United Parcel Service

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 290 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Parcel Service and Charles E. Lewis. Case
7-CA-16589
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 9 June 1980 Administrative Law Judge John
M. Dyer issued the attached Order Granting
Motion to Dismiss Complaint and Charge in this
proceeding. The judge found that the Board should
defer to the decision of the Joint Area Committee
State Panel upholding the Respondent's discharge
of the Charging Party. The General Counsel filed a
request for review and the Respondent filed a re-
sponse.
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 request for review and re-
sponse and has decided to affirm the judge's rul-
ings, findings, conclusions, and order dismissing the
complaint.
The complaint alleges that the Respondent vio-
lated Section 8(a)(1) of the National Labor Rela-
tions Act by terminating Charles E. Lewis, the
Charging Party, because he had filed grievances
under the collective-bargaining agreement between
the Respondent and Local 34, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Following a hearing, the
judge found that Lewis' claim that he was termi-
nated because of his grievance filing had been liti-
gated before an arbitration panel, the Joint Area
Committee State Panel, pursuant to the grievance
provisions of the collective-bargaining agreement.
The judge further found that the State Panel had
determined that Lewis' claim was insubstantial and
his grievance without merit. Concluding that the
State Panel's decision was not repugnant to the Act
and that deferral was therefore appropriate under
the standards for deferral set forth in Spielberg Mfg.
Co., 112 NLRB 1080 (1955), the judge ordered the
complaint dismissed.
We affirm. Although the Board recently modi-
fied the standards for deferral in Olin Corp., 268
NLRB 573 (1984) (Member Zimmerman dissenting
in part), nothing in that decision would alter the
result reached by the judge here under the preex-
isting standards for deferral. As we find that the
judge correctly determined that the unfair labor
practice alleged here was litigated and decided in
the arbitration proceeding and that the decision of
270 NLRB No. 50
the State Panel was not repugnant to the Act, we
affirm his dismissal of the complaint. l
ORDER
The order of the administrative law judge dis-
missing the complaint is affirmed.
' The General Counsel, in his request for review, urged that the judge
had erred in giving weight to the testimony of the union co-chairman of
the State Panel that the panel discussed Lewis' claim that he was being
harassed and his job put in jeopardy because of his grievance filing and
found there was no substantiating evidence for the claim. Since the five-
line decision of the State Panel makes no mention of the claimed unfair
labor practice, the General Counsel urged that deferral was inappropriate
and that the panel co-chairman's testimony that the unfair labor practice
claim was actually considered and rejected on the merits should not be
given weight. Alternatively, the General Counsel contended that, even if
the co-chairman's testimony was properly considered, it was not suffi-
ciently clear to warrant deferral because the co-chairman's prehearing af-
fidavit made no mention of the unfair labor practice issue and his expla-
nation that he had refreshed his recollection by listening to a tape of the
arbitration hearing and reviewing his notes was allegedly unpersuasive.
We find that the failure of the State Panel's decision to mention the
unfair labor practice claim was not conclusive and that the administrative
law judge did not err in crediting and giving weight to the panel co-
chairman's testimony. See Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951).
In the absence of any other challenge to the judge's findings, we adopt
his remaining findings pro forms.
ORDER GRANTING MOTION TO DISMISS
COMPLAINT AND CHARGE
Respondent moved for dismissal of the complaint and
charge in this matter on the basis that the Charging
Party, Charles E. Lewis, had processed a grievance and
received a negative decision from State Panel of the UPS
Joint Area Committee, which acted under the standards
enunciated in Spielberg Mfg. Co., 112 NLRB 1080 (1955).
The General Counsel opposed the motion at the trial
on the basis that:
1. Under Suburban Motor Freight, 247 NLRB 146
(1980), the written decision of the arbitrator or panel
must reflect that the statutory question was considered.
2. The testimony of the UPS Joint Area Committee
co-chairman, Robert Coy of Detroit Teamsters Local
243, was contradictory and not sufficient to show that
the panel considered the evidence concerning the statu-
tory question in reaching its decision.
3. The panel was not a neutral, unbiased body and
only a majority of the six members was needed for a de-
cision.
Respondent and the General Counsel filed briefs
during a "sine die" recess.
The General Counsel elaborated on these three points
again urging that the language of the decision or award
determines whether the decision merits deferral and that
without specific reference to the statutory question there
can be no deferral. He stated that, if the decision makes
no such reference, it is repugnant to the Act and testimo-
ny concerning panel deliberations must be disregarded.
The panel makeup he attacked on the basis that UPS
representatives acted in a partisan manner rather than im-
partially.
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UNITED PARCEL SERVICE
There is no disagreement on the essential fact that
Lewis had filed seven grievances, including the final one,
since May 24, 1978, against UPS in the Battle Creek,
Michigan area where he worked.
There was also agreement that he had been terminated
twice previously for not following orders and had been
reinstated by UPS Joint Area Committee panel decisions
with a suspension and warnings.
In January 1979, Lewis filed a grievance that his route
was too long (more than 10 hours' work) and, in at-
tempting to settle it, a supervisor rode with him for 5
consecutive days observing the work and his work
habits. At a meeting of the company and union repre-
sentatives, the Company said the route was not too long
but Lewis' work habits were not efficient, and it was
agreed that the supervisor would ride with him that day
to instruct him on efficient work methods. During the
first part of the trip, Lewis claimed he was ill and the
supervisor started to return to company headquarters.
On the way Lewis asked to be taken to a doctor. The
supervisor stopped the truck saying he would call for an
ambulance. Lewis left the truck and walked approxi-
mately a half mile to UPS headquarters ignoring a re-
quest to get back in the truck. Lewis then got into his
car and went to the company doctor, who advised him
to see his own physician. Lewis returned to UPS head-
quarters, changed his clothes, and left without punching
out. Respondent claims Lewis was told that, if he left the
premises on this latter occasion, he was voluntarily quit-
ting. Lewis said he did not recall such a statement.
Lewis was terminated and filed a grievance, which
was not resolved at the local level and was sent to the
UPS Joint Area Committee State Panel. The panel con-
sisted of three union representatives and three UPS rep-
resentatives, none from the Battle Creek area. During the
hearing Lewis and his union representative, Erreger,
spoke of Lewis' feeling that he was being harassed by
the Company for filing grievances. Co-Chairman Coy,
and apparently other panel members, questioned Lewis
about his statement and asked for particulars. At the con-
clusion of the hearing, Lewis said that he had been fully
and fairly represented and had presented all of his evi-
dence.
Coy said that in panel executive session the union rep-
resentatives argued with UPS representatives concerning
the harassment claim but finally agreed there was noth-
ing to substantiate Lewis' feelings and they then dis-
cussed the other aspects of the case and decided to deny
the grievance. The full text of the decision as composed
by Coy with some assistance from other panel members
is:
Based on the facts and evidence presented, the
grievant was in fact offered medical attention, in-
cluding an ambulance, which he refused. By his
own testimony, he left the package car on his voli-
tion. Therefore, the claim of the Union is denied
and the voluntary quit shall stand.
Under the Speilberg standards, the decision of the
panel was binding and final and the parties so understood
and agreed. As to the fairness and regularity of the pro-
ceedings, the General Counsel's brief states that the
panel seems to be inherently biased, basing this on Coy's
testimony that the UPS representatives acted as advo-
cates. The General Counsel could have added Coy's tes-
timony that the union representatives argued on Lewis'
behalf since they did not want to see him discharged.
The fact that triers of fact do take positions and may
argue them does not indict the panel as biased. In any
event, the Board in United Parcel Service, 232 NLRB
1114 (1977), considered the makeup of the Atlantic Area
Parcel Grievance Committee, which had UPS and 21
Teamsters locals as participants. In this case, UPS and 51
Teamsters locals are bound under the Central Confer-
ence of Teamsters UPS Area Agreement. The makeup of
the UPS Joint Area Committee to consider grievances
by panels seems to be the same. There appears to be no
essential differences and, noting the manner in which the
grievance session was held and Lewis' agreement on the
fairness, I find that the proceedings were fair and regu-
lar.
The General Counsel argues that the award is repug-
nant to Board standards because it does not state explicit-
ly that the panel decided the statutory issue. The argu-
ment is based mainly on the following quotation from
Suburban Motor Freight (247 NLRB at 147):
In accord with the rule formerly stated in Airco In-
dustrial Gases, we will give no deference to an arbi-
tration award which bears no indication that the ar-
bitrator ruled on the statutory issue of discrimina-
tion in determining the propriety of an employer's
disciplinary actions.
In Airco Industrial Gases, 195 NLRB 676 (1972), the
Board noted that the arbitrator wrote an elaborate opin-
ion which contained no reference to the unfair labor
practice issue. The Board also noted that the introduc-
tion of a single grievance was not representative of the
dischargee's 200 grievances filed in 2 years and that the
subject was touched only tangentially in the proceeding.
Yourga Trucking, 197 NLRB 928 (1972), establishes
that the burden of proof to show Spielberg standards is
on the party asserting that the Board should defer to the
arbitration award. The Board noted that such party
would have ready access to "documentary proof, or to
the testimony of competent witnesses, to establish the
scope of the issue submitted to the arbitrator."
In General Warehouse Corp., 247 NLRB 1073 (1980),
the Board, in a short form opinion, affirmed Administra-
tive Law Judge Bernard Ness' decision in not deferring
to an arbitrator's award on the basis that there was no
evidence the arbitrator considered the evidence concern-
ing protected activities which had been presented to him,
and that he made no mention of it in his decision.
In the present case, the decision is a terse five-line
statement denying the grievance. Coy, who was the
union co-chairman of the panel, confirmed the testimony
of Lewis and Erreger that the issue of harassment was
raised in the hearing by them and that panel members
questioned Lewis concerning his harassment allegation.
Coy further testified that, after the panel went into exec-
utive session to consider the grievance, they discussed
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Lewis had been harassed or his job put in jeop-
ardy due to his filing of grievances. He testified that fol-
lowing some discussion there was agreement that there
was no substantiating evidence of harassment, but only
Lewis' statement that he felt harassed. Having disposed
of that issue, the panel then considered the rest of the
case, and it was agreed that Lewis had voluntarily quit
and a statement of the award was drawn up.
The General Counsel urges that Coy's testimony con-
cerning the panel deliberations should not be credited be-
cause his affidavit appeared to vary from his testimony.
Coy explained that he had not reviewed the tape record-
ing of the proceedings at the time he gave his affidavit
but that he had reviewed his notes, the affidavit, and the
tape before he testified in this proceeding and that his
testimony was correct regarding the panel's consider-
ation of the harassment issue. The General Counsel's ar-
gument is not persuasive, and I find no reason to dis-
count Coy's testimony as to what took place during the
panel deliberations.
Noting that the panel decisions appear to be extremely
short conclusionary statements, and recalling the Board's
statement in Yourga, it would seem proper to consider
Coy's testimony of the panel deliberations. Accordingly,
I find that the panel had presented to it, and that it did
consider, all of Lewis' and Erreger's evidence relating to
Lewis' claim of harassment for filing grievances and
found it insubstantial and decided on the remaining evi-
dence that the grievance lacked merit. So finding, I hold
that the UPS Joint Area Committee State Panel award is
not repugnant to the Act and the Board should defer to
that decision and that the complaint and charge in this
case should be dismissed.
So Ordered. I
The parties re referred to Sec. 102.27 of the Board's Rules and Reg-
ulations, which provides that a party must seek review of an order dis-
missing cue on a motion within 10 days of the date of the order of
dismissal and provide copies to the other parties.
292