United Parcel Service

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 861 (N.L.R.B. 1980)

United Parcel Service and Joseph M. Aiello. Case
7-CA-15942
February 5, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On October 12, 1979, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, United Parcel Service,
Roseville, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544
(1950), enfd, 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
We find that employee Aiello's second reprimand for disobeying orders,
which the Administrative Law Judge found to be in part for talking after
clocking out, was also given for talking while at work. Both the reprimand
and the incident are dated January 12, 1979. On that morning, Ruebelmann,
Respondent's manager, ordered him not to talk at all, and only 4 hours later
he was issued the second reprimand. Aiello testified that he continued to talk
after Ruebelmann's order, and, contrary to Ruebelmann, that, when given the
reprimand, he was only told that it was for again disobeying orders by talking.
We conclude that Aiello's second reprimand for disobeying orders, issued
before he had clocked out on January 12, was also based on his disobeying
Ruebelmann's order not to talk at work which, as found by the Adminstrative
Law Judge, was a discriminatory change in working conditions. Accordingly,
and for the other reasons given by the Administrative Law Judge, we find that
Respondent's issuance of the second reprimand was violative of Sec. 8(a)(l) of
the Act.
UNITED PARCEL SERVICE
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended (herein called the Act), was heard
before me pursuant to due notice on August 13 and 14, 1979,
in Detroit, Michigan.
The original charge in Case 7-CA-15942 was filed on
January 12, 1979. On February 20, 1979, said charge was
consolidated with a charge in Case 7-CA-15877, and the
consolidated complaint in this matter was issued. Prior to
the hearing the issues relating to Case 7-CA-15877 were
amended out and such charge was withdrawn/dismissed. At
the hearing all reference to Case 7-CA-15877 in the caption
of this proceeding was striken pursuant to motion. The
issues concern (1) whether United Parcel Service (herein
called Respondent) violated Section 8(a)(1) of the Act by the
making of threats and issuance of disciplinary notice and (2)
whether Respondent has violated Section 8(aX3) and (1) of
the Act by disparate treatment of an employee.
All parties were afforded full opportunity to participate in
the proceeding.'
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and
admissions therein.
United Parcel Service, the Respondent, is, and has been at
all times material herein, a corporation duly organized
under, and existing by virtue of, the laws of the State of
Ohio.
At all times material herein, United Parcel Service has
maintained its principal Michigan office and place of
business at 29855 Schoolcraft in Livonia, Michigan, herein
called the Livonia place of business. Respondent maintains
other places of business in the various other States and is,
and has been at all times material herein, engaged as a
common carrier in the intrastate and interstate motor freight
' The time for filing briefs in this matter expired on September 27, 1979. No
briefs were filed by the parties. However, by letter dated September 26, 1979,
the General Counsel caused to be filed with me a () motion for approval of
settlement agreement and termination of proceeding, dated September 26,
1979, and (2) settlement agreement-United Parcel Service-Case 7-CA-
15942, executed by a United Parcel Service representative on September 20,
1979, and recommended by counsel for the General Counsel by execution
thereof on September 25, 1979. Such settlement agreement was not entered
into by the Charging Party. Said motion is marked AUL Exh. I and is received
into the record. Said settlement agreement is marked AL Exh. 2 and is
received into the record. Upon examination of such motion and settlement
agreement, the pleadings, and the record as a whole, I an persuaded and
conclude and find that the settlement agreement is inadequate to effectuate
the policies of the Act. I therefore decline to approve said settlement
agreement and deny the motion for approval of settlement agreement and
termination of proceeding. Community Medical Services of Clearfield. Inc.,
d/b/a Clear Haven Nursing Home. 236 NLRB 853 (1978).
247 NLRB No. 134
861
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transportation and delivery of parcels. The Roseville instal-
lation located at 28955 Callahan, Roseville, Michigan, is the
only facility involved in this proceeding.
During the year ending December 31, 1978, which period
is representative of its operations during all times material
hereto, Respondent, in the course and conduct of its business
operations, derived gross revenue in excess of $1 million,
more than $50,000 of which revenue was derived from the
transportation of parcels and other shipments into the State
of Michigan directly from shippers located outside Michi-
gan.
As conceded by Respondent and based upon the forego-
ing, it is concluded and found that Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of
the Act.
II. THE I.ABOR ORGANIZATION INVOLVED
2
Local 243, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (herein
called Teamsters Local 243 or the Union), is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues: Supervisory Status'
At all times material herein, the following named persons
occupied the positions set opposite their respective names
and have been and are now supervisors of Respondent
within the meaning of Section 2(11) of the Act, and its
agents:
Al Palazzolo
Hal Wisel
Gary Ruebelmann
Gordy Miller
Catherine Carette
Divisional Manager
Roseville Center Manag-
er
Roseville Center Night
Manager
Safety Department Su-
pervisor
Supervisor
B. The Events of January 3, 1979
The facts are clear that Joseph M. Aiello, around 7:30
a.m. on January 3, 1979, refused an order to open a door on
a trailer,' called the Mount Pleasant truck in this proceed-
ing, preparatory for the unloading of parcels from such
trailer at Respondent's Roseville facility. The facts are also
clear that Respondent issued Aiello a disciplinary warning
(in writing) for such refusal to follow orders. At issue is
whether Aiello's refusal to follow orders constituted protect-
ed concerted activity in that the refusal was based upon a
reasonable belief that the working conditions were unsafe
and protected by employee protest pursuant to an existing
The facts are based upon the pleadings and admissions thereto.
The facts are based upon the pleadings and admissions therein.
' The witnesses referred to a Mount Pleasant trailer and to a Mount
Pleasant truck. It is clear that the incident on January 3, 1979, concerned the
opening of a door on a mail trailer or truck. Whether there was simply a truck
collective-bargaining agreement covering working condi-
tions.
The Facts
Respondent has parcels delivered by trailer to its Roseville
facility which are received for further distribution. As to a
number of such trucks or trailers, the trucks or trailers are
stopped a few feet, 5 to 10 feet, from a dock, and the doors of
such trucks or trailers are opened by supervisors, at times
finding it necessary to use crowbars or other instruments to
open said doors, sometimes because parcels are placed in
such a way as to create difficulty in the opening of said
doors. The Mount Pleasant trailer, involved in this proceed-
ing, is handled differently. As to this trailer, the driver
customarily breaks seals and opens the door and then backs
the trailer so that the trailer back door is for practical
purposes immediately next to the dock and platform where
unloading occurs.' The back door on the Mount Pleasant
trailer is of a sliding or rolltop type. Occasionally, said door
slides back from an open position to a closed position and
has to be reopened at the dock-platform site. The practice
has been, on such occasions, for unloaders to open the back
door to the Mount Pleasant trailer at the dock-platform site
when it has become necessary to do so because it has slid
shut after having been opened.
When the trailer has been backed to the unloading dock,
the following may be said to describe the locations of the
trailer, the platform, and the dock. The back bumper of the
trailer rests against the outer edge of what is described as a
platform. As a result of the difference between the edge of
the bumper touching the platform and projection of the
bumper from the trailer body, there exists 6 to 8 inches of
space between the body of the trailer and the platform. Such
open space, of course, is above the bumper. Of course also,
some space exists enclosed by the bumper. The platform
consists of an area immediately adjacent to the dock. From
the ground up, the platform top is approximately 2-1/2 to 3
feet above ground level. The width of the platform, from the
edge tyoward the dock to the edge toward the trailer is
approximately 2 to 2-1/2 feet wide. The dock proper is
approximately 5-1/2 to 6 feet above ground level. Witnesses
referred to the area at the platform and between the trailer
and dock as the "well." The above approximate measure-
ments have been detailed although exactness is not really
necessary. The composite of the testimony of all witnesses
clearly revealed that the space in such area is small and that
for an employee to open a door on the trailer when backed
into position next to the dock-platform required in effect
that the employee bend down and reach several inches below
the top of the platform in order to reach the handle to open
the trailer door.
In the immediate area where the trailer is backed into
position next to the dock-platform site, the ground level
upon which the trailer is parked is at a slight incline. As has
been indicated, on numerous occasions the door to the
trailer, although previously opened by the driver, has slid
or a trailer attached to a truck is not material. Reference will be made herein
simply to a trailer and constitute meaning as to either a truck or a trailer.
' Ol the dock Respondent has a conveyer belt leading to the edge. This, and
equipment inside the trailer, enables a conveyor-type unloading of the trailer.
862
UNITED PARCEL SERVICE
shut. There have been numerous occasions wherein unload-
ers have had to reopen the door at the platform site. Opening
the door at the platform site requires the employee to step on
the platform and to bend and reach down to open the door
to the trailer. There is no evidence that any employee has
received an injury in opening the trailer door. There is
evidence that packages have fallen from the trailer onto the
platform area and that at times an employee has been hit by
such packages. The Mount Pleasant trailer is normally filled
only to 20 percent of capacity. The average weight of
packages carried in the trailer is between 10 and 15 pounds.
The maximum weight of individual packages carried in the
trailer is 50 pounds.
In normal operations, it appears that supervisors and
employees would be aware of the load on the Mount
Pleasant trailer by virtue of the practice of the driver of the
trailer stopping the trailer a few feet from the dock and
opening the door.
On the morning of January 3, 1979, the Mount Pleasant
trailer was late in arriving at the Roseville facility. The
evidence reveals that neither Supervisor Carette nor employ-
ees Aiello, Bill Lowery, and Pozel saw the driver of the
trailer open the doors. Employees Lowery, Aiello, and Pozel
were away from the dock when the trailer arrived. Lowery
and unloaders Aiello, and Pozel work on the dock with
respect to the unloading of the trailer. Lowery's job is that of
a "keyer," and Aiello and Pozel work as unloaders.
Supervisor Carette transmitted a call for Lowery, Aiello,
and Pozel to come to the dock to unload the trailer. When
the three had returned to the dock, Supervisor Carette told
Aiello to open the door to the trailer." Aiello told Carette in
effect that the trailer was sealed and locked and that he was
not going to open the door because it was unsafe. Carette
inspected the door from the dock and ascertained that it was
not sealed or locked and repeated her order to Aiello to open
the door.' Carette repeated her order to Aiello to open the
trailer door, and Aiello repeated his refusal and contention
that it was unsafe to do so. Carette repeated her order, and
Aiello repeated his refusal and asserted reason. At this time
Pozel stepped into the well, unlatched the door and opened
the door. While Pozel was opening the door, Aiello stepped
to the platform edge and with his foot assisted in opening the
door.'
Carette then spoke to Night Manager Ruebelmann about
the issuance of discipline to Aiello for his refusal to obey her
order. What occurred is revealed by the following credited
excerpts from Carette's testimony.
I spoke to Mr. Ruebelmann on the facts of what
happened, said that I would like to give him a warning
notice to that, and he said when the shift goes down we
will ask him to come into the office with the committee-
man and we will speak to them together.
Later, around 8:30-8:45 a.m., Ruebelmann and Carette
issued a disciplinary warning to Aiello. What occurred is
' The facts are based upon a composite of the credited aspects of Aiello's.
Pozel's, and Carette's testimony. There is conflict as to whether Carette first
told Aiello and Pozel to open the door or spoke to Aiello only. I find Carette's
testimony more convincing on this point and credit her testimony.
' There is some conflict as to whether the door was latched. I credit Pozel's
testimony to the effect that the latch was on. This, however, does not mean
that the door was locked. I am persuaded that Carette has confused the
revealed by the following credited excerpts from Carette's
testimony.
A. When the shift went down which was approxi-
mately eight thirty to eight forty-five we asked Joe
Aiello and Bill Wise, who was the committeeman, to
come into the office and speak to us on the incident on
the dock.
At that point-
Q. What time was that?
A. About eight forty-five.
Q. Is that eight forty-five a.m.?
A. Yes sir.
Q. Who was present during the meeting?
A. Gary Ruebelmann; Bill Wise, the committeeman,
Joe Aiello and myself.
Q. Who said what during that meeting that occurred
at approximate eight forty-five?
A. Gary Ruebelmann just announced that there was
a problem and he asked Joe to explain what he thought
happened and he says, "Okay, Cathy you explain your
side of the story."
I explained it as it happened. Joe did not deny any of
it, and that was it. We issued Joe a warning notice to
the effect-
Q. You are saying Joe explained what happened.
What I would like for you to do is tell us exactly what
Joe said.
A. Joe said that he felt it was unsafe for him to open
up the door and that he thought he shouldn't do it.
Q. Did he deny that he refused your work order?
A. No sir, he did not deny it.
I explained it as it happened that Joe did refuse
saying it was unsafe and it wasn't his responsibility to
open the door, and that he was given instructions and
he refused to obey the instructions I had given him.
Q. Which trailer door did he refuse to open?
A. The Mt. Pleasant trailer.
The warning slip given by Ruebelmann and Carette to
Aiello on January 3, 1979, was as follows:
UNITED PARCEL SERVICE
Company Name
Notice to Employee
On 1-3-79 you violated the following company rule
(specify violation): (3 G) Flagrant disobeying of orders.
Your conduct was not in keeping with efficient opera-
tion and we therefore find it necessary to warn you.
Gary Ruebelmann, Manager
question of whether the latch was on with a determination that the door was
not locked.
I credit Carette's testimony over the testimony of the other witnesses as to
the degree of help that Aiello furnished. The events occurred in a short period
of time. To some degree Lowery appears to be sympathetic to Aiello's cause.
To a lesser degree. Pozel's testimony seems to he so affected. On this point I
found Carette's testimony more persuasive.
863
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interposed in the determination of whether Respondent
disciplined Aiello on January 3, 1979, for conduct which
constituted protected activity are issues of the basis and
reasons for Aiello's conduct and, to a lesser degree, the
question of Respondent's motivation. Thus, I find it proper
to set forth the following:
Respondent and Teamsters Local 243 have had a collec-
tive-bargaining relationship for many years. At the time of
the January 3, 1979, incident, the Teamsters and Respon-
dent had a collective-bargaining agreement concerning
Aiello and other unit employees. Said bargaining agreement
contained the following as part of article 17 therein.
ARTICLE 17
Equipment, Accidents, Reports
Under no circumstances will an employee be required
or assigned to engage in any activity involving danger-
ous conditions of work or danger to a person or
property or in violation of any applicable statute or
court order, or in violation of a government regulation
relating to safety of person or equipment. The term
"dangerous conditions of work" does not relate to the
type of cargo which is hauled or handled. Any
employee involved in any accident shall immediately
report said accident and any physical injury sustained.
When required by his Employer, the employee, before
the end of his shift, shall make out an accident report in
writing on forms furnished by the Employer and shall
turn in all available names and addresses of witnesses to
the accident. Copies of the same shall be made available
to the employee upon his request.
There is no evidence that the Teamsters and Respondent
had prior to January 3, 1979, construed the conditions
relating to the unloading of the Mount Pleasant trailer as
regards such contractual provision and had notified employ-
ees of such construction.
Some evidence was presented into the record concerning
Aiello's pre-January 3, 1979, work relationship and attitude
toward Supervisor Carette. Thus, there is disputed evidence
as to whether Aiello had tried to date Carette and had had
such attempts rejected. There is evidence that Aiello in 1978
had grabbed or hugged Carette, that she was not receptive to
such actions, and that he was aware of the same. There is
also evidence that Aiello had apparently stuck his tongue out
at Carette in the past and engaged in some similar type of
conduct and that Aiello apparently had appeared not to hear
Carette at times when she gave orders. There is also evidence
that Carette was displeased with Aiello's singing of a
"Beatle"-type song on January 2, 1979, and had indicated to
him that he was an "ass." There is also some evidence about
Aiello's and Carette's being in a bar at another time.
However, the facts reveal that this was not a "date" or a
planned encounter.
' The stipulation with regard to weather reports is not sufficient to negate
this finding.
"' Interboo Contractomr Inc.. 157 NLRB 1295 (1966), enfd. 388 F.2d 495
(2d Cir. 1967). Respondent argues that the Board's Interboro holding is not a
correct interpretation of law. I am bound by the Board's Interboro decision.
Although the facts reveal an indication that Aiello may
have made like he had not heard an order from Carette in
past times, there is no evidence of a direct refusal by Aiello
to perform an order from Carette excepting that on January
3, 1979. 1 am persuaded that the facts do not reveal that
Aiello's refusal to follow Carette's orders on January 3,
1979, was to flout her authority. Nor am I persuaded that
Aiello's refusal to carry out Carette's orders on January 3,
1979, was an attempt to force her to be the one who
"opened" the door to the trailer. Had this been the reason, I
am persuaded that statements would have been made by
Aiello on January 3, 1979, at the time of the incident which
would have revealed a contention that opening the door to
the trailer was her responsibility.
There is some dispute as to whether the Mount Pleasant
trailer had ice or sleet on it. I credit the testimony to the
effect that the trailer had some ice or sleet upon it.' This,
however, does not reveal a real question of safety. The
evidence as to the conditions on the dock and platform does
not reveal an ice or sleet condition.
Considering the foregoing, I am persuaded that Aiello's
refusal to open the trailer door on January 3, 1979,
constituted protected concerted activity. Thus, at that time
working conditions of the employees were governed by a
collective-bargaining agreement having provisions relating
to safety, set out above. At the time of the incident, despite
the fact that such trailer was normally loaded to only 20
percent capacity, Aiello had not seen the inside of such
trailer and could not know the size of the load or the
positioning of the load. Since the trailer is parked on and has
to be backed on a downward incline, there exists the real
possibility of load movement. Since packages weighing as
much as 50 pounds are carried, there existed a possibility
that such a package or other packages might be dislodged or
fall when the trailer door was opened. Since an employee has
to get into the well, a reasonably narrowly confined area, if
packages fell from the trailer onto the platform area, the
employee might not be able to move and avoid being hit by
the packages. In my opinion, if a 50-pound package fell from
the trailer upon an employee, the employee could be injured.
Further, because of the narrow confines of the platform area,
the employee could slip; and if his legs slipped between the
platform and trailer, such employee could be injured.
The instant proceeding does not involve, in my opinion, a
Section 502 question of abnormally dangerous conditions. It
may involve the type of safety questions that come within
the general jurisdiction of the Occupational Safety and
Health Administration (OSHA). It clearly involves a ques-
tion of safety within the area of collective bargaining. In the
instant case, where an employee raises a question of safety by
refusal to perform work on the contention of unsafe
conditions and where there are collective contractual provi-
sions thereto which have not collectively been defined
otherwise, the employee is presumed to be exercising a
contract right and to be engaged in protected concerted
activity.' Considering all of the facts, I am persuaded that
By this, I am not passing upon whether if the Teamsters and Respondent
collectively agree that the circumstances as to the unloading of the Mount
Pleasant trailer are not covered by the contract, such conduct of refusal would
then be protected concerted activity. Nor by the foregoing, if such activity
864
UNITED PARCEL SERVICE
Aiello's refusal to obey Carette's orders to unlock the trailer
door, because he considered the conditions unsafe, consti-
tuted protected concerted activity on his part. As indicated,
there was evidence presented with respect to Respondent's
motivation in giving Aiello the January 3, 1979, disciplinary
warning. Although the evidence reveals some basis for
displeasure with Aiello by Carette, it is clear that the main
and overriding reason for the issuance of the January 3,
1979, disciplinary warning was because Aiello had refused to
open the trailer door on January 3, 1979. Since such conduct
on Aiello's part was protected concerted activity, it is clear
and I conclude and find that Respondent violated Section
8(a)(1) of the Act by the issuance of such disciplinary
warning.
C. Aiello's Grievance
On or about January 9, 1979, Aiello, with Lowery's
assistance, prepared a grievance concerning the January 3,
1979, disciplinary warning for his refusal to open the trailer
door. Subsequent thereto the grievance was given to Union
Steward Hank Washington, who later transmitted copies
thereof to the Union and to Night Manager Ruebelmann.
There is some conflict as to when Washington transmitted
the grievance to other persons.
D. Events of January 11, 1979
Thus, there is conflict as to whether or not on the morning
of January 11, 1979, around 8:30-9 a.m., Respondent had
knowledge that Aiello had filed a grievance when the
following occurred between Preload Supervisor Range and
Aiello. What occurred is as revealed by the following
excerpts from Range's credited testimony.
Q. Did an incident occur involving you and Mr.
Aiello on January 11, 1979?
A. Yes, there was an incident.
Q. Tell me about it.
A. Okay. It was in the morning.
Q. About what time in the morning?
A. Between eight thirty and nine o'clock, okay. I had
told Joe to punch out, his job responsibility was done, I
no longer needed him, I told him to punch out, at the
same time I told him to start time for the next time
which I believe was three thirty.
Okay. After I told him to do that I proceeded to
carry on my other responsibilities of being a pre-load
supervisor. Okay. I went into my office, Gary Ruebel-
mann's office, and I was doing some paperwork at my
desk.
I can observe the entire unloading dock that is in
front of me.
I glanced up and I saw Joe Aiello talking to
unloaders in a trailer. I immediately got out of my
chair, walked on the dock and approached Mr. Aiello
and said to him "Are you punched out, Joe?" And he
said yes. I said "Well what are you doing talking to the
would not be deemed protected concerted activity, am I passing upon whether
an individual complaint to OSHA would be protected or not.
unloaders while you are off the clock?" He says "I have
to talk to Bill Lowery about something." I said "No,
you don't. I want you to leave the building now, you are
punched out, please leave the building." He proceeded
to leave the building but before he left the building, even
after I had told him to leave the building directly he
went down and talked to Hank Washington and various
other sorters behind the slides. He left.
The above incident was not litigated as being conduct
violative by Respondent of Section 8(a)(1) of the Act.
Assuming that Respondent was aware at the time of the
above incident that Aiello had filed a grievance, the facts
would be insufficient to establish the same to be 8(a)(1)
conduct. Thus, Respondent has a rule relating to employees
leaving the premises when they have checked out. I credit
Range's testimony that Aiello had in the past been told to
leave when he had checked out and not to talk to employees
who were "on the clock." Such a rule and enforcement
thereof is a reasonable assurance that working time is for
work. Under such conditions, whether Range was aware of
the grievance or not, enforcement of the rule is not shown to
be violative of the Act.
Range reported the above incident to Divisional Manager
Al Palazzolo.
E. Palazzolo's Threat of Discharge-January 11, 1979
By at least the morning of January 11, 1979, Divisional
Manager Palazzolo was aware of the grievance that Aiello
had given the union steward around January 9, 1979.
Palazzolo, as indicated above, became aware of the incident
of January 11, 1979, and events earlier as related to him by
Range. Palazzolo telephoned Aiello's home and spoke to
him about the grievance concerning the January 3, 1979,
discipline. Aiello testified to the effect that during such
conversation Palazzolo threatened him with discharge.
However, Aiello testified that Palazzolo did not in specific
words threaten him with discharge because he filed a
grievance. Palazzolo testified to the effect that he could not
testify to the exact words used, but that he did not threaten
Aiello with discharge because he had filed a grievance.
Palazzolo also specifically denied telling Aiello that he was
like a person on a windmill with a foot on ice, as Aiello had
testified.
I have considered the entire testimony of both witnesses.
It is clear that Palazzolo did not say in so many words that
Aiello was going to be discharged because he had filed a
grievance. Further, although Palazzolo may have used some
type of comparative analogy as to Aiello's status, I credit his
denial that he referred to a boy on a windmill with a foot on
ice. The facts, however, are clear that Palazzolo was upset
that Aiello had filed a grievance and conveyed the same to
Aiello. I found Aiello's testimony to the effect that Palazzolo
said that "maybe he should start looking for another job" to
be credible and find such to have occurred.
Considering the events of January 3, 1979, Aiello's
grievance relating thereto, Palazzolo's being upset about
Aiello's having filed the grievance and conveyance of such
865
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feeling to Aiello, and the statement that "maybe Aiello
should start looking for another job," I am persuaded that
Respondent, by Palazzolo, conveyed an implied threat to
Aiello that his filing of a grievance would result in his
discharge. Such a threat is violative of Section 8(aX1) of the
Act. I so conclude and find.
F. Disparate Treatment-January 12, 1979
The facts are clear that by an early time on January 12,
1979, around 3:40 a.m., Respondent was aware that Aiello
had filed a grievance, that Palazzolo was upset about said
grievance, that Respondent was aware that Range had
spoken to Aiello about talking to employees who were
working after he had checked out and Aiello had done so
anyway, and that Palazzolo had a scheduled meeting to talk
to Aiello early the next morning. In this context, Night
Manager Ruebelmann spoke to Union Steward Washington
and asked him to join him when he spoke to Aiello. Around
3:40 a.m., with Washington being present, Ruebelmann
spoke to Aiello and told him that in the past Aiello had a
habit of doing more talk than work, that he did not want
him to talk all night, that he was to work, and that Aiello
was not to talk to or sing with other employees at work that
night.
The above facts are based upon the credited aspects of the
testimony of Aiello and Ruebelmann. There is slight
difference between the testimonial versions of the two.
Ruebelmann's testimony was to the effect that his statements
to Aiello were prefaced with "ifs" as to whether Aiello could
do his work without talking. I find from even Ruebelmann's
testimonial version that the emphasis was upon not talking
and clearly a communication that Aiello was not supposed
to talk at work. In view of the totality of the testimony and
logical consistency of facts, I find Aiello's testimonial
version to be more reliable and so credit the facts.
Considering all of the foregoing, I am persuaded that
Respondent, by Ruebelmann, changed Aiello's working
conditions and, in doing so, discriminated in the working
conditions under which Aiello worked. Thus, while other
employees could engage in normal talking, Aiello could not
do so. While Respondent could have told Aiello that he
could not talk to the extent of interfering with other
employees' work, to completely prohibit Aiello's talking or
singing at work was improper.
Considering the events of January 3, 1979, Aiello's
grievance, and the fact that Respondent was upset about the
filing of the grievance, I find it clear that Ruebelmann's
restriction upon Aiello as to talking or singing was because
Aiello had filed a grievance. Such conduct is violative of
Section 8(aXl 1) of the Act."
G. The Second Reprimand-January 12, 1979
Later on, the next morning, at the time of the meeting
Palazzolo held with Aiello, Respondent gave Aiello a
written reprimand as follows:
" The facts do not reveal that the discrimination against Aiello was
basically because of his union membership. The facts do, however, reveal that
the discrimination flowed from Aiello's exercise of filing a grievance with the
UNITED PARCEL SERVICE
Notice to Employee
On 1-12-79 you violated the following company rule
(specify violation): 3 G Flagrant disobeying of orders-
Second flagrant in two week period.
Your conduct was not in keeping with efficient opera-
tion and we therefore find it necessary to warn you, in
lieu of discharge.
Gary Ruebelmann, Mgr.
Considering the facts, I am persuaded that the above
disciplinary warning was given Aiello in part because he
disregarded Range's instructions not to talk to employees
who were working when he had clocked out for work.
However, considering the facts that Aiello's conduct on
January 3, 1979, in regard to the refusal to open the trailer
door was protected concerted activity, that Aiello's griev-
ance as to discipline thereto was known to Respondent, that
Palazzolo was upset about the grievance, the facts persuade
that the issuance of a reprimand as an indicated "[s]econd
flagrant in two week period" constituted a utilization of the
issuance of discipline in such a manner as to emphasize the
discipline of Aiello for his protected concerted activity in
refusal to open the trailer door on January 3, 1979, and to
reveal displeasure with his filing of a grievance. Under such
circumstances, the manner of issuance of such discipline
interfered with the exercise of protected concerted rights and
constituted conduct violative of Section 8(a)(1) of the Act. It
is so concluded and found.
H. Threat of Discharge Palazzolo-January 12, 1979
On January 11, 1979, Divisional Manager Palazzolo had
telephoned Aiello at home, talked to him concerning Aiello's
having filed a grievance, and had scheduled a meeting with
Aiello on January 12, 1979. Prior to this meeting, Palazzolo
told Union Steward Washington that he was going to fire
Aiello and that he was tired of Aiello's "bullshitting."
On January 12, 1979, Palazzolo held his meeting with
Aiello. Present at such meeting were Palazzolo, Aiello,
Range, Ruebelmann, and Washington. At this meeting, as
indicated herein above, Aiello was handed a second disci-
plinary warning. This warning indicated that it was for a
second flagrant disobeying of orders and was in lieu of
discharge. Palazzolo spoke to Aiello in terms of his job and
benefits. Palazzolo told Aiello that he now had two warnings
and that in the event of another he would be gone. Palazzolo
told Aiello in effect that, if he did not like to go by the
Company's rule, perhaps he should look elsewhere for work
or become self-employed. Aiello stated in effect that the
discipline was not fair and should be removed. Palazzolo
told Aiello in effect that the warnings would not be removed,
but, if Aiello resigned, they would be removed, and other
employers would not be advised of them. Aiello indicated
Union concerning discipline given him. I do not find it necessary to determine
whether such conduct is violative of Sec. 8(a)(3) of the Act, since the remedy
for an 8(a)(1) violation is the same as for an 8(aX3) violation, if found.
866
UNITED PARCEL SERVICE
that he would not resign. Palazzolo told Aiello in effect that
what he would have to do was to be a good employee."
Considering all of the facts, it is clear that Palazzolo's
conversation concerned Aiello's conduct, including his
conduct on January 3, 1979, in refusing to follow orders to
open the trailer door. Such conduct was protected concerted
activity. It is further clear that Palazzolo was upset by
Aiello's having filed a grievance concerning discipline issued
him because of his protected concerted activities and had
expressed that he was going to discharge Aiello for his
"bullshitting." It is clear that the tenor of Palazzolo's
remarks was designed to let Aiello knew that it was in his
best interest to resign. Considering all of this and Palazzolo's
remarks about the two disciplinary warnings, the indication
that the second disciplinary warning was in lieu of discharge,
and Palazzolo's remarks that another incident would result
in discharge, it is clear that Palazzolo's remarks constituted
a threat of discharge to Aiello because of his having engaged
in protected concerted activities by the filing of a grievance.
Such conduct is violative of Section 8(a)(1) of the Act. It is
so concluded and found.
IV. THI EFFECT OF HE UNFAIR ABOR PRACTICES
UPON COMMIRCE
The activities of Respondent set forth in section 111,
above, occurring in connection with Respondent's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCtIUSIONS OF LAW
1. The Respondent, United Parcel Service, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 243, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
3. By discriminating in the employment conditions of
Joseph Aiello because of his exercise of protected concerted
activities and by interfering with, restraining, and coercing
': None of the witnesses indicated that they could testify to the exact words
used. Considering the logical consistency of the facts, I credit the composite
testimony of the witnesses to the extent as set forth in the facts and discredit
the testimony of witnesses inconsistent with the facts found.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order hereill shall. as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
its employees in the exercise of rights guaranteed them in
Section 7 of the Act, Respondent has engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, United Parcel Service, Roseville, Michi-
gan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against employees in regard to tenure
of employment or any term or condition of employment
because of their union or protected concerted activities.
(b) Threatening employees with discharge and other
reprisals because of their union activities or protected
concerted activities.
(c) Issuing discipline to employees in such a manner as to
indicate that the discipline is issued because of their having
engaged in protected concerted activities.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act except to the
extent that such rights may be affected by lawful agreements
in accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action, which it is found
will effectuate the policies of the Act:
(a) Expunge from its records all records relating thereto or
mention thereto as regards the January 3, 1979, disciplinary
written warning issued to Joseph Aiello for refusal to unload
a trailer on the basis of unsafe conditions.
(b) Expunge and delete from its record of discipline
relating to the written disciplinary warning of January 12,
1979, indication therein that it is a warning relating to a
second flagrant disregard of orders or that it is in lieu of
discharge.
(c) Post at Respondent's Roseville, Michigan, facility
copies of the attached notice marked "Appendix.""' Copies
of said notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respondent's
representatives, shall be posted by it immediately upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of receipt of this Order, what
steps Respondent has taken to comply herewith.
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
" In the event that 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."
867
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER RECOMMENDED that all allegations of
conduct violative of the Act not specifically found be
dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL expunge from all of our records such
records relating to a January 3, 1979, disciplinary
written warning issued to Joseph Aiello for refusal to
unload a trailer on the basis of unsafe conditions and
such records relating to a written disciplinary warning
of January 12, 1979, indicating therein that it is a
warning relating to a second flagrant disregard of
orders or that it is in lieu of discharge.
WE WILL NOT discriminate against employees in
regard to tenure of employment or any term or
condition of employment because of their union or
protected concerted activities.
WE WILL NOT threaten employees with discharge or
other reprisals because of their union activities or
protected concerted activities.
WE WILL NOT give employees written warnings
relating to possible discharge or orally state to them
that discharge will follow because of their 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 in Section 7 of the Act except to
the extent that such rights may be affected by lawful
agreements in accordance with Section 8(a)(3) of the
Act.
UNITED PARCEL SERVICE
868