administrative law judge would hold a 25
hearing); Tr. 1566–1567.)
3. December 24, 2015 – the General Counsel sends a corrected letter concerning the
Charging Party’s appeal
30
Later on December 24, 2015, the General Counsel sent counsel for the Charging Party a
corrected letter to clarify its decision on the Charging Party’s appeal. The General Counsel
stated as follows in his corrected letter:
In reviewing the appeal in the instant case, we are sending a corrected copy to clarify the 35
findings concerning the specific allegations contained in the instant charges. We
apologize for any confusion that may have occurred with our previous letter dated
December 24, 2015. We are sustaining the appeals in part and denying the appeals in
part.
40
In Case 06–CA–131900, the charge alleged that the Employer unlawfully suspended the
Charging Party on May 19, 2014 and June 18, 2014. The charge also alleges that the
Employer discharged the Charging Party on June 19, 2014 and June 20, 2014. The
investigation disclosed that an arbitration panel reviewed the suspensions issued on May
19 and June 18, as well as the June 19 discharge. Concerning the arbitration panel 45
decision, we are denying the appeal with respect to the suspensions and the June 19
discharge. In this regard, we agree with the Regional Director’s decision to defer to the
JD–112–16
46
panel decision addressing the suspensions of the alleged discriminatee in May and June,
and the June 19 discharge. We find there is insufficient evidence to establish that the
panel decision did not meet the standards set forth under Spielberg Manufacturing Co.,
112 NLRB 1080 (1955) and Olin Corporation, 268 NLRB 573 (1984).
5
Also in Case 06–CA–131900, the charge alleged that the Employer unlawfully
terminated the Charging Party on June 20, 2014. We adhere to the Regional Director’s
original decision to defer such allegation under Collyer Insulated Wire, 192 NLRB 837
(1971), pursuant to the parties’ arbitration proceedings. Accordingly, we deny the appeal
in Case 06–CA–131900.10
In Case 06–CA–143062, we are sustaining the appeal in part and denying the appeal in
part. Initially, we note that Case 06–CA–143062 alleged, inter alia, that the Employer
discriminatorily issued the disciplines alleged in 06–CA–131900. To the extent that the
Charging Party reiterated the allegations that the Employer unlawfully issued the May 19, 15
June 18 and June 19 disciplines, these allegations are encompassed by our decision in the
earlier case to defer to the first panel decision addressing the disciplines. However, the
evidence indicated that the parties reached a [deadlock] on the June 20, 2014 discharge
and the parties never resolved that grievance. In light of our finding in Case 06–CA–
143062, discussed infra, that the Employer unlawfully discharged the Charging Party on 20
October 28, we find that the outstanding grievance on the June 20, 2014 discharge is no
longer moot. Accordingly, that allegation is remanded back to the Region for further
proceedings. . . .
(R. Exh. 54; see also id. (upholding the Regional Director’s decision, based on the new standards 25
set forth in Babcock & Wilcox Construction Co, 361 NLRB No. 132 (2014), not to defer to the
January 14, 2015 arbitration panel decision concerning the October 28, 2014 discharge); Tr.
1568.)
DISCUSSION AND ANALYSIS30
It is well established that before considering the merits of the allegations in the
complaint, I first must resolve the threshold issue of whether the Board should defer the dispute
to the grievance-arbitration procedure set forth in the collective-bargaining agreement. See St.
Francis Regional Medical Center, 363 NLRB No. 69, slip op. at 17 (2015) (pre arbitration 35
deferral); United Hoisting & Scaffolding, Inc., 360 NLRB No. 137, slip op. at 4 (2014) (same);
Olin Corp., 268 NLRB 573, 574 (1984) (post arbitration deferral), overruled on other grounds,
Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014). Accordingly, in the analysis
below I first address the issues that the parties have raised concerning deferral, and I then
(because I have found that deferral is not appropriate) address the merits of the allegations in the 40
complaint.
47
A. WAS IT PERMISSIBLE FOR THE GENERAL COUNSEL TO INCLUDE THE JUNE 20, 2014
DISCHARGE AS AN ALLEGATION IN THE COMPLAINT IN THIS CASE?
1. BACKGROUND5
At some point in the summer of 2014, Atkinson filed an unfair labor practices charge in
Case 06–CA–131900 to contest UPS’s decisions to suspend him on May 19 and June 18, 2014,
as well as UPS’s decisions to discharge him on June 19 and 20, 2014. On or about August 26,
2014, Region 6 decided to defer Case 06–CA–131900 to the parties’ grievance and arbitration 10
procedure. Later, on March 30, 2015, Region 6 notified the parties that based on its
investigation, it would be dismissing the charges in Case 06–CA–131900 (as well as the charges
in Case 06–CA–143062). (FOF, Section II(CC), (FF)(1); Tr. 19.)
Through counsel, Atkinson appealed the Region’s March 30, 2015 dismissal decisions 15
and succeeded in getting some of the charges reinstated. The General Counsel denied
Atkinson’s appeal in Case 06–CA–131900, explaining that it agreed with the Region’s decision
to defer to the grievance panel’s November 4, 2014 order concerning Atkinson’s May and June
2014 suspensions and Atkinson’s June 19, 2014 discharge. On the other hand, the General
Counsel sustained Atkinson’s appeal in part in Case 06–CA–143062, and remanded that case to 20
the Region for further proceedings not only on Atkinson’s October 28, 2014 discharge, but also
on Atkinson’s June 20, 2014 discharge that was (also) contested in Case 06–CA–131900. In
support of that outcome, the General Counsel explained that although it agreed with the Region’s
decision to defer the June 20 discharge to the grievance and arbitration procedure, the grievance
panel deadlocked on the June 20 discharge and thus the grievance was never resolved and was 25
“no longer moot.” Thereafter, the General Counsel issued the complaint in this case and alleged
that Respondent violated Section 8(a)(3) and (1) of the Act when it discharged Atkinson on June
20 and October 28, 2014. (FOF, Section II(FF)(3); GC Exh. 1(c).)
2. Analysis30
At the start of trial and in its posttrial brief, Respondent requested that I dismiss the
allegation in the complaint that Respondent violated the Act when it discharged Atkinson on
June 20, 2014, or alternatively remand that allegation to the grievance and arbitration procedure.
(R. Posttrial Br. at 2–3; Tr. 19–21.) The General Counsel and Atkinson oppose Respondent’s 35
request. (GC Posttrial Br. at 58–60; CP Posttrial Br. at 2–6.)
The essence of Respondent’s argument for dismissal/deferral of the June 20 discharge
allegation is that the allegation is not properly before the Board (and, if anything, should be
proceeding through the parties’ grievance and arbitration procedure). The Board has explained, 40
however, that the General Counsel has discretion to choose “procedures for processing unfair
labor practice charges, including whether and under what circumstances to defer to arbitration
before issuing complaints.” Babcock & Wilcox Construction Co., 361 NLRB No. 132, slip op. at
13 (2014); see also BCI Coca-Cola Bottling Co. of Los Angeles, 361 NLRB No. 75, slip op. at 5
to “[decide] what steps to take before issuing a complaint, including how to investigate the 45
charge and whether to defer to pending or possible arbitration of the charge”). More pointedly,
the Board has stated:
JD–112–16
48
[D]eferral is a matter of discretion. . . . ‘There is no question that the Board is not
precluded from adjudicating unfair labor practice charges even though they might have
been the subject of an arbitration proceeding and award.’
5
Babcock & Wilcox Construction Co., 361 NLRB No. 132, slip op. at 3 (quoting International
Harvester Co., 138 NLRB 923, 925–926 (1962), enfd. 327 F.2d 784 (7th Cir. 1964), cert. denied
377 U.S. 1003 (1964)); see also Babcock & Wilcox Construction Co., 361 NLRB No. 132, slip
op. at 4 (explaining that “the discretionary aspect of the Board’s deferral policy is particularly
significant in 8(a)(3) and (1) cases such as this, where employees’ contractual rights, implicated 10
in the grievance, are separate from their rights under the Act”).
Based on the Board’s guidance, I find that it was within the General Counsel’s discretion
to include the June 20 discharge allegation in the complaint, particularly where the June 20
discharge had not been resolved through the grievance and arbitration procedure and was part of 15
a progression of disciplines and discharges that Atkinson asserted (in Case 06–CA–143062) were
unlawful.48 Accordingly, I deny Respondent’s request that I dismiss that allegation for lack of
jurisdiction or remand that allegation to the grievance and arbitration procedure.49
B. SHOULD THE REGION HAVE DEFERRED TO THE GRIEVANCE PANEL’S DECISION TO 20
UPHOLD ATKINSON’S OCTOBER 28, 2014 DISCHARGE?
1. BACKGROUND
Under the national master collective-bargaining agreement and the Western Pennsylvania 25
supplement (both of which took effect on April 25, 2014), a UPS employee may use the
grievance/arbitration procedure to contest disciplinary action that the employee believes is
discriminatory under federal or state law. (FOF, Section II(A)(4), (L).) As previously noted,
Atkinson filed two grievances to contest UPS’s October 28, 2014 decision to discharge him for
failing to download EDD. In the grievances, Atkinson (among other things) explicitly asserted 30

48 I am not persuaded by Respondent’s argument that Atkinson only reasserted that UPS issued
discriminatory “disciplines” in the charge in Case 06–CA–143062, and thus did not reassert that the June
20 discharge was discriminatory. (See R. Posttrial Br. at 3.) I do not agree that the charge in Case 06–
CA–143062 should be read so narrowly, particularly given that Atkinson explained in the charge that he
believed UPS was engaging in a pattern and practice of interfering with his protected activities. Perhaps
more important, even if I agreed that Atkinson only reasserted that UPS issued discriminatory disciplines
in the charge, the General Counsel would still be within its rights to challenge the June 20 discharge in the
complaint because the June 20 discharge is closely related to the allegations in the charge in Case 06–
CA–143062. See Columbia College Chicago, 363 NLRB No. 154, slip op. at 30 (2016) (explaining that
to decide whether complaint allegations are closely related to the allegations in a timely filed charge, the
Board evaluates whether the complaint allegations are factually and legally related to the charge).
49 In light of my finding here, I need not address the General Counsel’s and Atkinson’s argument that
deferral of the June 20 discharge would not be appropriate because conflict of interest issues and bias
against Atkinson would prevent any grievance/arbitration proceedings from being fair and regular. (See
CP Posttrial Br. at 12–16 (arguing that Atkinson’s representative and members of the panel supported
ratifying the national collective-bargaining agreement and the Western Pennsylvania supplement, and
thus were at odds with Atkinson, who opposed ratification); GC Posttrial Br. at 59–60 (same).)
JD–112–16
49
that the October 28 discharge was retaliatory, discriminatory and violated Section 8(a)(3) of the
NLRA. (FOF, Section II(Y)(1).)
After the Western Pennsylvania grievance panel conducted a hearing on January 14,
2015, concerning Atkinson’s grievances of his October 28 discharge, the grievance panel upheld 5
UPS’s decision to discharge Atkinson. The grievance panel’s decision stated (in its entirety) as
follows:
Based on the facts presented and the grievant’s own testimony the committee finds no
violations of any contract articles therefore the grievances (#22310 and #22311) are 10
denied. NRNP.
(FOF, Section II(BB).) UPS maintains that the Region should have deferred to the grievance
panel’s decision. By contrast, the General Counsel and Atkinson maintain that deferral is not
appropriate and that I should address the merits of the complaint allegation that UPS violated the 15
Act when it discharged Atkinson on October 28.
2. APPLICABLE LEGAL STANDARD FOR POST ARBITRATION DEFERRAL
On December 15, 2014, the Board modified its standard for deferring to decisions that an 20
arbitrator or grievance panel issues pursuant to the parties’ grievance/arbitration process. Under
the new standard for post arbitration deferral, “if the arbitration procedures appear to have been
fair and regular, and if the parties agreed to be bound, the Board will defer to an arbitral decision
if the party urging deferral shows that: (1) the arbitrator was explicitly authorized to decide the
unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory 25
issue, or was prevented from doing so by the party opposing deferral; and (3) Board law
reasonably permits the award.” Babcock & Wilcox Construction Co., 361 NLRB No. 132, slip
op. at 5. The Board added that the new standard for post-arbitration deferral would apply to all
future arbitrations (i.e., arbitrations after December 15, 2014) in cases where parties have
already, either contractually or explicitly for a particular case or cases, authorized arbitrators to 30
decide unfair labor practice claims. Id. at 14.
3. ANALYSIS
The modified standard for post arbitration deferral that the Board announced in Babcock 35
applies in this case because the national collective-bargaining agreement and Western
Pennsylvania supplement authorize arbitrators and grievance panels to hear and decide claims
that UPS unlawfully discriminated against an employee in violation of federal law. Unfair labor
practice claims under the NLRA are covered by that broad grant of authority.
40
Applying the post arbitration deferral standard set forth in Babcock to this case, I find that
UPS did not carry its burden of demonstrating that the Board should defer to the grievance
panel’s decision to uphold Atkinson’s October 28 discharge.50 Specifically, UPS did not show

50 To the extent that Respondent asserts that post-arbitration deferral is warranted concerning the
October 28 discharge because the grievance panel hearing was “fair and regular,” I reject that argument
because it relies on case law that pre-dates (and thus does not account for) the modifications to the post-
JD–112–16
50
that the grievance panel considered the statutory issue of whether Atkinson’s discharge violated
the NLRA. There is no dispute that Atkinson asserted in his grievances that his discharge
violated the Act, and there is no contention that Atkinson prevented the grievance panel from
considering the NLRA aspects of his grievances. The grievance panel’s decision, however, only
states that Atkinson’s discharge did not violate any contract articles, and thus (at best) leaves one 5
to speculate as to whether the panel’s decision implicitly includes a finding that Atkinson’s
discharge was not discriminatory or retaliatory within the meaning of the NLRA. That level of
ambiguity is not sufficient to justify post arbitration deferral, particularly given the Board’s
instruction that a finding that “the arbitrator has actually considered the statutory issue” is only
warranted “when the arbitrator has identified that issue and at least generally explained why he 10
or she finds that the facts presented either do or do not support the unfair labor practice
allegation.” See Babcock & Wilcox Construction Co., 361 NLRB No. 132, slip op. at 7; see also
id. at 6 (explaining that that Board will no longer countenance post arbitration deferral where
there is “simply no way to tell” whether the grievance panel considered the statutory issue of
whether an employee’s discharge violated the Act). Accordingly, I find that it is not appropriate 15
to defer to the grievance panel’s decision concerning Atkinson’s October 28 discharge.
C. DID UPS VIOLATE THE ACT WHEN IT DISCHARGED ATKINSON ON JUNE 20, 2014
AND/OR ON OCTOBER 28, 2014?
20
Before evaluating the merits of the General Counsel’s claims that UPS discharged
Atkinson unlawfully, it is important to understand the General Counsel’s (and Atkinson’s) theory
for this case. The General Counsel contends that UPS requires its drivers to comply with a
myriad of procedures and rules (e.g., the 340 methods) that, while facially valid, drivers will
inevitably break as they complete their work. Within that context, the General Counsel 25
maintains that because of Atkinson’s union and protected concerted activities, UPS improperly
found opportunities to discipline, and ultimately discharge, Atkinson for various rule violations.
Respondent, on the other hand, maintains that its decisions to discharge Atkinson were valid and
nondiscriminatory.
30
As explained below, I find that the General Counsel demonstrated that UPS discharged
Atkinson unlawfully on June 20 and October 28. Although the General Counsel’s theory of the
case was a challenging one to prove, the General Counsel presented persuasive evidence that
UPS, through key managers who were involved in the decisions to discharge Atkinson, was
motivated to get rid of Atkinson because of his union and protected concerted activities.35
1. COMPLAINT ALLEGATIONS
The General Counsel alleges that Respondent violated Section 8(a)(3) and (1) of the Act
by, on or about June 20, 2014, discharging employee Robert Atkinson because he refrained from 40
supporting and assisting the Teamsters Local 538 and otherwise engaged in protected concerted
activities. (GC Exh. 1(c) (pars. 7(a), 8).)

arbitration deferral standard that the Board set forth in Babcock. (See R. Posttrial Br. at 33–35 (citing,
inter alia, Botany 500, 251 NLRB 527 (1980).)
JD–112–16
51
The General Counsel also alleges that Respondent violated Section 8(a)(3) and (1) of the
Act by, on or about October 28, 2014, discharging employee Robert Atkinson because he
refrained from supporting and assisting Teamsters Local 538 and otherwise engaged in protected
concerted activities. (GC Exh. 1(c) (pars. 7(b), 8).)
5
2. Applicable legal standard
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the 10
record as a whole. Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op. at 13–14
(2014); see also Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006) (noting that
an administrative law judge may draw an adverse inference from a party’s failure to call a
witness who may reasonably be assumed to be favorably disposed to a party, and who could
reasonably be expected to corroborate its version of events, particularly when the witness is the 15
party’s agent). Credibility findings need not be all-or-nothing propositions — indeed, nothing is
more common in all kinds of judicial decisions than to believe some, but not all, of a witness’
testimony. Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op. at 14. My credibility
findings are set forth above in the findings of fact for this decision.
20
The legal standard for evaluating whether an adverse employment action violates Section
8(a)(3) of the Act is generally set forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). To sustain a finding of
discrimination, the General Counsel must make an initial showing that a substantial or
motivating factor in the employer’s decision was the employee’s union or other protected 25
activity. Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003). The elements commonly required
to support such a showing are union or protected concerted activity by the employee, employer
knowledge of that activity, and animus on the part of the employer. Consolidated Bus Transit,
Inc., 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009); see also Medic One, Inc.,
331 NLRB 464, 475 (2000) (noting that “[e]vidence of suspicious timing, false reasons given in 30
defense, failure to adequately investigate alleged misconduct, departures from past practices,
tolerance of behavior for which the employee was allegedly fired, and disparate treatment of the
discharged employees all support inferences of animus and discriminatory motivation”).
If the General Counsel makes the required initial showing, then the burden shifts to the 35
employer to prove, as an affirmative defense, that it would have taken the same action even in
the absence of the employee’s union or protected activity. Bally’s Atlantic City, 355 NLRB
1319, 1321 (2010) (explaining that where the General Counsel makes a strong initial showing of
discriminatory motivation, the respondent’s rebuttal burden is substantial), enfd. 646 F.3d 929
(D.C. Cir. 2011); Consolidated Bus Transit, Inc., 350 NLRB at 1066; Pro-Spec Painting, 339 40
NLRB at 949. The General Counsel may offer proof that the employer’s reasons for the
personnel decision were false or pretextual. Pro-Spec Painting, 339 NLRB at 949 (noting that
where an employer’s reasons are false, it can be inferred that the real motive is one that the
employer desires to conceal — an unlawful motive — at least where the surrounding facts tend
to reinforce that inference.) (citation omitted); Frank Black Mechanical Services, Inc., 271 45
NLRB 1302, 1302 fn. 2 (1984) (noting that “a finding of pretext necessarily means that the
reasons advanced by the employer either did not exist or were not in fact relied upon, thereby
JD–112–16
52
leaving intact the inference of wrongful motive established by the General Counsel”). However,
a respondent’s defense does not fail simply because not all the evidence supports its defense or
because some evidence tends to refute it. Ultimately, the General Counsel retains the burden of
proving discrimination. Farm Fresh Co., Target One, LLC, 361 NLRB No. 83, slip op. at 14.
5
3. ANALYSIS – THE JUNE 20 DISCHARGE
Turning to the merits of the General Counsel’s allegation that UPS violated the Act when
it discharged Atkinson on June 20, I find that the General Counsel made an initial showing that
Atkinson’s union and protected concerted activities were a substantial or motivating factor in 10
UPS’s decision to discharge Atkinson. First, I find that Atkinson engaged in union and protected
concerted activities during the relevant time period (from mid 2013 to October 28, 2014).
Atkinson led the Vote No campaign in the New Kensington center by, among other things, using
the following methods to encourage drivers to vote against ratifying the Western Pennsylvania
supplement: maintaining a Vote No webpage; posting on social media; posting and/or 15
distributing Vote No literature; and creating Vote No signs that drivers could display in the
windshields of their personal vehicles.51 In addition, Atkinson was a ringleader among
employees who used social media to voice (often sarcastically) their frustrations with UPS’s
extensive rules and procedures for package car drivers. (FOF, Section II(D), (G), (I), (J), (L) .)
20
Second, there is no dispute that UPS was aware of Atkinson’s union and protected
concerted activities. Specifically, from various sources as well as from their own monitoring of
the Vote No campaign, managers in UPS’s labor department and at the New Kensington center
were aware of Atkinson’s postings on social media, and were also aware of Atkinson’s activities
at the New Kensington center. Indeed, Alakson warned Atkinson to be careful about what 25
Atkinson was posting on Facebook, and DeCecco spoke to Atkinson about the guidelines that
Atkinson needed to follow regarding posting or distributing Vote No literature at the UPS
facility, and about the Vote No window signs that employees were displaying in their vehicles.
Similarly, after being assigned to the New Kensington center in April 2014, Bartlett learned that
Atkinson was leading the Vote No campaign and was also communicating with other employees 30

51 It is well established that the NLRA protects union dissident activities. See, e.g., Town & Country
Supermarkets, 340 NLRB 1410, 1411 (2004) (finding that a union violated the Act by asking the
employer to suspend and discharge an employee because of her union dissident activity, which included
opposing the union’s efforts to secure quick ratification of a successor collective-bargaining agreement);
Paperworkers Local 1048 (Jefferson Smurfit Corp.), 323 NLRB 1042, 1043–1044 (1997) (union
unlawfully attempted to cause employer to discipline employee because the employee had engaged in
union dissident and other protected concerted activities). To be sure, there are some exceptions (such as
certain unprotected wildcat strikes, see, e.g., Energy Coal Partnership, 269 NLRB 770, 770–771 (1984)),
but none of those exceptions is applicable here.
In this case, Respondent maintains that many of Atkinson’s activities in support of the Vote No
campaign were not protected by the Act because, in Respondent’s view, the Vote No campaign should
have ended in June 2013, when a majority of bargaining unit members voted to ratify the national
collective-bargaining agreement. (R. Posttrial Br. at 26–27.) That argument fails, however, because the
Western Pennsylvania supplement was not ratified in June 2013 (or after another ratification vote in
January 2014), and Atkinson and other Vote No campaign supporters were well within their rights to
continue exhorting bargaining unit members to vote against ratifying the supplement. (FOF, Section
II(A)(2), (E), (I).)
JD–112–16
53
in a sarcastic manner about the challenges of running their routes efficiently while complying
with UPS’s procedures and methods. (FOF, Section II (D), (G), (I)–(J), (L)–(M).)
Third, the evidentiary record establishes UPS’s animus towards Atkinson’s union and
protected concerted activities. Shortly after employees (at Atkinson’s urging) began displaying 5
Vote No signs in their vehicles, McCready confronted Atkinson by saying that he saw the Vote
No signs and telling Atkinson “I guess you can do whatever you want.” Consistent with
McCready’s sentiment, Lojas agreed (in December 2014) with Atkinson that the Vote No
window signs put Atkinson “on the radar.” As for the social media postings, Alakson gave
Atkinson and his coworkers several friendly but ominous warnings that they should watch what 10
they posted on Facebook. And perhaps most directly, in July 2014, Blystone told Atkinson that
Bartlett, DeCecco and Alakson52 were singling Atkinson out and trying to get rid of Atkinson
because of Atkinson’s activities (such as generally being a troublemaker and orchestrating the
Vote No signs that employees posted in their vehicle windows).53 (FOF, Section II(G), (J), (L),
(V), (BB).) 15
As an affirmative defense to the General Counsel’s initial showing that UPS
discriminated against Atkinson when it discharged him on June 20, UPS asserts that it would
have discharged Atkinson even in the absence of his union and protected activities because
Atkinson committed methods infractions during his June 18 blended ride with Bartlett. The 20
problem with Respondent’s theory is that it was Bartlett who decided (in his discretion) to
convert Atkinson’s safety ride into a blended ride that would serve as both a safety ride and an
OJS ride followup, and it was Bartlett who cited Atkinson for the methods infractions in
question. Since I have found that Bartlett (and others) had an unlawful goal of using UPS’s rules
to single out and get rid of Atkinson because of his union and protected concerted activities, the 25
June 18 blended ride is tainted, as is the June 20 discharge that resulted from methods infractions
that Bartlett identified in that ride.54 Indeed, the taint remains even though it is true that Atkinson
committed at least some methods infractions during the blended ride (such as rolling through a
stop sign and having trouble finding certain packages) and it is true that UPS has a track record
of disciplining drivers for committing methods infractions – even with those facts, the fact 30
remains that UPS (through Bartlett and other supervisors) unlawfully had its thumb on the
proverbial scale when it decided to discharge Atkinson on June 20 based on methods infractions
that Bartlett found Atkinson committed during the June 18 ride. (FOF, Section II(S), (T)(3),

52 I pause here to note that although Alakson delivered friendly warnings to Atkinson and others to be
careful about what they posted on social media, that fact is not inconsistent with Alakson supporting a
plan to get rid of Atkinson because of Atkinson’s union and protected activities. Alakson could have had
any number of reasons for supporting a plan to get rid of Atkinson, including but not limited to going
with the crowd, following the lead of his supervisor (Bartlett), or simply tiring of Atkinson’s protected
activities.
53 In litigating this case, UPS has posed the question of what makes Atkinson so special, and thus a
target for an unlawful discharge, as opposed to countless other Vote No campaign supporters and union
stewards? (See, e.g., R. Posttrial Br. at 21–23, 28.) The evidence of UPS’s animus towards Atkinson that
I have set forth here (among other evidence) answers that question.
54 I realize that my reasoning would also apply to Atkinson’s June 19 discharge for supervised vs.
unsupervised performance, which also arose out of the June 18 blended ride. That discharge, however, is
not before me, since it was resolved by the grievance panel and the General Counsel deferred to the
panel’s decision.
JD–112–16
54
(Z).) Because of that taint, UPS’s affirmative defense falls short, and I find that UPS violated
Section 8(a)(3) and (1) when it discharged Atkinson on June 20, 2014.
4. ANALYSIS – THE OCTOBER 28 DISCHARGE
5
For the same reasons cited above concerning Atkinson’s June 20 discharge, I find that the
General Counsel made an initial showing that Atkinson’s union and protected concerted
activities were a substantial or motivating factor in UPS’s decision to discharge Atkinson on
October 28, 2014. It suffices to note that UPS’s animus towards Atkinson was still present in
October 2014, as indicated by the fact (among others evidence) that: the June 20 and October 2810
discharges occurred roughly within four months of each other; Blystone admitted in July 2014,
that Bartlett, DeCecco and Alakson were aiming to get rid of Atkinson because of Atkinson’s
union and protected activities; and Lojas told Atkinson in December 2014 that he agreed the
Vote No window signs put Atkinson on the radar (thereby indicating that the animus persisted
throughout the relevant time period). (See Discussion and Analysis, Section C(3), supra.)15
As its affirmative defense concerning the October 28 discharge, UPS asserts that it would
have discharged Atkinson even in the absence of his union and protected activities because
Atkinson committed a methods infraction on October 27 by failing to download EDD before
leaving the facility and starting his route. There is no dispute that Atkinson did not get EDD 20
before leaving the facility on October 27. (FOF, Section II(X).) UPS, however, does not have
an established track record of disciplining drivers for not downloading EDD, in part because the
issue does not arise frequently, and in part because on some occasions when the issue has arisen,
UPS has handled the problem informally (i.e., without discipline) or drivers have returned to the
facility on their own to complete the EDD download without notifying management.55 (FOF, 25
Section II(Y)(2).) In addition, as with the June 20 discharge, the fact remains that UPS’s
decision to discharge Atkinson on October 28 was tainted by UPS’s unlawful plan to use its rules
to single out and get rid of Atkinson because of his union and protected concerted activities.
Indeed, although Bartlett was no longer assigned to the New Kensington center, DeCecco and
Alakson were still present and were directly involved in both UPS’s initial response to 30
Atkinson’s failure to get EDD and in UPS’s decision to discharge Atkinson. (FOF, Section
II(V), (X), (Y)(1).) Because of the persisting taint from the plan to get rid of Atkinson and
because UPS lacks a clear track record of disciplining drivers for not downloading EDD, UPS’s
affirmative defense falls short, and I find that UPS violated Section 8(a)(3) and (1) when it
discharged Atkinson on October 28, 2014.35
CONCLUSIONS OF LAW
1. By discharging Robert Atkinson on June 20, 2014, because he refrained from
supporting and assisting the International Brotherhood of Teamsters and/or Teamsters Local 53840
and otherwise engaged in protected concerted activities, Respondent violated Section 8(a)(3) and
(1) of the Act.

55 Presumably, using Telematics and DIAD records, UPS could determine when a driver returns to
the facility to download EDD after starting his or her route. There is no evidence, however, that UPS has
used Telematics or DIAD records to identify drivers who engage in that sort of self-help regarding
downloading EDD.
JD–112–16
55
2. By discharging Robert Atkinson on October 28, 2014, because he refrained from
supporting and assisting the International Brotherhood of Teamsters and/or Teamsters Local 538
and otherwise engaged in protected concerted activities, Respondent violated Section 8(a)(3) and
(1) of the Act.5
3. By committing the unfair labor practices stated in Conclusions of Law 1–2 above,
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
10
REMEDY
A. DOES AFTER-ACQUIRED EVIDENCE ABOUT ATKINSON’S REMARKS ABOUT MCCREADY
AND EANS AFFECT THE REMEDIES THAT ARE AVAILABLE TO ATKINSON?
15
The Board has held that if an employer satisfies its burden of establishing that the
discriminatee engaged in unprotected conduct for which the employer would have discharged
any employee, reinstatement is not ordered and backpay is terminated on the date that the
employer first acquired knowledge of the misconduct. Tel Data Corp., 315 NLRB 364, 367
(1994), reversed in part on other grounds, 90 F.3d 1195 (6th Cir. 1996); Marshall Dublin Poultry 20
Co., 310 NLRB 68, 69–70 (1993), reversed in part on other grounds, 39 F.3d 1312 (5th Cir.
1994); John Cuneo, Inc., 298 NLRB 856, 856–857 (1990); see also Bob’s Ambulance Service,
183 NLRB 961, 961 (1970) (explaining that the issue of employee misconduct goes to the
remedy (i.e., whether reinstatement with full backpay is appropriate) and not to compliance with
the remedy). The Board follows this rule concerning after-acquired evidence of discriminatee 25
misconduct to “balance [its] responsibility to remedy the Respondent’s unfair labor practice
against the public interest in not condoning” the discriminatee’s misconduct. John Cuneo, Inc.,
298 NLRB at 856.
In this case, UPS presented evidence that on May 9, 2015, Atkinson made a social media 30
post in which (among other things) he questioned Eans’ masculinity and whether Eans was
compensating for having erectile dysfunction, and described McCready as a knuckle dragger
who sounds as if his mouth is full of cotton balls when he (McCready) speaks. Atkinson
admitted that he made the post. McCready, meanwhile, explained that he has struggled for some
time with his voice and pronunciation. (FOF, Section II(EE).)35
There is no dispute that UPS maintains an Anti-Harassment policy that prohibits
harassment of any person or group of persons on the basis of race, sex, national origin, disability,
sexual orientation, gender identity, veteran/military status, pregnancy, age or religion. The Anti-
Harassment policy also states that UPS will not tolerate derogatory or other inappropriate 40
remarks, slurs, threats or jokes. Consistent with that language, UPS has a track record of
immediately discharging employees who violate its Anti-Harassment policy. McCready
testified, without rebuttal, that Atkinson’s May 9, 2015 posting violated UPS’s Anti-Harassment
policy and would have led to Atkinson’s immediate discharge.56 (FOF, Section II(DD).)

56 In this connection, I note that none of the parties maintain that UPS tolerated remarks like
Atkinson’s in the New Kensington center or elsewhere. Accordingly, any arguments to that effect have
JD–112–16
56
Based on the evidentiary record concerning Atkinson’s May 9, 2015 remarks about Eans
and McCready, I find that reinstatement is not an appropriate remedy because Respondent has
demonstrated that, under its Anti-Harassment policy, it would have discharged any employee for
making remarks like Atkinson’s. I also find that Atkinson is not entitled to full backpay. 5
However, since Respondent did not present evidence about when it first learned of Atkinson’s
May 9, 2015 remarks,57 I will set June 21, 2016 (the day that UPS presented evidence at trial
about Atkinson’s May 9, 2015 remarks – see Tr. 378–383), as the cutoff date for Atkinson’s
backpay award.
10
B. APPLICABLE REMEDIES
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.15
Respondent, having discriminatorily discharged Robert Atkinson, must make him whole
for any loss of earnings and other benefits up to the backpay cutoff date of June 21, 2016.58 The
make whole remedy shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), 20
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In
accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), Respondent shall compensate
Atkinson for search-for-work and interim employment expenses regardless of whether those
expenses exceed his interim earnings. Search-for-work and interim employment expenses shall
be calculated separately from taxable net backpay, with interest at the rate prescribed in New 25
Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.
In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014), Respondent shall compensate Atkinson for the adverse tax consequences, if any, of
receiving a lump sum backpay award, and, in accordance with AdvoServ of New Jersey, Inc., 363 30
NLRB No. 143 (2016), Respondent shall, within 21 days of the date the amount of backpay is
fixed either by agreement or Board order, file with the Regional Director for Region 6 a report
allocating backpay to the appropriate calendar year(s). The Regional Director will then assume

been waived.
57 The closest that UPS came to identifying when it learned of Atkinson’s May 9, 2015 remarks was
when McCready answered a question about whether he heard anything from Atkinson after Atkinson’s
October 28, 2014 discharge. McCready responded that he heard from Atkinson “indirectly” because there
was a social media post that Atkinson made four to five months after the grievance panel decision (i.e., a
post that Atkinson made in May 2015, which would have been roughly four months after the January
2015 panel decision). McCready stopped short, however, of providing a date when he or anyone else at
UPS learned of the May 2015 post. (Tr. 1038–1039.)
58 As part of its request for make whole relief, the General Counsel asked that I order Respondent to
pay consequential damages to reimburse Atkinson for costs he incurred as a result of Respondent’s unfair
labor practices. As the Board has recognized, a change in Board law would be required for me to award
consequential damages. See, e.g., Guy Brewer 43 Inc., 363 NLRB No. 173, slip op. at 2 fn. 2 (2016).
Since I must follow existing Board law (which does not authorize me to award consequential damages), I
deny the General Counsel’s request for consequential damages.
JD–112–16
57
responsibility for transmitting the report to the Social Security Administration at the appropriate
time and in the appropriate manner.
Last, Respondent shall be required to expunge from its files any references to its unlawful
June 20 and October 28, 2014 decisions to discharge Atkinson, and within 3 days thereafter shall 5
notify Atkinson that this has been done and that those unlawful decisions 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 recommended5910
ORDER
Respondent, United Parcel Service, Inc., North Apollo, Pennsylvania, its officers, agents,
successors, and assigns, shall15
1. Cease and desist from
(a) Discharging employees because they refrain from supporting and assisting the
International Brotherhood of Teamsters and/or Teamsters Local 538 and otherwise engage in 20
protected concerted activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
25
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Robert Atkinson whole for any loss of earnings and other benefits suffered as a
result of the unlawful June 20 and October 28, 2014 discharges against him, less any net interim
earnings, plus interest, plus reasonable search-for-work and interim employment expenses.30
(b) Within 14 days from the date of this Order, remove from its files any references to
the unlawful June 20 and October 28, 2014 discharges of Robert Atkinson and, within 3 days
thereafter, notify him in writing that this has been done and that those unlawful discharges will
not be used against him in any way.35
(c) Compensate Robert Atkinson for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file with the Regional Director for Region 6, within 21 days of
the date the amount of backpay is fixed, either by agreement or Board order, a report allocating
the backpay award to the appropriate calendar year(s).40
(d) Within 14 days after service by the Region, post at its New Kensington center facility
in North Apollo, Pennsylvania, copies of the attached notice marked “Appendix A.”60 Copies of

59 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–112–16
58
the notice, on forms provided by the Regional Director for Region 6, after being signed by
Respondent’s authorized representative, shall be posted by Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other 5
electronic means, if Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by 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,
Respondent has gone out of business or closed the facilities involved in these proceedings,
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current 10
employees and former employees employed by Respondent at its New Kensington center at any
time since June 20, 2014.
(e) 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 15
Respondent has taken to comply.
Dated, Washington, D.C. November 25, 2016
20
____________________
Geoffrey Carter
Administrative Law Judge
25

60 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
93gastrW
APPENDIX A
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 discharge employees because they refrain from supporting and assisting
the International Brotherhood of Teamsters and/or Teamsters Local 538 and otherwise engage in
protected concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL make Robert Atkinson whole for any loss of earnings and other benefits
suffered as a result of the unlawful June 20 and October 28, 2014 discharges against him, less
any net interim earnings, plus interest, plus reasonable search-for-work and interim employment
expenses.
WE WILL, within 14 days from the date of the judge’s Order, remove from our files any
references to the unlawful June 20 and October 28, 2014 discharges against Robert Atkinson and
WE WILL, within 3 days thereafter, notify him in writing that this has been done and that those
unlawful discharges will not be used against him in any way.
WE WILL compensate Robert Atkinson for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region
6, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order,
a report allocating the backpay award to the appropriate calendar year(s).
UNITED PARCEL SERVICE, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
1000 Liberty Avenue, Federal Building, Room 904, Pittsburgh, PA 15222-4111
(412) 395-4400, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/06-CA-143062 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (412) 395-6899.
APPENDIX B
Corrections to Transcript
United Parcel Service, Inc., 06–CA–143062
Transcript Page:Line Transcript Correction
3:16 GC Exh. 5 is marked at page 94 (not page 95)
3:23 GC Exh. 18(a)–(c) are admitted at page 150 (not page 50)
[Respondent’s motion to correct transcript is denied to the
extent that it states these exhibits are marked on the pages in
question.]
3:24 GC Exh. 21 is marked at page 162 (not page 163)
3:24 GC Exh. 22(a)–(c) are marked at page 168 (not page 169)
4:2 GC Exhs. 24 and 25 are marked at page 130 (not page 132)
4:3 GC Exh. 26 is marked at page 176 (not 177)
6:13 “eluded” should be “alluded to”
7:23 “6.11(C)” should be “611(c)”
10:21 “earlier” should be “other”
11:14 “acrynom” should be “acronyms”
11:14 “be by” should be “be used by”
12:22 “I” should be “It”
13:25 “time” should be “fine”
15:10 “sometime” should be “some time”
15:13 “refer to” should be “refer to as”
18:4 “allowed to be” should be “allowed to put”
18:6 “was Mr. Atkinson followed” should be “Mr. Atkinson was
allowed”
25:8 “dry” should be “try”
27:1 “did” should be “had”
28:24, et seq. “Steelberg and Ollen” should be “Spielberg and Olin”
30:12, et seq. “Fisher” should be “Fischer”
32:7 “nosel” should be “nozzle”
32:9 “nosel” should be “nozzle”
33:18 “blend” should be “blended”
37:17 “8A3” should be “8(a)(3)”
40:3 “8A3” should be “8(a)(3)”
45:24 “Principle” should be “Principal”
70:10–11 “does in that” should be “does that”
84:9 “hundreds” should be “hundredths”
86:4 “I resume” should be “before I resume”
102:21 “remanent” should be “remnant”
104:4 “cooberates” should be “corroborates”
111:19 “sever” should be “several”
112:8 “over” should be “other”
Transcript Page:Line Transcript Correction
186:23 [General Counsel’s motion to correct transcript is denied as to
this citation.]
190:13 “principle” should be “principal”
193:19, et seq. “Barlett” should be “Bartlett”
194:19 [General Counsel’s requested spelling correction is granted]
209:19 “whatever want” should be “whatever you want”
211:22 “ruling” should be “rolling”
239:7 “211” should be “2(11)”
239:8 “213” should be “2(13)”
239:15 “further for” should be “further questions for”
275:10 “big” should be “bid”
275:17 “Adrien” should be “Adrian”
276:19, et seq. [General Counsel’s motion to correct transcript is denied as to
this citation.]
287:2 “the” should be “for”
291:5 “883” should be “8(a)(3)”
325:24 “dolled” should be “doled”
332:15, et seq. [General Counsel’s requested name spelling correction is
granted.]
335:24, et seq. [Respondent’s requested name spelling correction is granted]
339:3 “heat” should be “heated”
347:12 “a feminine” should be “effeminate”
357:6 [General Counsel’s motion to correct transcript is denied as to
this citation.]
361:10 “ops” should be “stops”
375:14 “inform” should be “information”
378:9 “affeminate” should be “effeminate”
382:7 “crosses” should be “legs”
383:16 [General Counsel’s motion to correct transcript is denied as to
this citation.]
386:16 “We’ll” should be “I’ll”
391:16 “your” should be “you”
393:25 “ticks” should be “tickets”
410:14 [General Counsel’s motion to correct transcript is denied as to
this citation.]
412:15 [General Counsel’s motion to correct transcript is denied as to
this citation.]
416:5 “principle” should be “principal”
419:24 “clean” should be “green”
426:4 Mark Kerr’s second re-cross begins at page 488 (not page 487)
426:5 Mark Kerr’s third re-cross begins at page 492 (not page 491)
426:7 [Respondent’s motion to correct transcript is denied as to this
citation.]
426:8 Daniel Morris’ second re-cross begins at page 630 (not page
629)
Transcript Page:Line Transcript Correction
426:17 GC Exh. 42 is marked at page 649 (not page 648) and
admitted at page 650 (not page 649)
426:18 GC Exh. 45(a)–(d) are marked at page 649 (not page 648) and
admitted at page 650 (not page 649)
426:22 GC Exh. “59” should be GC Exh. “49,” and is marked at page
649 (not page 644) and admitted at page 650 (not page 649)
426:24 CP Exh. 14 is admitted at page 652 (not page 651)
442:2 “say” should be “stay”
471:12 “call” should be “hold”
484:8 [General Counsel’s motion to correct transcript is denied as to
this citation.]
492:1 [General Counsel’s motion to correct transcript is denied as to
this citation.]
504:8 “your” should be “you’re”
508:4 “remind” should be “reminded”
510:7 “crew” should be “you”
525:20 [General Counsel’s motion to correct transcript is denied as to
this citation.]
535:15, et seq. “Shear” should be “Scherer”
536:22 “laid” should be “blade”
559:18 [General Counsel’s motion to correct transcript is denied as to
this citation.]
561:16 “raft” should be “raffle”
564:14 “voracity” should be “veracity”
583:17 “Why” should be “When”
588:22 “starting the” should be “the starting”
590:18 “to lay an” should be “a lay”
600:23 “If” should be “In”
616:3, et seq. [General Counsel’s and Respondent’s requested name spelling
correction is granted]
616:3 “discipline” should be “disciplined”
619:14 [General Counsel’s motion to correct transcript is denied as to
this citation.]
628:21 “All you” should be “All he”
630:3 [General Counsel’s motion to correct transcript is denied as to
this citation.]
635:20 “Richard” should be “Mitchel”
646:15 Ms. Stern was the speaker
647:23 [General Counsel’s requested name spelling correction is
granted]
649:1 “59” should be “49”
654:4 “ROBERT LINDSAY” should be “ROBERT LINDSAY
MARSHALL”
654:6 Robert Lindsay Marshall’s second re-direct begins at page 783
(not page 782)
Transcript Page:Line Transcript Correction
654:6 Robert Eans’ first cross begins at page 830 (not page 831)
654:13 R. Exh. 2 is marked at page 808 (not page 810)
659:18 [General Counsel’s motion to correct transcript is denied as to
this citation.]
662:24 “manger” should be “manager”
665:11 “ridge” should be “rider”
690:3, et seq. “vigerous” should be “vigorous”
693:21 “now” should be “no”
712:16 “laborer” should be “labor”
740:7 “clause” should be “cause”
777:8 “eminent” should be “imminent”
790:18, et seq. “Robins” should be “Robbins”
816:15 “nosel” should be “nozzle”
819:23, et seq. [Respondent’s requested name spelling correction is granted
and General Counsel’s requested name spelling correction is
denied. Respondent’s correction is more reliable because
Respondent has access to employee records.]
821:3 [General Counsel’s and Respondent’s requested name spelling
correction is granted]
829:1 “10(a)” should be “19(a)”
849:16 “rights” should be “rides”
853:1 “530” should be “538”
853:3 “530” should be “538”
869:13 “manger” should be “manager”
869:14 “literal” should be “lateral”
873:13, et seq. “ahold” should be “a hold”
883:11 “clearly” should be “really”
894:22 “partial” should be “personal”
895:17 “partial” should be “personal”
901:9 “find” should be “fine”
901:11 “find” should be “fine”
909:5 Thomas McCready’s second cross begins at page 1064 (not
page 1046)
909:15 R. Exh. 21 is marked at page 1005 and admitted at page 1027
(not R. Exh. 24)
918:10 “was” should be “was not”
920:12 “me” should “we need”
927:11 “nosel” should be “nozzle”
954:16 “883” should be “8(a)(3)”
964:12 “we DIAD” should be “we have DIAD”
966:10 “shape” should be “shot”
976:7 “Jim B. Rose” should be “Jim Birros”
978:2 “responds” should be “response”
993:21 “you” should be “the union”
995:23 “883” should be “8(a)(3)”
Transcript Page:Line Transcript Correction
1006:20, et seq. [Respondent’s requested name spelling correction is granted]
1013:3, et seq. [Respondent’s requested name spelling corrections are
granted]
1019:16 “Somebody asked” should be “So let me ask”
1021:16 “you from” should be “you take from”
1023:2 “wanted” should be “want”
1030:5 “tome” should be “to me”
1034:4 “pair” should be “pare”
1046:1 [General Counsel’s motion to correct transcript is denied as to
this citation.]
1068:13 “elapse” should be “a lapse”
1073:15 The ALJ was the speaker
1079:13 R. Exh. 25 is marked at page 1123 (not page 1117)
1079:15 R. Exh. 30 is marked at page 1163 (not page 1162)
1079:16 R. Exh. 33 is admitted at page 1137 (not page 1168)
1081:1 “General Counsel the issued” should be “General Counsel
issued”
1082:6 “10(C)” should be “10(c)”
1082:16 “10(C)” should be “10(c)”
1084:14 “the timeliness” should be “arguing A, the timeliness”
1084:25 “manic” should be “semantic” [General Counsel’s requested
correction to “minor” is denied]
1094:10 “supervisor” should be “supervise”
1113:1 “about” should be “a”
1126:17 “aloud” should be “allowed”
1126:24 “anymore” should be “any more”
1130:14 “Those since” should be “Since those”
1131:18 “inclemate” should be “inclement”
1135:10 “44” should be “25”
1137:15 “see” should be “say”
1139:5 “luncheons” should be “elections”
1150:22 “taveled” should be “traveled”
1151:21 “relays” should be “relates”
1152:14 “responsive the” should be “responsive to the”
1169:17 “route that of day” should be “route of that day”
1240:19 “handle” should be “handled”
1243:22 “the other” should be “and the other”
1251:16 R. Exh. 62 is marked at page 1315 (not page 1321)
1255:19 “would” should be “would be”
1258:24 “court” should be “course”
1263:6 “correct” should be “correctly”
1273:6 “interactions” should be “intersections”
1280:21–23 Ms. Asbrock’s remarks should read “Objection. Speculation.”
The ALJ’s remarks should read “He can answer if he knows.
Transcript Page:Line Transcript Correction
Overruled.”
1315:17 “having” should be “have”
1443:16 “if of the” should be “if the”
1449:1 “being” should be “beginning”
1455:20 “Attacking” should be “Attracting”
1475:23 “fine” should be “find”
1478:22 “two” should be “to”
1484:4 Jeremy Bartlett’s second cross examination begins on page
1600 (not page 1601)
1484:11 R. Exh. 45 is admitted at page 1567 (not page 1568)
1512:14 “ahead” should be “away”
1538:12 “eluded” should be “alluded”
1565:3 “eluding” should be “alluding”
1595:24 “right” should be “ride”
1669:23 “inducing” should be “introducing”
1674:5 The employee name is incorrect; the reference should be to
employee G.P.
1693:17 “mill” should be “meal”
1697:5 “nit” should be “it”
1706:1 “all ready” should be “already”
1710:3 “edit” should be “edict”
1710:9 “edit” should be “edict”
1715:4 “a sorbic time” should be “acerbic tone”
1715:6 “a sorbic” should be “acerbic”