United Parcel Service

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1015 (N.L.R.B. 1980)

UNITED PARCEL SERVICE, INC.
United Parcel Service, Inc. and Robert W. Bow-
lands. Case 25-CA-10318
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On January 10, 1980, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
During the course of the hearing in this proceed-
ing, the Administrative Law Judge issued a tele-
graphic order dismissing the allegation in the com-
plaint concerning Respondent's discharge of em-
ployee Bowlds. The Administrative Law Judge
found that the allegation should be dismissed be-
cause the Board should defer, under Spielberg Man-
ufacturing Company, 112 NLRB 1080 (1955), to a
previous arbitration award which had been ren-
dered on a grievance which Bowlds had filed after
his discharge. Counsel for the General Counsel
filed with the Board a Request for Special Permis-
sion To Appeal the Administrative Law Judge's
dismissal of the allegation. On June 29, 1979, the
Board issued an Order granting the request for per-
mission to appeal, reversing the Administrative
Law Judge's dismissal of the allegation, and re-
manding the case to the Regional Director for
Region 25 for further appropriate action. For the
reasons set forth below, we reaffirm our previous
i Respondent has excepted to certain credibility findings made by the
Administrative aw Judge. It is the Board's established polic) Ilot to
overrule an adminisrative las judge's resolutions w ith respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950) enfd 188 F2d 362 (3d Cir 1951) We hae
carefully examined the record and find no basis for re'kersing his findings
In sec 111,I),2. of his Decision, the Administrative Law Judge states
that it became necessary during the hearing, to show witness Charles
Elder his "pre-hearilng affida it " he record shos that tile paper which
was shown to Elder during the hearing slas not an affidavit and s.as not
signed by Elder. Ihe statement" was a summary of a conversation
which Elder had ith a Board agent onl he telephonle The Board agent
summarized what HIlder said during the col, ersation and sent it to hint
asking that he sign It Elder did not d \o We ind the Adminitrati e
Lasl Judge's errolneous refrerl e to the ss riting as anll "affidavit" , as al
inadvertenl error , hich does no1 a ffc t the results of ollr deciion
conclusion that this case is not appropriate for de-
ferral to the arbitration award.
The grievance procedure followed by the parties
in processing Bowlds' grievance is contained in the
collective-bargaining agreement between Respon-
dent and Teamsters Local No. 89, a/w Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, which repre-
sents Respondent's employees. 2 The grievance pro-
cedure consists of six steps, ending with a hearing
before a panel of the United Parcel Service vice
president of labor relations, or his designee, and the
International director of the Central Conference of
Teamsters, or his designee. Bowlds' grievance
reached this final step, and the hearing was held on
October 3, 1978. The panel reached and issued its
decision that day. The panel held: "Based on the
facts presented, the Committee has agreed to
reduce the Discharge to a Disciplinary Suspension
and Final Warning. [Bowlds] shall be returned to
work without compensation, Monday, October 9,
1978." The decision also included a written warn-
ing that Bowlds would be subject to immediate dis-
charge if he failed to follow management's instruc-
tions or to work as directed.
In order for the Board to defer to an arbitration
award, it is necessary that the evidence relevant to
the unfair labor practice allegation be presented to
the arbitrator or panel determining the propriety of
an employer's disciplinary actions.3 The record
here shows that factual evidence concerning
Bowlds' protected concerted activities was not pre-
sented to the arbitrator. Thus, Douglas Borders,
the Union's business representative who represent-
ed Bowls at the arbitration, testified at the unfair
labor practice hearing that the grievance was pur-
2 The collective-bargaining agreement is an area agreement between
United Parcel Service. Inc. and the Central Conference of Teamsters an
organization of local unions including Teamsters Local No 89
n Suburban Moor Freight, Inc., 247 NLRB No 2 (1980). This Decision
overruled Electronic Reproduction Service Corporation el al. 213 NLRB
758 (1974). cited by our dissenting colleague. Under the latter Decision.
the Board ould defer to an arbitrator's award. even though the litiganlts
had withheld the evidence relevant to the unfair labor practice in order
to present the issue to the Board. Now, for equitable reason,, we will nlot
defer to an award unless the evidence relevant to the unfair labor prac-
lice case has been presented It) the arbitrator or panel. Contrary to our
dissenting colleague, this case illustrates the wisdom of the policy set
forth in Suburban Motor Freight. Here. the Union. which determined
what evidence would he presented at the arbitration was the target of
dissident union activities on Boulds' part, and those dissident activities
formed the basis of Hwlds' claint that he was a victim of discriminatory
treatment Our colleague would have us find that Bowlds along with his
union representative, "chose" not to present that claim of discrimination.
notwithstandilng the fact that Hov.lds in fact included that claim in his
grievance while his representative chose not to present evidence in sup-
port of his clainl While iln any event ae would not defer to a arbitra-
lion awiard where the litigants chose to reserve the unfair labor practice
issue fr a different forum,. &re would be particularly hesitanl to do so in
a case of this nlature where the "choice" of ec idence to be presented was
made by a union whose interests were not entirely congruent with those
of the gri anllt due Io the grlailll's disident union ativlties
252 NLRB No. 145
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sued on a contractual basis and that he was un-
aware, and so did not urge, that Bowlds' activities
on behalf of PROD and UPSurge had caused his
discharge.
Because of the Union's failure both to advocate
Bowlds' claim that he was discharged for dissident
activities and to present evidence on that claim, we
find deferral inappropriate. 4 In these circum-
stances, it is not enough that Bowlds' grievance
was read at each step of the proceeding, even
though in the grievance Bowlds contended that he
was discharged for his "union activities and in-
volvement in a class action suit .... " The mere
presentation of the contention, without more,
cannot support deferral.
Turning to the merits of the case, the Adminis-
trative Law Judge found, and we agree, that Re-
spondent violated Section 8(a)(3) and (1) when it
issued a warning to, and later discharged, Bowlds.5
In so finding, the Administrative Law Judge relied
on evidence adduced by the General Counsel con-
cerning Respondent's knowledge of Bowlds' dissi-
dent activities, its expressions of hostility toward
Bowlds for those activities, its circumvention of
normal channels of supervision in investigating
Bowlds' alleged shortcomings, and the extraordi-
nary measures taken in response to Bowlds' pur-
ported extension of his breaks. This evidence gave
rise to an inference that Respondent was motivated
by unlawful reasons to find a "good cause" to dis-
charge Bowlds.
The Administrative Law Judge also set forth the
evidence presented by Respondent in rebuttal of
the General Counsel's prima facie case, evidence
which we find wanting. The Administrative Law
Judge found, and we agree, that Respondent's evi-
dence does not rebut the inference raised by the
General Counsel's evidence that the discharge and
warning were unlawfully motivated. Thus, Respon-
dent has not proffered evidence that the manner in
which Bowlds was monitored was consistent with
its past practice when other employees were sus-
pected of extending their breaks. Similarly, Re-
spondent introduced no evidence of similar abrupt
and harsh discipline meted out to longtime employ-
ees. While Respondent introduced evidence that
other drivers had been discharged for overstaying
breaks and falsifying timecards, it introduced evi-
4 For the reasons set forth in his dissenting opinion in Terminal Trans-
port Company. Inc., 185 NLRB 672 (1970), Member Jenkins would find
that the lack of a neutral member on the arbitration panel constitutes an
independent reason sufficient in itself to render inappropriate deferral to
the arbitration award in this case.
, In evaluating the evidence presented at the hearing herein, we have
utilized the mode of analysis set forth in Wright Line. a Division of Wright
Live. Inc., 251 NLRB No. 151 (1980), which we apply in cases where a
respondent asserts that it had "good cause" for taking disciplinary action
against an employee
dence concerning the work records of only one of
those discharged drivers. The evidence concerning
that individual showed that he extended his breaks
by significantly longer periods than did Bowlds. Fi-
nally, Respondent's explanations for the use of su-
pervisors from distant facilities to monitor Bowlds,
without consulting or even notifying the manager
of the Owensville facility, were both incomplete
and conflicting. In these circumstances, we adopt
the Administrative Law Judge's finding that Re-
spondent violated Section 8(a)(3) and (1) of the Act
by warning and discharging Bowlds.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, United Parcel
Service, Inc., Owensboro, Kentucky, its officers,
agents, successors, andassigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
MEMBER PENELLO, dissenting:
I would defer to the arbitration award herein
with respect to the complaint allegation that Re-
spondent unlawfully discharged Robert Bowlds.
The award is, in my opinion, in full compliance
with the Spielberg standards for deferral. My col-
leagues disagree and refuse to defer only because
they believe that evidence relevant to the unfair
labor practice allegation was not presented to the
arbitration panel. For reasons set forth fully in my
dissenting opinion in Suburban Motor Freight Inc.,6
I would adhere to the rule in Electronic Reproduc-
tion Service Corporation, et al., 7 by deferring to ar-
bitration decisions when no unusual circumstances
appear to justify the alleged discriminatee's failure
to introduce evidence of unlawful discriminatory
discipline during the arbitration proceeding. No
such circumstances exist in this case. On the con-
trary, Bowlds and his union representative deliber-
ately chose not to present evidence of alleged dis-
crimination at the arbitration hearing even though
Bowlds had contended in his initial written griev-
ance that he was discharged for his "union activi-
ties and involvement in a class action suit." At
each subsequent step of the grievance and arbitra-
tion proceeding, this statement was read and
Bowlds was given a full opportunity, independent
of his union representative, to present any evidence
6 247 NLRB No. 2 (1980).
7 213 NLRB 758 (1974)
1016
UNITED PARCEL SERVICE, INC.
in support of it. 8 The Board majority's willingness
to permit relitigation of the discharge issue in spite
of Bowlds' failure to pursue the discrimination de-
fense denigrates the parties' collective-bargaining
relationship and its voluntary means for fair resolu-
tion of disputes. I find such a consequence totally
indefensible and would instead dismiss the allega-
tion of the complaint relating to Bowlds' discharge.
8 I am astounded by my colleagues' suggestion that some conflict of
interest between Bowlds and the Union prejudiced Bowlds and prevented
the presentation of evidence in the arbitration proceeding with respect to
the unfair labor practice issue. The General Counsel has made no such
conflict of interest claim, Bowlds has made no such claim, and the parties
have not litigated such a claim in this proceeding On the contrary, the
record reflects apparent cooperation between Bowlds and the Union
throughout the entire grievance and arbitration procedure
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees or issue
warnings to them because they engage in pro-
tected 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 National Labor Relations Act.
WE WILL make Robert W. Bowlds whole
for any loss of earnings he may have suffered
by reason of the discrimination practiced
against him, plus interest, and WE WILL ex-
punge from his personnel file the final warning
which we discriminatorily issued to him on
May 24, 1978.
UNITED PARCEL SERVICE, INC.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon
a charge filed on October 31, 1978, the General Counsel
of the National Labor Relations Board, by the Regional
Director for Region 25 issued a complaint on December
12, 1978, against United Parcel Service, Inc., herein
called Respondent or the Company, alleging that it had
engaged in certain unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act. Respondent filed an
answer denying the allegations of unlawful conduct in
the complaint.
Pursuant to notice, a hearing was held before me in
Owensboro, Kentucky, on April 5, May 30, and Septem-
ber 11 and 12, 1979. Briefs were received from the Gen-
eral Counsel and Respondent on October 24, 1979, and
they have been carefully considered.
Upon the entire record in this case, and from my ob-
servation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS F01 RESPONDENT
Respondent is an Ohio corporation with an office and
place of business located at Owensboro, Kentucky,
where it is engaged in the interstate transportation and
distribution of parcels, and a parcel delivery service.
During the year preceding the hearing herein, Respon-
dent performed services valued in excess of $50,000 in
states other than the State of Kentucky. During the same
period it received gross revenues in excess of $500,000,
as a link in the interstate transportation of goods. It is
conceded, and I find, that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE ABOR ORGANIZATION INVOLVED
Teamsters Local 710, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and Teamsters Local 89, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, are labor organizations within
the meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICE
A. The Issue
Employee Robert W. Bowlds was terminated by Re-
spondent on April 24, 1978. Pursuant to a grievance pro-
ceeding, he was thereafter reinstated on May 8, 1978.
Thereafter, on May 24, 1978, Bowlds received a final
warning. This warning, also pursuant to the grievance
procedure, was rescinded on June 14, 1978. Bowlds was
again terminated on August 4, 1978. Pursuant to pro-
ceedings and a decision at the final arbitration step of the
grievance procedure, Bowlds was again reinstated on or
about October 4, 1978.1 However, in the absence of an
award for backpay by the arbitration panel, Bowlds was
not reimbursed for the aforestated period that he was off
work.
The General Counsel contends, and Respondent
denies, that the final warning issued to Bowlds on May
24 and his discharge on August 4 was motivated by his
union activities and other protected, concerted activi-
ties. 2
I The decision of the arbitration panel was reached on October 3, 1978
(G.C Exh 2) On May 23, 1979, after hearing evidence on the subject. I
issued an Order recommending dismissal of this proceeding on the
ground that the Board should defer to the arbitrator's decision under the
doctrine enunciated in Spielberg Manufacturing Company, 112 NLRB
1080 (1955). Since this action was reversed by order of the Board dated
June 29, 1979. 1 deem this to he dispositive of Respondent's Spielberg de-
fense
Although a relevant part of the background of this case, Bowlds' ter-
mination on April 24. 1978. is barred by Sec 10(b) of the Act. I would
further note that at all times material hereto Respondent's employees
were represented by Labor Union No 89 of the Teamsters' Union, and
that the aforenoted arbitration award resulted from a grievance filed
Continued
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Bowids' Protected, Concerted Activities
Robert W. Bowlds was employed as a feeder-driver at
Respondent's Owensboro, Kentucky, facility since 1965.
With reference to the allegations that Bowlds was dis-
charged for engaging in protected activities, these allega-
tions particularly concern Bowlds' activities in connec-
tion with two organizations, namely, PROD and Up-
surge, as well as his participating in a lawsuit against Re-
spondent that was initiated in 1977. Before turning to the
alleged discriminatory incidents, I shall begin with
Bowlds' aforesaid activities.
Preliminarily, it is noted that Upsurge is an organiza-
tion of Respondent employees which is generally critical
of the Teamsters Union, as well as the Respondent, in
matters pertaining to labor relations and in matters per-
taining to the employees' wages, hours, and working
conditions. This organization periodicaily publishes a
newspaper and other pamphlets to express its views.
"PROD" is a related organization of Respondent em-
ployees, similarly involved. I need not dwell further on
the subject, since the Board has held, and I find, that em-
ployee activities on behalf of these organizations consti-
tute concerted, protected activity.3 As relevant back-
ground to the. instant case, I further take official notice
that the Board, in the aforecited cases, has found that
Respondent has engaged in various unfair labor practices
in connection with its opposition to employee activities
on behalf of the organizations in question.
Upsurge activities among Respondent's Ownesboro
employees began in 1975. From then and at all times ma-
terial hereto, Bowlds was solely responsible for distribut-
ing Upsurge's newsletters and literature among the 45-50
employees at the Owensboro center. He also solicited
subscriptions and collected money for the Upsurge news-
letter. PROD became active at the Owensboro Center in
late 1976 or early 1977. Bowlds engaged in similar activi-
ties on behalf of PROD at this facility and distributed
the bimonthly PROD newsletter to the Owensboro em-
ployees.
Concerning the foregoing activities, Bowlds credibly
testified, without contradiction, about an incident which
occurred prior to Christmas 1977. On this occasion he
was passing out PROD literature to employees outside
the office door at the Owensboro Center. While so
doing, he was broached by two of Respondent's supervi-
sors who were with a group of supervisors visiting the
Owensboro facility, which was new at the time. These
were Herschel Cash and Mike Worth, supervisors from
Respondent's Paducah, Kentucky, facility. At this time,
they stated that he had to leave the building immediately
because he had already punched out. Bowlds replied that
he was not distributing the literature to employees who
were working. Noting that he had PROD literature in
his hand, one of them stated that they did not want [him]
to be passing out any of that literature "around here" or
on company premises. When Bowlds responded that he
had a right to pass out literature on company premises,
under the grievance procedure of the collective-bargaining agreement be-
tween the parties
3 United Parcel Service. Inc., 230 NLRB 1147 (1977); United Parcel Ser-
vice, Inc., 234 NLRB 223 (1978): United Parcel Service, Inc., 234 NLRB
483 (1978)
he was told that he had to leave the building within 10
minutes after punching out.
Bowlds further testified that on various occasions
during the months of March, May, and June, 1978, as he
was passing out Upsurge literature, he was told by
Owensboro Supervisors Thomas Campbell and Buddy
Ellis that he should leave the premises after punching
out and that he should not hang around passing out lit-
erature. 4 On one such occasion, he said, Campbell asked
if he was aware of a company no-solicitation rule that
was posted on the bulletin board. 5 Campbell testified
that he is familiar with PROD and Upsurge, that in 1978
he has seen Upsurge literature on Respondent's premises,
but denied that he had spoken to Bowlds about distribut-
ing literature on the premises. From observing him tes-
tify, I do not believe that Bowlds fabricated his testimo-
ny and I credit it.
Bowlds also initiated and was responsible for the filing
of a class action lawsuit against Respondent in the
United States District Court for Western District of
Kentucky on March 3, 1977, it therein being alleged that
Respondent failed to comply with a Kentucky Statute
providing that an employer shall not require any employ-
ee to work more than 4 hours without rest periods of at
least 10 minutes. Thus, Bowlds circulated a petition
among the employees to join the class action suit, he col-
lected money from employees for the retainer fee, and
thereafter kept them informed as to the progress of the
suit. Bowlds' name, along with 12 other employees, ap-
pears as a plaintiff on the face of the complaint.6 It is
well settled that activities of this nature are concerted,
protected activities, and I find this to be so here.
C. Respondent's Case as to Bowlds
With respect to the alleged discrimination against
Bowlds, Respondent's defense is that in each instance it
took action against him for the asserted reason that he
took excessive break periods, and that he falsified his ti-
mecard for these break periods.
Employed since 1965, for the last 4-1/2 years Bowlds
was assigned to a scheduled run on the night shift from
Owensboro, Kentucky, to Nashville, Tennessee, and than
a turn-around, after making delivery, from Nashville to
Owensboro. Reporting to work about 8:30 p.m., Bowlds
would generally leave on the down leg shortly before 9
p.m., returning between 6 and 6:3() a.m. He was allotted
a lunch or coffee break of 15 minutes, plus 5 minutes for
an equipment check, on both the down and return leg. 7
4 At one point owlds testified, "They would just tell me that I could
not hang around the building passing out literature. but they did not say
Upsurge."
' There is no issue in this case concerning any no-solicitation rule. The
above is recited only as part of the conversation
s In a post-hearing stipulation of the parties (placed in the exhibit file)
it wras stipulated that the complaint in this aiction was filed on March 3,
1977, that the action was dismissed by the United States District Court
Judge on December 14, 1978, and that the matter was appealed to the
United States Court of Appeals for the Sixth Circuit n March 19, 1979,
where it is still pending
' The break periods for the drivers were given pursuant to oral
instructions by the supervisors. There were nlo posted rules.
1018
UNITED PARCEL SERVICE, INC.
1. The termination-suspension of Bowlds in April
1978
A number of individuals exercised supervisory author-
ity over Respondent's feeder-drivers, including Bowlds,
during the times material hereto. These included Darwin
Turpin, who became feeder-manager for the State of
Kentucky in early March 1978; Jerry Kaler, who became
feeder-supervisor over the Western Division of Ken-
tucky in January 1978; Wayne Prewitt, feeder-supervisor
over the Eastern Division of Kentucky; and Thomas
Campbell, the center manager of Owensboro, Kentucky.
Since the alleged discrimination against Bowlds ulti-
mately resulted from Respondent's surveillance of this
employee, it is to be noted that this activity was primar-
ily initiated by Supervisors Turpin and Kaler, Testifying
as to how this surveillance happened to be initiated
against this senior employee, Turpin testified that Kaler
called him on April 19, 1978, to say that while driving
with another driver he observed Bowlds farther down
the Green River Parkway than Bowlds' schedule should
have permitted.8 Turpin and Kaler met that afternoon.
According to Turpin, when it came to discussing
Bowlds, Kaler mentioned that he had heard that Bowlds
was arriving late at Nashville, and that "he felt he
[Bowlds] was overextending-the possibility of his over-
extending his breaks."9 In any event, the two supervisors
decided to follow Bowlds that night and keep him under
observation. It was customary for Bowlds to take his
break, on both the down leg and return trip, at a restau-
rant-motel operation known as the Key Truck Stop.
That evening Turpin and Kaler arrived at the Key Stop
after Bowlds had already arrived, hence they were only
able to observe that he departed this stop at 11:37 p.m. t °
According to these supervisors, they observed Bowlds
on the return leg and noted that he stopped at 3:43 a.m.
and pulled away at 4:29 a.m. (Bowlds' timecard, which
he filled out, reflects this break to have been from 4:03
until 4:18 a.m.) Turpin reported the entire matter to
Bobby R. Jones, Respondent's division manager of its
Lexington, Kentucky, facility. Jones instructed that they
observe Bowlds again.
On the evening of April 20, Bowlds again arrived at
the Key Stop Restaurant before Kaler and Turpin. He
left, they said, at 11:30 a.m. (Bowlds' timecard showed
11 to 11:15 p.m.) On the return leg, the time testified to
by the supervisors was from 3:50 to 4:36 a.m. (Bowlds'
timecard showed: 4:10 to 4:25 a.m.)
Suffice it to note that as a result of all the foregoing,
Bowlds was terminated on April 24 assertedly for falsify-
ing his timecard and overextending his breaks. As a
result of a grievance filed by Bowlds, he was reinstated
a Although Kaler testified extensively he did not testify concerning
this alleged incident
9 Testimony of Turpin There is no testimony from any Nashville su-
pervisors to establish that Bowlds in fact as arriving late at Nashville at
this time
'o Here, and in the other instances hen Respondent kept Bowlds
under surveillance at the Key Truck Stop. I cite the testimony of the su-
pervisors as to the arrival and departure times of Bowlds Since this
matter is in dispute, I do not find the times testified to by the supervisors
to be necessarily accurate
l Bowlds was discharged by Turpin at 8:40 pm. on April 24 Lnion
Steward Jim Weafer was present at the time.
pursuant to an early step of the grievance procedure on
May 8, 1978. The discharge was converted to a suspen-
sion.
2. The warning letter of May 24, 1978
According to the testimony of Jones, it was about 2
weeks after Bowlds' reinstatement on May 8 that Turpin
came to his office and left some tachograph charts from
Bowlds' truck. Jones testified that he visually analyzed
the charts (he said it was a "visual calculation without an
analyzer") and from such observation concluded that
Bowlds was again overstaying his break periods. Ac-
cording to Jones, his analysis of the charts showed that
for the dates May 16, 17, 18, 22, and 23, Bowlds' breaks
for the down leg and the return leg varied from 25 min-
utes to 32 minutes. For this reason, he said he decided to
take further disciplinary action against Bowids.
By letter of May 24, 1978, which was prepared by
Jones but signed by Turpin, Bowlds was thus notified as
follows:
This letter will serve as a final warning concern-
ing your excessive breaks and failing to follow your
supervisors instructions.
As you know, you were suspended for falsifying
your timecard and taking excessive breaks. Upon
your return to work, you told your supervisor,
Jerry Kaler, that you would continue to take your
breaks as you pleased. However, again at that time,
he instructed you on how your breaks were to be
taken. You have continued to take excessive time on
your breaks completely ignoring your supervisor's
instructions.
As part of the evidence in the entire case, there is a
point to be made with reference to the statement in Re-
spondent's letter asserting that Bowlds told Kaler that he
would continue to take his breaks as he pleased. Thus,
not only is there no testimony by Kaler of any such con-
versation, but Kaler in fact testified that during a tele-
phone conversation with Bowlds on April 14, 1978, he
told Bowlds that he was returning late to Owensboro
and that he expected him to run on schedule. Bowlds re-
sponded, Kaler testified, that "he'd do the best he could
to do that."
Pursuant to a grievance filed by Bowlds on May 26, a
grievance meeting was held on June 14. Present at this
meeting were Bowlds, Jones, Turpin, and two union rep-
resentatives. Jones finally stated that he would withdraw
the warning letter of May 24 if Bowlds would agree to
adhere to his scheduled breaktime and to document his
timecard accurately. Bowlds said that he would agree to
do so, whereupon the warning letter was rescinded. 2
Jones testified without contradiction that at one point
during the meeting Bowlds asserted that UPS was a hard
company to work for, that it keeps an eye on its employ-
ees at all times, and that he felt they were trying to fire
12 Although Bowlds acknowledged so agreeing, he did not at this
meeting admit to any such infraction in the past Thus. Bowlds testified,
"And I agreed that I would continue to do this, as I felt I had in the
past "
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him. Jones said he responded that the Company did not
want to fire him, they just wanted him to do his job. On
the other hand, Bowlds credibly testified that at another
point during the meeting Jones told him, "I'm telling you
to place a tachograph chart in your clock every day and
if you so much as forget to do so I will fire you on the
spot." ' 3
3. The discharge of Bowlds on August 4, 1978
Division Manager Bobby Jones testified that on Mon-
days it is his practice to check the operations reports
turned in by the feeder-operators. In about the middle of
July, he said, it came to his attention from these reports
that Bowlds was not running on schedule. He thereupon
requested copies of Bowlds' tachograph charts. Accord-
ing to Jones, the tachographs for July 20, 21, 24, 25, 27,
28, and 31 were blank. Unrelated to the foregoing, but
giving as another reason for placing Bowlds under sur-
veillance again, Jones testified that in the latter part of
July he received calls from Campbell and Benjamin Cis-
sell to the effect that Bowlds was returning late to the
Owensboro Center. 4 On August 2, 1978, according to
Jones, he received a report from Kaler that Bowlds' ta-
chograph charts were blank and that he was arriving late
at Owensboro. At that point, he said, he instructed Kaler
to observe Bowlds on the night of August 2. Kaler testi-
fied that he complied by going directly to the Key
Truck Stop. According to Kaler, he observed that on the
down leg break Bowlds arrived at 11:08 p.m. and depart-
ed at 11:38 p.m. As to the return trip, Kaler testified that
he waited in his automobile at a rest stop I mile south of
the Key Truck Stop and followed him, when he passed
by, back to the Truck Stop. Bowlds' arrival and depar-
ture time, this in the early morning of August 3, was said
by Kaler to be from 3:45 to 4:15 a.m. Kaler reported this
to Jones.
On August 3, Jones arranged to have Larry Harris,
Respondent's loss prevention manager who works out of
Louisville, Kentucky, to accompany Kaler that night for
the purpose of keeping Bowlds under surveillance. This
time Kaler and Harris took a motel room at the Key
Stop Motel, which is adjacent to the restaurant where
Bowlds took his coffeebreaks. Harris testified that after
observing Bowlds' down leg arrival from the window of
the motel room, he went outside the motel and observed
him from behind some shrubbery. In rather confusing
testimony, Harris first testified that it was while he was
within the motel that he noted the time as 10:58 p.m.
when Bowlds first pulled in. At another point, however,
"3 The complaint alleges this statement to be independently violative
of Sec. 8(aXI) of the Act. Disposing of this here, and notwithstanding the
other findings and conclusions in this Decision, I am not persuaded that
this spontaneous remark during the course of this meeting was violative
of the Act. It is recommended, accordingly, that the allegation be dis-
missed.
" Cissell is division manager of Western Kentucky. Cissell testified
only when called by the General Counsel as an adverse witness. Neither
he nor Campbell was called by Respondent to corroborate the testimony
of Jones, related above. In fact, although Cissel was stationed at the
Owensboro Center, Cissel testified that he played no part, nor was he
consulted, in Respondent's decision that Bowlds be terminated on August
4. He was absent from the terminal during the months of May and June
1978.
he testified that it was while outside the motel that he
clocked the time as 10:58 p.m. when Bowlds got out of
his cab. In any event, Harris said that he then returned
to the motel room and remained there until Bowlds came
past the motel to continue his trip, at which point, he
said, it was 11:30 p.m. With respect to the return trip,
Harris said that he made his entire observation from
within the motel while standing at the window. On this
occasion, according to Harris, Bowlds pulled in at 3:44
a.m. and left the Key Truck Stop at 4:25 a.m.
Kaler telephoned Jones at home at 5:30 a.m. and re-
ported the foregoing. Jones instructed to terminate
Bowlds upon checking his timecard. Harris testified
that he followed Bowlds to Owensboro as far as the
Holiday Inn, at which point Kaler caught up with him.
At this point Harris testified, "And we had called the
Center and made sure that Bob had finished his day's
work and had turned in his timecard, and at that time we
would come over and take the disciplinary action against
him." 6 Later that morning Kaler and Harris, in the
presence of Supervisors Campbell and Buddy Ellis and
Union Steward James Weafer, terminated Bowlds for as-
sertedly overextending his breaks and falsifying his time-
card.
D. The General Counsel's Case as to Bowlds
1. Testimony concerning Bowlds' break periods
A number of witnesses testified concerning the length
of time Bowlds took for his break periods, most specifi-
cally as to the length of time he spent inside the Key
Truck Stop Restaurant, on the night of August 3-4,
1978. These included Steven Hamm, manager of the Key
Stop Restaurant, Charlotte Johnson, a waitress at the
same restaurant, and Larry Branscum, a truckdriver for
Leeway Motor Freight. Johnson and Hamm were well
acquainted with Bowlds from his many stops at the res-
taurant, with Johnson serving him nightly. Hamm was
well aware that Bowlds had been terminated previously
for allegedly overstaying his breaks at the Key Truck
Stop and testified that he had been told by Bowlds that
he was being watched or followed. Johnson testified that
she, too, had been apprised of Respondent's alleged "ha-
rassment" of Bowlds in the past. Both testified that it
was for this reason that they watched the clock when
Bowlds appeared and when he left, noting that Bowlds
also was watching his watch. Both Hamm and Johnson
testified that on the night in question, as well as on pre-
ceding nights, Bowlds did not remain in the restaurant
for over 15 minutes. fIruckdriver Branscum was ac-
quainted with Bowlds for 6 years through trucking oper-
ations on similar routes. Branscum testified that he cus-
tomarily stopped as many as four times a week at the
Key Truck Stop, where he would see Bowlds. Branscum
also had been apprised of Bowlds' previous discharge for
' It is unclear from the testimony whether Kaler was to terminate
Bowlds if his timecard was not correct or whether he was to discharge
Bowlds for overextending his break even if his timecard was accurate.
'6 Although from this testimony it does not appear that Harris or
Kaler in fact checked Bowlds' timecards, the timecards (received in evi-
dence) reflect that Bowlds noted a 15-minute break for each leg.
1020
UNITED PARCEL SERVICE, INC.
allegedly overstaying coffeebreaks at the Key Stop Res-
taurant.'7 Branscum, who produced a copy of his log
while testifying, testified that his log showed that on
August 4, 1978, he arrived at the Key Truck Stop Res-
taurant at 3:33 a.m. and that he left at 4:15 or 4:20 a.m.'
Branscum further testified that Bowlds arrived after he
did and departed before he did. He said that he recollect-
ed this particular occasion because, "Robert was sitting
across the table from me. Of course, he kept looking at
his watch. And I asked him if he was nervous. And he
said yeah, that he had to go. And I brought up the sub-
ject was the Company still following him up and down
the highway."
Bowlds himself testified that on the night of August 3-
4, 1978, as well as on the other occasions at issue
herein,' 9 he did not spend more than 15 minutes inside
the restaurant, although his testimony reflects that he
may have spent more than 5 minutes checking his vehi-
cle, parking it, and removing it from the premises.20
(Bowlds said that sometimes parking was difficult due to
other parked trucks on the premises.)
Turning to a consideration of Respondent and the
General Counsel witnesses on the subject of Bowlds'
break periods, I preliminarily arrive at two conclusions.
On the one hand, Bowlds did not impress me as an indi-
vidual who would, particularly under the circumstances
of his justified or unjustified earlier warnings, deliberate-
ly overextend the time of his break periods. I was par-
ticularly impressed by the testimony of employee and
patron witnesses of the Key Stop Restaurant to the effect
that they were aware of Bowlds' concern over the earli-
er action taken against him, that they were cognizant of
his suspicion that he was being kept under surveillance
by Respondent supervisors, and that they noted his overt
display of nervousness about overstaying his coffee-
breaks. All this convinces me that Bowlds was seriously
concerned that he not take steps to jeopardize his job.
On the other hand, I find it hard to believe that Respon-
dent would take the disciplinary action herein at issue
unless it at least had some basis for doing so. While Re-
spondent witnesses may well have exaggerated their tes-
timony in this regard, I shall for decisional purposes
assume that at times material hereto Bowlds took breaks
in excess of the total 20 minutes allotted.
2. Evidence of hostility towards Bowlds
I shall begin with the testimony of Charles Elder, em-
ployed by Respondent since 1967. At the times material
hereto Elder was a truckdriver at Louisville, Kentucky,
under the supervision of Darwin Turpin. Elder proved
to be a recalcitrant witness and clearly evidenced that he
did not wish to testify adversely to his employer. In elic-
II At one point Branscum spontaneously testified, "Of course, I was
always joking with Robert. I asked him if they were still following him
up and down the highway."
i Branscum acknowledged that he did not know "precisely" when
Bowlds left the restaurant.
19 There is also testimony from the General Counsel witnesses to the
effect that Bowids did not overstay his break periods during the previ-
ously mentioned occasions in April 1978 However, for decisional pur-
poses I do not deem it necessary to set forth all this testimony herein
20 It will be recalled that Bowlds was permitted 15 minutes for his cof-
feebreak, plus 5 minutes to park alnd check his truck
iting his testimony, it became necessary to show him his
prehearing affidavit, upon which he finally confirmed the
following: Thus, in May 1978, sometime after Bowlds'
termination on April 24, 1978, Elder became engaged in
a conversation with Turpin at the Louisville terminal.
When Bowlds' name was brought up, Turpin stated,
"We didn't get him this time but we will get him next
time." Turpin recalled having a conversation with Elder
at the Louisville location on May 10, 1978. Denying
Elder's testimony as aforesaid, Turpin testified that at
this time he talked about Bowlds' overstaying his breaks,
whereupon he told Elder that if he caught Bowlds doing
it again he would have to get rid of him. From my ob-
servation of the witnesses, I credit the testimony of
Elder over that of Turpin.
Billy Higgins is employed as a feeder-driver out of Re-
spondent's Paducah, Kentucky, facility, and at the times
material hereto was supervised by Jerry Kaler. Higgins
testified that on the evening of May 19, 1978, he re-
ceived a call from Kaler with reference to his tacho-
graph cards and other working matters. During the con-
versation Kaler mentioned that Bowlds had returned to
work and that he [Higgins] would probably see him at
Nashville that night. (Higgins said that this was the first
he learned that Bowlds was reinstated after having been
discharged on April 24.) With further reference to
Bowlds, Higgins testified that at one point Kaler stated,
"It's not over with Bob," and that later in the conversa-
tion Kaler repeated, "I'm not through with Bowlds
yet." 2 ' Although Kaler denied the foregoing, I am con-
vinced that Higgins was telling the truth, and I credit his
testimony as stated.
While not directly related to Bowlds, nevertheless per-
tinent is a conversation which Tom Mouser, the supervi-
sor of Respondent's Campbellsville, Kentucky, Center,
had with David Perkins, a feeder-driver employed by
Respondent at that facility in about latter May 1978. On
this occasion Mouser stated, according to Perkins, that
he heard a "bad rumor," that he had heard from a friend
who owned a truck stop at Franklin, Kentucky, that
someone who was a UPS employee was distributing Up-
surge literature "down there." Mouser then asked if he
(Perkins) was a member of Upsurge and supported it, to
which Perkins replied yes. Mouser denied having had
any such conversation with Perkins and testified that he
did not discuss Upsurge with anyone. 22 From my obser-
vation of the witnesses, I credit Perkins' testimony con-
cerning this conversation. 2 3
21 Although Respondent introduced Higgins' pre-trial statement in ei-
dence. the statements with respect to what Kaler said about Bowlds in
the above conversation are substantially the same as his testimony In
fact, Higgins' statement reflects that he made written note of Kaler's
statements on the same night on which the conversation occurred
22 However, Mouser conceded having found a copy of the Upsurge
paper in the locker room of one of his drivers in early 1978. Testifying
that he was only vaguely familiar with Upsurge, he said that several driv-
ers asked if he had ever read the Upsurge newspaper.
23 I have considered the testimony concerning a conversation which
Bowids and his wife had with Charles Young, Respondent's Midwest Re-
gional Labor Relations Manager, at a hotel lounge on the evening of Oc-
toher 2. 1978 It is my view that the testimony concerning Young's pur-
ported statements about Bowlds' attitude is too ambiguous to add any-
Continued
1021
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
E. Additional Facts,' Conclusions
In the first place, the evidence leaves no doubt that
Bowlds was singled out as the subject of extraordinary
surveillance activity by Respondent supervisors at a time
when he was known to be engaged in concerted activi-
ties. Bowlds, it will be recalled, testified without contra-
diction that he had driven the same route for 4-1/2 years
without encountering any problems with his employer.
These problems did not begin until the time he was ob-
served passing out PROD and Upsurge literature, and at
the time when a class action suit, for which he was prin-
cipally responsible, was pending against Respondent. It is
significant to consider, then, Respondent's reason for un-
dertaking such surveillance over this employee in the
first instance. In this regard, it will be recalled that, ac-
cording to Kaler, he [Kaler] and Turpin decided to
follow Bowlds on the night of April 19, 1978, because he
had "heard" reports that Bowlds was arriving late in
Nashville. As previously noted, Respondent offered no
direct testimony to establish that this in fact was true. In
any event, even assuming Kaler received such a report, 1
find it hard to believe that, absent some outside motive,
the two supervisors would go to such lengths as to
follow Bowlds that night without first having discussed
the problem directly with Bowlds and/or with the super-
visor of the Owensboro facility, Thomas Campbell. The
facts concerning Respondent's asserted reasons for fol-
lowing Bowlds on the subsequent occasions here at issue
have been previously related. Without repeating them
again, I find Respondent's reasons for following him on
those occasions to be equally suspect.
Occasionally, in cases such as these, a small but en-
lightening piece of evidence comes into the record by
happenstance or perhaps by inadvertence. Such was the
case here. Thus, the testimony of Respondent witnesses
was to the effect that Larry Harris, Respondent's loss
prevention manager, was finally called on by Division
Manager Bobby Jones, together with Kaler, to engage in
the surveillance of Bowids on the night of August 3-4,
1978. Both Jones and Harris testified in detail as to this
carefully planned operation. After hearing Jones' testi-
mony and the direct testimony of Harris on the subject,
the distinct impression was that this was the first time
Harris was at all involved in the Bowlds' situation. How-
ever, a general question was then posed to Harris with
respect to his involvement of observing drivers on other
occasions. Harris' response to this was as follows:
Well, prior to this I had checked Bob Bowlds out one
night on my own by myself At that time I didn't find
him taking excessive breaks, or anything so there
was nothing said at all about it. [Emphasis sup-
plied.]
The implication of the foregoing is plain. Harris is not
a supervisor of Bowlds. He is headquartered at Louis-
ville, which is some 105 miles distance from Owensboro,
Kentucky, where Bowlds is stationed. 2 4 I find it incredi-
ble to believe that Harris would take it upon himself to
thing of decisional importance to the case, and that further discussion of
the matter is therefore not warranted.
24 Rand McNally mileage chart.
single out an employee who is located this distance
away, and put him under surveillance unless he did so
for some outside reason and/or pursuant to instructions
from above. This becomes even more apparent when it is
considered, as Harris testified, that prior to August 4,
1978, he had followed only one other employee "on his
own." Again, all of the foregoing leads to the inescap-
able conclusion that Respondent deliberately sought to
find a reason for ridding itself of the alleged discrimina-
tee herein. In this connection, it is also interesting to note
that on the night of August 3-4, 1978, feeder-driver Bob
Keltner stopped at the Key Truck Stop the same time as
Bowlds. He was also observed there by Kaler and
Harris, the latter of whom testified, "he happened to be
there." Keltner was also discharged on August 4, 1978,
but was reinstated about 2 days later after filing a griev-
ance. Had it not been for the deliberate surveillance of
Bowlds, Keltner, of course, would not have been
"caught." Considering the job and the uncertainties of
long distance over-the-road travel, it is indeed not unrea-
sonable to assume that other drivers would be susceptible
to similar infractions if they were also kept under con-
stant surveillance.
It is, moreover, noteworthy that Bowlds was the only
feeder-driver out of Owensboro to be discharged for as-
sertedly overstaying his breaks. 2 5
Apart from all the foregoing, which is demonstrative
that Respondent's defense does not stand up under scruti-
ny, there is the previously related direct evidence that
Respondent's disciplinary action against Bowlds and its
termination of him was not objectively motivated. If this
were not so, it would be hard to otherwise explain why
Supervisor Turpin would tell employee Elder, after
Bowlds' initial termination on April 24, 1978, "We didn't
get him [Bowlds] this time but we will get him next
time," as well as why supervisor Kaler would tell em-
ployee Higgins, also after the April 24 termination, "It's
not over with Bob," and "I'm not through with Bowlds
yet."
In sum, and by reason of all the foregoing, I conclude
and find that Respondent's warning letter to Bowlds on
May 24, 1978, and its discharge of him on August 4,
1978, was motivated, at least in substantial part, by its
opposition to Bowlds' protected, concerted activities. 2 6
:2 Jones testified that in February 1978, five drivers were discharged
from Respondent's Paducah, Kentucky, facility for overstaying their
breaks and falsifying their timecards. However, the evidence does not
disclose the circumstances of this termination or the seriousness of the in-
fractions involved. Loss Prevention Manager Harris testified that he dis-
charged one package car driver for overstaying his break periods. Signifi-
cantly, however, Harris revealed that this employee had overstayed his
breaks by I hour and 40 minutes, which is far in excess of the time that
Bowlds allegedly overextended his breaks.
16 I specifically find that this was in relation to Bowlds' activities in
connection with PROD and Upsurge, as well as his participation in the
class action suit which he was instrumental in bringing against Respon-
dent. Although the complaint alleges and the General Counsel contends
that the discrimination against Bowlds was also based on his union activi-
ties, namely, that as a union steward he filed numerous grievances against
the Company, I find insufficient evidence in the record to support this
allegation. It is, accordingly, recommended that the allegation be dis-
missed.
1022
UNITED PARCEL SERVICE, INC.
Accordingly, I find that by such conduct Respondent
violated Section 8(a)(l) and (3) of the Act. 2 7
IV. THE EFFECTS OF THE UNFAIR l.,ABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, 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 and is
engaging in certain unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act, I shall recommend
that it cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the
Act.
Having found that Respondent discriminatorily dis-
charged employee Robert W. Bowlds because of his pro-
tected, concerted activities, I will recommend that Re-
spondent make him whole for any loss of earnings he
may have suffered by reason of his unlawful discharge,
by paying to him a sum of money equal to that which he
normally would have earned from the date of Respon-
dent's discrimination on August 4, 1978, until the date of
his reinstatement on or about October 4, 1978, less net
earnings during such periods, with backpay and interest
thereon to be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).28
Having found that Respondent discriminatorily issued
Bowlds a written warning on May 24, 1978, will rec-
ommend that the said warning be expunged from his per-
sonnel file.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the conduct described in section III
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(l) and (3) of the Act.
21 Some comment should be made with respect to the so-called falsifi-
cation of Bowlds timecard Thus, this is not the typical case of "where an
hourly paid employee is paid for time not orked due to a false entry on
his timecard. Assuming that Bowids took a longer break than the 15 min-
utes shown on his timecards, there is no evidence, nor is there an) con-
tention, that this had any effect on his earnings
2a See. generally, Isis Plumbing & Hearing Co., 138 NLRR 716 (10 6 2).
Upon the foregoing findings of fact and the entire
record and pursuant to Section 10(c) of the Act. I
hereby issue the following recommended:
ORDER2 9
The Respondent United Parcel Service. Inc., Owens-
boro, Kentucky, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging employees or issuing them warning
notices because they engage in concerted activity for
their mutual aid or protection.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make Robert W. Bowlds whole for any loss of pay
he may have suffered due to the discrimination against
him in accordance with the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its facility in Owensboro, Kentucky, copies
of the attached notice marked "Appendix.":' Copies of
said notices, on forms to be provided by the Regional
Director for Region 25, after being signed by Respon-
dent's duly authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained
by it 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 25, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violation of the Act not
specifically found herein.
29 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 herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
ao 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1023