United Parcel Service

National Labor Relations Board - Board Decisions

Feb 24, 1984

268 N.L.R.B. 1097 (N.L.R.B. 1984)

UNITED PARCEL SERVICE
United Parcel Service and Darwin K. Nail. Case 11-
CA-10356
24 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 6 July 1983 Administrative Law Judge James
J. O'Meara Jr. issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed a brief in opposition.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
DECISION
STATEMENT OF THE CASE
JAMES J. O'MEARA, JR., Administrative Law Judge:
The complaint in this case was issued on May 6, 1982,
and is based on a charge filed by Darwin K. Nail on
March 29, 1982. The complaint alleges that the Respond-
ent, United Parcel Service, Inc., the Employer of
Darwin K. Nail, refused to transfer that employee from
one of the Respondent's divisions to another and that its
reason for refusing to transfer was because the said em-
ployee was a union member who engaged in union or
concerted activity for the purpose of collective bargain-
ing and other mutual aid and protection and that such
conduct on the part of the Respondent comprises unfair
labor practices and violates Section 8(a)(1) and (3) of the
Act. The Respondent denies that it has violated the Act.
The case was heard in Charlotte, North Carolina, on
September 29-30, 1982. The parties waived oral argu-
ment and filed briefs which have been received and con-
sidered.
Based on the evidence of record, including the testi-
mony and demeanor of the witnesses, and in consider-
ation of the briefs filed by the parties, I make the follow-
ing
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The Respondent is now and has, at all times material
herein, been an Ohio corporation engaged in interstate
motor transportation and delivery of parcels of merchan-
dise under a certificate of convenience and necessity
issued by the Interstate Commerce Commission. Re-
268 NLRB No. 165
spondent maintains operational centers in many States of
the United States, including Charlotte, North Carolina,
the facility where the issues in this case arose.
During the past 12 months, a representative period, the
Respondent, in the course and conduct of its business,
derived gross revenues in excess of S50,000 in the trans-
portation of parcel freight from and to the State of
North Carolina directly from, and to, points outside the
State of North Carolina.
Accordingly, I find that the Respondent is, and at all
times material herein was, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
I further find that it will effectuate the policies of the
Act to assert jurisdiction in this case.
II. THE CHARGING PARTY
Darwin K. Nail is an employee of the Respondent and
a member of, and shop steward for, the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Teamsters Local Union No. 71,
which is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
At all times material herein the Union was a party to a
certain collective-bargaining agreement with the Re-
spondent, which agreement had been in effect from May
1, 1979, to April 30, 1982.
III. THE FACTS
United Parcel Service, Inc. (the Respondent), is en-
gaged in the pickup, transportation, and delivery of
packages in the continental United States. To perform
such services the Respondent maintains various operating
centers for sorting and distributing customers' parcels
which have been received for delivery by the Respond-
ent. Delivery vehicles are located at these facilities and
are loaded with parcels in a manner designed to provide
for the expeditious delivery within certain local designat-
ed areas or for forwarding to more distant areas. Upon
performing the delivery of such packages on the aforede-
scribed local route, the driver, having picked up pack-
ages for delivery from customers, returns to the facility
where the newly received packages are sorted and inte-
grated into Respondent's system.
The Company is divided into approximately 60 oper-
ational units called districts including the West Carolina
District which is headquartered in Charlotte, North
Carolina. The principal distributing units within each dis-
trict are its "Centers" which vary in size depending on
the package volume in the area where they are located.
To facilitate the movement of packages throughout the
Respondent's system, it maintains "Hubs" which are
large package sorting facilities. Frequently, a Hub and a
Center may be located in the same building. In the facili-
ty in Charlotte the Hub and several Centers are located
in a single building.
The principal functions undertaken at the Charlotte
Hub comprise the unloading of packages picked up by
route drivers and injecting them into the Respondent's
system which comprises, at this step, the sorting and dis-
tributing of the packages along a conveyor belt which
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accomplishes the reloading of the packages into other
transportation vehicles which move the packages to their
destination centers or to another Hub from which they
would be more specifically broken down according to
destination location for delivery to the addressee. The
Charlotte Hub and Center are separate and distinct oper-
ational units, each having its own management and sepa-
rate seniority lists for the employees working in each of
the facilities.
The basic instrument for package sorting among the
Charlotte Centers is a piece of equipment known as the
"sortrac." It is an automatic conveyor system along
which packages travel and are mechanically diverted to
secondary conveyor belts depending on their ultimate
destination within the delivery area served by the Char-
lotte Center. The packages are placed on the main con-
veyor belt by a positioner who locates each package so
that it can be read further down the conveyor by a
keyer. The keyer reads the destination address and then
enters a two-digit code into the equipment thereby deter-
mining the auxiliary conveyor belt onto which the pack-
age automatically will be diverted. As the packages
come off the auxiliary conveyor belts or slides they are
placed on the floor by stackers. Finally preloaders place
the stacked packages into delivery vehicles completing
the Center sorting and loading cycle. Among the various
functions performed in the sortrac, the keyer job is by
far the most demanding of skill and the most critical to
the success of the operation. It requires an operator to
read, recognize, and properly code packages moving
along the conveyor belts at the rate of approximately
one every 2 seconds or approximately 1700 packages per
hour. There are two keying stations on the sortrac which
permits the equipment to process up to 3400 packages
per hour. In order to accurately perform, a keyer has to
be familiar with the very large number of addresses
throughout the geographic area covered by the Char-
lotte Centers. Prior to 1981, the Charlotte sortrac was
operated by full-time personnel and ran from approxi-
mately 10 p.m. until 8 a.m. the following morning. Al-
though the sortrac was in operation for approximately 10
hours a day, packages arrived at the Charlotte Center
around the clock. To eliminate the "peaks and valleys"
aspect of the sorting process and to spread the activity
over the 24-hour operating period of the Charlotte
Center, the Respondent decided to convert the sortrac
from one full-time shift to three part-time shifts working
throughout the day and night. Charlotte District Manag-
er Jim Hanley, the top operating official in the West
Carolina district, discussed the reorganization of the sor-
trac with representatives from Teamsters Local Union
No. 71, the collective-bargaining agent for part-time and
full-time Hub and Center employees in Charlotte.1 After
the matter had been resolved, Hanley and District Labor
Manager William Richard met with the Local 71 busi-
ness agent, Jimmy Wright, to discuss the implementation
of the Company's plan for reorganizing the sortrac. This
The Respondent was unable to obtain union acquiescence to the reor-
ganization of the sortrac and the matter was resolved by the National
United Parcel Service-Teamsters Grievance Committee which decided
that the Respondent had a contractual right to institute the changes con-
templated for the Charlotte sortrac.
discussion centered around the reassignment of current
full-time sortrac employees into other full-time jobs
within the Charlotte Center. They also discussed staffing
three part-time jobs which would become available on
the new sortrac shifts. Hanley and Richard requested of
the Union that part-time employees be allowed to trans-
fer from the Hub to the sortrac to fill three vital new
keyer vacancies. They explained that the Company con-
templated offering the keyer jobs to the most senior pri-
mary sorters in the Hub. Applications for such transfer
were to be limited to primary sorters because they were
the most skilled package sorters in the Charlotte Hub
and those skills were most comparable to the ones
needed for the keyer positions. Both Hanley and Richard
explained to Wright that these transfers would be one
time movements only and that no further transfers would
be allowed. All other vacancies on the new sortrac shifts
were to be filled from the outside. Wright did not object
to the procedure as set forth by Hanley and Richard.
After that meeting, Wright and Charlotte sortrac Man-
ager Lee Adams contacted "noon-day" and "twilight"
shift Hub managers to inform them about the reorganiza-
tion plan and to have them identify candidates for the
keyer jobs. There were three openings to be filled by pri-
mary Hub sorters-two from the noonday sort who
would work on the new noonday sortrac shift and a
third primary sorter from the Hub midnight shift who
would work on the midnight to morning sortrac shift.
Marty James, the supervisor of the noonday Hub sortrac,
was contacted by Adams in early May 1981 and asked
about the two vacancies on the new noonday sortrac
shift. Adams asked James to survey his primary sorters
and determine if any were interested in becoming keyers
on the sortrac. James was told to offer the position to
the two most senior primary sorters who were interested
in the transfer.
James surveyed his primary sorters and determined
that the most senior employees who wanted to make the
move were Vince Cline and Wayne Lee. James identi-
fied the two employees to Adams. Adams made a similar
request to Harry Wolfe, Hub manager on the midnight
shift. Wolfe identified Lawrence Sloan as the most senior
primary sorter on his shift who wanted to become a sor-
trac keyer. Adams advised Richard of the three nomi-
nees.
Richard met with Wright in mid-May and advised him
of the identity of the three employees who were the
most senior primary sorters interested in the transfers to
the new keyer positions. The names given to Wright
were those of Lee, Cline, and Sloan. Wright made no
objections to the proposed transfer or to the nominees.
In accordance with this procedure, the Respondent
transferred Lee, Cline, and Sloan on or about June 9 to
the Charlotte Hub to the sortrac. These three employees
retained their full company seniority and were entered,
after the transfer, at the top of the new seniority list
which was prepared for each of the three sortrac shifts.
Notwithstanding the fact that it was the Company's
position that Lee, Cline, and Sloan were one-time trans-
fers, a number of Charlotte Hub employees including
several on the noonday sort inquired about transferring
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UNITED PARCEL SERVICE
to the sortrac.2 Subsequent to their request to transfer on
July 30, 1981, 15 Hub employees, including Nail, filed a
grievance that they be allowed to move by seniority to
new positions being opened on the sortrac ahead of any
junior part-time employees or new hirees from the out-
side. The grievance, submitted by Wright to the Compa-
ny, was denied. Hanley and Richard discussed this griev-
ance with Wright and advised him that the employees
had no contractual right to transfer and reminded him
that the transfers of Lee, Cline, and Sloan had been
agreed to by the Union on the basis that they would be
one-time movements.
After the Company's denial of the aforedescribed
grievance, one Tracey Newsome was hired as a stacker
on the noonday sortrac. In October 1981, she began
training for a keyer job in order to serve as a backup or
cover employee for vacations, personal holidays, and
other times when Lee, Cline, or Sloan were absent.
Newsome continued to serve in a backup capacity for
the keyer position until February 1982, when Cline was
promoted to a supervisory position, at which time New-
some replaced him as keyer on the noonday sortrac shift.
Shortly after Newsome began training to cover as a
keyer, -Darwin Nail filed a grievance complaining that
Newsome, an employee junior to him, had been em-
ployed to be a keyer despite his repeated requests to
transfer to that position. Less than a month later, Nail
filed a second grievance requesting that he be trained as
a keyer instead of Newsome. The Company denied both
of Nail's complaints and, in accordance with the provi-
sions of the collective-bargaining agreement, both griev-
ances were then presented to the Atlantic Area Parcel
Grievance Committee for its consideration. The commit-
tee denied the grievances. The group grievance filed by
15 employees comprising the requested transfer was
withdrawn by the Union in June 1982, following the ne-
gotiation of a new collective-bargaining agreement
which, for the first time, provided for part-time employ-
ees the right to bid on and transfer to vacancies in other
phases of the Company's operations.
During July, Darwin Nail became aware of the trans-
fer of Cline, Lee, and Sloan from the Hub to the sortrac.
Upon learning that the Company had transferred these
three employees from the Hub to the sortrac, Nail con-
tacted several supervisors in an effort to get himself in a
position to transfer to the sortrac. Nail spoke, at this
time, to Supervisor Marty James about transferring from
the Hub to the sortrac. James told Nail that he had noth-
ing to do with the transfers and directed Nall to contact
Lee Adams the sortrac manager concerning the transfer.
Nail contacted Adams and asked if he needed anyone
else to work on the keyer machine in the sortrac. Adams
told him that the Respondent had hired all the employ-
ees it needed and did not need more. Nail identified him-
self to Adams and asked if he would keep him under
consideration for the job. Adams acknowledged that he
would. Adams also told Nail during this conversation to
give his name to Manager Bill Richard in order to be
considered for a job in the sortrac area.
' The collective-bargaining agreement between the Respondent and
Local 71 makes no provision for any contractual right to a transfer such
as the employees of the Charlotte Hub had requested.
Nail has been employed by the Respondent for 3-1/2
years as a "pickoff man" in the location known as the
Hub. In October 1979, Nail was tried out as a "small
sort" operator by spending a couple of hours on his shift
for several days performing such tasks. He was returned
to his "pickoff job" and an individual was hired from
outside the Company for the small sort task.
In January 1980, Nail became a shop steward for the
Union. His functions as a shop steward entailed the oper-
ations in the Hub and, since there was no shop steward
in the Center, he engaged himself in that location also.
As a shop steward, Nail filed, or was responsible for the
filing, of some 25 to 30 grievances most of which had to
do with supervisory employees performing bargaining
unit work. As a result of this activity, he was told to
"stay out of" the sortrac area by various supervisors who
also told him that his stewardship was limited to the Hub
area.
During Nall's efforts to obtain a transfer from the Hub
area to the sortrac area in the Center, he was advised by
Supervisor John Fisher that the Company's policy pre-
cluded transfers of part-time employees from the Hub to
the Center or sortrac and that the transfers of Lee, Cline,
and Sloan were "one time only" transfers necessitated by
the need to find qualified personnel to staff the newly
opened sortrac. These qualified personnel came from the
Hub facility and were "primary sorters" which functions
required the skills closest to that needed for the keyer
job in the new sortrac facility. He advised Nail that since
it was the Company's policy not to transfer part-time
employees from the Hub to the Center he would not be
transferred.
Nail was tested for the position of "small sort" opera-
tor in October 1980. He did not pass the test. Others
who did not pass the test were later retested for possible
transfer to the small sort task. Nail, since he felt he was
"not cooperated with," did not retake the test and con-
tinues today as a "pickoff man" which was the task to
which he was originally assigned as employee by the Re-
spondent.
The policy of the Respondent of not transferring part-
time employees to the Center from the Hub, or from one
facility to another, was maintained in order to minimize
the necessity to train personnel for multiple tasks re-
quired by the several facilities of the Company. The Re-
spondent deemed that the expense of such training was
not warranted.3 Other than Lee, Cline, and Sloan, no
other part-time employee was transfered to the Center
from the Hub. Two boxline employees, Hester and
Sloan, did do Center work while employed by the Hub
division due to the necessity to gradually integrate the
"boxline charge" into the sortrac system. However, they
were not transferred from the Hub to the Center during
this period.
s The current collective-bargaining agreement specifically provides for
the opportunity to such part-time employees to bid on such jobs available
in several facilities maintained by the Respondent; however, this contract
provision was not in the contract existing at the time of Nail's complaint.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussions and Conclusions
The question to be determined in this case is whether
the Charging Party, Darwin K. Naill, was denied a trans-
fer to the Charlotte sortrac because of his union activities
in violation of Section 8(a)(1) and (3) of the Act.
The Respondent contends that the transfer of part-time
personnel between its facilities was contrary to its policy
and that the application of the policy is the reason that
Nail was not transferred. The Respondent has adopted
such policy in order to minimize the expense of training
personnel to function in a multiplicity of tasks peculiar to
the operations of the Respondent. Nail contends that
such policy was applied to him in a manner different
from that applied to other part-time employees of the
Respondent. With the institution of the sortrac facility
the Respondent desired to obtain qualified personnel for
the keyer positions in the sortrac system from personnel
who had exhibited qualities which would suggest that
they could undertake the task of keyer in a successful
manner. A cadre of such personnel was known to exist
among the "primary sorters" then engaged by the Re-
spondent in its Hub system. In order to accomplish this,
the Company solicited personnel from its "primary
sorter" employees to transfer into the sortrac division.
Accordingly, it sought volunteers from among its then
employed "primary sorters." Since this was a deviation
from its prior practice of not transferring such personnel
intra Company, it discussed the program with the Union.
The Union expressed no oposition and the Company pro-
ceeded to select keyers. Among those employees of the
Hub who were deemed qualified were Lee, Sloan, and
Cline. These three persons, each "primary sorters," and
each having the greater seniority among those primary
sorters who expressed an interest in such transfer were
transferred from the Hub to the sortrac division within
the Center. The General Counsel does not contend that
the transfer of Lee, Sloan, and Cline was made in dero-
gation of any right to such transfer that Nall may have
had; however, he contends that the transfer was a viola-
tion of the policy of the Respondent not to make such
transfers. While it is true that any transfer would be a
deviation from such policy Respondent contends that the
transfer of the three "primary sorters" was an exception
required by the initiation of the sortrac operation and not
an abandonment of its policy.
The General Counsel contends that two employees
Hester and Young were also transferred from the Hub to
the sortrac. The evidence, however, establishes that
Hester and Young were "charging the boxline" which
prior to the inception of the sortrac system was a part of
the Hub operation. With the inception of the sortrac, this
operation became a part of the Center and integrated
with the sortrac procedure. During the transition or in-
stallation of the sortrac system, the boxline was operated
by the same personnel who had been operating it previ-
ously, thus creating an apparent transfer of these person-
nel, Hester and Young, to the sortrac system. However,
since this was a temporary condition, neither Hester nor
Young was in fact transferred to the sortrac division.
They remained on the seniority list and the payroll
schedule of the Hub and on the completion of the inter-
gration of the sortrac system into the Respondent's total
system their duties remained those of employees within
the Hub. Therefore no transfer of these two personnel
took place.
A third employee allegedly transferred was Zakee Mu-
hammed. Muhammed was allegedly transferred from the
Center to the Hub. This change of employment also took
place during the integration of a new unit. However, this
new unit was the reverse of that involving the sortrac
and concerned itself with the Hub facilities. On this oc-
casion again, a qualified person, Muhammed, was select-
ed from the Center facility of the Respondent to transfer
to the Hub division. In summary, the transfer of Lee,
Sloan, Cline, and Muhammed was made in order to find
a small cadre of potentially competent personnel to move
into new operations of the Company and not a routine
transfer from one division to another.
Nail contends that since he was an active shop stew-
ard for the Union that he drew upon himself the animosi-
ty of supervisory personnel, particularly since he fre-
quently was instrumental in filing grievances arising out
of supervisory personnel performing bargaining unit
work. Several instances which Nall contends display this
animosity arose during the time he had requested to be
transferred to the sortrac system. In addition to the spe-
cific grievances filed by Nail, an occasion arose where
he wished to represent an employee in a conference with
the employee's supervisor. He was not permitted to do
so and was excluded from the meeting, also on several
occasions he was told to stay out of the sortrac area
since his work involved that of the Hub. He was further
told by supervisory personnel that his duties as shop
steward were limited to the Hub operation and not that
of the Center or the sortrac. Although the evidence sug-
gests that an antagonism toward Nail had arisen on the
part of several of the supervisors, there is no evidence
that such antagonism in any way was a factor contribut-
ing to the refusal to grant Nail a transfer.
The Company contends that job changes within the
Hub and various operations of the Respondent were not
determined on the question of seniority but rather on the
basis of job performance. Nail has not shown, in the evi-
dence of this record, that he was qualified for the job
which he sought. In October 1979, prior to his undertak-
ing the duties of a shop steward, he was given an oppor-
tunity to test the "small sort" position in the Hub. Al-
though no evaluation of his performance at such task ap-
pears in this evidence he was returned to his original po-
sition in the Hub as "pickoff man" and a new employee
was hired and trained for the small sort function. Again,
in October 1980, at his request, he was given an opportu-
nity to take the test for the small sort task. He admitted
that he failed to pass such test and although he apparent-
ly could have taken the test again he chose not to do so
because "he felt no cooperation."
Under this aura and background Nall contends that
the hiring of Tracey Newsome as a keyer in the sortrac
from outside the Company was evidence of discrimina-
tion against him because of his union activities. The
hiring and training of Newsome as a keyer in the sortrac
are not inconsistent with the Company's policy. Compa-
ny supervisors told Nail that he would not be transferred
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UNITED PARCEL SERVICE
because such transfers were against the Company's
policy. Yet Nail contends that the hiring of Newsome
was in some way a rejection of his transfer request and
that such rejection was because of his union activities.
Such a conclusion is not supported by the evidence in
this case. It is clear, save for the occasions of the open-
ing of a new function, that no transfers of part-time per-
sonnel between intra company functions have ever taken
place. Exceptions arose in order for the Company to
obtain a cadre with the qualifications deemed helpful in
evaluating employees in the new function. The decision
of the Company to seek keyers from their primary sort
employees was based on the similarity of the ability re-
quired of a keyer. Not only did Nail not come within the
job description of a "primary sorter" in the Hub, but also
he had evidenced an inability to assimilate the necessary
skills.
Accordingly, I find no connection between the refusal
of the Respondent to transfer Nail from the Hub to the
Center or the sortrac and Nall's activities as a shop stew-
ard or union member or union activist. Accordingly, I
find that the General Counsel has not established that the
Respondent has discriminated against Darwin Nail in re-
fusing to transfer him as he requested because of Nall's
union activities.
CONCLUSIONS OP LAW
1. Union Parcel Service is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Darwin Nail is an employee as that term is defined
in Section 2(3) of the Act.
3. The General Counsel has failed to establish that the
Respondent has engaged in unfair labor practices as al-
leged in the complaint.
On the above findings of fact and conclusions of law
and on the entire record, I issue the following recom-
mended
ORDER'
It is hereby ordered that the complaint be, and the
same is hereby, dismissed in its entirety.
4 If no exceptions are filed as provided in Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1101