United Parcel Service

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 693 (N.L.R.B. 1991)

693
304 NLRB No. 87
UNITED PARCEL SERVICE
1 We find no merit in the Charging Party’s exceptions, which relate to the
judge’s limiting the geographical scope of his remedy to the Respondent’s East
Tennessee District facility located in Knoxville, Tennessee.
The Respondent included within its answering brief a motion to strike a por-
tion of the Charging Party’s brief in support of exceptions. Therein the Charg-
ing Party asserts that he is filing a new unfair labor practice charge ‘‘ad-
dressed to the national campaign.’’ The Charging Party acknowledges a pos-
sible 10(b) problem but suggests that if the Board now reopens the ‘‘national
remedy question in this case’’ he would not pursue the new charge. We grant
the motion.
2 Although no exceptions were filed to the judge’s finding that the Respond-
ent violated Sec. 8(a)(1) of the Act, we shall conform the ‘‘in any like or relat-
ed manner’’ provisions in his recommended Order to correspond with his no-
tice.
3 They are entitled ‘‘Part-Time Labor Relations Workshop’’ and ‘‘Labor Re-
lations Workshop.’’
United Parcel Service, Inc. and Rod Howard. Case
10–CA–23981
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On April 25, 1991, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The
Charging Party filed exceptions and a supporting brief
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order, as
modified.2
On June 3, 1991, the Respondent filed a motion to
impose sanctions against Paul Alan Levy, the Charging
Party’s attorney, and Levy’s employer, Public Citizen
Litigation Group (PCLG), seeking their disbarment
from Board proceedings for a suitable period of time,
or in the alternative, the imposition of appropriate
sanctions on them, including disbarment from Board
proceedings in which the Respondent is a party, for a
suitable period of time. The Respondent alleges that
they violated a protective order issued by the judge
with respect to Levy’s use, after the judge’s decision
issued, of at least one of two specific documents origi-
nally obtained through discovery in this proceeding.
Levy and PCLG filed a memorandum in opposition.
The Respondent filed a reply memorandum and Levy
and PCLG, in turn, filed a reply memorandum.
We shall deny the motion to impose sanctions. In
order to explain the basis for this ruling, however, it
is first necessary to set out the facts in some detail.
At the outset of the March 28, 1990 hearing, the Re-
spondent made available to the General Counsel cer-
tain documents pursuant to subpoena. With respect to
two of them,3 the Respondent asserted a claim of
privilege. The judge agreed to review those documents
in camera and rule on the claim.
On April 13, 1990, the judge issued a protective
order in which he first ‘‘determined that the documents
are neither privileged information nor clearly irrelevant
to the issues in this case.’’ He then ordered the Re-
spondent to ‘‘disclose them pursuant to the General
Counsel’s subpoena duces tecum but that their use
shall be limited to this hearing and shall neither be dis-
closed nor disseminated to other than counsel of record
at this hearing.’’
On May 11, 1990, the General Counsel filed a mo-
tion with the judge to admit certain exhibits into evi-
dence. The motion covered, inter alia, the two docu-
ments subject to the protective order, now marked as
General Counsel’s Exhibits 16 and 20.
On July 13, 1990, Levy wrote the judge requesting
a modification in the protective order to permit the use
of the two documents in ‘‘Board litigation other than
this case.’’
As indicated above, on April 25, 1991, the judge
issued his decision. Therein, in footnote 1, he (1)
granted in its entirety the General Counsel’s
posthearing motion to admit exhibits, and stated that
the exhibits ‘‘are received into evidence and made a
part of the record’’; and (2) denied the Charging Par-
ty’s request for a modification of the protective order.
On April 25, 1991, pursuant to an order of the
Board’s Executive Secretary, this proceeding was
transferred to the Board and the entire record was sent
to the Case Records Unit in the Board’s Washington
offices. At that point it became immediately available
to the public for inspection and copying. On or about
May 1, 1991, a colleague of Levy visited the Board’s
public reading room and obtained copies of various
documents from the record in this proceeding includ-
ing the two documents covered by the judge’s protec-
tive order, General Counsel’s Exhibits 16 and 20. She
promptly furnished Levy with these two documents.
Levy then possessed copies of them obtained at two
different times and from two different sources—first,
from the General Counsel during the posthearing phase
of the litigation and, later, from the then-public record.
In early May 1991, Levy informed the Respondent’s
counsel that since he had obtained copies of the docu-
ments in issue independent of the litigation, the protec-
tive order no longer constrained him from using them
in other proceedings. Following a response from the
Respondent’s counsel, Levy again asserted to him a
right to use a public document that had not been sealed
pursuant to the Federal Rules of Civil Procedure. Con-
temporaneously with this correspondence, Levy filed a
brief in a proceeding before the Office of the Election
Monitor for the International Brotherhood of Teamsters
to which was appended a copy of General Counsel’s
Exhibit 16. Upon learning of this action by Levy, the
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 We note that Levy informed the Respondent’s counsel in May 1991 that
he intended to use, in another proceeding, copies of the documents obtained
from the Board’s Washington office after the record had been transferred to
the Board.
5 See Fed.R.Civ.P. 26(c).
6 Sec. 102.44(b).
1 1. The General Counsel’s posthearing motion for admission of G.C. Exhs.
9–20, 21(a)–21(l), and 22, is granted and those exhibits are received in evi-
dence and made a part of the record; 2. Charging Party’s posthearing motion
To admit C.P. Exh. 1 is granted and the exhibit is received in evidence and
made a part of the record; 3. Charging Party’s posthearing motion to compel
further responses to subpoena is denied; 4. Charging Party’s request for a
modification of a protective order issued at the hearing is denied.
Respondent promptly filed this motion to impose sanc-
tions for violation of the judge’s protective order.
We find that Levy’s May 1991 use of a copy of
General Counsel’s Exhibit 16 in an unrelated proceed-
ing does not, in the circumstances of this case, con-
stitute a violation of the judge’s April 1990 protective
order. Levy, as revealed in his correspondence with the
judge and with the Respondent’s counsel, was at all
times aware of and attentive to his obligations under
the protective order. He did not even arguably ‘‘dis-
seminate or disclose’’ the document entitled ‘‘Part-
Time Labor Relations Workshop’’ until after it had be-
come available to the public upon the issuance of the
judge’s decision in late April 1991.
While Levy’s use of the disputed document in May
1991 was not within the spirit of the protective order
as issued, the record shows that he took advantage of
a later lack of diligence by both the judge and the Re-
spondent’s counsel. The judge did not seal the two
documents when he admitted them into the record as
General Counsel’s Exhibits 16 and 20. Further, the Re-
spondent’s counsel did not request a seal either at the
time of the General Counsel’s motion to admit or im-
mediately upon issuance of the judge’s decision in
which he ruled on both the motion and the request to
modify the protective order.4
Since, therefore, the judge failed, on and after April
25, 1991, to continue adequately the protection af-
forded by his extant order,5 Levy’s use of the docu-
ment in question did not constitute ‘‘misconduct of an
aggravated character’’ necessary to trigger suspension
or disbarment under the Board’s Rules and Regula-
tions.6 Accordingly, under the circumstances of this
case, we deny the motion for sanctions.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, United
Parcel Service, Inc., Knoxville, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them in Section 7 of the Act.’’
Ellen K. Hampton, Esq., for the General Counsel.
Lewis R. Hagood, Esq. (Arnett, Draper & Hagood), for the
Respondent.
Paul Alan Levy, Esq., Public Citizen Litigation Group, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on March 28, 1990, in Knoxville,
Tennessee pursuant to a complaint filed by the Regional Di-
rector of Region 10 of the National Labor Relations Board
(the Board) on December 11, 1989. The complaint alleges a
violation of Section 8(a)(1) of the National Labor Relations
Act (the Act) was committed by United Parcel Service, Inc.
(the Respondent or UPS) by its denial of access to a general
purpose employee bulletin board and is based on a charge
filed by Rod Howard, an Individual, on February 24, 1989.
The complaint is joined by Respondent’s answer thereto filed
on January 8, 1990, which denies the commission of any vio-
lations of the Act by Respondent.
On the entire record in this proceeding, including my ob-
servation of the demeanor of the witnesses who testified
herein, and after due consideration of the motions and re-
sponses thereto and positions asserted at the hearing and the
briefs filed by the General Counsel, Counsel for Charging
Party, and Counsel for the Respondent, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, the Respondent admits, and I find
that Respondent is and has been at all times material, an
Ohio corporation with an office and place of business located
in Knoxville, Tennessee, where it is engaged in the transpor-
tation and delivery of goods by truck and that during the past
calendar year, a representative period of all times material,
it performed services valued in excess of $50,000 directly for
customers located outside the State of Tennessee and has
been at all times material an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE1
Respondent had for many years permitted a general pur-
pose bulletin board which was kept in the feeder drivers
(tractor-20 trailer) locker room at its East Tennessee District
facility in Knoxville, Tennessee. In addition to the general
purpose bulletin board Respondent maintained a company
bulletin board where the Respondent posted its notices to its
employees and in accordance with the terms of the labor
agreement between the Respondent and Teamsters Local No.
515 affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO (the Union), the Union was permitted to maintain its
own bulletin board on the Respondent’s premises for official
union business only. Both the Respondent’s and the Union’s
bulletin boards were glass enclosed and locked to ensure
695UNITED PARCEL SERVICE
their use would be limited to the Respondent and the Union
respectively and were placed in the Respondent’s business
area. The general purpose bulletin board which was in the
feeder drivers locker room was not so restricted and any of
the employees were permitted to place notices on the bulletin
board such as items for sale, notices of illness, collections
taken up for employees and others in time of need, and an
informal employees welfare fund known as the ‘‘Sick and
Accident Fund.’’ (S&A Fund). In addition Charging Party
Rod Howard testified he placed literature disseminated by
Teamsters for a Democratic Union (TDU) on this bulletin
board. Howard is a member of Teamsters Local 515 which
represents the drivers at the facility. He is also the local rep-
resentative of TDU at the East Tennessee facility. TDU is a
national dissident organization made up of some members of
the Teamsters Union which often opposes national and local
official Teamsters positions on bargaining and contracts and
representation and which also sponsors rival candidates for
election to Teamsters offices. The bulletin board was used as
a vital source of information by the Sickness and Accident
Fund (S&A Fund) as the facilities are manned on a 24-hour
basis with drivers coming and going at various times. How-
ard testified that although he was permitted to distribute
TDU literature during his nonworking time in nonwork areas,
the bulletin board use enabled him to make the TDU lit-
erature available by posting it on the general purpose bulletin
board in the feeder driver’s locker room. Howard testified
that as contract negotiations draw near and leading up to rati-
fication votes TDU activities and distribution of literature in-
creases. In 1987 TDU campaigned to obtain a more favor-
able contract with Respondent than the International Team-
sters Union had negotiated and opposed its ratification and
a majority of the employees voted against ratification. How-
ever the Teamsters imposed a rule requiring a two third ma-
jority to reject the agreement.
Howard testified that in 1987, a contract negotiation year,
he posted TDU literature on the general purpose bulletin
board and repeatedly found it missing when he next observed
the bulletin board on his return to the facility. Feeder driver
Henry Pickett testified that in mid-July 1987, he observed
then District Manager Ron Hodgnett remove TDU literature
from the bulletin board. When Hodgnett observed Pickett, he
told Pickett that ‘‘we can’t have that stuff on the wall
[board],’’ and ‘‘We’re not going to allow it.’’ Hodgnett also
stated that the TDU literature was ‘‘nothing but a bunch of
filth and garbage.’’ Pickett told Howard about the incident.
Howard testified he then went to Hodgnett who told him if
he put the TDU literature on the general purpose bulletin
board again, he would tear it down and that he had been told
to do so by management. Howard testified he continued to
post the TDU literature on the general purpose bulletin board
up to the time of the contract ratification and it was gone
when he returned on several occasions during this period
until October 1987, when the contract was ratified. Hodgnett
told him again that if he put TDU literature on the bulletin
board it would be removed. Only TDU literature was re-
moved. Howard filed a charge with the Board in 1987 con-
cerning the removal of the TDU literature which charge was
ultimately settled. I credit the unrebutted testimony of Pickett
and Howard as set out above.
In 1988 and 1989, Respondent issued a number of cor-
porate guidelines, audits, and training memoranda (G.C.
Exhs. 10–20), to its managers around the country. These doc-
uments discuss TDU as a dissident organization and note that
some dissident organizations give out ‘‘disinformation’’
which is deliberately misleading. These documents also di-
rected managers to permit only official company and union
bulletin boards and to prohibit anything ‘‘detrimental or de-
meaning to the Union or the Company.’’ The guidelines
(G.C. Exh. 11) also called for managers to devise and imple-
ment a plan for correcting or eliminating ‘‘General Bulletin
Boards’’ as opposed to union or company bulletin boards.
The guidelines also spoke of ‘‘troublesome locations’’ with
respect to the General bulletin boards and suggested ‘‘Fol-
lowing a gradual rather than an abrupt timetable so as to pre-
vent this implementation of the Policy from being perceived
as a sudden change in our approach to communications. (The
District Manager will have to determine the timetable based
on an assessment of each situation.)’’ (G.C. Exh. 11).
In July 1988, Charles Heusser became district manager of
the East Tennessee District in Knoxville. Heusser testified he
did a complete walk-around of the then existing facility (lo-
cated on Middlebrook Pike) from which Respondent was to
move to a new facility (located on Callahan Road) in the
Knoxville area in October 1988. Heusser testified he noted
a number of items which were not up to UPS standards at
the old facility and noted the general purpose bulletin board
in the feeder drivers locker room. He testified it was in total
disarray and was a ‘‘mess.’’ He made the decision not to put
up the general purpose bulletin board in the new facility
when a scheduled move in October 1988 of the District to
new facilities in Knoxville was made. It was his decision for
two reasons: The bulletin board did not meet UPS standards.
By this he means neatness and cleanliness. Secondly he had
never seen a general purpose bulletin board in any of the
many facilities he has worked in during his career at UPS
The decision was his alone although he discussed it with su-
pervisors. There is a company and union bulletin board at the
new facility. Both are glass enclosed and key locked. Both
the Company and the Union have keys to the union bulletin
board. He had numerous complaints after he did not allow
a general purpose bulletin board to be put up at the new fa-
cility, principally from employees about a place to post the
S&A Fund information. Subsequently at an annual ‘‘Lets
Talk with Chuck [Heusser]’’ meeting attended by the drivers,
he proposed (after discussing with legal counsel) that the
S&A Fund information could be put on either union or com-
pany letterheads and initialed by either a union or company
representative and put on either the union or the company
bulletin board and special collections taken up for individuals
in need could be put on either bulletin board with directions
to contact a union steward. Heusser testified he was not
aware of any problem with TDU postings and he, himself
had not observed TDU postings on the old general purpose
bulletin board and TDU had nothing to do with his decision
not to put up a general purpose bulletin board in the new fa-
cility. Prior to the filing of the charge in this case no em-
ployee ever came to him and requested permission to put up
TDU literature. TDU literature is regularly distributed on
UPS premises and parking lots on nonwork time in nonwork
areas. He does not allow it to be placed on bulletin boards
at UPS. He was not aware of prior TDU problems at the
East Tennessee District prior to his decision not to put up
a general purpose bulletin board at the new facility. The
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
company position statement given to the Board in answer to
the underlying charge in this case states ‘‘There was no un-
official Board erected at the new facility since the facility
was not so configured or designed.’’ However, his reasons
for not putting up the bulletin board had nothing to do with
the configuration or design of the building.
Henry Pickett testified that around November 1, 1988,
shortly after Respondent moved to its new facility in Knox-
ville, he and employee Jim Crawford talked to Feeder Man-
ager Randy Cunningham and Crawford asked Cunningham
about a bulletin board to put up information for the S&A
Fund and about that time Rod Howard walked up and
Cunningham said, ‘‘We are not going to have no Union bul-
letin board.’’ ‘‘He’d [Howard] just put TDU stuff on it.’’ It
should be noted that this conversation was in reference to the
general purpose bulletin board. Picket also testified that he
had asked Division Manager Lewis Byrd two or three times
to put up a general purpose bulletin board at the new facility
since the move was made and Byrd told him it is just com-
pany policy not to put it up and he could not do anything
about it. Byrd did not explain why it was company policy
not to put up the bulletin board. Pickett’s account of the
meeting with Cunningham was corroborated by employee
James D. Crawford, Jr. who is the treasurer of the S&A
Fund. Crawford testified Cunningham said there would not
be a bulletin board because it would be full of TDU lit-
erature. Crawford testified he has never been given any other
reason for Respondent’s refusal to put up a new bulletin
board in the feeder drivers locker room at the new facility.
Rod Howard testified there is a locker room for feeder
drivers in the new facility and space available for a bulletin
board but none has been posted. Howard testified that in No-
vember 1988, Randall Cunningham was talking to employees
Henry Pickett and Jim Crawford and he walked by them and
heard Crawford ask Cunningham about putting a bulletin
board up and Cunningham said ‘‘the Company couldn’t do
that because all that would be on there would be old TDU
literature.’’ Howard testified further he has talked to Division
Manager Byrd four or five times about putting up a bulletin
board in the new facility and Byrd has never given him any
explanation for not putting it up other than it is company
policy not to put it up. Howard also testified he talked to
Personnel Manager Donna Tidwell in December 1988 about
putting a bulletin board up and she said it was company pol-
icy not to have one.
In October 1989, Heusser held two, ‘‘Let’s talk with
Chuck [Heusser]’’ meetings with the drivers which were split
into two groups with each driver attending one of the meet-
ings. At this time he announced his intention to permit the
posting of S&A Fund and certain other notices. Pickett,
Crawford, and Howard each attended one of these meetings.
Pickett testified that at the new facility he has observed com-
pany sponsored ball games and golf tournaments posted on
walls or the mirror in the locker rooms. On one occasion in
the latter part of 1989 there was a note on the side of the
wall about taking up a collection for employee Steve Cox
who was ill and the note was taken down by a supervisor.
Pickett went to Manager Byrd about it and Byrd said the
note should not have been on the wall and if Pickett would
write it out and have it initialed by a union steward it could
be placed on the company bulletin board. Pickett did so and
had it initialed by a union steward and it was placed on the
company bulletin board. Crawford testified he has never put
S&A Fund notices on either the Company or union bulletin
boards.
Division Manager Lewis Byrd testified he did not have
any discussions with Howard in 1987, as he was at the Mor-
ristown Center and was not at the Knoxville facility during
that time. Byrd came to the Knoxville facility in March 1988
and testified he observed derogatory remarks and cartoons on
the general purpose bulletin board in the feeder locker room
which he removed and a reference to a black supervisor as
‘‘Boogaloo’’ which he regarded as a derogatory racial re-
mark. He discussed with District Manager Heusser the sub-
ject of not putting up a bulletin board in the new facility but
Heusser made the decision. He was subsequently approached
by union stewards and Rod Howard as to why there could
not be a general purpose bulletin board in the new facility
and told them it was company policy and it was hard to
monitor derogatory remarks. He testified the subject of TDU
literature did not come up and had nothing to do with the
decision. He testified that the day before the hearing was the
first time Howard brought up the subject of TDU as the rea-
son for not putting a bulletin board in the feeder locker room
at the new facility and that he told Howard the bulletin board
was not put up because of racial slurs and derogatory re-
marks. Pickett, Crawford, Howard, and feeder driver Steve
Cox all testified they had not observed derogatory remarks
on the old general purpose bulletin board. Crawford testified
that he is black and has used the term ‘‘Boogaloo’’ in ref-
erence to black supervisor Gary in front of supervisors by
other drivers and that he [Crawford] does not regard the term
as a racial slur.
Knoxville Night Sort Manager Randall Cunningham testi-
fied he had observed cartoons of former District Manager
Rod Hodgnett, and vulgar remarks and the term ‘‘Boogaloo’’
all of which he removed during the period from 1987–1988
when he was a supervisor in the feeder department. He ac-
knowledged the conversation in October or November 1988
with Crawford and Pickett when Howard walked in but de-
nied he made any mention of TDU or that TDU was the rea-
son a bulletin board was not put up in the feeder locker room
at the new facility. He told Crawford there was nothing he
could do about S&A Fund postings and to talk to Byrd. He
testified that neither Heusser or Byrd told him why the bul-
letin board was not put up in the new facility.
III. ANALYSIS
I find that the General Counsel has established a prima
facie case of a violation of Section 8(a)(1) of the Act. Ini-
tially I find the evidence has shown that the Respondent had
knowledge of the use of the general purpose bulletin board
by TDU. The existence of a prior dispute regarding the use
of the general purpose bulletin board which resulted in a fil-
ing of an unfair labor practice by TDU representative Rod
Howard clearly established that the Respondent had knowl-
edge of the use of the Board by TDU. With respect to the
admissibility of this evidence I find that although the merits
or lack thereof of the earlier charge which was settled clearly
have no relevance to this case, and cannot bear on the merits
of this case, the fact that there was a dispute over the use
of this bulletin board by TDU clearly establishes that Re-
spondent had knowledge of the use of this bulletin board by
TDU. Under these circumstances I do not credit Heusser’s
697UNITED PARCEL SERVICE
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
assertions in his testimony that he was unaware of the use
of the bulletin board by TDU. Moreover I find merit to the
contentions of the General Counsel and the Charging Party
that the various guidelines and other company documents re-
lating to the elimination of general purpose bulletin boards
constitute evidence of an overall purpose of eliminating gen-
eral purpose bulletin boards. However, I do not find that the
decision and remedy in this case should be expanded to in-
clude all UPS facilities in the country as contended by the
Charging Party’s representative in his brief. I find rather that
the decision and remedy in this case should be limited to the
Knoxville facility where the charge was filed and the case
was processed and heard. With respect to the merits of this
case I find the General Counsel has made a prima facie case
showing that the denial of access to a general purpose bul-
letin board at Respondent’s new facility was motivated at
least in part because of its demonstrated animus to TDU. I
credit the unrebutted testimony of Picket and Howard con-
cerning the removal of TDU literature by then District Man-
ager Ron Hodgnett and his adverse comments regarding it
and his threats to remove it again if it were reposted by
Howard. I also credit the testimony of Howard, Pickett, and
Crawford over the denial of Cunningham and find that in
November 1988, after the Respondent moved in to its new
facility and refused to post a bulletin board in the feeder
locker room, that Cunningham stated it would just have TDU
material over it. I also find noteworthy Byrd’s admission that
Howard had asked him for a new bulletin board at the facil-
ity as it was well known that Howard was the TDU rep-
resentative at the facility. I find the case of Roadway Ex-
press, 279 NLRB 302 (1986), to be controlling in this case.
In that case the Board relied on Wright Line, 251 NLRB
1083 (1980), enfd. as modified 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), and applied the framework
for analysis set out in Wright Line to an alleged violation of
Section 8(a)(1) of the Act that turned on the employer’s mo-
tivation in considering the legality of the removal of break
room bulletin boards. In Roadway Express, supra at 303, the
Board stated:
In Wright Line, supra, the Board adopted a test for
evaluating cases alleging violations of Section 8(a)(3)
of the Act or, as in the instant case, a violation of Sec-
tion 8(a)(1) turning on the motive of the employer. Pur-
suant to the Wright Line test, the General Counsel must
make a prima facie showing sufficient to support the
inference that protected conduct was a motivating factor
in the employer’s decision to take the allegedly unlaw-
ful action. If the General Counsel makes such a prima
facie showing, the burden of going forward with the
evidence shifts to the employer to show that it would
have taken the same action even in the absence of the
protected conduct.
In Roadway, the Board then found that the General Coun-
sel had made a prima facie case that the employer removed
the break room bulletin boards because it wanted to prohibit
the posting of union and TDU material. The Board then
found that the employer had failed to establish that it would
have removed the bulletin boards even in the absence of the
posting of union and TDU material on them and rejected the
employer’s defenses that it had removed the bulletin boards
because of the posting of disparaging and threatening re-
marks aimed at the terminal manager.
In the instant case I find that the Respondent has failed
to rebut the prima facie case of a violation of Section 8(a)(1)
by the refusal to put up a general purpose bulletin board at
the Respondent’s new facilities. Initially, I find as contended
by General Counsel that the Respondent relied on shifting
defenses in this case. Thus in its position statement given to
the Region investigating the charges, Respondent contended
the bulletin board had not been put in the new facility be-
cause of the configuration and design of the new facility.
This was rebutted by the testimony of Pickett and Howard
who testified there was ample room on the wall in the new
feeder locker room for a bulletin board. Next the Respond-
ent’s district manager who asserted he made the decision
stated he did so because the old bulletin board had not met
UPS standards and because he had not never seen such a
bulletin board in any facility he had previously worked in.
He also admitted he did not permit the posting of TDU lit-
erature. Then the Respondent’s manager Byrd contended no
bulletin board was put up at the new facility because of de-
rogatory remarks and cartoons and a racial slur, which al-
leged racial slur I find to be pretextual on the basis of the
testimony of employee Crawford who is black and testified
this was a nickname commonly attributed to the particular
black supervisor which had been used openly by employees
in the presence of supervisors in the past.
CONCLUSIONS OF LAW
1. The Respondent, United Parcel Service, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Teamsters for a Democratic Union (TDU) is an or-
ganization made up of employees who are members of the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO.
3. By denying its employees access to a general purpose
bulletin board in order to prohibit or prevent the posting of
TDU material in the feeder drivers locker room, the Re-
spondent interfered with the protected activities of its em-
ployees in violation of Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it shall be ordered to cease and desist there-
from and to take certain affirmative actions designed to ef-
fectuate the policies of the Act including the installation of
a bulletin board for general purposes in the feeder drivers
locker room to replace the original board in its old facility,
and to post a notice in its general business areas where no-
tices to employees are usually posted, including the Com-
pany designated bulletin board and the bulletin board to be
installed in the feeder drivers locker room of its new facility
in Knoxville, Tennessee.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended2
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
ORDER
The Respondent, United Parcel Service, Inc., Knoxville,
Tennessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying its employees access to a general purpose bul-
letin board in order to prohibit or prevent the posting of
Teamsters for a Democratic Union (TDU) material in the
feeder driver locker room at its East Tennessee District fa-
cilities in Knoxville, Tennessee.
(b) In any like or related manner interfering with or coerc-
ing employees in the exercise of the rights guaranteed them
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Install a bulletin board for general purposes in the
feeder drivers locker room in its new facility in Knoxville,
Tennessee, expressly permitting the posting of TDU material
to replace the original board in its old facility.
(b) Post at its East Tennessee District facility in Knoxville,
Tennessee copies of the attached notice marked ‘‘Appen-
dix.’’3 Copies of the notice on forms provided by the Re-
gional Director for Region 10, after being duly signed by the
Respondent’s authorized representatives shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted in-
cluding the Company designated bulletin board and the bul-
letin board to be installed in the feeder drivers locker room.
Reasonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT deny our employees access to a general pur-
pose bulletin board in order to prohibit or prevent the posting
of Teamsters for a Democratic Union (TDU) material in the
feeder drivers locker room.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed by Section 7 of the Act.
WE WILL install a new bulletin board for general purposes
in the feeder drivers locker room at our East Tennessee Dis-
trict facilities in Knoxville, Tennessee, and will permit the
posting of TDU material thereon.
UNITED PARCEL SERVICE, INC.