United Parcel Service

National Labor Relations Board - Board Decisions

Feb 17, 2006

346 N.L.R.B. 484 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 49
484
Teamsters United Parcel Service National Negotiating
Committee on behalf of International Brother-
hood of Teamsters1 and its affiliated Local Un-
ion No. 89 (United Parcel Service) and Porter
Lady and Kelly Southworth and Melissa Curry
and Tom Moxley. Cases 9–CB–10817,2 9–CB–
10818, 9–CB–10821, and 9–CB–10851
February 17, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On January 19, 2005, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Gen-
eral Counsel filed limited exceptions and a supporting
brief. The Union filed cross-exceptions, a supporting
brief, and 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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions as modified below and to adopt the rec-
ommended Order as modified and set forth in full below.
I. INTRODUCTION
The issue presented is whether the Union violated Sec-
tion 8(b)(1)(A) and (2) of the Act by executing and main-
taining a collective-bargaining agreement with UPS in
2002, which extended the existing UPS nationwide bar-
gaining unit it represents to include all ODC/FDC clerks
and international auditors (clerk auditors). The General
Counsel’s theory of the violation is that the clerk auditors
had been historically excluded from the bargaining unit
and therefore could not lawfully be accreted to the unit.
The judge found that the addition of the clerk auditors
employed at UPS’ Louisville, Kentucky facility consti-
tuted an unlawful accretion to the bargaining unit be-
cause the General Counsel established that they in fact
had been historically excluded from the unit.
In his limited exceptions, the General Counsel requests
that the Board clarify that the violation is nationwide in

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 The judge granted the General Counsel’s motion to sever the fol-
lowing cases against the Respondent Employer United Parcel Service
(UPS) based on a settlement with the Board’s Regional Office: Cases
9–CA–39862; 9–CA–39863; 9–CA–39868; and 9–CA–39981. The
only remaining allegations are against the Respondent Teamsters
United Parcel Service National Negotiating Committee on behalf of
International Brotherhood of Teamsters and its affiliated Local Union
No. 89 (the Union). We have amended the caption accordingly.
scope, encompassing not only Louisville, but also nearly
1000 UPS locations where the General Counsel asserts
that clerk auditors also have never been represented by
the Union. We find that the General Counsel did not
present sufficient evidence to establish a nationwide vio-
lation. However, the record evidence shows that the
clerk auditors employed at four additional UPS locations
have been historically excluded from the unit. Accord-
ingly, we find merit in the General Counsel’s exceptions
only to the extent that we also find a violation as to these
four locations.
II. THE APPLICABLE LAW
It is settled Board law that previously unrepresented
employees may not lawfully be accreted to an existing
bargaining unit where “the group sought to be accreted
has been in existence at the time of recognition or certifi-
cation, yet not covered in an ensuing contract, or, having
come into existence, has not been part of the larger unit
to which their accretion is sought or granted.” Laconia
Shoe Co., 215 NLRB 573, 576 (1974). Accord: United
Parcel Service, 303 NLRB 326, 326–327 (1991), enfd.
17 F.3d 1518 (D.C. Cir. 1994), cert. denied 513 U.S.
1076 (1995). Thus, upon finding that a group of em-
ployees has been in existence and historically excluded
from a unit, the Board will find a violation where parties
to a collective-bargaining agreement attempt to include
these employees in the unit without an “expression of a
desire by a majority of those employees to be repre-
sented.” Kaiser Foundation Hospitals, 343 NLRB 57,
66 (2004). It is the fact of historical exclusion that is
determinative, and not whether the union has acquiesced
in that exclusion or whether the excluded group has some
common job-related characteristic distinct from unit em-
ployees. United Parcel Service, 303 NLRB at 327.
III. THE PRESENT CASE
The record evidence establishes the following history
and treatment of the clerk auditors at UPS. UPS em-
ployed clerk auditors for the first time in about 1985
when it commenced international shipment of packages
from its location in Louisville. Clerk auditors are re-
sponsible for checking the adequacy of documentation
on packages for international shipment from the United
States. It is undisputed that the clerk auditors working at
Louisville have never been represented by the Union.
In the late 1980s, UPS opened additional hubs for in-
ternational shipping in Ontario, California, and Philadel-
phia, Pennsylvania. UPS Managers Robert Roundtree
and James Bolton testified, and the Union concedes, that
clerk auditors at these two locations likewise have never
been represented by the Union.
TEAMSTERS LOCAL 89 (UNITED PARCEL SERVICE) 485
In about 1994, UPS opened three test sites, in Buffalo,
New York, in Hialeah, Florida, and (again) in Ontario for
the decentralization of its international shipping opera-
tions.3 Each site employed clerk auditors. UPS Manag-
ers Roundtree and Bolton testified, without contradiction,
that the clerk auditors at these sites also have never been
represented by the Union.
Between 1994 and 1998, UPS opened about 117 ODC
international shipping sites employing clerk auditors.
Between 1998 and about 2002, UPS expanded its inter-
national shipping operations and its concomitant em-
ployment of clerk auditors to some 1000 locations na-
tionwide.4 The judge found that UPS used a “myriad” of
assignment practices in staffing the clerk auditor posi-
tions at these locations, including assigning the work to
bargaining unit employees.
The foregoing evidence establishes that the clerk audi-
tors working at Louisville have been historically ex-
cluded from the bargaining unit. Accordingly, the judge
properly found that they could not lawfully be accreted
to the unit, and that the Union unlawfully accepted rec-
ognition as the representative of these employees and
applied the collective-bargaining agreement to them.
Similarly, the evidence establishes that the clerk audi-
tors working at Buffalo, Hialeah, Ontario, and Philadel-
phia have never been represented by the Union. UPS
Managers Roundtree and Bolton testified to the historical
exclusion of the clerk auditors at these locations, and
there is no record evidence to the contrary. Therefore,
we find that the Union’s unlawful conduct extended to
these facilities as well.
In contrast, we are unable to find on the record before
us that the Union violated the Act at any of UPS’ other
locations. As mentioned, the judge found that UPS util-
ized a “myriad” of assignment practices for the clerk
auditor function at its numerous other locations, includ-
ing assigning it to employees represented by the Union.
The General Counsel has not excepted to this finding.
Thus, it is unclear from the record before us which of
the remaining facilities historically excluded clerk audi-
tors from the unit and which did not. The General Coun-
sel presented no employee witness from any of the Re-
spondent’s approximately 1000 other locations to testify
that clerk auditors at these locations have been histori-
cally excluded from the unit.5 The General Counsel also
did not present any documentary evidence to suggest that
clerk auditors were never represented by the Union at
these other UPS locations, and the record shows that, at

3 These locations were termed “ODC” sites.
4 These locations were termed “FDC” sites.
5 The testimony of UPS Managers Roundtree and Bolton was limited
to the five locations discussed above.
least as to some of those facilities, clerk auditors were
included in the bargaining unit. The record evidence
thus fails to establish the key contention of the General
Counsel: that clerk auditors at UPS locations nationwide
have been previously unrepresented by the Union.6
In sum, we find that the record evidence establishes
only that the clerk auditors at the following five locations
have been historically excluded from the bargaining unit
represented by the Union: Louisville, Kentucky; Buf-
falo, New York; Hialeah, Florida; Ontario, California;
and Philadelphia, Pennsylvania. Accordingly, we find
that the Union violated the Act only as to these five loca-
tions. Compare United Parcel Service, supra, 303 NLRB
326 (entire group of previously unrepresented operations
clerks did not constitute a lawful accretion to the UPS
nationwide bargaining unit where all employees at issue
had always been excluded from the unit).7
ORDER8
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Teamsters United Parcel Service National
Negotiating Committee, on behalf of International
Brotherhood of Teamsters, and its affiliated Local Union
No. 89, Louisville, Kentucky, its officers, agents, and
representatives, shall

6 The evidence does not show that clerk auditors worked as nonunit
employees at all ODC sites, as suggested in the judge’s decision.
Chairman Battista notes that the Board is not declaring that the clerk
auditors in these other locations are appropriately in the unit. Rather,
the Board is holding only that the General Counsel has not shown, by a
preponderance of the evidence, that they have been historically ex-
cluded. In view of this limited holding, an appropriately filed petition
(e.g., UC) could raise the issue as to the inclusion or exclusion of these
employees in the nationwide unit.
7 The Union argues that this case should be analyzed under Sun, 329
NLRB 854 (1999). The argument is premised on its view that the
bargaining unit here is defined functionally. In fact, the unit descrip-
tion here contains traditional job classification language. The Board’s
treatment of functionally described units in Sun is thus inapposite.
The Union’s reliance on Lockheed Martin Tactical Aircraft Systems,
331 NLRB 1407 (2000), is also misplaced. The Board majority there
specifically pointed out that the General Counsel was not alleging that
the parties were attempting to expand the unit description by including
a historically excluded classification. Id. at 1408. Here, however, the
General Counsel has made that allegation. Chairman Battista did not
participate in Lockheed Martin and does not pass on the validity of that
case.
8 We have modified the judge’s recommended Order to conform to
the violation found, to provide a complete remedy, to accord with our
decision in Indian Hills Care Center, 321 NLRB 144 (1996), and to
correct certain inadvertent errors. We have substituted a new notice to
comport with these modifications.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD486
1. Cease and desist from
(a) Accepting exclusive recognition as the representa-
tive of previously unrepresented United Parcel Service
(UPS) international auditors and ODC/FDC clerks at
UPS facilities located in Louisville, Kentucky; Buffalo,
New York; Hialeah, Florida; Ontario, California; and
Philadelphia, Pennsylvania, at a time when a majority of
these employees have not designated the Union as their
exclusive representative, and entering into a contract
with UPS as the collective-bargaining representative of
these previously unrepresented employees.
(b) Applying the terms of its collective-bargaining
agreement with UPS of August 1, 2002, or any other
agreement with UPS, to previously unrepresented inter-
national auditors and ODC/FDC clerks at UPS facilities
located in Louisville, Kentucky; Buffalo, New York;
Hialeah, Florida; Ontario, California; and Philadelphia,
Pennsylvania, unless and until it has been duly certified
by the Board as the exclusive representative of those
employees. Nothing in this Order shall authorize or re-
quire the withdrawal or elimination of any wage increase
or other improved benefits or terms of employment es-
tablished pursuant to such contract.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reimburse all previously unrepresented interna-
tional auditors and ODC/FDC clerks at UPS facilities
located in Louisville, Kentucky; Buffalo, New York;
Hialeah, Florida; Ontario, California; and Philadelphia,
Pennsylvania, for any initiation fees, dues, or other mon-
eys involuntarily exacted from them pursuant to applica-
tion of a union-security clause in the August 1, 2002
Teamsters-UPS collective-bargaining agreement, or any
other agreement with UPS, and make them whole for any
loss of earnings and other benefits (including insurance
benefits) sustained by them as a result of the Respon-
dent’s unfair labor practice, with interest as set forth in
the remedy section of the judge’s decision.
(b) Make whole any previously unrepresented interna-
tional auditors and ODC/FDC clerks at UPS facilities
located in Louisville, Kentucky; Buffalo, New York;
Hialeah, Florida; Ontario, California; and Philadelphia,
Pennsylvania, who were required to terminate their em-
ployment rather than follow the work into the unit and
suffered loss of earnings and other benefits as a result,
with interest as set forth in the remedy section of the
judge’s decision.
(c) Notify UPS, in writing, that it has no objection to
the reinstatement of any previously unrepresented inter-
national auditors and ODC/FDC clerks at UPS facilities
located in Louisville, Kentucky; Buffalo, New York;
Hialeah, Florida; Ontario, California; and Philadelphia,
Pennsylvania, who were required to terminate their em-
ployment rather than follow the work into the unit, and
request that UPS reinstate these employees to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its business offices serving members at UPS facilities
located in Louisville, Kentucky; Buffalo, New York;
Hialeah, Florida; Ontario, California; and Philadelphia,
Pennsylvania, copies of the attached notice marked “Ap-
pendix.”9 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that the
notices are not altered, defaced, or covered by any other
material.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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 Federal labor law and has ordered us to post and obey
this notice.

9 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
TEAMSTERS LOCAL 89 (UNITED PARCEL SERVICE) 487
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT accept exclusive recognition as the rep-
resentative of previously unrepresented United Parcel
Service (UPS) international auditors and ODC/FDC
clerks at UPS facilities located in Louisville, Kentucky;
Buffalo, New York; Hialeah, Florida; Ontario, Califor-
nia; and Philadelphia, Pennsylvania, at a time when we
are not designated as the exclusive representative by a
majority of these previously unrepresented employees.
WE WILL NOT apply the terms of our collective-
bargaining agreement with UPS of August 1, 2002, or
any other agreement with UPS, to previously unrepre-
sented international auditors and ODC/FDC clerks at
UPS facilities located in Louisville, Kentucky; Buffalo,
New York; Hialeah, Florida; Ontario, California; and
Philadelphia, Pennsylvania, unless and until we have
been duly certified by the National Labor Relations
Board as the exclusive representative of those employ-
ees.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights set forth above.
WE WILL reimburse all previously unrepresented inter-
national auditors and ODC/FDC clerks at UPS facilities
located in Louisville, Kentucky; Buffalo, New York;
Hialeah, Florida; Ontario, California; and Philadelphia,
Pennsylvania, for any initiation fees, dues, or other mon-
eys involuntarily exacted from them pursuant to applica-
tion of a union-security clause in the August 1, 2002
Teamsters-UPS collective-bargaining agreement, or any
other agreement with UPS, and WE WILL make them
whole for any loss of earnings and other benefits (includ-
ing insurance benefits) sustained by them as a result of
our unfair labor practice, with interest.
WE WILL make whole any previously unrepresented in-
ternational auditors and ODC/FDC clerks at UPS facili-
ties located in Louisville, Kentucky; Buffalo, New York;
Hialeah, Florida; Ontario, California; and Philadelphia,
Pennsylvania, who were required to terminate their em-
ployment rather than follow the work into the unit and
suffered loss of earnings and other benefits as a result,
with interest.
WE WILL notify UPS, in writing, that we have no ob-
jection to the reinstatement of any previously unrepre-
sented international auditors and ODC/FDC clerks at
UPS facilities located in Louisville, Kentucky; Buffalo,
New York; Hialeah, Florida; Ontario, California; and
Philadelphia, Pennsylvania, who were required to termi-
nate their employment rather than follow the work into
the unit, and WE WILL request that UPS reinstate these
employees to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions.
TEAMSTERS UNITED PARCEL SERVICE NATIONAL
NEGOTIATING COMMITTEE ON BEHALF OF
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
AND ITS AFFILIATED LOCAL UNION NO. 89
Eric Oliver, Esq. and Linda Finch, Esq., for the General Coun-
sel.
David Hoskins, Esq., for the Respondent Employer.
Michael T. Manley, Esq. and Gary Witlen, Esq., for the Re-
spondent Union.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on October 5 and 6, 2004, in Louis-
ville, Kentucky. The consolidated complaint is based on
charges filed by Porter Lady, an individual, Kelly Southworth,
an individual, Melissa Curry, an individual, and Tom Moxley,
an individual, and contains allegations against both Teamsters
United Parcel Service National Negotiating Committee on be-
half of International Brotherhood of Teamsters, AFL–CIO and
its affiliated Local Union No. 89 (the Teamsters or the Union)
and United Parcel Service (UPS or the Employer). The com-
plaint alleges that Respondent Teamsters and UPS unlawfully
accreted the international auditors and ODC/FDC clerks into a
nationwide bargaining unit1 at a time when the Union did not
represent a majority of these employees. Pursuant to a contin-
gent settlement reached between Region 9 the National Labor
Relations Board (the Board) and UPS, a motion was made at

1 The complaint alleges, Respondent admits, and I find the appropri-
ate unit is:
Where already recognized, all feeder drivers, package drivers, sorters,
loaders, unloaders, porters, office clerical, clerks, mechanics, mainte-
nance personnel (building maintenance), car washers, [Respondent
Employer’s] employees in [Respondent Employer’s] air operation, to
the extent allowed by law employees in the export and import opera-
tions performing load and unload duties, other employees of [Respon-
dent Employer] for whom a signatory local of [Respondent Union] is
or may become the bargaining representative. In addition, effective
August 1, 1987, [Respondent Employer] recognized as bargaining
unit members clerks who are assigned to package center operations,
hub center operations, and/or air hub operations whose assignment in-
volves the handling and progressing of merchandise, after it has been
tendered to [Respondent Employer] to effectuate delivery. These jobs
cover: package return clerks, bad address clerks, post card room
clerks, damage clerks, rewrap clerks, the hub and air hub return clerks.
This Agreement also governs the classifications covered in Article
39—Trailer Repair Shop. Effective no later than February 1, 2003,
[Respondent Employer] recognizes as bargaining unit members
“smart label” clerks and revenue auditors who work in the operations
facilities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD488
the hearing on October 5, 2004, to sever Cases 9–CA–39863,
9–CA–399868, and 9–CA–39981. I granted the motion and
these cases were severed from the consolidated complaint. The
complaint had alleged that Respondent UPS had violated Sec-
tion 8(a)(1) and (2) of the National Labor Relations Act (the
Act) by recognizing the Respondent Union as the collective-
bargaining representative of the following group of employees:
FDC/ODC clerks and international auditors who work in [Re-
spondent UPS] operation facilities.
and by applying, maintaining, and enforcing the terms of the
collective-bargaining agreement between the Union and UPS to
the foregoing unrepresented employees described above even
though these employees had not designated the Union as their
collective-bargaining representative, and by maintaining and
enforcing the provisions of the collective-bargaining agreement
that requires employees as a condition of employment, to be-
come and remain members in good standing of the Union, and
by deducting moneys from the wages of these employees and
remitting those funds to Respondent Union as initiation fees
and/or dues. The complaint alleges that by the foregoing con-
duct UPS has encouraged its employees to join and support the
Union, and has unlawfully accreted these employees into the
bargaining unit.
The complaint alleges that the Union engaged in conduct in
violation of Section 8(b)(1)(a) by accepting moneys that UPS
deducted from the wages of the aforesaid employees as initia-
tion fees and/or dues and that the Union has been attempting to
cause the employer to discriminate against the aforesaid em-
ployees in violation of Section 8(b)(2) of the Act. The Respon-
dent Teamsters has filed its answer to the complaint denying
the commission of any violations of the Act.
Upon consideration of the testimony of the witnesses, the
exhibits received in evidence at the hearing and the briefs of the
General Counsel and Respondent Union, I make the following
FINDINGS OF FACT
A. The Business of the Employer
The complaint alleges, Respondents admit, and I find that at
all times material herein, the Employer has been a corporation
with offices and places of business in various States including
its place of business in Louisville, Kentucky, and has been
engaged in the interstate transportation of freight and distribu-
tion of parcels, that during the past 12 months, the Employer in
conducting its aforesaid operations performed interstate freight
transportation services valued in excess of $50,000 and re-
ceived gross revenues in excess of $500,000 as a link in the
interstate movement of freight and has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
B. The Labor Organization
The complaint alleges Respondent Union admits and I find
that at all times material herein, the Union has been and is a
labor organization within the meaning of Section 2(5) of the
Act.
I. FACTS
The facts of this case are largely undisputed. The Union has
been a party to a national contract with UPS since 1979. More
than 1000 UPS facilities across the country are covered by the
current labor agreement effective from August 1, 2002, through
July 31, 2008. The UPS in Louisville, Kentucky, is the facility
at which the Charging Parties were employed when the charges
in this case were filed. In 1985, UPS opened its initial air hub in
Louisville and used approximately 15 to 20 nonbargaining unit
employees to perform international auditing work. International
auditors (a.k.a. document auditors) at the Louisville hub were
employed on the export work removing invoices from packages
and insuring they contained sufficient information to ensure
that the packages were shipped to their intended destinations.
Michelle Darnel testified that she commenced work as an inter-
national export auditor 15 years ago and that she and other
international auditors were not represented by the Union until
2002. She testified that her auditing responsibilities included
key entry as well as auditing. She worked as an international
auditor until she was assigned invoice sort/ODC work in the
late 1990s. Louisville employees who were assigned import
auditing scanned packages to facilitate their release following
customs inspections. During this process “released” and “held”
labels were inserted on the packages and RF scanners were
used to identify their status.
From approximately 1985, until the Louisville international
operations moved into the World Port building in July 2002, the
import and export functions were housed in a facility and were
divided by a concrete wall dividing the nonbargaining unit
export and import personnel from the unit employees. Since
July 2002, the import operation at the Louisville hub had been
restricted to a secured area controlled by U.S. Customs and a
special identification badge is required to enter it. The export
operation is outside the secured area. Prior to their accretion to
the bargaining unit the import employees had only limited con-
tact with the unit employees. UPS established export hubs in
Ontario, California, in 1987, and in Philadelphia, Pennsylvania,
in 1989. The three hubs were the primary gateways used to
export items to other counties. The export work at all three
hubs was assigned to nonbargaining unit employees.
UPS decentralized its export function by creating Origin
Data Capture (ODC) sites in 1994. This facilitated the process
of handling international packages at origin centers which were
close to shippers. ODC clerks worked as nonbargaining unit
employees performing the same duties as the international audi-
tors at the primary export gateways did. Approximately 117
new ODC sites were established from 1994 to 1998 and docu-
ment auditors and/or ODC key entry personnel were assigned
the international auditing function.
By 2000, the ODC centers were converted into flexible data
capture (FDC) sites. The document auditor and key entry posi-
tions were combined into one job function and there was a
blending of functions between the bargaining unit and nonunit
positions at some of the smaller ODC/FDC sites but this did not
occur at the Louisville, Ontario, and Philadelphia hubs. The
TEAMSTERS LOCAL 89 (UNITED PARCEL SERVICE) 489
import auditors at the Louisville hub did not work in the same
area as the unit employees and former employee Kelly South-
worth who worked in the import section of the Louisville hub
testified she rarely had contact with unit employees prior to the
2000 accretion. Former employee Michelle Darnel testified that
unit employees worked in the same area as the export auditors,
but were assigned nonauditing work. Former employee Melissa
Curry testified that the administrative assistant, document audi-
tor, and international auditor are different names for the same
position. She testified that management began referring to her
crew as international auditors when they moved into the World
Port building. Employee Porter Lady and Kelly Southworth
testified they worked in the imports section of the Louisville
hub and were classified as administrative clerks. Lady testified
that there were approximately 60 administrative clerks who
performed scanning work in his section. I credit the foregoing
testimony of Curry, Lady, and Southworth.
International auditing work was a nonbargaining unit func-
tion when the ODC sites were instituted. The accretion issue
was not a matter of concern prior to the bargaining for the 2002
labor agreement when the parties agreed that effective no later
than February 1, 2003, UPS international auditors and
ODC/FDC clerks would be recognized as bargaining unit em-
ployees. On December 12, 2002, UPS’ human resources repre-
sentative, Mike Warner, conducted meetings at the Louisville
hub and informed the nonunit import and export employees that
they must either agree to be transitioned into the bargaining
unit or resign. All of the Charging Party employees who testi-
fied at the hearing elected to be transitioned into the bargaining
unit rather than resign. As unit members they were informed
that they were subject to union dues, their insurance was con-
verted from Blue Cross/Blue Shield to Aetna and that Decem-
ber 29, 2002, would be their new seniority date. Employees
Lady and Darnel received a wage increase as a result and
Southworth and Curry’s pay was red circled as their wage rates
exceeded the union scale. As a result of fewer hours assigned to
union employees, the employees received a decrease in earn-
ings. Vacation benefits were also decreased as a result. Dues
from the transitioned employees were received by the Respon-
dent Union and the 2002 contract was applied to those employ-
ees without a card check or a Board-conducted election.
II. CONTENTIONS OF THE PARTIES
1. General Counsel’s position
The General Counsel contends in brief as follows: The Board
follows a restrictive policy in permitting accretions citing
United Parcel Service, 303 NLRB 326 (1991), enfd. 17 F.3d
1518 (D.C. Cir. 1994), cert. denied 513 U.S. 1076 (1995), and
prohibits the accretion of a classification of previously unrepre-
sented employees in existence at the time of recognition or
certification but not covered in an ensuing collective-bargaining
agreement citing Laconia Shoe Co., 215 NLRB 573, 576
(1974). Parties are found to have acted timely where an accre-
tion issue is dealt with prior to a successor agreement. A group
of employees that have been excluded from an existing unit for
a significant period of time can only gain entrance into the bar-
gaining unit by a representation election or a card check. It is
the historical exclusion of a disputed classification from the
bargaining unit that is determinative in assessing the legality of
an accretion, United Parcel, supra. It is inconsequential that the
union in question may or may not have acquiesced to the his-
torical exclusion. It is not necessary to apply a community of
interest standard.
In the instant case Ken Hall, the Union’s chief negotiator tes-
tified that he was not aware of the ODC/FDC classification
until 2000. However, the Union’s knowledge of the ODC clas-
sification is established by an October 25, 1995 representation
petition that was filed by Teamsters Local 63 and which sought
a unit of ODC clerks. However, it was not until 2002, that the
parties negotiated an agreement to place the ODC/FDC clerks
into the unit without an election or card check. In view of the
Union’s knowledge of the ODC classification by October 1995,
it was obligated under Board policy, to address the ODC’s bar-
gaining unit status before the 1997 contract was executed. Its
failure to do so precludes a finding of a lawful accretion in
2002. UPS’ traditional treatment of the international auditing
function as bargaining unit work at certain of its facilities, does
not bar a finding of an unlawful accretion under circumstances
in which other UPS’ facilities historically assigned the work to
nonunit personnel. The Union presented evidence that export
auditors at various UPS centers had traditionally been included
in the bargaining unit. In reliance on Lockheed Martin Tactical
Aircraft Systems, 331 NRLB 1407 (2000), the Union contends
that the employees in the disputed classifications were not ac-
creted but were given an opportunity to follow bargaining unit
work that had seeped out of the unit. However, the international
auditing function in Louisville, Ontario, and the original ODC
sites was classified as nonbargaining unit work from its incep-
tion. Therefore insofar as these facilities are concerned the
inclusion of the international auditors and ODC/FDC clerks in
the unit was not merely a way of reclaiming bargaining unit
work. As in the prior United Parcel Service case, supra, the
disputed classifications here consist of a combination of repre-
sented and unrepresented employees who performed the same
job functions at different UPS facilities. The historical exclu-
sion of the international auditors and ODC/FDC clerks at some
of the UPS facilities compels a finding that they, in the absence
of an election or card check were the subjects of an unlawful
accretion.
2. Respondent Union’s position
The Respondent Union contends in brief as follows: An ac-
cretion analysis is inappropriate. It argues that under Sun, 329
NLRB 854 (1999), the Board established a different test to be
applied in situations such as the instant case, where the bargain-
ing unit is defined primarily by the work performed, as opposed
to job classifications or titles. The Board began its analysis by
noting:
Where, as here, the scope of a unit is defined by the work per-
formed, it is necessarily that scope which is central to the
Board’s analysis, and the Board and courts have accorded
special significance to that unit scope. [329 NLRB at 857.]
After an extensive review of prior precedent, the Board an-
nounced the following standard:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD490
Accordingly, we shall apply the following standard in unit
clarification proceedings involving bargaining units defined
by the work performed: if the new employees perform job
functions similar to those performed by unit employees, as de-
fined in the unit description, we will presume that the new
employees should be added to the unit, unless the unit func-
tions they perform are merely incidental to their primary work
functions or are otherwise an insignificant part of their work.
Once the above standard has been met the party seeking to
exclude the employees has the burden to show that the new
group is sufficiently dissimilar from the unit employees so
that the existing unit, including the new group, is no longer
appropriate. [329 NLRB at 859.]
The Union has demonstrated that the work performed by
employees now classified as ODC/FDC clerks or international
auditors is the same work that either was performed by mem-
bers of the bargaining unit in those locations in which the work
was diverted during the 1999–2000 period or which has been
performed consistently by members of the bargaining unit in
those locations where the work remained in the bargaining unit
throughout the transition to computers. The parties to the in-
stant agreement agreed to clarify the contract to explicitly pro-
vide that auditing of international packages was bargaining unit
work, regardless of the titles UPS created to classify the indi-
viduals performing that work. The question is whether the Gen-
eral Counsel has met its burden to demonstrate that “the new
group is sufficiently dissimilar from the unit employees” so as
to negate their inclusion in the existing unit. Traditional com-
munity-of-interest factors must be applied. However, “a show-
ing that technological innovation has affected unit work will
not suffice to exclude new classifications” unless the changes
are such that the unit would no longer make sense if the dis-
puted employees were included. The new employees would be
added to the existing unit if the only significant differences in
the work performed were the result of “improved methodology
and increased efficiency brought on by computer technology.”
Reliance on community-of-interest factors such as wage rates
that are solely within the employer’s control are usually not
appropriate to rebut the presumption. 329 NLRB at 859. The
standard in Sun, supra, supports the inclusion of the Interna-
tional auditors and ODC/FDC clerks in the existing unit repre-
sented by the Teamsters. The language in the collective-
bargaining agreement broadly defines the bargaining unit to
include any clerical work that “involves the handling and proc-
essing of merchandise, after it has been tenured to United Par-
cel Service to effectuate delivery.”
The evidence establishes that, when UPS initially decentral-
ized the international audit function in the early 1990s it was
the work of physically auditing the international package and
the accompanying weigh bill and invoice which was assigned
to bargaining unit members. In 1998 to 2000, UPS added duties
requiring employees handling international packages to both
physically inspect the package and weigh bill and enter ship-
ping information into a computer. Some center managers, citing
the additional duties, attempted to remove the work from the
bargaining unit while other managers left the work with the
unit. The work performed by bargaining unit members prior to
1998–2000, was functionally similar to the work performed by
the newly created ODC clerk position. UPS initially referred to
the new classification as “document auditor,” then “interna-
tional auditor” and finally after further computer refinements,
“ODC clerk.” The work performed by the new ODC position
was identical to the work performed by bargaining unit mem-
bers. The only differences between the work performed by
ODC employees was the direct result of the improved method-
ology and increased efficiency brought on by computer tech-
nology. Thus the presumption that the new employees should
be added to the bargaining unit is not overcome.
There is a different standard for recapturing prior unit work.
In Lockheed Martin, supra, the parties had been signatory to
successive collective-bargaining agreements, all of which ex-
cluded salaried professional and administrative employees
(P&A) in the Graphic Arts department from the bargaining
unit. The Union perceived that the employer was assigning
bargaining unit work to P&A employees. The Union filed nu-
merous grievances. During bargaining for a new contract in
1993, the parties agreed to conduct an audit of various jobs to
determine whether the disputed tasks were bargaining unit
work. An audit showed that 26 of 76 P&A jobs consisted pri-
marily of unit work. These jobs were reclassified as bargaining
unit positions. The nonbargaining unit employees who had been
performing the work were permitted to “follow the work” and
were offered an opportunity to transfer into the bargaining unit.
The administrative law judge (ALJ) in Lockheed found the
reclassification to be an unlawful accretion. The Board re-
versed, finding accretion principles to be inapplicable because:
The Respondent and the Union did not attempt to expand the
unit by adding the P&A job classification to the unit. Rather,
they sought to adhere to the scope of the bargaining unit to
which they had agreed by returning unit work to the unit to be
performed by employees in the job classification that, by their
agreement, should have been performing the work all along.
The Board rejected the argument that its conclusion ignored the
Section 7 rights of the affected employees. As in Sun, supra, it
equated the rights of affected employees to those of a newly
hired employee accepting a position in an established appropri-
ate bargaining unit represented by a union who does not have
the “right to choose to perform bargaining unit work but be
unrepresented by the union. . . . ” 331 NLRB at 1408 fn. 5. In
both cases, work that had been previously assigned to bargain-
ing unit employees was taken away and given to non-unit per-
sonnel. In both cases numerous grievances were filed protesting
the reassignment of unit work to nonunit personnel. In both
cases the parties elected to resolve the issue by agreeing to
return the work to the bargaining unit rather than terminating
the nonunit employees who were performing the work, they
were given the opportunity to transfer into the unit. In both
cases the unit was not expanded by adding a previously unrep-
resented classification but the unit work was returned to the
unit.
In the instant case the General Counsel does not dispute that
bargaining unit members in certain cases previously performed
or currently perform international audit work. General Counsel
appears to argue that, even if UPS previously assigned interna-
TEAMSTERS LOCAL 89 (UNITED PARCEL SERVICE) 491
tional audit work to unit employees, UPS and the Teamsters
were not free to add the new ODC employees to the bargaining
unit because, when UPS originally began performing the inter-
national audit work, the specific classifications of employees
involved were not part of the bargaining unit. This argument
was made by General Counsel in Lockheed and ignores the fact
that it is the “work” that was lawfully recaptured by the union
and returned to the bargaining unit, not the individual employ-
ees or classification of employees who were offered the oppor-
tunity to follow their work into the bargaining unit.
The Board’s decision in United Parcel Service, supra, con-
cerned the appropriateness of an agreement between the Team-
sters and UPS to extend the bargaining unit to include all opera-
tions clerks working for UPS nationwide. The evidence in that
case had established that prior to 1979, Teamsters’ locals en-
tered into individual bargaining relationships with UPS facili-
ties operating within each local’s jurisdiction. Operations clerks
were included in some, but not all of these bargaining units. In
1979, when the Teamsters and UPS bargained their first na-
tional master agreement, the recognition clause included opera-
tions clerks, “where already recognized.” The Union attempted
to expand the unit to include all operations clerks during nego-
tiations for a successor master agreement in 1982, but was un-
successful. During the 1987 negotiations, UPS agreed to mod-
ify the recognitional language to include the remaining opera-
tions clerks. There with the operations clerk job remained the
same between 1979 and 1987. The Board found the addition of
the previously unrepresented operation clerks to be an unlawful
accretion. The Board cited and relied on earlier decisions which
held that accretion is inappropriate where the group sought to
be added either existed at the time of the original recognition or
certification or came into existence during the term of an
agreement but was not subsequently included in the larger unit.
The Board amplified this principle:
The limitations on accretion discussed above and applied in
Laconia Shoe and related precedent require neither that the
union have acquiesced in the historical exclusion of a group
of employees from an existing unit, nor that the excluded
group have some common job-related characteristic distinct
from unit employees. It is the fact of historical exclusion that
is determinative. [303 NLRB at 327.]
Since the operations clerks at issue had historically been ex-
cluded from the unit and there was no evidence that the Team-
sters had ever demonstrated majority support among these
clerks, the Board found the 1987 agreement to be unlawful.
Respondent Teamsters contends that the earlier UPS case is
distinguishable from the instant case before me as although the
bargaining unit in the earlier UPS case included some opera-
tions clerks, the particular clerks it sought to add had histori-
cally been excluded from the unit. In the instant case before me,
Respondent contends that international audit work had histori-
cally been assigned to bargaining unit employees at different
UPS centers scattered throughout the country. While UPS
sought to remove this work from some centers in 1999, at other
centers bargaining unit members continued to perform interna-
tional work up to the date of the hearing in the instant case.
However, the operations clerks in the earlier UPS case had
never been part of the unit. They had been excluded by a unit
definition the parties had voluntarily agreed to when the multi-
union master agreement was formed. The Union eventually
changed its view and sought to expand the unit to include the
previously excluded clerks. Thus an argument could not be
made that the Teamsters were seeking to recapture work that
“seeped out” or had otherwise been lost from the unit. However
in the instant case before me the work here had initially been
assigned to the bargaining unit in recognition of the fact that the
work “involves the handling and processing of merchandise,”
which is the functional description of the bargaining unit in the
contract. When UPS then attempted to move this work as in
Lockheed, supra, the Teamsters sought to retain and recapture
what was already theirs.
As in Lockheed, supra, the effect of the agreement between
the parties was to transfer the work performed by auditors, as
opposed to the classification itself, back into the unit. In the
early 1990s, when UPS began assigning international work to
the bargaining unit, it did not reclassify the members to whom
the work was assigned. The bargaining unit members who testi-
fied indicated they were classified by various titles such as
“clerk,” “international auditor,” “air personnel,” “package han-
dlers,” “international clerk,” “counter clerk,” “evening clerk,”
“air recovery and ADG auditor,” or “unloader and clerk.”
When UPS removed the work from the unit in 1999, it did not
lay off the bargaining unit members who had been handling
international packages, but simply reassigned them to other
tasks. When the parties agreed to return the work to the unit,
the nonunit employees who had been performing the work were
afforded the opportunity to follow the work into the unit.
Therefore it was the work and not the classification that was
incorporated into the unit. This fact distinguishes the instant
case from the Board’s recent decision in Kaiser Foundation
Hospitals, 343 NLRB 57 (2004). In Kaiser, supra, the Board
found the parties’ agreement to add the classification of re-
search assistant to the existing unit to be an unlawful accretion.
The Board found that unlike Lockheed, supra, the parties did
not conduct any audit of the research assistants’ duties, but
simply transferred the entire classification into the unit. In the
instant case no audit was necessary, since bargaining unit
members had been doing the work and union officials were
well aware, through the numerous grievances filed, of the na-
ture of the work being performed.
Respondent contends that the General Counsel’s focus on the
prior UPS case is misplaced as it involved the traditional accre-
tion scenario, where parties attempt to expand the unit to in-
clude employees performing the work that had never been per-
formed by bargaining unit members. In the instant case, the
work that was added to the unit was work that had historically
been performed by bargaining unit members. Under these cir-
cumstances, the Board has held that the parties to a collective-
bargaining agreement can reasonably decide that a bargaining
unit, defined by the nature of the work performed, includes
additional specified job classifications and duties, and includes
employees performing the work that had never been performed
by bargaining unit members. In the instant case, the work that
was added to the unit was work that had historically been per-
formed by bargaining unit members. Under these circum-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD492
stances, the Board has held that the parties to a collective-
bargaining agreement can reasonably decide that a bargaining
unit, defined by the nature of the work performed, includes
additional specified job classifications and duties, citing Ante-
lope Valley Press, 311 NLRB 459 (1993); Sun, supra.
The parties to a collective-bargaining agreement should not
be compelled to utilize a unit clarification procedure in order to
legitimatize their mutual agreement over the work functions
covered by the contract. Pall Biomedical Products Corp., 331
NLRB 1674, 1677 (2000). In Antelope Valley, supra, and a
companion case, Bremerton Sun Publishing Co., 311 NLRB
467 (1993), the Board held that an employer may, upon reach-
ing impasse, insist on transferring work out of the bargaining
unit to nonunit employees so long as the employer does not
either insist on changing the actual unit description or insist that
the nonunit employees to whom the work is transferred remain
outside of the unit. The Board held that, in such situations, the
unit placement of the nonunit employees could be determined
in either an unfair labor practice or unit clarification proceed-
ing.
Analysis
The parties in their briefs have discussed in detail their re-
spective positions as set out above concerning the bargaining
unit issues with respect to the placement of nonbargaining unit
employees in the unit in order to “follow the work” of the in-
ternational import and/or export work. They have discussed the
historical context of UPS’ movement into the business of inter-
national shipment of packages, the historical original placement
of this work in the three large hubs of Louisville, Kentucky;
Ontario, California; and Philadelphia, Pennsylvania; and the
subsequent decentralization of the international work to several
regional hubs.
Based on my review of the record I find that this case may be
decided along factual patterns set by the historical events as
viewed in the light of the prior UPS case. With respect to the
Charging Parties Porter Lady, Kelly Southworth, Melissa
Curry, and Tom Moxley, I find the prior UPS case is control-
ling as contended by the General Counsel. The evidence dis-
closed that these nonunit employees had performed the interna-
tional work at the Louisville, Kentucky center from its incep-
tion. Thus, this work had never been placed in the unit and
these employees had never been in the unit. I find in agreement
with General Counsel, that the historical exclusion of these
classifications of employees performing the international work
is the determinative factor in assessing the legality of the accre-
tion of these employees into the unit. I find that since this group
of employees had been excluded from the unit for a significant
period of time, it can only gain legal entrance into the bargain-
ing unit by a representation election or a card check, Laconia
Shoe, supra. I thus find that the Respondent violated Section
8(b)(1) and (2) of the Act by unlawfully accreting these nonunit
employees into the unit and by causing the Employer to with-
hold union dues from their wages and remitting these dues to
the Teamsters Union and by causing the Employer to fail to
remit these sums to the then existing health and insurance bene-
fits. With respect to the practices at other of the UPS facilities,
the Respondent produced evidence showing a myriad of prac-
tices at these facilities. In some cases the international work
was originally assigned to and performed by the unit employ-
ees, subsequently removed from the unit employees and as-
signed to and performed by nonunit employees and later this
work was assigned to the unit and the nonunit employees were
permitted to follow the work into the unit and were accreted
into the unit.
CONCLUSIONS OF LAW
1. The case against Respondent UPS was severed from this
case and I make no findings of violations concerning the Em-
ployer.
2. The Respondent Union, by accepting exclusive recogni-
tion as the representative of a group of previously unrepre-
sented UPS international auditors and ODC/FDC clerks, at a
time when a majority of these employees had not designated
the Union as their representative, and by entering into a con-
tract with the employer as the collective-bargaining representa-
tive and by receiving dues from the pay of certain previously
unrepresented international auditors and ODC/FDC clerks, has
engaged in unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act.
The employees who were unlawfully required to transfer into
the unit and subjected to the terms of the collective-bargaining
agreement or who were required to terminate their employment
rather than follow the work into the unit shall be made whole
for any loss of wages or benefits incurred by them as a result
thereof. Kaiser, supra, see American Tempering, Inc., 296
NLRB 699, 709 (1989), enfd. 919 F.2d 731 (3d Cir. 1990).
Nothing in the recommended Order should be construed to
authorize or require the withdrawal or revocation of any bene-
fits that have been granted to the affected employees as a result
of the imposition of the contract and the unlawful acceptance of
recognition of the Respondent Union as the affected employ-
ees’ representative. See Brooklyn Hospital Center, 309 NLRB
1163, 1164 (1992), enfd. 9 F.3d 218 (2d Cir. 1993); King Radio
Corp., 257 NLRB 521, 527 (1981).
3. The aforesaid unfair labor practices are unfair labor prac-
tices within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Union engaged in certain un-
fair labor practices, I shall order that it cease and desist there-
from and take certain affirmative actions designed to effectuate
the purposes of the Act. Having found that Respondent Union,
violated the Act by accepting recognition of a group of previ-
ously unrepresented international auditors and ODC/FDC
clerks and applying the collective-bargaining agreement to
these employees, I shall order Respondent Union to cease ac-
cepting such recognition and applying to these employees the
terms of the 1997 collective-bargaining agreement, or any ex-
tension, renewal, modification, or superseding agreement,
unless or until the Respondent Union is certified by the Board
as such representative. I shall also order that the Respondent
Union reimburse the previously unrepresented international
auditors and ODC/FDC clerks, present and former, for dues and
initiation fees and any health and insurance premiums involun-
tarily exacted from them as a result of the unlawful application
TEAMSTERS LOCAL 89 (UNITED PARCEL SERVICE) 493
of the union-security clause in the collective-bargaining agree-
ment, and on any loss of benefits sustained by them as a result
of the unfair labor practices, with interest to be computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]