United Parcel Service

National Labor Relations Board - Board Decisions

Dec 23, 2019

369 N.L.R.B. 1 (N.L.R.B. 2019)

369 NLRB No. 1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections
can be included in the bound volumes.
United Parcel Service, Inc. and Robert C. Atkinson, Jr.
Case 06–CA–143062
December 23, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
This case presents an opportunity for the Board to reconsider
the standard announced in Babcock & Wilcox Construction Co.,
Inc., 361 NLRB 1127 (2014), rev. denied sub nom. Beneli v.
NLRB, 873 F.3d 1094 (9th Cir. 2017), for deferring to arbitral
decisions in unfair labor practice cases alleging discharge or
discipline in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act.1 Babcock represented a drastic contrac-
tion of deferral practices that had existed for decades and that
we reestablish today. Under the Babcock postarbitral deferral
standard, even if the arbitration procedures appear to have been
fair and regular and the parties have agreed to be bound by the
results of arbitration, the Board will not defer to an arbitral
decision unless (1) the arbitrator was explicitly authorized to
decide the unfair labor practice issue; (2) the arbitrator was
presented with and considered the statutory issue, or was pre-
vented from doing so by the party opposing deferral; and (3)
Board law reasonably permits the award. Id. at 1131. The bur-
den of proof under Babcock rests with the party urging deferral.
Id.
While focused primarily on the revised standard for postarbi-
tral deferral, Babcock also substantially altered the prearbitral
standard for deferral to grievance arbitration proceedings and to
prearbitral grievance settlements in unfair labor practice cases
alleging discharge or discipline in violation of Section 8(a)(1)
and (3). Babcock held that the Board would no longer defer to
grievance arbitration proceedings in the former cases unless the
parties in a collective-bargaining relationship have explicitly
authorized an arbitrator to decide the unfair labor practice issue,
and that it would not defer to grievance settlement agreements
that did not comport with the new requirements for postarbitral
deferral. Id. at 1138–1139.
The Board has considered the judge’s decision and the rec-
ord in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions only to

1 On November 25, 2016, Administrative Law Judge Geoffrey
Carter issued the attached decision. The Respondent filed exceptions
and a supporting brief, the General Counsel and Charging Party filed
answering briefs, and the Respondent filed reply briefs. The General
Counsel and Charging Party also filed limited exceptions and support-
ing briefs, the Respondent filed answering briefs, and the General
Counsel and Charging Party filed reply briefs.
2 The Respondent and the Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
the extent consistent with this Decision and Order. After care-
ful consideration, we find, for the reasons set forth below, that
the 3-member majority holding in Babcock3 upset the proper
balance of interests struck by the longstanding precedent it
overruled. It drastically restricted the prior longstanding defer-
ral policy established in Olin Corp., 268 NLRB 573 (1984), and
the even more venerable substantive review standard for
postarbitral deferral set forth in Spielberg Mfg. Co., 112 NLRB
1080 (1955), as well as complementary policies for prearbitral
deferral established in United Technologies Corp., 268 NLRB
557 (1984), and for deferral to prearbitral settlement agree-
ments in Alpha Beta Co., 273 NLRB 1546 (1985). By doing
so, Babcock greatly diminished the prospect of Board deferral
to collectively bargained grievance arbitration procedures for
the resolution of disputes over discharge and discipline. This
radical contraction of deferral policy was not persuasively
shown to be necessary to protect either employees’ Section 7
rights or the Board’s jurisdiction to resolve unfair labor practice
allegations. Further, by disfavoring the peaceful resolution of
employment disputes about discharge and discipline issues
through collectively bargained grievance arbitration proceed-
ings, Babcock disrupted the labor relations stability that the
Board is charged by Congress to encourage.
Accordingly, we have decided to overrule Babcock and to re-
instate both the Spielberg/Olin postarbitral deferral standard
and related prearbitral deferral standards that existed prior to
Babcock. In accord with the Board’s usual practice, we shall
apply these standards retroactively “‘to all pending cases in
whatever stage.’”4 Applying the Spielberg/Olin standard to the
facts of this case, we reverse the judge and dismiss the com-
plaint, deferring to the unanimous decision of a joint grievance
panel upholding the October 28, 2014 discharge of Charging
Party Robert C. Atkinson, Jr.
I. BACKGROUND
The International Brotherhood of Teamsters (Union or IBT)
represents the Respondent’s package car drivers nationwide,
with 32 locals representing smaller geographical regions. Rep-
resented employees are covered by both the national master
agreement and their local contract supplement. In May 2013,
the Respondent and Union negotiated a successor national mas-
ter agreement and successor local supplement agreements. The
master agreement required member ratification on a national
basis, and each supplement required member ratification on a
local basis.
Atkinson had been a package car driver for the Respondent
since 1995 and a shop steward for Teamsters Local 538 at the
New Kensington Center in Apollo, Pennsylvania, since 1996.
In 2013 and 2014, Atkinson actively opposed ratification of the
national master agreement and the Western Pennsylvania
(WPA) local supplement, and he participated in a national Vote
No campaign aimed at persuading the Union to renegotiate a

188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 Members Miscimarra and Johnson separately dissented to the
overruling of precedent.
4 SNE Enterprises, 344 NLRB 673, 673 (2005) (quoting Deluxe
Metal Furniture Co., 121 NLRB 995, 1006–1007 (1958)).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
more favorable contract. The Respondent and the Union were
both aware of Atkinson’s involvement in the Vote No cam-
paign.
The Vote No campaign ended in late April 2014, when the
Union amended its constitution so that it could accept remain-
ing unratified local supplements, which allowed the national
master agreement and all the local supplements to take effect.
Dissatisfied with the terms of the new agreement and the pro-
cess used to push through the unratified local supplements,
Atkinson unsuccessfully ran for local union office in an effort
to displace the longtime Teamsters 538 business agent, Betty
Rose Fischer.
On October 28, 2014, the Respondent discharged Atkinson
for violating its package delivery procedures.5 Atkinson filed
two grievances over this discharge. Both of them referenced
claims that the discharge violated Section 8(a)(3) of the Act. A
joint grievance panel, consisting of two representatives from
the Union and two from the Respondent, considered these
grievances at a January 14, 2015 hearing. Business agent Fisch-
er represented Atkinson at the hearing, and Atkinson testified in
his own behalf. After the hearing, the panel unanimously up-
held the October 28 discharge, finding that “[b]ased on the facts
presented and the grievant’s own testimony the committee finds
no violations of any contract articles therefore the grievances
(#22310 and #22311) are denied.” Because the joint panel
denied Atkinson’s grievance, he was officially discharged.
Atkinson had also timely filed charges with the Board alleg-
ing that his discharge violated the Act. After a hearing, the
administrative law judge applied Babcock in rejecting the Re-
spondent’s argument that the Board should defer to the joint
panel’s decision upholding the discharge. Based on the record
in the unfair labor practice proceeding, the judge found that
Atkinson’s October 28 discharge and his prior June 20 dis-
charge were unlawful.
On March 15, 2019, the Board issued a Notice and Invitation
to File Briefs in this matter, inviting the parties to file briefs
addressing the following questions:
1. Should the Board adhere to, modify, or abandon its exist-
ing standard for postarbitral deferral under Babcock & Wilcox
Construction Co., 361 NLRB 1127 (2014)?
2. If the Board decides to abandon the Babcock standard,
should the Board return to the holdings of Spielberg Mfg. Co.,
112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573
(1984), or would some other modification of the Board’s
standard for postarbitral deferral be more appropriate?
3. If the Board decides to abandon the Babcock standard in
favor of either the Spielberg/Olin standard or some other
standard for postarbitral deferral, should it apply the newly

5 The Respondent had previously discharged Atkinson for a similar
violation on June 20. He grieved the discharge and continued to work
pursuant to a contractual provision that required UPS to continue to
employ him until the grievance was resolved. There is no evidence that
this grievance was ever resolved, but the resolution of his October 28
discharge was apparently conclusive as to the end of his employment
with the Respondent.
adopted standard retroactively in this case and other pending
cases or prospectively only?
Thereafter, the General Counsel, the Respondent, and the
Charging Party each filed a brief and a reply. The United States
Chamber of Commerce (Chamber) and the Association for
Union Democracy (AUD) filed amicus briefs. Both the Gen-
eral Counsel and the Respondent argue that the Board should
return to the Spielberg/Olin standard because it achieved a bet-
ter balance between the national policy favoring arbitration and
employees’ rights under the Act. The General Counsel further
argues that the Board should take this opportunity to clarify
when an arbitral award will be found clearly repugnant to the
Act under the Olin standard. The Charging Party argues that
the Board should retain the Babcock standard in order to ensure
the protection of employees’ statutory rights. The Chamber
argues that the Board should adopt a waiver-based deferral
standard. The AUD, emphasizing a concern for protection of
the individual statutory rights of union dissidents, also argues
for retention of the Babcock standard and further contends that
the Board should not defer to joint arbitral panels that lack a
neutral member.
II. ANALYSIS
A. Legal Background Prior to Babcock
Debate over Board deferral to collectively bargained griev-
ance-arbitration procedures has always involved how to balance
two statutory mandates: first, the Board’s exclusive administra-
tive authority and mandate under Section 10(a) of the Act to
prevent unfair labor practices; second, the declaration in Sec-
tion 1 of the Act that its purpose is to reduce industrial strife by
“encouraging practices fundamental to the friendly adjustment
of industrial disputes” and “encouraging the practice and pro-
cedure of collective bargaining,” a purpose that Section 203(d)
further defines by stating that “[f]inal adjustment by a method
agreed upon by the parties is hereby declared to be the desirable
method for settlement of grievance disputes arising over the
application or interpretation of an existing collective-bargaining
agreement.” In light of these mandates, it is generally under-
stood that a Board policy of deferring to grievance arbitration is
discretionary—that is, the Board does not cede its jurisdiction
when deferring—but deferral is strongly favored as a primary
mechanism for encouraging labor relations stability in collec-
tive-bargaining relationships. It is preferable, when feasible, to
let the parties resolve employment disputes through negotiated
mechanisms of their own choosing without resort to the
Board’s processes.
A substantial body of Federal jurisprudence, with the Steel-
workers Trilogy as a foundation stone, supports the proposition
that the establishment by parties to a collective-bargaining rela-
tionship of an autonomous system of industrial self-government
through grievance arbitration is the culmination of the statutory
scheme that Congress empowered the Board to uphold. See
Steelworkers v. American Mfg. Co., 363 U.S. 564, 566 (1960)
(stating that the “policy” set forth in Section 203(d) “can be
effectuated only if the means chosen by the parties for settle-
ment of their differences under a collective bargaining agree-
ment is given full play”); Steelworkers v. Warrior & Gulf Navi-
UNITED PARCEL SERVICE 3
gation Co., 363 U.S. 574, 581 (1960) (“[T]he grievance ma-
chinery under a collective bargaining agreement is at the very
heart of the system of industrial self-government. . . . The pro-
cessing of disputes through the grievance machinery is actually
a vehicle by which meaning and content are given to the collec-
tive bargaining agreement.”); Steelworkers v. Enterprise Wheel
& Car Corp., 363 U.S. 593, 596 (1960) (noting “[t]he federal
policy of settling labor disputes by arbitration”). See also Re-
public Steel Corp. v. Maddox, 379 U.S. 650, 653 (1965) (“Con-
gress has expressly approved contract grievance procedures as
a preferred method for settling disputes and stabilizing the
‘common law’ of the plant.”), and Gateway Coal Co. v. United
Mine Workers of America, 414 U.S. 368, 377 (1974) (“The
federal policy favoring arbitration of labor disputes is firmly
grounded in congressional command.”).
Therefore, while the Board retains its exclusive statutory ju-
risdiction to resolve unfair labor practice issues, it realizes its
statutory duty, rather than abdicates it, when exercising the
discretion to allow disputes to be resolved through the mecha-
nisms to which the parties themselves agreed. See Carey v.
Westinghouse Electric Corp., 375 U.S. 261, 271 (1964) (“[T]he
Board has considerable discretion to respect an arbitration
award and decline to exercise its authority over alleged unfair
labor practices if to do so will serve the fundamental aims of
the Act.”); International Harvester Co., 138 NLRB 923, 927
(1962) (observing that the Board “has not permitted parties to
bypass their specially devised grievance-arbitration machinery
for resolving their disputes”), affd. sub nom. Ramsey v. NLRB,
327 F.2d 784 (7th Cir. 1964), cert. denied 377 U.S. 1003
(1964); Denver-Chicago Trucking Co., Inc., 132 NLRB 1416,
1421 (1961) (finding it appropriate to defer to arbitration if “the
parties have found that the machinery which they have created
for the amicable resolution of their disputes has adequately
served its purpose”).
In 1955, the Board in Spielberg, supra, first articulated the
guiding principles for when it would exercise its discretion to
defer to an arbitration decision resolving an unfair labor prac-
tice issue. It found deferral appropriate when the arbitral pro-
ceedings “appear to have been fair and regular, all parties had
agreed to be bound, and the decision of the arbitration panel is
not clearly repugnant to the purposes and policies of the Act.”
Id. at 1082. The Board did not elaborate on the repugnancy
prong, other than to say that the decision to defer “does not
mean that the Board would necessarily decide the [unfair labor
practice] issue as the arbitration panel did.” Id. Subsequently,
in International Harvester Co., the Board stated that it would
decline to defer to an arbitral award only if the award “was at
variance with settled law and therefore clearly repugnant to the
purposes of the Act.” 138 NLRB at 928. The Board deferred
to the arbitrator's award in that case “since it plainly appears to
us that the award is not palpably wrong. To require more of the
Board would mean substituting the Board’s judgment for that
of the arbitrator, thereby defeating the purposes of the Act and
the common goal of national labor policy of encouraging the
final adjustment of disputes, ‘as part and parcel of the collective
bargaining process.’” Id. at 929 (quoting Steelworkers v. War-
rior & Gulf Navigation Co., 363 U.S. at 578).
In Raytheon Co., 140 NLRB 883, 886 (1963), enf. denied on
other grounds 326 F.2d 471 (1st Cir. 1964), the Board held that
it would not defer to an arbitrator’s decision if the arbitrator
failed to consider and rule on the unfair labor practice issue.6
From 1972 to 1984, Board vacillation in the application of the
Raytheon “consideration” and Spielberg “repugnancy” stand-
ards resulted in periodic shifts between limited and expansive
deferral to arbitration awards under Spielberg, culminating in
the re-adoption of a restrictive standard in Suburban Motor
Freight, Inc., 247 NLRB 146 (1980).7 Then, in its 1984 deci-
sion in Olin, the Board rejected the prior restrictive approach to
deferral set forth in Suburban Motor Freight and held that it
would defer to an arbitral award “if (1) the contractual issue is
factually parallel to the unfair labor practice issue, and (2) the
arbitrator was presented generally with the facts relevant to
resolving the unfair labor practice.” Olin, 268 NLRB at 574.
Olin also clarified the Spielberg “repugnancy” standard, finding
deferral appropriate “[u]nless the award is ‘palpably wrong,’
i.e., unless the arbitrator’s decision is not susceptible to an in-
terpretation consistent with the Act.” Id. (internal footnote
omitted).8 Finally, Olin placed the burden of proof under the
above standard on “the party seeking to have the Board reject
deferral and consider the merits of a given case.” Id.
The Olin majority defended these changes as consistent with
a “national policy [that] strongly favors the voluntary arbitra-
tion of disputes” and as “necessary to restrict the ‘overzealous
dissection of [arbitrators’] opinions by the NLRB’ decried by
the Ninth Circuit in Douglas Aircraft, [609 F.2d at 355].” Id.
In the Olin majority’s opinion, “[t]hat misdirected zeal has
resulted in such infrequent deferral by the Board that its occa-
sional exercise has had little substantive relationship to a mech-
anism which daily settles uncounted labor disputes.” Id.

6 The Board did not specifically state whether this procedural re-
quirement would be a separate part of the Spielberg test or would be
reviewed as an element of the third “repugnancy” part of the test. Both
Olin and Babcock appear to treat the “adequate consideration” require-
ment as a separate part of the test, antecedent to the substantive “repug-
nancy” analysis, and we believe this is the preferable approach.
7 See Airco Industrial Gases, 195 NLRB 676, 677 (1972) ( deferral
improper because the “award gave no indication that the arbitrator ruled
on the unfair labor practice issue”); Yourga Trucking, 197 NLRB 928,
928 (1972) (burden of proof rests with party seeking deferral); Elec-
tronic Reproduction Service Corp., 213 NLRB 758, 761 (1974) (over-
ruling Airco and Yourga and holding that Board will defer to arbitral
awards unless the party opposing deferral could show that special cir-
cumstances prevented that party from having a full and fair opportunity
to present evidence relevant to the statutory issue); Suburban Motor
Freight, Inc., 247 NLRB 146, 146–147 (1980) (overruling Electronic
Reproduction and returning to Airco/Yourga standard).
8 Although not specifically cited on this point, it seems likely that
this clarification had its source in Steelworkers v. Warrior & Gulf Nav-
igation Co., 363 U.S. at 582–583 (“An order to arbitrate the particular
grievance should not be denied unless it may be said with positive
assurance that the arbitration clause is not susceptible of an interpreta-
tion that covers the asserted dispute.”). See also Douglas Aircraft, 609
F.2d 352, 354 (9th Cir. 1979) (“If the reasoning behind an award is
susceptible of two interpretations, one permissible and one impermissi-
ble, it is simply not true that the award was ‘clearly repugnant’ to the
Act.”), quoted with approval in NLRB v. Pincus Bros., Inc.-Maxwell,
620 F.2d 367, 374 (3d Cir. 1980).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Olin Board provided further insight into its clarification
of the Spielberg repugnancy standard through its application to
the arbitrator’s award at issue in Olin, which found the parties’
contractual no-strike language was sufficient to justify the dis-
charge of employee Spatorico for his role as a union official in
a sick-out protest for which other participants were only given
written reprimands. The Board noted that under the recent
holding of the Supreme Court in Metropolitan Edison v. NLRB,
460 U.S. 693 (1983), a union could waive the protection af-
forded union officials against imposition of more severe sanc-
tions for participating in an unlawful work stoppage if the
waiver is clear and unmistakable. The Supreme Court found
that the general no strike/no lockout language at issue in that
case was insufficient to establish a waiver. Noting that the
arbitrator had interpreted additional, more specific language in
the parties’ contract at issue in Olin, the Board stated:
Certainly, were we reviewing the merits, Board Members
might differ as to the standards of specificity required for con-
tractual language waiving statutory rights and as to whether
the above language meets those standards at least as applied
to employee Spatorico. The question of waiver, however, is
also a question of contract interpretation. An arbitrator’s in-
terpretation of the contract is what the parties here have bar-
gained for and, we might add, what national labor policy
promotes.
268 NLRB at 576. The Board concluded that “the arbitrator’s
contractual interpretation is not clearly repugnant to either the letter
or the spirit of the Supreme Court’s opinion in Metropolitan Edi-
son.” Id. In essence, it was susceptible to an interpretation that the
union had waived its official’s protection from discriminatory dis-
cipline for participating in an unprotected work stoppage.
The Olin standard remained in place and was applied by the
Board in numerous cases from 1984 to 2014. In doing so, the
Board deferred to arbitral decisions at a higher rate than prior to
1984, but it still found deferral was not warranted in some in-
stances.9 Further, during that period, all but one of 10 United

9 According to a detailed 1987 review by one commentator of
postarbitral Board decisions since Olin,
[t]he Board’s post-settlement deferral rate under Spielberg has
shown a dramatic upswing since Olin, from thirty-four per-
cent of the deferral cases considered by the Board during the
three decades after Spielberg to sixty-seven percent of the
cases considered after Olin. Forty-eight post-settlement defer-
ral issues have been presented in the forty-seven cases decid-
ed since Olin. The Board deferred to the grievance settlement
or arbitration award in thirty instances. Of the eighteen issues
not deferred, the largest number were reversed as repugnant to
the Act. The Board also declined deferral in cases involving
representation questions, procedural bars, insufficient contrac-
tual scope, no deferral request, a nongrievance settlement, in-
sufficient evidence, nonparallel contractual and statutory is-
sues, and alleged employer retaliation.
Calvin W. Sharpe, NLRB Deferral to Grievance-Arbitration: A Gen-
eral Theory, 48 Ohio St. L.J. 595, 635 (1987). See also a 10-year
summary of 43 postarbitral deferral cases in speech by then-Chairman
States Courts of Appeals “routinely approved or applied with-
out adverse comment the Spielberg/Olin standards” as a general
deferral policy.10
B. The Board’s decision in Babcock
In 2014, the Board majority in Babcock made sweeping
changes in the longstanding Olin standard, imposing conditions
on deferral in discharge and discipline cases that are even more
restrictive than under the short-lived Suburban Motor Freight
regime that Olin overruled. Based on a perception that “[t]he
current [Olin] standard creates excessive risk that the Board
will defer when an arbitrator has not adequately considered the
statutory issue, or when it is impossible to tell whether he or
she has done so,” 361 NLRB at 1128 (footnote omitted), the
Babcock majority announced a new standard for postarbitral
deferral in cases alleging discharge and discipline violations of
Section 8(a)(3) and (1) of the Act. The new standard changed
the Board’s procedural and substantive deferral criteria and
shifted the burden of proof to the proponent of deferral. Specif-
ically, deferral in 8(a)(3) and (1) cases under Babcock would
only be appropriate “if the party urging deferral shows that: (1)
the arbitrator was explicitly authorized to decide the unfair
labor practice issue; (2) the arbitrator was presented with and
considered the statutory issue, or was prevented from doing so
by the party opposing deferral; and (3) Board law reasonably
permits the award.” 361 NLRB at 1131.11 In addition, Babcock
returned to the rule announced in Yourga Trucking and reaf-
firmed in Suburban Motor Freight that “that the party urging
deferral has the burden to prove that the substantive require-
ments for deferral have been met.” Id. at 1136.
Under Babcock’s new deferral standard (1) above, deferral
would be appropriate only when the party urging deferral
“demonstrate[es] that the specific statutory right at issue was
incorporated in the collective-bargaining agreement. If the right
was not incorporated in the contract, the proponent must show
that the parties explicitly authorized the arbitrator to decide the
statutory issue [presented in a particular case].” Id. at 1131.
Under Babcock’s new deferral standard (2), deferral would
be appropriate “only where the party urging deferral demon-
strates that the arbitrator has actually considered the unfair

John C. Truesdale, NLRB Deferral To Arbitration: Still Alive and Kick-
ing, 2000 WL 3359494 (2000).
Postarbitral cases decided by the Board likely represent only a small
part of the agency’s overall postarbitral deferral decisions, which in-
clude decisions made at the regional office level. However, the Gen-
eral Counsel does not keep statistics on the number of postarbitral
deferral decisions.
10 Babcock, 361 NLRB at 1156 (Member Johnson, dissenting in
part) (listing cases). The Eleventh Circuit in Taylor v. NLRB, 786 F.2d
1516 (1986), was the only reviewing court to disapprove the Olin defer-
ral standard. As discussed below, we believe the court’s opinion was
based on a mistaken interpretation of Olin and on precedent critical of
the earlier and broader deferral standard in Electronic Reproduction,
supra.
11 Babcock did not disturb existing deferral standards for unfair la-
bor practice cases involving alleged violations of Sec. 8(a)(5). It also
left intact the Spielberg requirements that an arbitral proceeding appear
to have been fair and regular and that all parties had agreed to be bound
by the result.
UNITED PARCEL SERVICE 5
labor practice issue, or that although the statutory issue is in-
corporated in the collective-bargaining agreement, the party
opposing deferral has acted affirmatively to prevent the propo-
nent of deferral from placing the statutory issue before the arbi-
trator.” Id. at 1132. Further, the Board would find that the
arbitrator has actually considered the statutory issue only when
it has been shown that “the arbitrator has identified that issue
and at least generally explained why he or she finds that the
facts presented either do or do not support the unfair labor prac-
tice allegation.” Id. at 1133.
Finally, under Babcock’s new deferral standard (3), “the ar-
bitrator’s decision must constitute a reasonable application of
the statutory principles that would govern the Board’s decision,
if the case were presented to it, to the facts of the case. The
arbitrator, of course, need not reach the same result the Board
would reach, only a result that a decision maker reasonably
applying the Act could reach.” In reviewing the evidence sub-
mitted in arbitration, the Board stated that it would not be
bound by the arbitrator’s factual findings, including credibility
findings, based on this evidence. Id. at 1138.
In addition to these sharp departures from the Olin postarbi-
tral standard as well as the Spielberg “repugnancy” standard,
Babcock made correlative restrictive changes in prearbitral
deferral standards, holding that it would no longer be appropri-
ate to defer litigation of Section 8(a)(3) and (1) unfair labor
practice charges to contractual grievance arbitration procedures
“unless the arbitrator was explicitly authorized to decide the
unfair labor practice issue.” Id. at 1138–1139 (overruling Unit-
ed Technologies, 268 NLRB 557 (1984)). It also held that it
would apply to prearbitral grievance settlements the same new
standard applicable to postarbitral awards, thus requiring that
“it must be shown that the parties intended to settle the unfair
labor practice issue; that they addressed it in the settlement
agreement; and that Board law reasonably permits the settle-
ment agreement.” Id. at 1139 (overruling Alpha Beta Co., 273
NLRB 1546 (1985)). In determining whether the last part of
this test is met, the Babcock Board would assess such agree-
ments in light of the factors set forth in Independent Stave, 287
NLRB 740, 743 (1987).12 Id. at 1139.
The Babcock majority acknowledged that the Board’s usual
practice of applying a new standard retroactively to all pending
cases, including the case where the standard is announced,
would in this instance frustrate the Act’s purpose of encourag-

12 Under Independent Stave as applied to agreements to settle unfair
labor practice allegations, the Board considers all the circumstances
surrounding a settlement agreement, including (1) whether the charging
party(ies), the respondent(s), and any of the individual discriminatees
have agreed to be bound, and the position taken by the General Counsel
regarding the settlement; (2) whether the settlement is reasonable in
light of the nature of the violations alleged, the risks inherent in litiga-
tion, and the stage of the litigation; (3) whether there has been any
fraud, coercion, or duress by any of the parties in reaching the settle-
ment; and (4) whether the respondent has engaged in a history of un-
lawful conduct or has breached previous settlement agreements resolv-
ing unfair labor practice disputes. 287 NLRB at 743.
Inasmuch as the Independent Stave factors apply to the settlement of
pending unfair labor practice cases, it is not at all clear how the Bab-
cock majority intended them to apply to prearbitral grievance settle-
ments where no unfair labor practice charge had yet been filed.
ing collective bargaining because of its disruptive effects on
parties whose bargaining agreements, executed in reliance on
Olin’s longstanding standard, did not expressly authorize an
arbitrator to decide unfair labor practice issues. Accordingly,
the new Babcock standards would only apply prospectively.
The discharge issue in Babcock itself was decided under the
Spielberg/Olin standard, and the complaint was dismissed
based on deferral to a grievance subcommittee’s decision that
the Board unanimously found to be susceptible to an interpreta-
tion consistent with the Act.13 On review, a panel of the Ninth
Circuit rejected a challenge to the Board’s failure to apply the
new deferral standard retroactively and did not address the
merits of the new standard. Beneli v. NLRB, 873 F.3d at 1094.
The court opined that one factor weighing heavily against ret-
roactive application was that
[t]he new standard shifts the burden of proof for challenging
the arbitration award to the party advocating deferral to the
arbitral award and is less deferential to the arbitrator’s deci-
sion. The more deferential Spielberg/Olin standard controlled
for almost 60 years, and employers and unions relied upon it
during that time period. Courts of appeals throughout the
country, including this one, repeatedly upheld that standard.
Thus, the new standard represents an abrupt departure from
well-established practice.
Id. at 1099–1100.
C. Babcock is overruled
The Babcock decision represents a policy choice based on
the then-majority’s differing view of the relative weight to be
assigned the protection of employees’ individual statutory
rights and the encouragement of grievance arbitration in a col-
lective-bargaining relationship. The Babcock majority did not
rely on any empirical evidence in support of its new deferral
standards, and it disclaimed the suggestion that the prior Spiel-
berg/Olin deferral standard constituted an impermissible con-
struction of the Act. 361 NLRB at 1128 fns. 5 and 6. In our
view, the Spielberg/Olin postarbitral standard, as well as the
related prearbitral standards in United Technologies and Alpha
Beta, are not just permissible constructions of the Act. They
represent a cohesive policy choice that is far more commensu-
rate with the role contemplated by Congress for arbitration of
statutory claims and for Board deference to the grievance arbi-
tration process and its results. To fully effectuate the policies
and purposes of the Act, Babcock must be overruled and the
prior deferral standards must be reinstated.
Babcock is premised on two fundamental and mistaken con-
cepts.
The first is the factual presumption that there is an “exces-
sive risk” that arbitrators will not adequately consider statutory
issues implicated in discharge and discipline cases unless they
are expressly authorized to do so and required to make specific
findings as to those issues. This presumption of “excessive
risk” is belied by the inability of the Babcock majority to do
more to support it than to refer to the facts of Babcock and the

13 Members Miscimarra and Johnson concurred in relevant part.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
outcome in two other cases14 during the entire 30-year history
of Spielberg/Olin jurisprudence.15 To fill the obvious gap, and
giving no counterweight to cases in which the Board declined
to defer under Spielberg/Olin, the majority resorted to specula-
tion that an unknown number of additional cases might (or
implicitly must) exist but were “never brought to the Board
because the General Counsel or the party who would challenge
deferral correctly assume[d] that, under our current [Spiel-
berg/Olin] standard, the Board would defer.” Id. at 1132.
This speculative stretch reflects a general distrust of arbitra-
tion as adequate to protect individual statutory rights under the
Act in discharge and discipline cases. Babcock made no overt
claim that arbitrators lack competence to decide these cases
consistent with statutory principles,16 nor would any such claim
be tenable. Arbitrators “are indispensable agencies in a contin-
uous collective bargaining process. They sit to settle disputes at
the plant level—disputes that require for their solution
knowledge of the custom and practices of a particular factory or
of a particular industry as reflected in particular agreements.
When an arbitrator is commissioned to interpret and apply the
collective bargaining agreement, he is to bring his informed
judgment to bear in order to reach a fair solution of a problem.”
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. at
596–597. And as a general matter, “arbitral tribunals are readi-
ly capable of handling . . . factual and legal complexities,” and
“there is no reason to assume at the outset that arbitrators will
not follow the law.” 14 Penn Plaza LLC v. Pyett, 556 U.S. 247,
268 (2009) (citations omitted). Indeed, “[w]here the statutory
issue [in labor arbitration] is primarily factual or contractual, an
arbitrator is in as good, if not better, position than the Board to
resolve the issue.” Servair, Inc. v. NLRB, 726 F.2d 1435, 1441
(9th Cir. 1984); accord: Bloom v. NLRB, 603 F.2d 1015, 1020
(D.C. Cir. 1979).

14 Andersen Sand & Gravel Co., 277 NLRB 1204 (1985), and Air-
borne Freight Corp., 343 NLRB 580 (2004).
15 As previously noted, there is a similar paucity of adverse judicial
precedent during this period with respect to the validity of the Spiel-
berg/Olin standard, although several courts of appeals disagreed with
the Board’s decision to defer or not to defer under that standard based
on the facts in a particular case. The Eleventh Circuit was the only
court of appeals that rejected the standard itself, stating in Taylor v.
NLRB, 786 F.2d at 1521-1522, that “[b]y presuming, until proven oth-
erwise, that all arbitration proceedings confront and decide every possi-
ble unfair labor practice issue, Olin Corp. gives away too much of the
Board’s responsibility under the NLRA.” Taylor relied in part on a trio
of Supreme Court cases that are distinguishable on the basis of the
statutory rights involved (see fn. 21) and in part on what appears to be a
misconception that the Olin standard is equivalent to the earlier deferral
standard in Electronic Reproduction, supra. In addition, as noted by
dissenting Member Johnson in his Babcock dissent, the court “seem[ed]
also to have been much influenced by its view that the Board had simp-
ly failed to follow its own Spielberg/Olin standard in the circumstances
of that case” with respect to whether the joint committee arbitration
proceedings in that case were “fair and regular.” 361 NLRB at 1156
(citing Taylor, 786 F.2d at 1522).
16 However, Babcock did arguably damn with faint praise the ability
of arbitrators to resolve statutory issues: “We recognize that many
arbitrators, as well as many union and employer representatives who
appear in arbitral proceedings, are not attorneys trained in labor law
matters.” 361 NLRB at 1133.
More importantly, Babcock’s implicit distrust of arbitration
is untenable in the face of the principles expressed in Section 1
and Section 203(d) of the Act, in the Federal Arbitration Act,17
and in the overwhelming body of judicial precedent voicing
confidence in, and strong preference for, resolution of dis-
charge and discipline cases through collectively bargained
grievance arbitration procedures. As the Supreme Court stated:
“[T]he hostility evinced by courts toward arbitration of com-
mercial agreements has no place here. For arbitration of labor
disputes under collective bargaining agreements is part and
parcel of the collective bargaining process itself.”18
The second mistaken concept underlying Babcock is the le-
gal premise that individual statutory rights remain unaffected
by grievance arbitration provisions in collective-bargaining
agreements and are independent of contractual rights, and that
the Board retains in full its primary adjudicatory role (as op-
posed to authority) to protect those rights. On the contrary,
“[i]n the NLRA, Congress clearly did not seek to segregate
private dispute resolution as a remedy separate from and inde-
pendent of statutory remedies. Indeed, § 203(d)’s express pref-
erence for private remedies reflects Congress’ considered view
that, with regard to NLRA rights, private and public dispute
resolution were not independent, but interdependent.”19 In fact,
in many discharge and discipline cases addressed in grievance
arbitration, factual congruency and contractual just cause or
nondiscrimination provisions effectively mean there are no real
statutory issues to litigate apart from contractual issues. Reso-
lution of one issue necessarily resolves the other. Moreover,
many individual statutory rights that may exist prior to collec-
tive bargaining may change or be eliminated as a result of the
bargaining process. It is well established that a union can and
frequently does waive many individual employee rights under
the Act in collective-bargaining agreements, including, e.g., the
right to strike and the right to refuse to cross a lawful picket
line.20
In light of the foregoing, it would seem obvious that the par-
ties’ grievance arbitration machinery, rather than the Board,
becomes the primary mechanism for resolving everyday em-
ployment disputes, even when those disputes may arguably
present issues of statutory protection. The Supreme Court’s
expansive view of the role of grievance arbitration in collective
bargaining under the Act certainly gives no indication that a
“carve out” should exist for putatively independent statutory
issues relating to discharge and discipline. In fact, it is difficult

17 “The FAA was originally enacted in 1925, 43 Stat. 883, and then
reenacted and codified in 1947 as Title 9 of the United States Code. Its
purpose was to reverse the longstanding judicial hostility to arbitration
agreements that had existed at English common law and had been
adopted by American courts, and to place arbitration agreements upon
the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 24 (1991).
18 Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. at 578.
Of course, numerous subsequent Supreme Court decisions have made
clear that the FAA’s provisions were also intended to reverse the hostil-
ity towards arbitration under commercial agreements noted in Steel-
workers v. Warrior & Gulf Navigation.
19 Hammontree v. NLRB, 925 F.2d 1486, 1497–1498 (D.C. Cir.
1991) (internal quotation marks omitted).
20 NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967).
UNITED PARCEL SERVICE 7
to understand how a restrictive Board policy of deference to
arbitration on those issues can possibly be reconciled with
Steelworkers Trilogy principles. In Warrior & Gulf Naviga-
tion, the Court stated that “[a]rbitration is the means of solving
the unforeseeable by molding a system of private law for all the
problems which may arise and to provide for their solution in a
way which will generally accord with the variant needs and
desires of the parties.” 363 U.S. at 580 (emphasis added). And
in American Mfg. Co., the Court stated that Section 203(d)’s
“policy can be effectuated only if the means chosen by the par-
ties for settlement of their differences under a collective bar-
gaining agreement is given full play,” and “[a]rbitration is a
stabilizing influence only as it serves as a vehicle for handling
any and all disputes that arise under the agreement.” 363 U.S.
at 566, 567 (emphasis added).21
In sum, contrary to Babcock’s premise that individual statu-
tory rights and the Board’s primary adjudicatory role in protect-
ing them remain unchanged after parties have collectively bar-
gained a contract including provisions for a private grievance
arbitration system,
[t]he national policy in favor of labor arbitration recognizes
that the societal rewards of arbitration outweigh a need for
uniformity of result or a correct resolution of the dispute in
every case. The parties are not injured by deference to arbitra-
tion because it is the parties themselves who have selected
and agreed to be bound by the arbitration process. To the ex-
tent that the parties surrender their right to a subsequent full
hearing before the Board or a court, it is a voluntary waiver,
consistent with the national policy.22
In this context, the Board best serves the national policy em-
bedded in the Act by limiting review of the arbitral process and
result. It is only “when the arbitration award cannot be argua-
bly reconciled with the policies of the Act, [that] the Board will
vindicate the federal interest by declining to defer.”23
Apart from the two overarching policy reasons just discussed
for rejecting the Babcock standard, we find there are other seri-
ous problems with the standard that further warrant reinstating
the precedent and deferral practices overruled in Babcock.
1. Babcock risks impermissible interference with parties’
freedom of contract. Babcock held that the Board would not
defer to an arbitration award in the absence of an express au-
thorization that the arbitrator can decide statutory issues in
discharge and discipline cases. Even as applied prospectively,
this holding effectively required parties in a collective-
bargaining relationship to rewrite facially lawful grievance
arbitration contractual provisions in future contracts, or to mod-

21 We not regard the Supreme Court’s decisions in Alexander v.
Gardner-Denver, 415 U.S. 36 (1974), Barrentine v. Arkansas-Best
Freight System, Inc., 450 U.S. 728 (1981), and McDonald v. City of
West Branch, 466 U.S. 284 (1984), as supportive of a contrary view of
the Board’s role in protecting individual statutory rights. Each of those
cases involved nonwaivable individual rights under other statutes (Title
VII, the FLSA, and 42 U.S.C. § 1983, respectively) that Congress in-
tended to be judicially enforceable even if previously subject to arbitra-
tion.
22 NLRB v. Pincus Bros., Inc.-Maxwell, 620 F.2d at 374.
23 Id. at 375.
ify them by providing the requisite authorization on a case-by-
case basis. As Member Miscimarra stated in his dissenting
opinion in Babcock, 361 NLRB at 1147, there is a legitimate
concern that this aspect of the majority’s decision contravenes
the express terms of Section 8(d) of the Act, as affirmed in H.
K. Porter Co. v. NLRB, 397 U.S. 99 (1970), providing that the
Board has no authority to compel the parties to agree to sub-
stantive terms of a contract. It is true that, strictly speaking, the
parties do not have to provide this authorization, but failing to
do so would result in forfeiture of their ability to utilize griev-
ance arbitration to resolve disputes over discipline and dis-
charge—historically among the most frequent subjects of that
process.
2. Babcock encourages multiple litigation of a single con-
tested discharge or discipline. Babcock summarily rejected
arguments that the new standard would encourage unions to
withhold evidence concerning unfair labor practice issues in
arbitration proceedings in order to preserve the ability to reliti-
gate those issues before the Board. The majority reasoned that
an employer could raise the statutory issue even if the union did
not, parties would normally be motivated to raise the issue in
order to avoid the expense and time of unnecessary litigation,
and if a party opposing deferral withheld evidence “the Board
will assess whether Board law reasonably permits the arbitra-
tor’s award in light of the evidence that has been presented.”
Id. at 1133. This reasoning does not withstand scrutiny.
First, assuming that parties would, post-Babcock, include
express authorization in their collective-bargaining agreements
for arbitrators to address and resolve unfair labor practice is-
sues,24 it is not at all obvious why an employer defending a
discharge or discipline would raise and then rebut the possibil-
ity of a statutory violation if the grievant did not raise the issue.
Indeed, there is no reason to believe that an employer would
even know that there was a possible statutory claim if an unfair
labor practice charge had not been filed prior to the arbitration.
In that case, not only would the employer be unable to raise the
issue, but an arbitrator would clearly be unable to address it
(assuming, as the Babcock majority would, that a separate
statutory issue always exists).
As for Babcock’s claim that parties still would be motivated
to resolve all issues in arbitration to avoid the expense and time
of additional litigation, we question why any grievant would
not want to preserve the possibility of a second chance to regain
a job or reverse a disciplinary action in the event of an initial
adverse arbitral ruling. This would seem particularly obvious
and desirable when it is the General Counsel, not the grievant
or the union that represents him or her, who will bear the ad-
ministrative burden and costs in the second go-round. An em-
ployer, however, will have no such support in litigation against
a government agency; unlike the grievant or union, it must foot
its own bill. Consequently, even the threat that a grievant will
seek a second bite of the apple would likely persuade many
employers to negotiate settlements on terms less favorable than
they may secure or have already secured in arbitration. Bab-

24 This assumption is far from certain, as discussed at length by dis-
senting Member Miscimarra in Babcock. 361 NLRB at 1147–1148.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cock thus puts the Board’s heavy thumb on the scales of the
private collective-bargaining justice system.
Finally, Babcock’s purported assurance that the Board would
defer if shown that the party opposing deferral acted affirma-
tively to prevent the proponent of deferral from placing the
statutory issue before the arbitrator is largely illusory. Deferral
on this basis would apparently be justified only if the grievant
or union representative affirmatively prevented an employer
from raising the statutory issue. If the employer makes no at-
tempt to raise the issue, the failure of parties opposing deferral
to do so would not constitute the required affirmative act (and
we have explained why it is unlikely that an employer would
raise the statutory issue if the grievant does not). For that mat-
ter, even if the Board finds that a party opposing deferral has
withheld evidence, under Babcock its assessment of the reason-
ableness of the arbitrator’s award will be based on de novo
review of the evidence presented in arbitration, giving no def-
erence to the findings, including credibility findings, made by
the arbitrator. Moreover, this review will take place after
presentation of evidence in an unfair labor practice hearing.
Under these circumstances, it is difficult to believe that review
of the arbitrator’s decision by an administrative law judge, and
by the Board on exceptions, will not be colored by evidence
presented in that subsequent proceeding.
3. Babcock erred in shifting the burden of proof. The Bab-
cock majority reasoned that it was appropriate to place the bur-
den of proof on the party urging deferral in accord with general
precedent that the burden rests with a party urging an affirma-
tive defense. It also criticized Olin for imposing what it
deemed to be a “conclusive presumption that the arbitrator
‘adequately considered’ the statutory issue if the arbitrator was
merely presented with facts relevant to both an alleged contract
violation and an alleged unfair labor practice.” 361 NLRB at
1130. Finally, reprising an argument from Member Zimmer-
man’s dissent in Olin, Babcock also claimed that “there is ‘no
sound procedural basis at all for imposing on the General
Counsel—the one party in unfair labor practice litigation who is
not in privity through a collective-bargaining agreement—the
responsibility of producing evidence about arbitral proceedings
under that agreement.’” Id. at 1136 (quoting Olin, 268 NLRB
at 580).
We adhere to precedent holding that postarbitral deferral is
an affirmative defense that must be timely raised. However, we
find merit in dissenting Member Johnson’s view in Babcock, id.
at 1154 fn.13, that a party meets the resulting burden by prov-
ing the existence of an arbitration award. Once that has been
done, we find it more appropriate to impose the burden of proof
with respect to deferral on the party seeking a de novo unfair
labor practice hearing on the discharge or discipline that was
the subject of the arbitration award. Doing so is consistent with
the view of the Supreme Court in Warrior & Gulf, the second
of the Steelworkers trilogy, that doubts regarding the propriety
of deferral “should be resolved in favor of [contractual] cover-
age.” 363 U.S. at 583.25 See also John Wiley & Sons, Inc. v.

25 Even apart from the provisions of Sec. 203(d) expressly favoring
deferral to collectively bargained grievance arbitration, the Supreme
Court has stated that “questions of arbitrability must be addressed with
Livingston, 376 U.S. 543, 550 fn. 4 (1964) (“[W]hen a contract
is scrutinized for evidence of an intention to arbitrate a particu-
lar kind of dispute, national labor policy requires, within rea-
son, that an interpretation that covers the asserted dispute…be
favored” (emphasis deleted; internal quotation marks omit-
ted).).
We disagree that the burden imposed is impossible to meet.
That argument may have had some traction in reference to the
broad deferral standard and presumption set forth in Electronic
Reproduction, where the Board would defer to an arbitral
award “except in special circumstances,” but it lacks merit
when leveled against the Olin standard. As one commentator
cogently stated,
the party arguing against deferral under Olin can succeed by
showing that the unfair labor practice issue was not factually
equivalent to the contractual grievance, or that the arbitrator
was not presented generally with the facts necessary to decide
the unfair labor practice. By contrast, under Electronic Re-
production an argument based on the failure to present rele-
vant facts to the arbitrator would be grounds for granting de-
ferral. In addition, a party urging against deferral under Olin
can show that the arbitral award was not susceptible to an in-
terpretation consistent with the NLRA. Finally, the party urg-
ing against deferral could rely on the remaining elements of
the Spielberg test, available under any formulation of the
standards. That is, the party could argue that proceedings were
not fair and regular, or that the parties had not agreed to be
bound by the arbitral decision.26
Finally, we find no merit in the argument that it is unfair to
impose the burden of proof on the General Counsel because he
is not in contractual privity with the arbitration process. The
General Counsel lacks independent authority to investigate
unfair labor practices. Under Section 10 of the Act, an unfair
labor practice charge must be filed to initiate any investigation,

a healthy regard for the federal policy favoring arbitration. . . . The
[Federal] Arbitration Act establishes that, as a matter of federal law,
any doubts concerning the scope of arbitrable issues should be resolved
in favor of arbitration.” Moses H. Cone Memorial Hospital v. Mercury
Construction Corp., 460 U.S. 1, 24–25 (1983); see also Shear-
son/American Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987)
(FAA “mandates enforcement of agreements to arbitrate statutory
claims”); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 625 (1985) (“[N]o warrant in [FAA] for implying . . .
presumption against arbitration of statutory claims.”); Dean Witter
Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985) (FAA “requires that
[the Court] rigorously enforce agreements to arbitrate”). In the end,
“the parties’ intentions control, but those intentions are generously
construed as to issues of arbitrability.” Mitsubishi Motors Corp., 473
U.S. at 626 (emphasis added); see also AT & T Technologies, Inc. v.
Communications Workers, 475 U.S. 643, 650 (1986) (“[T]here is a
presumption of arbitrability in the sense that ‘[a]n order to arbitrate the
particular grievance should not be denied unless it may be said with
positive assurance that the arbitration clause is not susceptible of an
interpretation that covers the asserted dispute.’”) (quoting Steelworkers
v. Warrior & Gulf Navigation, 363 U.S. at 582-583).
26 Thomas L. Kemp, Further Convolutions In a Convoluted Policy:
Olin, Taylor, and NLRB Deferral to Arbitration Decisions, 82 Nw. U.
L. Rev. 443, 468–469 (1988).
UNITED PARCEL SERVICE 9
and that investigation begins with the supporting evidence pro-
vided by the charging party. In discharge and discipline cases
presenting deferral issues, the charging party will almost invar-
iably be the grievant or the union representing that grievant in
arbitration. Accordingly, there is no apparent reason why the
General Counsel would not have full access through the charg-
ing party to evidence concerning the conduct and result of an
arbitral proceeding that could meet the burden of showing de-
ferral is inappropriate under the Spielberg/Olin standard.
4. Babcock eviscerated the Spielberg “repugnancy” stand-
ard. The Babcock majority replaced a standard for substantive
review of an arbitral decision that had existed for nearly 60
years—i.e., that assuming all other deferral criteria are met, the
Board will defer to an arbitral decision that is not clearly re-
pugnant to the purposes and policies of the Act. Under the new
standard adopted in Babcock, however,
deferral normally will be appropriate if the party urging defer-
ral shows that Board law reasonably permits the arbitral
award. By this, we mean that the arbitrator’s decision must
constitute a reasonable application of the statutory principles
that would govern the Board’s decision, if the case were pre-
sented to it, to the facts of the case. The arbitrator, of course,
need not reach the same result the Board would reach, only a
result that a decision maker reasonably applying the Act could
reach. In deciding whether to defer, the Board will not engage
in the equivalent of de novo review of the arbitrator’s deci-
sion.
361 NLRB at 1133 (footnote omitted).
As previously noted, the Board’s review under the “reasona-
bleness” standard would not be based on the arbitrator’s own
findings, including credibility resolutions, of evidence present-
ed in arbitration. Even if Board review would be restricted to
that evidence and would not, as we have suggested, likely be
colored by evidence presented in a subsequent unfair labor
practice hearing and by an administrative law judge’s findings
based on that evidence, the new “reasonableness” standard
gives less deference to an arbitrator’s factual findings than the
Board gives to an administrative law judge’s findings.27 Be-
yond that, Babcock provides no real insight into how Board
review of an arbitrator’s mandated legal analysis of the statuto-
ry issue would differ, if at all, from its traditional de novo re-
view of the merits of an administrative law judge’s legal analy-
sis. Babcock provides only a single, far-from-illuminating
example of how it would apply the reasonableness standard.28
Further, Babcock casts a shadow of doubt by stating that defer-
ral will “normally” be appropriate under that standard, leaving
open the prospect that an even less deferential standard (if that
is even possible) might apply in certain undefined circumstanc-

27 The Board will not overrule a judge’s demeanor-based credibility
findings unless the clear preponderance of all the relevant evidence
convinces us that the findings are incorrect. All other factual findings,
as well as a judge’s legal conclusion based thereon, are subject to de
novo review. Standard Dry Wall Products, Inc., 91 NLRB at 545.
28 The Babcock majority indicated that the Board “might” defer to
an arbitrator’s award that differed to some extent from the remedy that
the Board would order for a violation found. 361 NLRB at 1133 fn. 16.
es. It is clear enough, however, that both the arbitrator’s analy-
sis and the results of that analysis would be subject to an un-
precedented degree of scrutiny under the new “reasonableness”
standard, representing a marked departure from the Board’s
traditional limited substantive review under Spielberg. In sum,
notwithstanding Babcock’s disclaimer of de novo review, we
agree with dissenting Member Johnson that this standard
is tantamount to requiring de novo review of the award by an
administrative law judge in the unfair labor practice case and,
upon exceptions, by the Board itself. There may be instances
in which an award will survive this review even if the judge
or Board might interpret the facts differently, but it seems far
more likely that the current Board majority will defer only in
circumstances where it would reach the same result under the
facts as they would find them and under the law as they pres-
ently construe it.
This is not true deferral in any meaningful sense.
Id. at 1153.
Based on the foregoing, we conclude that Babcock should be
overruled and that the requirements set forth in Olin for
postarbitral deferral in unfair labor practice cases alleging dis-
charge and discipline in violation of Section 8(a)(3) and (1)
should be reinstated. Specifically, the Board will defer to an
arbitration award in such cases if (1) the arbitration proceedings
were fair and regular,29 (2) the parties agreed to be bound, (3)
the contractual issue was factually parallel to the unfair labor
practice issue, (4) the arbitrator was presented generally with
the facts relevant to resolving the unfair labor practice, and (5)
the decision was not clearly repugnant to the purposes and poli-
cies of the Act.30 As in Olin, the burden will be on the party

29 We find no basis in amicus AUD’s arguments for departing from
the Board’s long-established policy of deferral to joint arbitration panel
decisions on the ground that those proceedings are inherently unfair to
grievants who are union dissidents. The Board has repeatedly upheld
application of the Spielberg/Olin standard to final and binding deci-
sions of such joint panels, including those that lack a neutral member.
E.g., Airborne Freight Corp., 343 NLRB 580, 580 (2004). See also
General Drivers, Warehousemen, and Helpers, Local Union No. 89 v.
Riss and Company, Inc., 372 U.S. 517 (1963) (holding that award of a
Teamsters joint committee is judicially enforceable under Sec. 301 if
parties intended in their collective-bargaining agreement that the award
be final and binding). That does not mean, of course, that a party can-
not prove in a particular case that the process engaged in by a joint
panel has not been fair and regular. Under the Spielberg doctrine, the
Board has declined to defer to decisions of bipartite grievance arbitra-
tion panels when, unlike in the present case, there has been evidence of
bias, hostility or lack of impartiality by members of the panel. See
Roadway Express, Inc., 145 NLRB 513, 515 (1963).
30 We find no need in this proceeding to address the arguments by
the General Counsel and amicus Chamber that we should modify or
replace the Spielberg repugnancy standard for substantive review of an
arbitral decision inasmuch as either of the changes suggested would
have no impact on the disposition of the deferral issue in this case, as
discussed below.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
arguing against deferral to demonstrate defects in the arbitral
process or award.31
D. Retroactive application of the new standard
We must now decide whether to apply the Spielberg/Olin de-
ferral standard retroactively, i.e., in all pending cases including
this one, or prospectively only. “The Board’s usual practice is
to apply new policies and standards retroactively to all pending
cases in whatever stage,” unless retroactive application would
work a “manifest injustice.” SNE Enterprises, 344 NLRB at
673 (internal quotations omitted). “[T]he propriety of retroac-
tive application is determined by balancing any ill effects of
retroactivity against ‘the mischief of producing a result which is
contrary to a statutory design or to legal and equitable princi-
ples.’” Id. (quoting Securities & Exchange Commission v.
Chenery Corp., 332 U.S. 194, 203 (1947)). In determining
whether retroactive application would result in “manifest injus-
tice,” the Board considers “the reliance of the parties on preex-
isting law, the effect of retroactivity on accomplishment of the
purposes of the Act, and any particular injustice arising from
retroactive application.” Id. Having considered these principles,
we conclude that applying the pre-existing standard retroactive-
ly and dismissing the complaint would not work a manifest
injustice.
In returning to the Spielberg/Olin deferral standard, we find
retroactive application to all pending cases to be particularly
appropriate. Spielberg/Olin was long-established Board prece-
dent; the Board had applied it in numerous cases; and parties
were familiar with and long relied on it. By contrast, Babcock
has only been Board policy since December 2014, and it was to
be applied prospectively only. In fact, the present case appears
to be the only postarbitral deferral case to have come before us
for review. Under these circumstances, “retroactive” applica-
tion of the Spielberg/Olin deferral standard is little more than a
continuation of what the Board has long done. Thus, retroactive
application in this context cannot be said to work a manifest
injustice.
E. Application of the restored Spielberg/Olin standard in this
case
We find deferral to the January 14, 2015 joint panel decision
to be appropriate. As discussed above, under Spielberg/Olin,
the Board defers when (1) all parties have agreed to be bound
by the arbitrator’s decision, (2) the proceedings appear to have
been fair and regular, (3) the contractual issue is factually paral-
lel to the unfair labor practice issue, (4) the arbitrator was pre-
sented generally with the facts relevant to resolving the unfair
labor practice issue, and (5) the arbitral decision is not clearly
repugnant to the Act—i.e., the decision is susceptible to an
interpretation that is consistent with the Act. In addition, under
Spielberg/Olin, the burden rests on the party opposing defer-
ral—here, the Charging Party—to show that the above stand-
ards were not met.

31 We will also reinstate the corollary standards for prearbitral defer-
ral to grievance arbitration in United Technologies, 268 NLRB 557
(1984), and for deferral to prearbitral grievance arbitration agreements
in Alpha Beta, 273 NLRB 1546 (1985).
First, it is undisputed that all parties agreed to be bound by
the decision of the joint grievance panel. Second, even under
Babcock, the judge did not find that the Respondent failed to
show the joint panel proceedings were not fair and regular, and
only the Charging Party relevantly excepted. Under the Spiel-
berg/Olin standard, the General Counsel bears the burden of
making that showing. Moreover, it is well established that the
General Counsel, not the Charging Party, is in control of the
complaint. In any event, we reject as unfounded speculation
arguments suggesting that panel members were biased against
Atkinson because of their involvement in negotiating the bar-
gaining agreements that he actively opposed, or that Business
Agent Fischer was biased against him because he ran against
her in the local union election. It is clear from the record that
the contractual issue as to Atkinson’s discharge was factually
parallel to the unfair labor practice issue and that the joint
grievance panel was presented generally with the facts relevant
to deciding the statutory issue. Both of the grievances filed by
Atkinson alleged violations of Section 8(a)(3) of the Act. The
applicable Teamsters master agreement contains separate arti-
cles prohibiting discrimination based on union activity (art. 21),
retaliation for enforcement of contract rights (art. 37), and dis-
charge without just cause (art. 52). The written casefile presen-
tations by both parties at the hearing referenced the allegations
of statutory violations. Atkinson had the opportunity to testify
and to answer questions by panel members. He acknowledged
in his testimony at the unfair labor practice hearing that he did
discuss his union activity before the joint panel.
The remaining question presented under Spielberg/Olin is
whether the panel’s unanimous decision was repugnant to the
Act as not susceptible to any interpretation consistent with the
Act. The panel based its decision on “the facts presented and
the grievants [sic] own testimony,” finding “no violation of any
contract articles.” The interpretation of that decision can be no
different than in Babcock, where all Board members agreed,
with subsequent approval by the Ninth Circuit, that “the deci-
sion is arguably consistent with a finding that the [panel] con-
sidered and rejected the contention that the discharge was moti-
vated by union...activities.” Babcock, 361 NLRB at 1140. The
finding that Atkinson was discharged for failing to follow com-
pany procedures is therefore susceptible to an interpretation
consistent with the Act. Accordingly, we shall dismiss the
complaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. December 23, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
UNITED PARCEL SERVICE 11
(SEAL) NATIONAL LABOR RELATIONS BOARD
Julie Stern, Esq., for the General Counsel.
Jennifer Asbrock, Esq., for the Respondent.
Catherine Highet, Esq., for the Charging Party.
DECISION
GEOFFREY CARTER, Administrative Law Judge. In this case,
the General Counsel alleges that United Parcel Service, Inc.
(Respondent or UPS) violated Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act) by discharging Robert
C. Atkinson, Jr. (Atkinson or Charging Party) on June 20 and
October 28, 2014 (it was possible to discharge Atkinson twice
because Atkinson continued working while his grievance for
the June 20 discharge was pending). Although Respondent
maintains that it lawfully discharged Atkinson on both dates for
not following UPS’s methods and procedures, as explained in
more detail below, I have found that Respondent’s decisions to
discharge Atkinson violated the Act because they were tainted
by a plan among Atkinson’s supervisors to use UPS’s methods
and procedures to get rid of Atkinson because of his union and
protected concerted activities. However, based on evidence of
misconduct by Atkinson that Respondent acquired after Atkin-
son’s discharge, I have also found that Atkinson is not entitled
to reinstatement, and is not entitled to backpay beyond June 21,
2016.
STATEMENT OF THE CASE
This case was tried in Pittsburgh, Pennsylvania on June 20–
24 and August 22–25, 2016. Atkinson filed the charge in Case
6–CA–143062 on December 18, 2014.1
The General Counsel issued the complaint in Case 6–CA–
143062 on March 29, 2016. In the complaint, the General
Counsel alleged that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Atkinson on or about June 20,
2014, and by discharging Atkinson on or about October 28,
2014, because Atkinson refrained from supporting and assisting
Teamsters Local Union 538 (Teamsters Local 538) and en-
gaged in protected concerted activities. Respondent filed a
timely answer denying the alleged violations in the complaint.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Charging Party and Respondent, I

1 All dates are in 2014, unless otherwise indicated.
2 The transcripts and exhibits in this case are generally accurate.
However, both the General Counsel and Respondent filed motions to
correct the trial transcript in this matter. In addition, during my review
of the record, I also identified transcript corrections that are warranted.
Given the absence of any objections and (for the most part) the lack
of any conflicts between the parties’ requested corrections, I hereby
grant in part and deny in part the General Counsel’s and Respondent’s
motions to correct the trial transcript as indicated in Appendix B, which
is a list of transcript corrections that is attached to this decision. Where
the transcript corrections relate to the spellings of the names of non-
supervisory employees who did not testify in the trial, I have granted
the corrections as indicated in Appendix B, but to provide a measure of
privacy I did not include the employee names in Appendix B.
make the following
FINDINGS OF FACT3
I. JURISDICTION
Respondent, a corporation with an office and place of busi-
ness in North Apollo, Pennsylvania, engages in the business of
receiving, sorting and delivering packages. In conducting its
operations during the 12–month period ending on November
30, 2014, Respondent performed services valued in excess of
$50,000 in States other than the Commonwealth of Pennsylva-
nia. Respondent admits, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Respondent also admits, and I
find, that Teamsters Local 538 is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. UPS Background
1. General overview
UPS primarily is in the business of picking up and delivering
small packages in the United States and internationally. To
provide those services, UPS uses several facilities, including
larger facilities (hubs) where packages are sorted and routed,
and smaller delivery centers where drivers take packages to
their final destinations and pick up packages to be shipped
elsewhere. The International Brotherhood of Teamsters repre-
sents approximately 230,000 hourly employees who work for
UPS in its package delivery operations. (Tr. 660–661, 726–
727, 712–716, 1154.)
2. Collective-bargaining history
UPS drivers are covered by two collective-bargaining
agreements: a national master agreement that covers all UPS
drivers; and a local supplement agreement (of which there are
approximately 36) that covers UPS drivers in the relevant geo-
graphical area. Historically, the national master agreement and
the local supplement agreements have been linked for purposes
of ratification, such that union members must ratify both the
national master agreement (in a vote by all union members) and
all local supplements (in separate votes by union members cov-
ered by each respective local supplement) before the agree-
ments can take effect. (Tr. 87–88, 495–496, 663, 672–673.)
3. UPS package car driver procedures
UPS package car drivers are on the front lines of delivering
and picking up packages to/from UPS customers. Because of
that fact, UPS has implemented an extensive set of procedures
that are aimed at ensuring that drivers complete their delivery
routes in a professional, safe and efficient manner. UPS ex-

3 Although I have included several citations in this decision to high-
light particular testimony or exhibits in the evidentiary record, I empha-
size that my findings and conclusions are not based solely on those
specific citations, but rather are based on my review and consideration
of the entire record for this case. I also note that in the interest of pre-
serving a measure of privacy, I have used employee initials when dis-
cussing comparators to Atkinson, unless the comparator in question
testified as a witness during the trial (in which case I use the compara-
tor’s full name).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pects its drivers to do the following (among other things) before
leaving the UPS facility: meet appearance standards (e.g., by
having trimmed hair and a clean and neat uniform); attend pre
work communication meetings (PCMs) at the start of their shift
to hear announcements and receive instructions; inspect their
trucks for leaks, damage and mechanical problems; and use
their Delivery Information Acquisition Device (DIAD or
“board”)4 to download and review the stops on their assigned
route (a procedure called “get EDD” (Enhanced DIAD Down-
load));. (Jt. Exhs. 3, 4; R. Exh. 44; Tr. 47–48, 493–494, 567–
568, 803, 957–960, 1215–1216; see also Jt. Exh. 5 (defining
DIAD, EDD and PCM).)
When UPS drivers are on the road and running their routes,
UPS expects them to determine the best path to make the deliv-
eries on their route in a timely manner and generally in the
package delivery order specified by EDD, and comply with all
applicable traffic and safety laws. To facilitate driver efficien-
cy and safety, UPS expects its drivers to follow various meth-
ods, procedures and instructions (known as the “340 meth-
ods”),5 including but not limited to: planning ahead (e.g., know-
ing the next few stops and thinking about the most effective
way to complete them); having a smooth routine in the car (i.e.,
a routine that has no wasted motion); and making deliveries
quickly and professionally (e.g., by minimizing time with the
customer and having all necessary materials at hand to com-
plete the delivery in one trip). Drivers must also ensure that
they deliver Next Day Air packages by the designated time
(usually by 10:30 am for the highest level of Next Day Air),
since next day air delivery is a premium service that UPS pro-
vides. (Jt. Exhs. 3, 4; GC Exh. 3; Tr. 49, 55–56, 113, 246–247,
409–410, 435, 898–907, 1304.)
In part because its package car drivers are unsupervised
when they are out making deliveries, UPS uses a “Telematics”
system to collect and monitor information about how the driv-
ers are using its trucks. For example, the Telematics system
collects data on: the speed and location of the truck; whether
the driver is wearing a seatbelt; how many times the driver
backed the truck up each day; and whether and when the bulk-
head door (the door between the cabin and package storage
areas of the truck) is open. UPS generally may not take disci-
plinary action against employees based on information from
Telematics alone, but where employee dishonesty is at issue,
UPS may use Telematics to corroborate other evidence. (Tr.
56–57, 257, 351–352, 478–479, 549–550, 587, 615–616, 803–
804, 1101–1102, 1258–1259, 1297.)
Finally, when drivers return to the UPS facility, they must
remove any Next Day Air packages from the truck and drop
them off with a Next Day Air clerk (to avoid having those time-

4 A DIAD is a handheld device that UPS drivers use to, inter alia,
scan packages, download and review the stops on their assigned route,
complete assigned training modules, and communicate with UPS su-
pervisors. (Jt. Exh. 5.)
5 Although UPS drivers are familiar with the term “340 methods,”
and UPS periodically communicates with and trains drivers about
methods, procedures and instructions, UPS does not distribute a partic-
ular document to drivers about the 340 methods. (Tr. 55–56, 246, 357,
409–410, 523–525, 581, 610, 730–731, 767–768, 779–780, 804; R.
Exh. 2.)
sensitive packages getting lost in the shuffle of other packages
that do not have such a short delivery commitment). (Tr. 51.)
2. Disciplinary, grievance, and arbitration procedures
In general, UPS follows a progressive discipline policy
(though UPS reserves the right to forego progressive discipline
for certain “cardinal” infractions involving, inter alia, dishones-
ty, substance abuse or recklessness causing a serious accident
while on duty, and also has the discretion to handle some issues
informally with a “documented talk-with” or coaching).6 Un-
der the progressive discipline policy, UPS will first issue a
written warning notice to an employee who commits an infrac-
tion, with the warning remaining in effect for a period of up to
nine months. If the employee commits another infraction of
any kind while the warning is still in effect, then UPS may
suspend the employee (typically for 3 days). Further infrac-
tions that occur while prior discipline remains in effect may
result in UPS issuing a longer suspension (typically for 10
days), and ultimately, in UPS discharging the employee. (Jt.
Exh. 2 (Article 52); Tr. 86–87, 249–250, 351, 373, 431, 549,
616–617, 775–777, 802–803, 840–841, 875, 1439; see also Tr.
780–781 (noting that if an employee committed multiple pro-
cedural, or “methods,” infractions on one day, the business
manager would have the discretion to use one disciplinary ac-
tion to address those infractions (instead of separate discipline
for each infraction).)
Employees may file grievances to contest disciplinary action,
including disciplinary action that the employee maintains is
discriminatory and thus in violation of federal and/or state law.
At step one of the grievance process, generally a manager from
the facility meets with the union steward to discuss the disci-
pline at issue and attempt to reach an agreed resolution (such as
a “settlement” where the employee and UPS agree to a shorter
suspension or a lower form of discipline). The process is simi-
lar at step two, but often the local union business agent will
participate in the meeting in support of the employee, and a
representative from UPS’s labor department will participate in
support of management. If the dispute persists, then the griev-
ance will proceed to step 3, where a panel composed of two
UPS representatives and two union representatives will consid-
er evidence and arguments from each side and then decide
whether to uphold, modify or rescind the discipline. Finally, at
step 4, an aggrieved party can submit the dispute for arbitration.
Notably, an employee who has been suspended or discharged
may continue working for UPS while his or her grievance of
that disciplinary action is pending, unless the suspension or
discharge was based on a “cardinal” infraction (i.e., an infrac-
tion that is sufficiently serious to warrant the suspension or
discharge taking effect immediately). (Jt. Exh. 1 (Articles 7,
36); Jt. Exh. 2 (Articles 49, 52); Tr. 46–47, 86–87, 494–495,
801–802, 872–875, 1049–1051.)
B. The New Kensington Center
1. New Kensington center management overview
The New Kensington center (a.k.a. “New Ken” center) is one
of UPS’s package delivery centers, and is located in North

6 The question of whether a documented talk-with or coaching qual-
ifies as a form of discipline under the Act is not before me in this case.
UNITED PARCEL SERVICE 13
Apollo, Pennsylvania. Generally speaking, a business manager
(a.k.a. center manager) leads the New Kensington Center, and
receives managerial support from an on road supervisor who
supervises the drivers at the center, and from a dispatch super-
visor who supervises the pre load employees at the center (i.e.,
the employees who load the package delivery trucks in the
morning before drivers leave for their routes) and sets the
routes for drivers each day. During most of the relevant time
period in 2013, and 2014, Jeremy Bartlett served as the busi-
ness manager at the New Kensington center (though he simul-
taneously served as business manager at the Zelionople pack-
age delivery center, and spent the majority of his time at that
location),7 while Matt DeCecco served as the on road supervi-
sor and Ray Alakson served as the dispatch supervisor. Keith
Washington served as the division manager over the geographic
region that includes the New Kensington center, and thus was
Bartlett’s supervisor. (Tr. 44–45, 1046–1047, 1091, 1254,
1257, 1345–1348, 1422, 1569–1571, 1625–1626, 1629–1631;
see also Jt. Exh. 6.)
2. UPS’s labor department and the New Kensington center
Among its various departments, UPS has a labor department
that: handles contract negotiations; provides advice to UPS
managers about labor-related issues; and represents UPS during
disciplinary grievance proceedings (assuming the grievance is
not resolved at step one of the grievance process). During
most, if not all, of the relevant time period, Rob Eans served as
UPS’s district labor manager and Tom McCready served as
UPS’s labor manager for geographic area that includes the New
Kensington center. In those capacities, both Eans and McCrea-
dy consulted with New Kensington management about labor
issues, and also served as UPS’s spokesperson in the grievance
process if a dispute about employee discipline proceeded past
the first step of the grievance process. Eans and McCready also
represented UPS in contract negotiations with local unions,
including negotiations for the Western Pennsylvania supple-
ment to the national master collective-bargaining agreement
between UPS and the International Brotherhood of Teamsters.
(Tr. 92–93, 662–665, 787–790, 841, 869–875, 1047–1051; Jt.
Exh. 6.)
3. Robert Atkinson, Jr.—background
Robert Atkinson, Jr. began working for UPS at the New
Kensington center in April 1988, and became a package car
delivery driver in 1995. The most recent time Atkinson was
disciplined at UPS before 2014, was in 2011, when Atkinson
was disciplined in connection with an automobile accident.
(Tr. 44–45, 93–94, 807–809, 876, 1350; R. Exh. 2 (p. 1).)
During his tenure with UPS, Atkinson was a member of
Teamsters Local 538, and served as the shop steward for ap-
proximately 17 years until his employment with UPS ended in
January 2015. As shop steward, Atkinson acted as a liaison
between the managers at the New Kensington center and em-
ployees, and represented employees at disciplinary meetings.
(Tr. 45–47, 86, 278–279, 807–808, 875–876.)

7 Bartlett was the business manager for the New Kensington and
Zelionople centers from June 1 to August 1, 2013, and from April 1 to
August 1, 2014. (Jt. Exh. 6; see also Tr. 1422.)
C. Fall 2012 to April 2013—Collective-Bargaining
Agreement Negotiations
In the fall of 2012, UPS began negotiating with the Interna-
tional Brotherhood of Teamsters for a successor national master
collective-bargaining agreement. In the same time period, UPS
also began negotiating with local Teamsters negotiating com-
mittees for successor agreements to the local supplement col-
lective-bargaining agreements. (In practice, UPS alternated
every few weeks between bargaining sessions for the national
master agreement and bargaining sessions for the local supple-
ments.) (Tr. 663–665, 718–719, 871.)
By April 2013, UPS reached handshake agreements with the
International Brotherhood of Teamsters on the terms of the
national master agreement and with the local Teamsters negoti-
ating committees on the terms of each local supplement agree-
ment. Under the proposed new national master agreement
(among other changes), any employees who were covered by
the UPS health care plan would be switched to the Central
States Health and Welfare plan (a.k.a. “Teamcare”).8 Through
this change to employee healthcare, UPS expected to reduce its
healthcare costs without imposing new out-of-pocket healthcare
costs on employees. (Tr. 663–664, 668–671, 674, 722–723,
748, 792; Jt. Exh. 1 (Article 34, Section 2).)
D. May 2013—Contract Ratification Efforts and the “Vote
No” Campaign
With contract negotiations complete, in or about May 2013,
UPS and the International Brotherhood of Teamsters planned to
present the national master agreement and the local supple-
ments to union members for ratification votes. In connection
with that plan, the International Teamsters Union recommended
that bargaining unit members vote “yes” to approve the national
master agreement and the local supplements, and circulated
letters and flyers to outline some of the highlights in the nation-
al master agreement. UPS, meanwhile, circulated memoranda
to UPS managers to explain the changes in the national master
agreement, and to advise managers about the “Do’s and Don’ts
for management during the contract education and voting pro-
cess.” (Tr. 697–699, 748–750, 1205–1206, 1655–1656; GC
Exh. 38 (pp. 7, 12); R. Exh. 52 (UPS memoranda about the
national master collective-bargaining agreement and the con-
tract ratification process).)
Several employees from around the country, however, op-
posed ratifying the national master agreement, with many citing
the proposed change in employee healthcare plans as a major
point of concern. In addition, several employees opposed rati-
fying their local supplement agreement, in part as a strategy to
force UPS and the International Brotherhood of Teamsters to
renegotiate the employee healthcare changes in the national
master agreement, and in part as a strategy to demand conces-
sions in the local supplement (including concessions that might
offset some of the changes in the national master agreement).
Collectively, employees who advocated against ratifying the

8 Employees who already were covered by a non-UPS healthcare
plan were not affected by this change to employee healthcare, since
they could simply continue with their non-UPS healthcare plan. (Tr.
668–669, 722–723.)
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proposed collective-bargaining agreements titled their efforts as
the “Vote No” campaign. Supporters of the Vote No campaign,
including a group organized under the name Teamsters for a
Democratic Union (TDU), used a variety of methods to advo-
cate against ratifying the national master agreement and the
local supplements, including: social media postings; petitions;
flyers; and verbal communication between bargaining unit
members. (Tr. 296, 302–303, 688–689, 792–795, 799, 1204–
1205; GC Exh. 38 (p. 3); R. Exh. 51 (pp. 1–15); CP Exh. 6 (pp.
48-54, 61–73, 77–88, 92–93, 97–100, 113).)
A number of bargaining unit members covered by the West-
ern Pennsylvania supplement joined and supported the Vote No
campaign, including Atkinson, who started the Vote No cam-
paign in the New Kensington center. Like Vote No campaign
supporters in other locations, Atkinson and other bargaining
unit members in Western Pennsylvania used social media post-
ings, petitions, flyers and verbal communication to advocate
that bargaining unit members reject the national master agree-
ment and the Western Pennsylvania supplement. UPS was
aware of and made an effort to monitor the Vote No campaign
to gain a sense of what issues or concerns union members had
about the national master agreement and Western Pennsylvania
supplement. (Tr. 90–91, 297, 388–389, 444–445, 485, 495–
496, 568–569, 689, 792–795, 833–835, 872; R. Exhs. 1 (Bates
01839), 22 (Bates 01839–01840, 02101); GC Exh. 38 (p. 4);
CP Exh. 6 (p. 8–9).)
E. June 2013 – Bargaining Unit Ratifies National Master
Agreement but Rejects Local Supplements in Western Pennsyl-
vania and Several Other Locations
In late June 2013, bargaining unit members voted to ratify
the national master collective-bargaining agreement negotiated
by UPS and the International Teamsters Union. The national
master agreement could not take effect, however, because bar-
gaining unit members in 18 geographic areas (including West-
ern Pennsylvania) did not ratify their applicable supplemental
collective-bargaining agreements.9 (Tr. 88–89, 206–207, 296–
297, 303, 673–676; CP Exh. 7; R. Exh. 41; GC Exh. 38 (p. 9).)
In light of those results, on or about June 28, 2013, UPS and
the Teamsters UPS national negotiating committee agreed to
extend the existing national master collective-bargaining
agreement and all supplements “for an indefinite period of time
subject to thirty (30) days written notice by either party.” UPS
agreed that any increases in hourly wage rates, contributions
and economic benefits that the parties negotiated would be
retroactive to August 1, 2013. (Tr. 676–677, 755; Jt. Exh. 7.)
F. Summer 2013—UPS and the International Brotherhood of
Teamsters Begin Efforts to Persuade Bargaining Unit Members
to Ratify the Remaining Supplemental Collective-Bargaining
Agreements
After learning that bargaining unit members did not ratify 18
supplemental agreements, UPS and the International Brother-
hood of Teamsters began an effort to persuade those bargaining
unit members to ratify the supplements in a second vote. In

9 Bargaining unit members covered by the Western Pennsylvania
supplement had rejected supplements in the past, including in 1993,
1997, 2002 and 2007. (Tr. 303–304, 689–690, 790–791.)
connection with that effort, UPS communicated with local
Teamsters officials and monitored Vote No campaign activities
to gain a better sense of what issues or concerns led bargaining
unit members to vote against ratifying the supplements, and to
assess whether the parties could address those issues and con-
cerns through further communication and negotiation. UPS
also renewed negotiations with the applicable local union nego-
tiating committees (including the negotiating committee for the
Western Pennsylvania supplement). (Tr. 678–682, 690–692,
745–746, 798–799, 822–823, 833–834, 852–854; See also, e.g.,
CP Exh. 6 (pp. 74–75).)
The Teamsters UPS national negotiating committee, mean-
while, sent a letter dated July 29, 2013, to bargaining unit
members covered by supplemental agreements that were not
ratified. The letter stated, in pertinent part, as follows:
Dear UPS Members:
I am writing to bring you up to date on the status of the 2013
UPS contract and your Area Supplement or Rider.
As you know, the National UPS Agreement covering more
than 220,000 Teamster members throughout the country
has been approved by a majority of UPS Teamsters who vot-
ed. This contract will take effect after all Area Supplements
and Riders, including yours, are also passed. . . .
It is important to clarify that while you or your fellow mem-
bers covered by your Area Supplement may have voted
against the National Agreement, a majority of Teamsters
around the country voted to pass it. It is, therefore, a binding
agreement between UPS and the Teamsters Union, and can-
not be reopened.
A majority of Teamsters voting in your area voted against
your Area Supplement. Many voted against the Area Sup-
plement because they were unhappy with the change to a new
health care plan that was negotiated in the National Agree-
ment. Because health care is contacted in the National
Agreement, another vote against the Supplement will not im-
pact health care. The Supplement deals strictly with local ar-
ea issues, not the broader economic and language issues that
are covered by the National Agreement that has already been
approved.
At the same time, there were local issues that people voting
against the Area Supplement were concerned with. Your
supplemental negotiating committee is now bargaining with
the company to address these issues. Once a modified agree-
ment is concluded we will bring that to you for a new vote. . .
.
(R. Exh. 47; Tr. 678–679; see also 684 (noting that UPS
agreed with the Teamsters UPS national negotiating commit-
tee that the national master agreement that bargaining unit
members ratified was a binding agreement).)
G. Summer/Fall 2013 – the Vote No Campaign in Western
Pennsylvania Continues
In the same time period, supporters of the Vote No campaign
continued to advocate against ratifying the Western Pennsylva-
UNITED PARCEL SERVICE 15
nia supplement.10 In various Western Pennsylvania locations,
Vote No supporters distributed flyers, displayed Vote No signs
and/or clothing in vehicles parked at UPS facilities, and verbal-
ly advocated for bargaining unit members to reject the Western
Pennsylvania supplement again when it came up for another
ratification vote. (CP Exh. 6 (pp. 1–6, 16, 18–28, 36–39, 109–
112); GC Exh. 38 (pp. 1, 13).)
Atkinson became more involved in the Vote No campaign
by, among other activities, distributing flyers, establishing a
Vote No web page where area union members could learn
about and discuss the Western Pennsylvania supplement, and
later establishing a web page about Teamsters Local 538. (Tr.
90–91, 297–300, 392, 448, 485, 591, 1379–1380, 1382–1383.)
Managers at the New Kensington center were aware of At-
kinson’s ongoing activities in support of the Vote No cam-
paign. In late 2013, dispatch supervisor Ray Alakson warned
Atkinson and Mark Kerr (another UPS driver in the New Ken-
sington center) that they should be careful about what they
posted on the Vote No webpage because the UPS labor depart-
ment was monitoring the posts.11 (Tr. 91–93, 300–302, 390–
392, 445–448, 485, 488–489, 1379–1380, 1382–1383.)
H. January 22, 2014—Atkinson Disciplined for Mishandling a
Next Day Air Package
On January 22, 2014, on road supervisor Matt DeCecco12
called Atkinson to a meeting (Alakson attended as an additional
UPS representative, and UPS driver Dan Morris attended as
assistant shop steward). At the meeting, DeCecco issued At-
kinson a written warning notice for failing to follow proper
procedures, methods and instructions because at the end of
Atkinson’s previous shift, Atkinson left a Next Day Air pack-
age on his truck instead of taking the package to the Next Day
Air drop off area in the UPS facility.13 In addition to being a

10 The Vote No campaign also continued in various other locations
in the United States where bargaining unit members had not yet ratified
the applicable local supplement. (See, e.g., CP Exh. 6 (pp. 55–60, 94–
95).)
11 Alakson denied making these remarks (see Tr. 1390), but I do not
credit that testimony. As a general matter, UPS drivers in the New
Kensington center viewed Alakson as one of the more relaxed manag-
ers. (Tr. 473, 592; see also Tr. 1350 (Alakson agreed that he had a
good working relationship with Atkinson).) Consistent with that repu-
tation of being relaxed (and therefore approachable), Alakson admitted
that Atkinson and Kerr spoke with him about the Vote No campaign
and what they were fighting for. Given Alakson’s relationship with
Atkinson and Kerr, and Alakson’s knowledge that managers were
aware of the Facebook page where Atkinson posted remarks in support
of the Vote No campaign (see Tr. 1379–1380, 1382–1383), Atkinson’s
and Kerr’s testimony that Alakson warned them about posting on Face-
book about the Vote No campaign rings true.
12 DeCecco became the on road supervisor at the New Kensington
center on or about January 15, 2014. DeCecco placed a higher level of
emphasis on UPS rules and methods infractions than other previous
supervisors. (Tr. 432–433, 435, 451, 472–473, 593, 1087, 1253; Jt.
Exh. 6.)
13 The witnesses presented conflicting testimony about whether, in
the same January 22 meeting, DeCecco rescinded a warning that Atkin-
son testified he received from on road supervisor Robert (Bob) Clark in
December 2013, for not wearing a seatbelt while operating his truck.
(Compare Tr. 94–96, 207–208, 340–341, 609–610, 614–615 with Tr.
Next Day Air package, the package required premium service
because it was being shipped internationally and weighed more
than 70 pounds. Due to Atkinson’s oversight, UPS failed to
deliver the package by the promised deadline, and thus had to
deliver the package to the customer late and free of charge.
Atkinson told DeCecco that he did not remember leaving a
Next Day Air package on his truck, but apologized if that in-
deed happened. (Tr. 96–97, 247, 321–322, 1096, 1257–1258;
GC Exh. 5; see also Tr. 502–503, 811, 876–877.)
Atkinson did not file a grievance to contest the January 22,
2014 written warning notice. (Tr. 248, 877.) In 2014 and
2015, UPS disciplined eight employees (including one supervi-
sor) for mishandling Next Day Air packages, with five of those
employees receiving written warning notices, two employees
receiving suspensions, and one employee being discharged.
Two additional employees received a documented talk-with for
mishandling a Next Day Air package. (R. Exhs. 7, 65; Tr. 248,
877–878, 880–882, 1098–1100, 1659–1661.) Before 2014,
UPS often used a verbal coaching or documented talk-with to
correct New Kensington center employees when they mishan-
dled Next Day Air packages, though employees who committed
that infraction on multiple occasions could receive a written
warning notice. (Tr. 97–98, 208–209, 415, 430–431, 483–484,
488, 503–504, 532–533, 586; see also Tr. 1395.)
I. Late January 2014—Bargaining Unit Again Rejects West-
ern Pennsylvania Supplement
In late January 2014, bargaining unit members again voted
against ratifying the Western Pennsylvania supplement, not-
withstanding the recommendation of Teamsters Local 538 and
other locals that members should ratify the supplement. Only a
few (approximately 4–5) other supplements across the country
remained unratified at that time. (CP Exh. 6 (pp. 107–108); R.
Exh. 48; CP Exhs. 5 (pp. 66, 68), 7; GC Exh. 38 (p. 11); Tr. 89,
206–207, 682–683, 726–727.)
The Vote No campaign was active both before and after the
second ratification vote, as supporters continued to use social
media, flyers and verbal communication to advocate against
ratifying the Western Pennsylvania supplement. UPS was
aware that Atkinson and employee Mark Kerr were active in
the Vote No campaign in the New Kensington center. (R. Exh.
1 (Bates 01871 – front and back of page); CP Exhs. 1, 5 (pp.
66–69), 6 (p. 104); Tr. 187–191.)
J. March 2014 – Disputes about Vote No Literature and Signs
For much of the Vote No campaign in the New Kensington
center, Vote No supporters used a UPS employee safety bulle-
tin board in the men’s locker room to post Vote No flyers and
literature. Employees also used the bulletin board to post non
union-related materials such as jokes, raffle tickets and an-
nouncements about charity fundraisers. UPS managers rarely
entered the men’s locker room because they could only reach it
by exiting the main building and walking outside to the locker

1101; see also Jt. Exh. 6; Tr. 239.) I note that there is no documenta-
tion in the evidentiary record that UPS issued or rescinded such a warn-
ing. In any event, I need not resolve this factual dispute because the
seatbelt warning issue is not material to my analysis of the allegations
in the complaint.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
room, and because there was another bathroom (a women’s
bathroom that was rarely used) adjacent to their office. (Tr.
151–153, 158, 341, 367–368, 394–395, 440, 449–450, 453–
455, 499–500, 555–556, 569–570, 593–594, 1210, 1213–1215,
1385–1386, 1555–1556, 1657–1659; GC Exhs. 19(a), 38; see
also 561–564.)
In March 2014, DeCecco saw Atkinson and asked to speak
with him. The following conversation ensued:
DeCecco: That bulletin board out in the locker room,
who’s been posting stuff on it?
Atkinson: Well, a lot of people post things on there.
DeCecco: Well, who is it?
Atkinson: I’m not going to tell you names of who posts
on that board.
DeCecco: Well, that bulletin board is not for union mate-
rial. I took a lot of stuff down off of there today, and from
now on, anything that is posted on that board is posted
through me, so show it to me and I’ll tell you whether you can
put it on that board or not.
(Tr. 153–154; see also Tr. 316–317, 1210, 1286.) DeCecco
added that Atkinson could post literature on the union bulletin
board (a bulletin board in a different location at the facility),
but only if the literature was printed on union letterhead. (Tr.
1210–1212; see also Tr. 396, 398, 449–450, 1217–1218 (De-
Cecco gave similar instructions to Kerr regarding the locker
room bulletin board and the union bulletin board).)14 Later in
the week, DeCecco told UPS drivers at the morning PCM that
the locker room bulletin board was intended for UPS health and
safety information, and that employees should not place any
literature on the locker room bulletin board without UPS ap-
proval.15 (Tr. 155, 396, 398–399, 500–501, 570–571, 1215–

14 According to Atkinson, DeCecco stated that he would consider
allowing employees to post union literature on the locker room bulletin
board if the literature was printed on union letterhead. (Tr. 154–155.) I
did not credit that aspect of Atkinson’s testimony because it was not
consistent with the credible testimony that Kerr and DeCecco provided
regarding what DeCecco expressed about bulletin board postings. (See,
e.g., Tr. 396, 398, 450, 1210–1212, 1217–1218.)
On a related point concerning union literature and union letterhead, I
note that the evidentiary record shows that Teamsters Local 538 sup-
ported ratifying the Western Pennsylvania supplement. Thus, although
Atkinson had access to the union bulletin board as the shop steward, it
is questionable as to whether Teamsters Local 538 would have permit-
ted Atkinson to print Vote No campaign literature on union letterhead
or to post such materials on the union bulletin board. (Tr. 317, 481,
486, 571, 1212, 1217; see also Tr. 1658.)
15 I do not credit Kerr’s and Larimer’s testimony that DeCecco also
prohibited employees from passing out literature that was not on union
letterhead. (See Tr. 393–394, 450–451, 570–571.) Instead, I credit
DeCecco’s testimony that, after consulting UPS’s labor department, he
told employees that they could distribute literature, but only at the
entrance to the building or during nonwork time in nonwork areas. I
also credit DeCecco’s explanation that the union letterhead requirement
was only for materials that employees wanted to post on the union
bulletin board. (Tr. 1210–1212.) Although Atkinson could not re-
member DeCecco’s instructions about passing out literature, Atkinson
1217.)
Given the limitations that DeCecco outlined for Vote No lit-
erature and the bulletin boards in the facility, Atkinson and
Kerr made Vote No signs on posterboard and provided them to
employees to post in their automobile windshields while their
cars were parked in the UPS facility parking lot. Approximate-
ly 15–25 employees joined Atkinson and Kerr in placing Vote
No signs in their automobile windshields. (Tr. 155–157, 193–
194, 300, 315–316, 366, 399–400, 452, 497, 501, 529–530,
600, 1218–1219, 1385, 1553, 1654; GC Exhs. 19(a)–(b); CP
Exh. 3.)
The Vote No signs prompted some reactions from UPS man-
agement. For example, when Atkinson and UPS labor manager
Tom McCready encountered each other in the UPS office, the
following exchange occurred:
McCready: I see you are putting signs in your cars out there.
Atkinson: Yes, I guess we are.
McCready: I guess you can do whatever you want.
Atkinson: Yeah. That’s what we’re left with. We can’t put
stuff in the bulletin board anymore.
(Tr. 209.)16 In addition, both Alakson and DeCecco took pho-
tographs of the Vote No signs and sent them to the UPS labor
department for guidance. When Atkinson called DeCecco to
ask why he was seen taking photographs (another driver had
tipped Atkinson off about that), DeCecco replied “This is my
parking lot. I can take pictures of whatever I want. Labor [is]
interested in what’s going on right here and it’s my right to
send them these pictures.” DeCecco added that he was taking
photographs because he needed to find out whether the Vote
No signs in employee vehicles were permitted.17 (Tr. 160,
1218–1221.)
In late March 2014, UPS assigned Jeremy Bartlett to be the
business manager for the New Kensington and Zelionople cen-

agreed that he did distribute literature in nonwork areas and nonwork
time without being stopped by UPS. (Tr. 318.)
16 McCready testified that he did not threaten Atkinson about put-
ting Vote No signs in his automobile. (Tr. 1027.) That limited denial
does not undermine or rebut Atkinson’s testimony about what McCrea-
dy said – instead, McCready’s testimony at most only sets forth
McCready’s subjective opinion that his remarks to Atkinson were not
threatening.
17 Witness Bill Lange testified that when DeCecco was taking pho-
tographs of employee cars with Vote No signs, he (Lange) overheard
DeCecco remark “labor isn’t going to like this.” (Tr. 502.) Similarly,
Atkinson testified that he spoke with Alakson about the Vote No signs,
and Alakson stated “those signs that you have in the vehicles out there
are a problem. Labor knows about them and I just want you to know
that that’s a topic of conversation in labor right now.” (Tr. 159.) Both
DeCecco and Alakson denied making those remarks (although DeCec-
co’s denials were somewhat off the mark since he denied speaking to
Lange directly, and he denied making a slightly different statement than
the one Lange said he overheard). (Tr. 1222, 1295, 1389.) I have not
given weight to the testimony about DeCecco’s and Alakson’s remarks
as described in this footnote because I find that the evidence is cumula-
tive (i.e., the reaction of New Kensington and UPS labor department
managers is clear enough from other testimony in the record that I have
described in this section).
UNITED PARCEL SERVICE 17
ters.18 When Bartlett visited the New Kensington center, he
saw the Vote No signs posted in employee automobiles and
took photographs to send to the UPS labor department for guid-
ance. Bartlett also met with New Kensington supervisors to get
up to speed on what was happening at the facility. In that con-
versation, the supervisors explained why there were Vote No
signs posted on employee automobile windshields and identi-
fied Atkinson and Kerr as the employees who were involved in
the Vote No campaign. (Tr. 1547–1549, 1551–1552; CP Exh.
3; see also Jt. Exh. 6; Tr. 1348.)
Ultimately, in various communications, the UPS labor de-
partment advised managers at the New Kensington center that
they should keep an eye on the issue but avoid doing anything
improper regarding employees posting Vote No signs in their
cars. Accordingly, DeCecco notified Atkinson that the Vote
No signs in employee vehicles were permitted. (Tr. 829, 1022–
1023, 1221, 1386–1387, 1549; CP Exh. 5 (p. 19).) There is no
evidence that UPS ever required any employees to remove Vote
No signs from their cars. (See, e.g., Tr. 606, 1223, 1387–
1388.)
K. April 1, 2014 —Atkinson Receives Documented Talk with
for Scanning the Same Delivery Notice Twice
On or about March 30, 2014, Atkinson attempted to deliver a
package on his route, but was not able to complete the delivery
because the resident at the address was not home to sign for the
package. Consistent with UPS practice, Atkinson posted a
delivery notice on the front door of the residence and scanned
the notice with his DIAD. (Tr. 98–99, 400, 504, 571–572,
1291; see also CP Exh. 15 (example delivery notice).)
The next day, Atkinson made another attempt to deliver the
same package, but again found that the resident was not at
home to sign for the package. Consistent with his practice and
the practice of other drivers, Atkinson filled out a second deliv-
ery notice and posted it next to the first notice on the front door
of the residence. However, when Atkinson attempted to scan
the second delivery notice, he accidentally scanned the first
delivery notice instead. By making this mistake, the second
delivery notice was not logged into UPS’s electronic records,
thereby creating the possibility that the resident at the address
might receive inaccurate information about UPS’s delivery
efforts if the resident called UPS customer service to inquire
about the package. (Tr. 99–101, 248–249, 400, 504–505, 572,
595, 1102–1106, 1288–1292.)
On April 1, DeCecco met with Atkinson to give him a doc-
umented talk with about erroneously scanning the first delivery
notice when Atkinson was making a second delivery attempt.19
Dan Morris attended the meeting as Atkinson’s union repre-
sentative. In the meeting, DeCecco asserted that Atkinson
should have removed the first delivery notice and left the sec-

18 Although Bartlett was assigned as the business manager for both
New Kensington and Zelionople, Bartlett spent the majority of his time
at the Zelionople center because it was a larger facility. (Tr. 1348,
1423.)
19 Before Atkinson’s delivery notice incident, UPS coached or gave
a documented talk with to other drivers who erroneously scanned the
first delivery notice when they were making a second delivery attempt.
(Tr. 401, 505–506, 573–575; see also Tr. 533–534.)
ond delivery notice in its place. DeCecco did not seek to sus-
pend Atkinson (the next step under UPS’s progressive disci-
pline policy) based on the delivery notice incident, and Atkin-
son did not file a grievance to contest the documented talk with.
At the PCM the next day, DeCecco announced that drivers
should remove the previous day’s delivery notice whenever
they were going to post a new delivery notice. (Tr. 98–100,
249–250, 505, 572–573, 596–597, 879, 1102–1103, 1106–
1107, 1287–1288; GC Exh. 6.)
A few days later, Atkinson encountered DeCecco when At-
kinson returned to the UPS facility at the end of his day. Dur-
ing the conversation, DeCecco asked Atkinson a procedural
question about whether Atkinson would drive to a delivery
location if Atkinson knew that the recipient was not available.
When Atkinson said that he would still drive to the delivery
location, DeCecco remarked that he “could have every driver
on a working discharge” based on infractions for failing to
follow UPS methods, procedures and instructions.20 Atkinson
responded by saying that it was a shame that DeCecco would
make that remark because a lot of good people worked at the
New Kensington center. (Tr. 102; see also GC Exh. 13 (indi-
cating that Atkinson reported DeCecco’s remark to the UPS
integrity hotline); R. Exh. 55 (Bates 01781); Tr. 103, 107.)
L. April 2014—The Vote No Campaign Ends but Atkinson’s
Activities Continue
In late March and early April 2014, Atkinson continued his
work in support of the Vote No campaign, including posting on
social media. UPS management was aware of Atkinson’s ac-
tivities. (Tr. 199, 358, 860–861, 1019–1022; CP Exh. 5 (pp.
20–43 (emails between UPS labor department managers
McCready and Eans with Atkinson’s, Kerr’s and other individ-
uals’ Vote No Facebook postings attached); R. Exhs. 22 (Bates
1887–1888), 55 (Bates 01781).
In addition, Atkinson and other UPS drivers posted on Face-
book to voice their frustration and disagreement with UPS’s
procedural methods and decisions to discipline drivers for
methods infractions. For example, Atkinson, Kerr and other
drivers posted their objections to UPS using Telematics as a
source of information that could lead to discipline. Atkinson
and other drivers also took issue with UPS’s performance
standards, with Atkinson posting “I was 2 hours over yesterday
. . . [laugh out loud] . . . their ‘standards’ are insane!” New
Kensington center manager Bartlett received and saved screen-
shots of Atkinson’s posts. (R. Exh. 55; Tr. 259, 262–265, 358–
359, 1561–1564.) Once again, Alakson (through a passing
conversation with Bill Lange in this time period) warned that
UPS drivers should watch what they posted on Facebook.21
(Tr. 498–499, 526, 530; see also Tr. 1382–1383.)
On or about April 25, 2014, the Vote No campaign came to

20 In response to a question by Atkinson’s attorney, DeCecco initial-
ly denied making the statement about being able to have every driver
on a working discharge, but then stated that he did not remember mak-
ing the statement. (Tr. 1295.) In light of DeCecco’s equivocal testi-
mony, I have credited Atkinson’s testimony on this point.
21 For the reasons set forth in footnote 11, supra, I do not credit
Alakson’s testimony (see Tr. 1390) that he did not warn the drivers to
watch what they posted on Facebook.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an abrupt end when the International Brotherhood of Teamsters
amended its constitution in manner that enabled it to accept
UPS’s last, best, final offers on the Western Pennsylvania sup-
plement and two other supplements even though bargaining
unit members had not ratified those agreements.22 According-
ly, both the national master agreement and all 36 supplements
immediately took effect, notwithstanding the persisting objec-
tions of bargaining unit members who supported the Vote No
campaign. (GC Exh. 4; Jt. Exhs. 1–2, 5 (par. 1), 8; R. Exh. 50;
Tr. 89–90, 188, 684–685, 800–801.)
With the Vote No campaign concluded (except for efforts to
reverse the International Brotherhood of Teamsters’ decision to
amend its constitution and approve the contracts), Atkinson
turned his attention towards a new goal: running to be elected
as the new business agent of Teamsters Local 538. Atkinson
therefore remained active on social media by, among other
things, making posts about his dissatisfaction with the incum-
bent leadership of Teamsters Local 538 and his view that the
leadership was not standing up for UPS drivers on discipline,
the Western Pennsylvania supplement, and other matters. (Tr.
45–46, 210–211, 302, 364–365, 451; GC Exh. 38 (p. 5); CP
Exh. 5 (pp. 3–9, 12–14, 50–56); R. Exh. 22 (Bates 01913,
02036–02037); see also CP Exh. 5 (pp. 47–49) (Atkinson also
used social media to voice his displeasure with the International
Brotherhood of Teamsters regarding its decision to amend the
union constitution and approve the national master agreement
and Western Pennsylvania supplement).) UPS’s labor depart-
ment was aware of Atkinson’s developing campaign to become
the business agent of Teamsters Local 538 because the incum-
bent business agent Betty Fischer emailed copies of Atkinson’s
Facebook posts to McCready, and McCready forwarded the
posts to other members of the labor department. (CP Exh. 5
(pp. 3–9, 12–14, 50–56).)
M. April/May 2014—New Kensington Center
Management Concerns About Driver Productivity
Also in April 2014, UPS managers were concerned about the
production of drivers in the New Kensington center because
UPS data on “over allowed hours” showed that, on average,
drivers in the New Kensington center were exceeding the esti-
mated times for their routes by a larger margin than the previ-
ous year. At a PCM shortly after he was reassigned to the New
Kensington and Zelionople centers, Bartlett asked the drivers to
look at how they were running their routes and see if they could
assist with reducing over allowed hours (e.g., by minimizing

22 The amended clause in the constitution stated as follows, in perti-
nent part:
[I]n the event that the master agreement has been approved
pursuant to the provisions of this Article, but the members
covered by a supplement or rider do not approve the employ-
er’s last, best and final offer, as determined by the master ne-
gotiating committee, and the supplemental or rider negotiating
committee reports that the members have rejected the sup-
plement or rider because of a provision in the ratified master
agreement, then the master negotiating committee shall have
the authority to declare the master agreement and all supple-
ments to be in effect.
(R. Exh. 50 (p. 2).)
the time they spent handling packages). In addition, after a
grievance meeting on or about April 18,23 McCready, Eans and
Bartlett asked Atkinson and Fischer to speak with the New
Kensington drivers about improving efficiency. The UPS man-
agers added that they might need to conduct OJS rides if driver
efficiency did not improve. (Tr. 255–256, 259, 812–814, 846–
847, 854, 922–923, 955, 1054, 1117–1119, 1260, 1296, 1431–
1435, 1554; R. Exh. 24 (p. 1).)
In the same time period DeCecco told driver (and occasional
assistant union steward) Dan Morris that he (DeCecco) needed
every driver in the New Kensington center to finish their routes
15 minutes earlier to solve the problem with over allowed
hours. (Tr. 613–614, 617–618, 1226–1227; see also Tr. 1431–
1432, 1558 (Bartlett made a similar remark to Atkinson about
needing 15 minutes of improvement from each driver).) And,
more ominously, Alakson warned driver Robert Larimer on
multiple occasions that things were going to get bad at the New
Kensington center unless drivers improved their numbers.24
(Tr. 586–587.)
On or about May 19, supervisor Joe Iaquinta provided Bart-
lett with a screenshot of Facebook postings made by various
UPS drivers, including Atkinson, on the same Facebook page
where Atkinson joked about being two hours over in running
his route. (R. Exh. 55; Tr. 1561–1562; see also Findings of
Fact (FOF), section L (discussing R. Exh. 55 (Bates 01782); Jt.
Exh. 6 (noting that Iaquinta worked as a supervisor at another
UPS facility).) The postings on the screenshot stated as fol-
lows:
J.B.: New Ken walk out coming soon?

23 The grievance meeting concerned UPS’s decision to discharge
employee B.C., and was a point of contention between certain drivers
and managers in the New Kensington center because UPS predicated
the discharge in part on claims that B.C. had been dishonest in handling
a Next Day Air package. Atkinson and Eans had such a strong disa-
greement in the grievance meeting that afterwards, Dan Morris took
over in handling B.C.’s grievance. In that role, Morris asked DeCecco
what could be done to address B.C.’s discharge. DeCecco responded
that the matter was out of his hands, but noted that if the drivers and
managers at the center could work together to improve over allowed
hours, then management might be more receptive to a compromise in
B.C.’s case. DeCecco added that the drivers’ performance was bring-
ing a lot of unwanted attention to the New Kensington center. Later,
Morris participated in a meeting in which UPS and B.C. settled the
grievance by reducing the discharge to a suspension and “last chance”
agreement. (Tr. 337–340, 620–623, 823–826, 854–855, 861–863,
1224–1229, 1558, 1662; CP Exh. 5 (pp. 3, 44–46); R. Exh. 22 (Bates
01906–01907).)
In this connection, I note that I do not credit Morris’ testimony that
DeCecco referred to the Vote No signs in car vehicles when DeCecco
said drivers were bringing unwanted attention to the New Kensington
center. Morris’ testimony on that point was inconsistent, rendering it
unreliable. (Tr. 620, 624–635.)
24 Alakson testified that he did not recall making these statements to
Larimer (see Tr. 1395), but I credit Larimer’s testimony because it is
consistent with other evidence in the record that Alakson had a tenden-
cy to give casual tips or warnings to employees about what was hap-
pening in the New Kensington center.
UNITED PARCEL SERVICE 19
Atkinson: I think we’ll jus[t] stay and make sure we
really start doing our jobs to the best of our abilities
[smiley face indicated by semicolon and parenthesis]
Kerr: It takes a very long time to do the job correctly
J.B.: Some of the safety stuff is just plain dumb like
crossing behind the vehicle instead of in front. But play
the game their way
Atkinson: Fair days work for a fair days pay [three
smiley face symbols] . . . we ain’t walking out . . . jus[t]
walkin . . . like up long driveways . . . at a nice safe pace . .
. doin this job jus[t] like . . .
(R. Exh. 55 (Bates 01783); see also Tr. 265–266 (Atkinson
explaining that in these posts, he was expressing his view that it
takes additional time for drivers to follow all of UPS’s meth-
ods); Tr. 441–443, 1563 (noting that J.B. is a UPS employee
and Vote No supporter at another facility); Jt. Exh. 3 (Bates
00870, instructing drivers to “walk with a brisk pace”); Jt. Exh.
4 (Bates 00947, same).) Bartlett was concerned by these posts
because he believed the posts indicated that bargaining unit
members were planning a work slowdown or voluntary work
stoppage at a time when the New Kensington center already
was having problems with over allowed hours.25 (Tr. 1564–
1565.)
N. May 19, 2014 – Atkinson Receives 3-Day Suspension for
Failing to Complete DIAD Training in a Timely Manner
On or about May 15, Atkinson received a message on his
DIAD to complete a training module.26 Atkinson did not com-
plete the training on May 15, and thus received another DIAD
message on May 16 that the training was still available and
needed to be completed. Upon receiving the second message,
Atkinson contacted Alakson and suggested that UPS send fu-
ture messages about training after 10:30 am, because drivers
were busy delivering Next Day Air packages in the early morn-
ing hours. Alakson promised to speak to DeCecco about At-
kinson’s suggestion. Atkinson completed the DIAD training

25 The collective-bargaining agreement requires employees to give a
fair days work for a fair days pay, and thus UPS’s position is that work
slowdowns are not permitted. (Tr. 777; Jt. Exh. 1 (Article 37, Section
1(a) (stating, inter alia, that the “parties agree that the principle of a fair
day’s work for a fair day’s pay shall be observed at all times and em-
ployees shall perform their duties in a manner that best represents the
Employer’s interest”).)
26 Respondent maintains that Alakson verbally instructed Atkinson
to complete the DIAD training on May 14. I do not credit the evidence
that Respondent provided in support of that assertion. (See Tr. 884,
1108, 1350–1351, 1424–1425, 1516–1517, 1572–1753; R. Exh. 8 (p.
1).) Respondent submitted copies of the DIAD transmissions about the
training in question, and there is no record of a DIAD transmission
about training on May 14 or at any other point before May 15. Instead,
the first DIAD transmission about training is dated May 15, and the
reminder transmission is dated May 16. Those transmissions are con-
sistent with Atkinson’s testimony about when he received communica-
tions on his DIAD to complete the training, and are also consistent with
credible testimony from other witnesses that UPS generally initiates
DIAD training requests by sending a message to the drivers on their
DIADs. (See Tr. 115, 251, 431–432, 507–508, 575, 598–599; R. Exh.
8 (pp. 1–2).)
later in the day on May 16. (Tr. 112–115, 250–253, 357–358,
884–889, 1110–1112, 1352–1353; R. Exh. 8 (pp. 2–3) (DIAD
messages sent on May 15 and 16); see also Tr. 401–402, 431–
432, 575, 598–599 (describing how UPS provides training
modules through the DIAD).)
On May 19, Atkinson met with Bartlett and DeCecco to dis-
cuss Atkinson’s delay in completing the assigned DIAD train-
ing. UPS classified Atkinson’s delay in completing the training
as a failure to follow proper methods, procedures and instruc-
tions, and issued Atkinson a 3-day suspension (the next step in
the progressive discipline process since Atkinson’s January 27
warning letter was still active). (GC Exh. 7; Tr. 110, 114–116,
1107, 1112, 1356, 1425–1426.) Atkinson posted on Facebook
to complain about the suspension and Teamsters Local 538’s
failure to prevent it. UPS labor department managers were
aware of Atkinson’s Facebook posts about the suspension. (CP
Exh. 5 (p. 55–56).)
On May 20–21, Atkinson filed a grievance to contest the 3-
day suspension as unfair and as discrimination against him for
engaging in union activity as the union steward. (R. Exh. 9 (pp.
1–2); GC Exh. 14(a); Tr. 117, 892.) Before Atkinson was dis-
ciplined on May 19, UPS disciplined one other employee for
failing to complete DIAD training in a timely manner (employ-
ee M.R., who received a suspension in or about August 2013,
after stating that he was not going to complete DIAD training
because he was too busy on the day in question). Apart from
that example, UPS generally relied on verbal reminders when
other employees did not complete DIAD training, though De-
Cecco was perhaps more of a stickler for completing employee
training after he arrived at the New Kensington center in Janu-
ary 2014. (Tr. 116, 254, 1354–1355; see also Tr. 351, 402,
484, 508–511, 534–535, 575–577, 599.)
O. May 22, 2014—Atkinson Receives Documented Talk With
for Failing to Meet UPS Appearance Standards
As one of its company policies, UPS maintains “Uniform
and Personal Appearance Guidelines” that set forth general
expectations for employees who interact with the public while
on duty. For male employees, the appearance guidelines state
that except for a neatly trimmed mustache that does not extend
below the corners of the mouth, employees must be clean shav-
en. Atkinson was aware of the policy, among other reasons for
having signed a UPS Driver Uniform and Personal Appearance
Standards Form on or about May 9, albeit under protest. The
standards form included the facial hair guidelines noted above.
(R. Exh. 10; Tr. 254–255, 895–896, 1115; see also R. Exh. 44
(DeCecco presented the form to other UPS drivers at the New
Kensington center in a PCM on or about April 28, a day when
Atkinson was not at work); Tr. 1113–1115.)
On or about May 22, district manager Keith Washington was
visiting the New Kensington center when he and Atkinson dis-
cussed whether Atkinson was properly clean shaven. (Tr. 119–
120, 254, 1632–1633.) After the conversation, Washington
prepared the following memo that was placed in Atkinson’s
file:
Re: Robbie Atkinson Unshaven
On May 22, 2014, I had a conversation with Robbie Atkin-
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
son in reference to his unshaven face. I asked Robbie if he was
familiar with the UPS Driver Uniform and Personal Appear-
ance [Guidelines] and he replied yes. I asked Robbie if it had
been reviewed with him and he replied yes. I then asked Rob-
bie if that was the case then why is he not clean shaven. Rob-
bie replied that he had forgot to shave. I explained Robbie to
let this be a warning and moving forward he is to arrive to work
in accordance with the UPS Driver Uniform and Personal Ap-
pearance guidelines.
(GC Exh. 8; see also Tr. 1632.)27 Atkinson did not receive a
copy of Washington’s memo and was not aware that Washing-
ton characterized their discussion as a documented talk with.
On the other hand, UPS has given documented talk withs to
other UPS employees for failing to comply with the facial hair
rules set forth in UPS’s Driver Uniform and Personal Appear-
ance Guidelines. (Tr. 120–121, 254, 1115–1116, 1634–1635;
see also Tr. 896 (noting that Atkinson did not file a grievance
about this interaction with Washington).)
P. Late May/Early June 2014 – UPS Prepares for On the Job
Supervision (OJS) Rides with Atkinson and Five Other Drivers
at the New Kensington Center
1. Late May/Early June – UPS prepares for the OJS rides
In May 2014, UPS decided to schedule a group of on the job
supervision (OJS) rides (a.k.a. an OJS ride blitz – see Tr. 806,
1637) at the New Kensington center in an effort to improve
driver efficiency. Accordingly, UPS reviewed the over allowed
hours of each driver, as well as additional data and factors, and
exercised its discretion to select Atkinson and five other drivers
(R.B., D.H., S.H., Lange and R.Sc.) to participate in OJS rides
that would be conducted by supervisors from various facilities
in the area. DeCecco and Alakson (with Bartlett’s and Wash-
ington’s approval) selected drivers for the OJS rides based at
least in part on the following data and factors:
Driver Over Al-
lowed
Hours
(Average
from Janu-
ary – April
2014)
Other Factors
Considered
Selected
for June
2014 OJS
ride?
Robert Atkinson 1.30 None identified Yes
R.B 0.95 UPS believed
the route
“could do
more”
Yes
J.B. 0.97 Average over
allowed hours
improved in
No

27 Atkinson and Washington dispute the content of their May 22
discussion, and also dispute whether Atkinson was clean shaven.
(Compare Tr. 119–120 with Tr. 1632–1634 and GC Exh. 8.) Be that as
it may, the result was the same – that is, Washington placed the memo
in Atkinson’s file, and UPS cited to the memo as evidence of a docu-
mented talk with when discussing Atkinson’s prior rules infractions in
grievance proceedings concerning UPS’s subsequent decisions to sus-
pend and discharge Atkinson. (Tr. 894–895.)
Driver Over Al-
lowed
Hours
(Average
from Janu-
ary – April
2014)
Other Factors
Considered
Selected
for June
2014 OJS
ride?
March and
April (as com-
pared to Janu-
ary and Febru-
ary)
B.C. 0.38 None identified No
J.G. 1.13 Driver was on
leave for much
of the relevant
time period
and thus the
over allowed
hours might
not be repre-
sentative of the
driver’s effi-
ciency
No
D.H. 0.79 UPS wished to
assess D. H.’s
assertion that
his route was
too heavy (in
general and as
to Next Day
Air packages)
Yes
S.H. 1.24 None identified Yes
William (Bill)
Lange
1.23 UPS wished to
assess the ac-
curacy of the
planned day
for this route,
and whether
Next Day Air
drivers needed
to be assigned
to the area
Yes
E.M. 0.31 None identified No
D.Mc. 1.71 Rural route
that might not
produce a sig-
nificant and
immediate
improvement
in efficiency
No
T.M. 0.33 None identified No
D.Mo. 0.35 None identified No
W.M. 0.02 None identified No
T.O. 0.18 None identified No
E.S. 1.51 Route needed
an updated
No
UNITED PARCEL SERVICE 21
Driver Over Al-
lowed
Hours
(Average
from Janu-
ary – April
2014)
Other Factors
Considered
Selected
for June
2014 OJS
ride?
time study
A.S. 1.19 Rural route
that might not
produce a sig-
nificant and
immediate
improvement
in efficiency
No
R.Sc. 1.14 UPS wished to
assess R.Sc.’s
assertion that
he could not
take on any
more work and
had difficulty
delivering Next
Day Air pack-
ages on time
Yes
D.V. 1.01 Average over
allowed hours
improved in
March and
April (as com-
pared to Janu-
ary and Febru-
ary)
No
(R. Exh. 25;28 Tr. 62–63, 738–739, 804–805, 842–843, 1123–
1131, 1263–1264, 1357–1358, 1429, 1435–1436, 1639–1640;
Jt. Exh. 5; see also Tr. 1356–1357, 1635–1636, 1639 (noting
that UPS decided to conduct OJS rides at the New Kensington
center because over allowed hours had increased in comparison
to 2013); R. Exh. 24 (chart showing over allowed hours at the
New Kensington center in 2013 and 2014).)29
To have a sense of each OJS ride driver’s efficiency before
the OJS rides, DeCecco reviewed the performance of each OJS
ride driver on their usual route to calculate their baseline “stops
per on road hour” (SPORH – i.e., the number of stops that the
individual driver makes per hour on his or her route).30 DeCec-

28 UPS did not analyze over allowed hours for drivers who handled
multiple routes on an as-needed basis (regular temporary drivers, a.k.a.
cover drivers). (Tr. 1124–1125.)
29 Also in late May 2014, Alakson asked Atkinson to “clean up,” or
review, his (Atkinson’s) EDD to see if the delivery order could be
improved. Alakson made a similar request of the other five drivers
who were selected for OJS rides (though the drivers were not aware of
the forthcoming OJS rides at the time). Atkinson did not fulfill
Alakson’s request due to lack of time. (Tr. 211–213; 1371–1372; see
also Tr. 1298–1299, 1369–1371, 1621.)
30 Although UPS used over allowed hours as a primary statistic to
assess how efficiently drivers were completing their routes, UPS used
SPORH as the primary statistic to assess driver efficiency on OJS rides
co calculated the following SPORH’s for the drivers who
would participate in the OJS rides:
Driver Baseline SPORH
Robert Atkinson 10.26
R.B 17.43
D.H. 15.65
S.H. 16.71
William (Bill) Lange 10.83
R.Sc. 16.63
(R. Exhs. 34–39; see also Tr. 1429.) UPS’s hope was that with
some on road supervision, each OJS driver would be able to
move through their route more efficiently, and thus both in-
crease his or her SPOHR while on the OJS rides and develop
the ability to maintain the higher SPOHR while unsupervised.
(Tr. 701–702, 744, 781, 1436–1437.)
On or about May 27, the UPS supervisors who would be
conducting the OJS rides (Bartlett, DeCecco, Mark Goodwin,
Iaquinta, Jason Rezak and Shaun Witherow)31 participated in a
conference call. Eans joined the call to answer any labor-
related questions that might arise, and Washington participated
as the division manager. During the call, Washington ex-
plained why UPS was conducting the OJS rides and stated that
he wanted the supervisors to conduct the rides in a professional
manner. Bartlett explained how to complete the procedures and
methods checklist that would be used during the rides. Eans,
meanwhile, outlined dos and don’ts for supervisors to keep in
mind during the rides (such as not assisting the driver during
the rides and thereby artificially inflating the driver’s statistics),
advised the supervisors to familiarize themselves with the driv-
er’s assigned route, and encouraged the supervisors to call for
guidance if any problems arose. (Tr. 814–815, 818–819, 848,
1135–1139, 1265–1266; R. Exh. 33; see also Jt. Exh. 6.)

because the union viewed over allowed hours as a “company number.”
By contrast, the union viewed SPORH as a more acceptable measure of
driver efficiency because SPORH indicated how quickly the driver was
moving through his or her route each day and is based on an objective,
and simpler, standard of how many stops the driver makes per hour
when driving the same route. (See Tr. 83–85, 184–185, 703–705, 731–
734, 771–773, 782, 785–786, 1072–1073, 1139–1140, 1401–1402,
1523–1524, 1594–1595, 1682–1684; see also Jt. Exh. 5.)
31 Goodwin, Iaquinta, Rezak and Witherow were assigned to other
UPS facilities but were brought in to the New Kensington center to
assist with the OJS ride blitz. (Tr. 161, 1132, 1439, 1640–1641; Jt.
Exh. 6.)
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. June 2014—UPS Conducts OJS Rides at the New Kensing-
ton Center32
1. UPS notifies drivers of the OJS rides
In the morning on June 3, UPS notified Atkinson and the
other five drivers that they would be having OJS rides.33 Bart-
lett decided which supervisor would be paired with each driver
and decided that he would conduct Atkinson’s OJS ride be-
cause Atkinson was a veteran driver and also was an influential
employee and a leader in the New Kensington center. (Tr. 124,
160, 231, 417–418, 511–512, 1132, 1439–1441, 1444–1445,
1471, 1641; see also Tr. 1429–1430 (explaining that UPS did
not provide drivers with advance notice that they would be
doing OJS rides because UPS wanted to avoid giving the driv-
ers an incentive to change how they ran their routes before the
OJS rides).)
Each of the drivers doing OJS rides drove their usual route,
but with some modifications that Alakson made to ensure that
the number of stops on the route was comparable to the number
of stops that the driver had when DeCecco calculated the driv-
er’s baseline SPORH. Alakson made additional modifications
to driver routes (including Atkinson’s route) on each subse-
quent day of the OJS rides based on feedback from the supervi-
sors who were conducting the OJS rides. (Tr. 1358–1359,
1364–1366, 1495–1499; see also Tr. 1364, 1403–1405, 1407
(noting that Alakson adjusts the routes of all drivers on a daily
basis to make sure that the load of stops is evenly distributed
between the drivers).)
2. June 3–5, 2014—Atkinson’s OJS ride
There was some friction between Atkinson and Bartlett dur-
ing Atkinson’s OJS ride. Before starting Atkinson’s route on
June 3, Bartlett warned Atkinson that if Atkinson demonstrated
a malicious intent to deviate from the way he would normally
run his route (e.g., by running the route in a manner that was
intentionally slow), Bartlett would view that as an act
of dishonesty. Bartlett was also impatient whenever Atkinson
took more time in carrying out a task on his route (such as look-
ing for and sorting packages) than Bartlett thought was neces-
sary, and Bartlett demonstrated his frustration by pacing back-
wards and forwards and sighing heavily while he waited. (Tr.

32 On various occasions during trial, Atkinson and Bartlett differed
somewhat about what they said to each other during the OJS rides.
Since their accounts of the OJS ride conversations were equally credi-
ble, I have given the benefit of the doubt regarding that conflicting
testimony to Respondent because the General Counsel bears the burden
of proving the allegations in the complaint by a preponderance of the
evidence. See Central National Gottesman, 303 NLRB 143, 145
(1991) (finding that General Counsel did not meet its burden of proof
because the testimony that the allegation occurred was equally credible
as the testimony that denied the allegation); Blue Flash Express, Inc.,
109 NLRB 591, 591–592 (1954) (same), questioned on other grounds,
Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354 (D.C. Cir. 1997).
Consequently, I did not credit (for example) Atkinson’s testimony that
Bartlett warned him about drinking water while running his route, or
Atkinson’s testimony that Bartlett muttered “Joe Iaquinta” repeatedly
after Atkinson had an argument with Iaquinta. (Compare Tr. 162, 166–
167, 173, 360–361 with Tr. 1448, 1451–1452.)
33 Atkinson did not file a grievance to challenge his selection for an
OJS ride. (Tr. 274–275.)
167, 170, 1449–1450, 1471–1472; see also Tr. 325, 1512 (Bart-
lett told Atkinson that if every driver finished their routes 15
minutes earlier then “this would all go away”).)
In addition to his friction with Bartlett, Atkinson had an ar-
gument with Iaquinta, who was brought in from another facility
to conduct another driver’s OJS ride. The following exchange
occurred on or about June 4 before drivers left the UPS facility
to begin their routes:
Iaquinta: You don’t want me in this building.
Atkinson: I don’t know who you are. I don’t know
why you’re saying that to me.
Iaquinta: Just trust me. You don’t want me in this
building. [Proceeds to tell Atkinson to remove a necklace
that Atkinson was wearing, and asks Atkinson if he
shaved, ironed his pants, and polished his boots.]
Atkinson: Who are you? Are you a supervisor?
Iaquinta: You don’t worry about who I am.
(Tr. 164–165.)34 Bartlett approached after the end of Atkin-
son’s argument with Iaquinta and instructed Atkinson to com-
ply with Iaquinta’s direction to take off the necklace in ques-
tion. (Tr. 165, 324–325, 1445–1448.)
Over the course of the three days that Bartlett conducted At-
kinson’s OJS ride, Bartlett made notations about each stop on a
“Package Driver Methods Checklist.” The checklist gives the
OJS ride supervisor the option to indicate one of the following
for each of 21 methods (many of which have multiple sub-
parts): driver used proper method (box left blank); driver used
proper method and was commended (box marked with a
checkmark); driver did not use proper method, should have
(box marked with an “x”); and driver did not use proper meth-
od, should have, and was instructed on proper method (box
marked with an “x” inside of a circle). (See GC Exh. 3 (exam-
ple checklist); Tr. 511, 1472–1473, 1488–1489, 1582–1583,
1607–1609.)
The primary area where Bartlett believed Atkinson did not
use the proper method was “minimum handling,” because Bart-
lett noted various occasions where Atkinson was delayed on his
route because he was having trouble finding packages (includ-
ing times when Atkinson had recently sorted the packages in
the truck and/or when the truck only had a few packages left to
be delivered). Indeed, Bartlett’s frustration about this issue led
him to tell Atkinson on June 5 that methods infractions (and
specifically, delays caused by handling packages too much)
would be the death of him (Atkinson). (Tr. 1468–1469, 1474–
1476, 1481–1482, 1486, 1499–1500, 1504–1505, 1507–1508;
R. Exh. 27 (pp. 1–9) (indicating that Atkinson also occasionally
failed to use proper methods for “planning ahead,” “smooth on
car routine,” “moving out without delay” and other areas).)
3. June 6, 2014 – meeting to discuss results of Atkinson’s
OJS ride
On June 6, Bartlett and Atkinson met to discuss the results of
Atkinson’s OJS ride. Kerr attended the meeting as Atkinson’s

34 None of the parties called Iaquinta to testify as a witness, and thus
Atkinson’s testimony about this conversation is unrebutted.
UNITED PARCEL SERVICE 23
union representative. Bartlett described in general terms some
of the methods infractions that he found Atkinson committed
on the OJS ride and advised Atkinson that with supervision
during the OJS ride, Atkinson increased his SPORH from a
baseline of 10.26 to a 3-day average of 13.73. Bartlett added
that going forward, UPS would expect Atkinson to maintain the
13.73 SPORH when running his route without a supervisor
present. Bartlett referenced the Package Driver Methods
Checklist during the meeting but did not provide a copy of the
checklist for Atkinson to review Bartlett’s notations. (Tr. 167–
168, 170, 1508–1510; GC Exh. 32 (indicating that Atkinson’s
SPORH was 14.03 on June 3, 13.62 on June 4, and 13.53 on
June 5).)
During the June 6 meeting (and during trial), Atkinson main-
tained that he was able to increase his SPORH because UPS
made his route shorter and easier in comparison to the route
Atkinson normally handles. In support of that claim, Atkinson
asserted that: on the first day of the OJS ride, UPS did not as-
sign Atkinson any Next Day Air deliveries that would take him
away from his normal route; at Bartlett’s direction, Atkinson
did not drink water (and thus saved time by not having to drink
water and later make bathroom stops); and UPS deleted certain
areas that Atkinson normally handled from his OJS ride route.
(Tr. 171–173, 175–176, 323–324, 359–360, 1410–1412, 1574;
see also Tr. 1364–1365, 1494–1497 (noting that Alakson added
one rural area back on to Atkinson’s route after the first day of
the OJS rides); R. Exh. 64 (chart providing data about Atkin-
son’s OJS rides, including the number of delivery stops Atkin-
son made each day during the OJS rides).) Atkinson also disa-
greed with Bartlett’s findings that Atkinson committed methods
infractions by lacking a smooth car routine and failing to move
out without delay. (Tr. 277.)
4. June 16, 2014—UPS issues letter of record to Atkinson
about his OJS ride
On June 16, Bartlett sent Atkinson a letter of record to At-
kinson about the results of Atkinson’s OJS ride. The letter
stated as follows:
Dear Mr. Atkinson:
On June 3, 4, and 5, 2014, I performed OJS rides with you.
During my observation, you performed your normal delivery
and pick-up routine on the Adrian (23B) Route. While with
with you, we experienced normal daily delays. We experienced
on call air, multiple package dolly deliveries, inclement weath-
er, and traffic delays. Listed below is a comparison of the av-
erage daily and pick-up activities on your route for the weeks
ending (5-17-2014 and 5-24-2014)35 and the averages from the
OJS rides performed on the dates above.
Unsupervised Supervised
Total Packages 238 255
Total Stops 108 114
Miles 139 129
S.P.O.R.H. 10.26 13.73

35 UPS specified these dates in error, as UPS in fact calculated At-
kinson’s baseline SPORH using dates from April 18 to May 2, 2014.
(Tr. 1180–1181, 1427–1429; R. Exh. 34.)
Paid Day 11.10
During the OJS ride, you demonstrated that you are capable
of performing the proper delivery driver methods in an effec-
tive and safe manner. When instructed on the proper methods
that would assist you while performing your daily assignment,
you responded in a positive manner. During this ride, it was
determined that you must concentrate on the following areas in
order to maintain these positive gains and improve in the fu-
ture:
Plan Ahead
Smooth on Car Routine
Minimum Handling
One Look Habit
Get Signature First
Move Out Without Delay
Customer Contact Time
I would like to thank you for your effort and hope that you
maintain these methods in order to improve your overall job
performance. If you continue to improve upon the areas that I
have mentioned, you should exceed the results that you
demonstrated while supervised. I will continue to follow-up
on your progress and I encourage you to reach out to me or
any member of the management team with any concerns that
you may have in the future.
(GC Exh. 23; see also Tr. 173–176, 896–897, 1179–1181,
1426–1427.)
5. Results of other drivers’ OJS rides
Like Atkinson, the other five drivers selected for the June 3–
5 OJS rides increased their average SPORH while on their OJS
rides. Accordingly, UPS issued letters of record to R.B., D.H.,
S.H., Lange and R.Sc. that, like Atkinson’s letter, set the expec-
tation that the drivers would follow proper methods and proce-
dures and maintain their higher SPORH while unsupervised.
(GC Exhs. 34, 36, 39–42, 47–50; see also R. Exhs. 28–32
(methods checklists for the other five drivers’ OJS rides), 40
(noting that on average, the drivers selected for OJS rides re-
duced their daily paid hours by 1.30 hours while supervised);
Tr. 327, 517, 925–926, 1155–1163, 1174–1175, 1177–1178,
1181, 1276–1279, 1300, 1508, 1510, 1644–1645.)
Lange maintained that the route used for his OJS ride dif-
fered from his normal route because certain areas and Next Day
Air pickups were deleted from the OJS ride route. Alakson
admitted that he made those changes to Lange’s route during
the OJS ride to level out the workload for all drivers, and noted
that after the OJS rides, the Next Day Air pickups that had been
on Lange’s route were reassigned to another driver on a perma-
nent basis because it was more efficient to have the other driver
handle those packages. (Tr. 328–329, 513–516, 1390–1392.)
R. June 16, 2014—Atkinson Accidentally Damages Gas
Station Pump
On June 16, Atkinson stopped at a gas station to put fuel in
his UPS truck. In an effort to make use of the delay associated
with filling the gas tank, Atkinson left the truck and went to
deliver a package. When Atkinson returned to the truck, he
forgot to remove the gas pump hose from the gas tank, and thus
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pulled the hose off of the gas pump when he attempted to drive
off and resume making deliveries. UPS investigated the inci-
dent and determined that the accident was avoidable and oc-
curred because Atkinson “failed to concentrate at the task at
hand and remove the fuel pump from the vehicle before pulling
away,” and “failed to scan [the] area around the vehicle when
walking back to car.” (R. Exh. 12; Tr. 121–123, 128–129, 927–
929, 1055, 1517–1518; see also Tr. 165–166, 535–536, 556
(noting that during the OJS rides, UPS supervisors advised
drivers, including Atkinson, to make effective use of the delay
while pumping gas into their trucks).)
When Atkinson reported for work on June 18, Bartlett gave
Atkinson a 10–day suspension for getting into an avoidable
accident at the gas station. In connection with the suspension,
Bartlett sent Atkinson a letter (dated June 20) that stated as
follows:
Dear Mr. Atkinson:
On June 18, 2014, a meeting was held in the New Kensington
facility. Present were you, Union Representative Mark Kerr,
and myself. Discussed was the avoidable accident in which
you were recently involved.
On June 16, 2014, while operating a UPS vehicle you were
involved in an avoidable accident. This accident could have
been avoided had you followed the proper safe-driving meth-
ods in which you have been trained. It is of the utmost im-
portance that you exercise the Space and Visibility Training
that you have received; be aware of your surroundings, and
utilize the five (5) seeing habits; however you failed to do so.
Actions such as yours will not be tolerated. It is apparent by
your actions and blatant disregard for your job responsibilities
that you have no intention of correcting this problem; there-
fore, it is my decision to issue you a ten (10) day suspension.
Your responsibilities regarding this matter have been clearly
reviewed with you. If in the future, should you fail to follow
the proper safe-driving methods at all times and be involved
in another avoidable accident, further disciplinary action will
be taken, up to and including discharge.
This is an official suspension letter as outlined in our current
labor agreement between UPS and the International Brother-
hood of Teamsters, Local #538.
(GC Exh. 9; see also Tr. 124–125, 926–927, 929–930, 1518–
1519, 1601.)
Atkinson filed a grievance to contest the 10–day suspension.
In the grievance, Atkinson asserted that UPS was “engaging in
disparate treatment of the shop steward [Atkinson] and is dis-
criminating and retaliating against the steward for his union
activity. This is additionally believed to be a violation of Sec-
tion 8(a)(3) of the NLRA.” (GC Exh. 15(a) (p. 1); see also Tr.
930.)
In the time frame of Atkinson’s incident at the gas station,
UPS disciplined drivers for automobile accidents if UPS
deemed the accident to be avoidable (e.g., an accident that the
driver could have avoided if the driver followed UPS’s meth-
ods, procedures and instructions). By contrast, UPS did not
discipline drivers if they were involved in unavoidable acci-
dents. When it disciplined a driver for getting into an avoidable
accident, UPS generally imposed the next level of discipline
under its progressive discipline policy. The center manager,
however, retained some discretion about whether to impose
discipline for avoidable accidents. (Tr. 283–284, 931–932,
1240, 1388, 1663.) The following table provides some exam-
ples of how UPS handled accidents in and before 2014:
Driver Nature of
Accident
Accident
Avoidable
(per UPS)?
Discipline
Imposed
Bill Lange Swerved to
avoid hit-
ting a deer
and thus
drove truck
into a ditch,
requiring a
tow truck to
get out (Tr.
229, 537–
538, 556)
No None
Bill Lange Parked on a
driveway in
hot weather,
and truck
wheels
damaged
the drive-
way asphalt
(Tr. 230,
538–540,
556)
No None
Bill Lange Drove truck
into a ditch
to avoid
hitting a
snow plow
that veered
into his lane
of traffic
(Tr. 230,
536–537)
No None
T.M. Head on
collision
with anoth-
er vehicle
because the
other vehi-
cle’s driver
was blinded
by sunlight
and veered
into the
UPS driv-
er’s lane
(Tr. 229,
1240–1243;
see also Tr.
Yes – alt-
hough the
police de-
partment
concluded
that the UPS
driver was
not at fault
in the acci-
dent, UPS
determined
that its driv-
er could
have avoid-
ed the colli-
sion by us-
None –
center man-
ager exer-
cised dis-
cretion and
did not
impose
discipline
UNITED PARCEL SERVICE 25
Driver Nature of
Accident
Accident
Avoidable
(per UPS)?
Discipline
Imposed
1026–1027
(indicating
that T.M.
was not a
union stew-
ard and was
not in-
volved in
the Vote No
campaign)
ing driver
training
C.P. Side swiped
another
vehicle
while driv-
ing on a
snow cov-
ered road
(Tr. 228,
1243–1245)
Yes – UPS
determined
that its driv-
er was going
too fast giv-
en the
weather
conditions
Discipli-
nary warn-
ing letter
(R. Exh. 15
(Bates
01706))36
J.S. Hit an
overhang-
ing decora-
tive flag
pole while
avoiding
another
vehicle that
had crossed
over the
center line
(Tr. 230–
231, 1245–
1247,
1559–1560)
N/A – no
property
damage
resulted to
either vehi-
cle or to the
flag pole.
According-
ly, UPS
deemed this
incident not
to be an
accident.
None
R.Sc. Truck was
not secured
properly
and rolled
away, caus-
ing property
damage (Tr.
280–281; R.
Exh. 56 (p.
2))
Yes Discharge
(later re-
duced to a
lower form
of disci-
pline)
R.Sy
.
[No evi-
dence pre-
sented on
this point]
Yes Discipli-
nary warn-
ing letter
(R. Exh. 15

36 When asked what, if any, discipline C.P. received for this inci-
dent, Atkinson stated that he did not recall C.P. receiving any disci-
pline. (Tr. 229.) I have not given weight to Atkinson’s testimony on
this point because Atkinson’s testimony was equivocal and UPS pre-
sented credible evidence to demonstrate that C.P. received discipline
(see transcript and exhibits cited for C.P.’s table entry).
Driver Nature of
Accident
Accident
Avoidable
(per UPS)?
Discipline
Imposed
(Bates
01741))
S. June 18, 2014—Bartlett Evaluates Atkinson on a “Blended”
Safetyand OJS Followup Ride
In light of his June 16 accident, Atkinson was obligated to
complete a safety ride to review safety methods (e.g., proce-
dures for driving and delivering packages safely) when he re-
turned to work on June 18. Since a supervisor would have to
take the time to ride with Atkinson in his truck to do the safety
ride, and since Atkinson had just had an OJS ride, Bartlett de-
cided to conduct a “blended” ride that would satisfy the safety
ride requirement and also serve as a followup ride to see how
Atkinson was performing after his OJS ride. (Tr. 62–63, 82–
83, 128–129, 285, 455–456, 552–553, 701, 1436–1437, 1539,
1595–1596; see also GC Exh. 25 and Tr. 131 (explaining that,
in light of the June 16 accident, UPS also required Atkinson to
complete a computer training module on driver safety).)
On June 18, Bartlett rode with Atkinson on Atkinson’s de-
livery route to conduct a one-day blended ride. During the ride,
Bartlett made notations on two checklists – the “Package Driver
Methods Checklist” that is used for OJS rides, and a safety ride
evaluation form. (Tr. 129–132; GC Exhs. 24, 26.) In connec-
tion with the OJS followup aspect of the blended ride, Bartlett
found that Atkinson committed various methods infractions
while running his route. For example, at the first delivery stop
on his route, Atkinson had trouble finding the package that he
needed to complete the delivery (Atkinson explained that the
package was small and was obscured by other packages on the
shelf that shifted when he drove to the delivery stop), prompt-
ing Bartlett to cite Atkinson for not following minimum han-
dling procedures and ask Atkinson if they were “going to start
the day in this manner.” In addition, Atkinson (among other
issues): had trouble locating packages for at least three other
stops on his route; rolled through a stop sign without coming to
a complete stop; and drove past a delivery stop, thereby delay-
ing progress on his route. (Tr. 1530–1539, 1697–1700, 1706–
1708, 1711–1713; GC Exh. 26.) Overall, Atkinson completed
his blended ride with an increased SPORH and in less time than
UPS’s estimated planned day for his route. (Tr. 285–286, 933–
934; R. Exh. 13 (p. 1).)
T. June 19 & 20, 2014 – UPS Discharges Atkinson Twice Fol-
lowing the Blended Ride
1. The June 19 discharge (for failure to maintain SPORH while
unsupervised)
On June 19, Bartlett met with Atkinson and notified him that
UPS was discharging him for not working as quickly while
unsupervised as he did while supervised. Kerr was present as
Atkinson’s union representative. Specifically, Bartlett ob-
served that Atkinson demonstrated a SPORH of 13.73 during
the OJS rides (supervised), a SPORH of 12.12 during the week
of June 8–14 (unsupervised), and a SPORH of 13.72 on the
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
June 18 blended ride (supervised).37 Bartlett decided to dis-
charge Atkinson because discharge was the next step under
UPS’s progressive discipline system. (Tr. 133–134, 410, 1520–
1522, 1525–1526, 1594, 1605; R. Exh. 34 (p. 2); see also Tr.
734–735 (noting that UPS managers have some discretion in
deciding what type of discipline to issue to an employee who
does not sustain their performance after an OJS ride), 816–817,
845, 934–935, 1525, 1602, 1648–1649 (McCready, Eans and
Washington were all consulted before Bartlett discharged At-
kinson on June 19).)38
On June 20, UPS followed up on the June 19 meeting by
sending Atkinson a discharge letter that stated as follows:
Dear Mr. Atkinson:
On June 19, 2014, a meeting was held in the New Kensington
Center. Present were you, Union Representative Mark Kerr,
and myself. Discussed were your level of performance, su-
pervised versus unsupervised, and your continued failure to
follow the proper methods, procedures and instructions.
While supervised, you have demonstrated the ability to work
in a safe and professional manner that provides efficient and
quality service in a timely manner to our valued customers.
After a review of your performance statistics, both supervised
and unsupervised, it has been noted that you fail to obtain the
same results when under direct supervision as opposed to
when you are not supervised. It is your responsibility to make
every effort to maintain a fair day’s work for a fair day’s pay,
as you have demonstrated under direct supervision; however,
despite our efforts to assist you, you have failed to do so.
It is apparent by your actions and blatant disregard for your
job responsibilities that you have no intention of correcting
this problem; therefore, you have given UPS just cause to dis-
charge you from our employ.
This is an official discharge letter as outlined in our current
labor agreement between UPS and the International Brother-
hood of Teamsters, Local #538.
(GC Exh. 10.)
Atkinson filed a grievance to contest the June 19 discharge.
In the grievance, Atkinson asserted that UPS was “engaging in
disparate treatment of the shop steward [Atkinson] and retaliat-
ing against the steward for his union activity and position. The
employer is attempting to use production as their reasoning for
discharge. This is additionally believed to be a violation of
Section 8(a)(3) of the NLRA.” (GC Exh. 16(a) (p. 1); Tr. 942.)

37 As previously indicated, Atkinson maintains that the SPORH
from the OJS ride was artificially high because UPS removed delivery
areas and certain Next Day Air deliveries from Atkinson’s normal
route. (Tr. 175–176; see also Tr. 215–226 (discussing CP Exh. 8 and
asserting that it demonstrates that Atkinson had more rural and Next
Day Air deliveries on his route on June 13 than he did during the June 3
OJS ride).)
38 Atkinson testified that Bartlett also stated that the discharge was
“out of my hands, and as you know, when things get into labor’s hands,
it’s out of my hands at this point, and this is what they want to do.” I
have not credited that testimony because it was only equally credible to
Bartlett’s testimony denying that he made the remark. (Tr. 133, 231,
1526.)
2. The June 20 discharge (for methods infractions during the
blended ride)
On June 20, Bartlett met again with Atkinson and Kerr and
advised them that UPS was discharging Atkinson, but this time
for not following UPS methods, procedures and instructions
during his June 18 blended ride. In support of the discharge,
Bartlett generally asserted that notwithstanding the instructions
that Atkinson received during the June 3–5 OJS rides, Atkinson
still did not follow proper methods and procedures concerning
moving out without delay, planning ahead and having a smooth
car routine (among other areas) during his June 18 blended ride.
(Tr. 137–139, 419, 1529, 1541–1542, 1604–1605; see also Tr.
946–947, 1542, 1603 (noting that Bartlett consulted with
McCready before issuing the June 20 discharge).)
On June 23, UPS followed up on the June 20 meeting by
sending Atkinson a discharge letter that stated as follows:
Dear Mr. Atkinson:
On June 20, 2014, a meeting was held in the New Kensington
Center. Present were you, Union Representative Mark Kerr,
and myself. Discussed was your continued failure to follow
the proper methods, procedures and instructions along with
your overall unacceptable work record.
Despite our efforts to assist you, you have failed to follow the
proper methods and procedures. You have been trained on
the proper methods and are expected to follow these methods
at all times while performing your daily work assignment.
Failure to do so places our reputation as a quality service pro-
vider in jeopardy to our valued customers. Actions such as
yours will not be tolerated.
It is apparent by your actions and blatant disregard for your
job responsibilities that you have no intention of correcting
this problem; therefore, you have given UPS just cause to dis-
charge you from our employ.
This is an official discharge letter as outlined in our current
labor agreement between UPS and the International Brother-
hood of Teamsters, Local #538.
(GC Exh. 11.)
Atkinson filed a grievance to contest the June 20 discharge,
and thus continued working for UPS while the grievance was
pending. In the grievance, Atkinson asserted that UPS was
“engaging in disparate treatment of the shop steward [Atkin-
son] and retaliating against the steward for his union activity
and position. The employer is attempting to use methods viola-
tions as their basis. This is all believed to be a violation of the
NLRA Section 8(a)(3) in addition.” (GC Exh. 17(a) (p. 1); Tr.
139, 952.)
3. Comparator evidence
UPS has an established history of disciplining drivers for
failing to maintain production while unsupervised (as compared
to their production while supervised). Similarly, UPS has an
established history of disciplining drivers for failing to follow
UPS methods, procedures and instructions. (R. Exh. 15; Tr.
706–709, 774–775, 950–951, 1544–1546.)
Four of the other five drivers at the New Kensington center
UNITED PARCEL SERVICE 27
who went on OJS rides from June 3–5 were later disciplined
after followup rides. Among the five other drivers, only Lange
overtly supported the Vote No campaign, and Lange’s Vote No
activity was limited to posting a Vote No sign in his window.
(Tr. 305–306, 1025–1026.) The following table summarizes
the discipline that UPS imposed after the followup rides, as
well as any additional discipline that UPS imposed (with all
dates listed being in 2014, unless otherwise indicated):
Driver Name Discipline After
Followup Ride
Additional Disci-
pline
R.B. July 15: Followup
ride conducted
July 17: official
warning for failing
to follow proce-
dures, methods and
instructions
July 18: 3–day sus-
pension for super-
vised vs. unsuper-
vised performance
October 30: 10–day
suspension for fail-
ing to follow proce-
dures, methods and
instructions
D.H. August 20: Fol-
lowup ride conduct-
ed
August 21: official
warning for super-
vised vs. unsuper-
vised performance
None
S.H. September 10: Fol-
lowup ride conduct-
ed
September 11: offi-
cial warning for
supervised vs. unsu-
pervised perfor-
mance
September 12: 3–
day suspension for
failing to follow
procedures, methods
and instructions
October 29: 10–day
suspension for su-
pervised vs. unsu-
pervised perfor-
mance
May 5, 2015: 10–
day suspension for
failing to follow
procedures, methods
and instructions
Bill Lange None (no followup
ride was conducted)
July 3: official
warning for failing
to follow proce-
dures, methods and
instructions
R.Sc. June 26: Followup
ride conducted
July 2: official
warning for super-
vised vs. unsuper-
October 28: dis-
charge for super-
vised vs. unsuper-
vised performance
November 10: re-
Driver Name Discipline After
Followup Ride
Additional Disci-
pline
vised performance
July 3: 3–day sus-
pension for failing
to follow proce-
dures, methods and
instructions
August 28: another
followup ride con-
ducted
September 3: 10–
day suspension for
supervised vs. unsu-
pervised perfor-
mance
September 4: dis-
charge for failing to
follow procedures,
methods and instruc-
tions
signed employment
before his grievanc-
es concerning disci-
pline were resolved
(R. Exhs. 14, 15 (Bates 01682, 01694, 01732), 64; see also Tr.
181, 305–306, 326, 333, 527–528, 938–942, 947–950, 1055–
1057, 1181–1184, 1526–1529, 1543, 1546, 1645–1648.)
U. Late June/Early July 2014 – Kerr Attempts to Request In-
formation Concerning Atkinson’s Discipline and Discharge
In late June 2014, Kerr prepared and submitted an infor-
mation request for documents related to Atkinson’s suspension,
discharges and any other pending grievances. Kerr submitted
the request because he was serving as Atkinson’s union repre-
sentative for those matters. DeCecco told Kerr that the infor-
mation request needed to be on union letterhead. Accordingly,
on or about July 1, Kerr sent a revised information request to
Eans and the business agent for Teamsters Local 538 (Fischer).
The revised request included the heading “Union Information
Request” typed on the top of the request. (Tr. 214–215, 376,
410–413, 1223–1224; CP Exhs. 10–11.) In a letter dated July
9, Eans responded to Kerr as follows:
Dear Mr. Kerr:
I am in receipt of two information requests you submitted on
July 1, 2014. The longstanding practice of the parties is that
information requests are requested through the local union
business agents on official union letterhead. If you would like
to submit your request to your business agent, you can do so.
Your business agent will be able to determine what infor-
mation would be appropriate to request.
(CP Exh. 12; Tr. 413; see also Tr. 1036–1037, 1224 (explaining
that UPS requires information requests to be submitted by the
union business agent because UPS’s responses may include
sensitive documents or internal reports).) Kerr called Fischer to
ask her to submit the information request, and also filed a
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
grievance to contest the “lack of [disclosure] of reasonably
related documents and information for pending grievances.
(CP Exh. 13; Tr. 414.) Ultimately, on or about October 13,
2014, UPS (through McCready) provided information in re-
sponse to an information request that Teamsters Local 538
submitted at Kerr’s request. (CP Exh. 14; Tr. 1038.)
V. July 5, 2014 – Supervisor Warns Atkinson that UPS is Aim-
ing to Discharge Him
On July 5, Atkinson and Kerr were on vacation with their
significant others when Kerr received a telephone call from
Matt Blystone, who at the time was the preload supervisor at
the New Kensington center (Blystone went on to hold other
supervisory positions after this time frame). (Tr. 178–179,
403–406, 461–466, 1094; Jt. Exh. 6; GC Exh. 33 (Kerr’s tele-
phone records showing calls to and from Blystone on July 5).)
During telephone call, a discussion to the following effect oc-
curred:
Blystone: [Tells Kerr that he was with Alakson and
DeCecco, and that they said that Atkinson was a trouble-
maker and they needed to get rid of him (Atkinson).]
Kerr: [Speaking to Atkinson, who was present but not
yet on the phone] Hey, Rob. You got to hear this.
Atkinson: [Takes phone and greets Blystone]
Blystone: Hey, I just want you to know what’s hap-
pening to you at that building isn’t your fault. I hear these
guys talking up in the office, Jeremy Bartlett, Matt De-
Cecco, Ray Alakson, and they’re singling you out and
they’re coming after you. This is because of you being a
shop steward and because of the things you have done
with those window signs and everything like that.
Please don’t tell them that I’m telling you this because
they’ll fire me. I just didn’t want you to not know that this
is what’s happening because you’re a good guy and, you
know, I just wanted you to know what was happening, but
don’t tell them that I told you this.
(Tr. 179–180, 404–405, 468; see also Tr. 180, 405, 477, 487
(noting that a few days later Blystone separately called Atkin-
son and Kerr to again ask them not to tell anyone about the July
5 conversation); Tr. 231–234, 343–344, 356–357.)39

39 I have credited Atkinson’s and Kerr’s testimony about their tele-
phone conversations with Blystone because Atkinson’s and Kerr’s
testimony on that issue was corroborated by Kerr’s telephone records,
and more important, was for the most part unrebutted. First, UPS did
not call Blystone to testify as a witness about the July telephone calls or
otherwise. Second, although Bartlett testified, he did not in any way
address or refute Atkinson’s and Kerr’s testimony about Blystone’s
July remarks. And third, when DeCecco and Alakson testified on this
issue, their testimony was exceedingly narrow and limited. Specifical-
ly, DeCecco only testified that he did not remember having a conversa-
tion in front of Blystone about wanting to get rid of Atkinson because
Atkinson was a troublemaker. Similarly, Alakson only testified that he
never heard Bartlett or DeCecco say they would find some way to get
rid of Atkinson, and that he never heard them say they would get rid of
Atkinson because no drivers can follow all of the methods all the time.
Alakson added they (Alakson, Bartlett and DeCecco) never referred to
W. October 2014 – Atkinson Loses Teamsters Local 538 Elec-
tion for Business Agent
In October 2014, Teamsters Local 538 held its election for
the position of business agent. Fischer prevailed over Atkinson
in the election, and thus continued serving as Teamsters Local
538’s business agent. UPS was aware that Atkinson’s Vote No
Facebook page remained up and active during this timeframe.
(Tr. 45–46, 140–141, 234, 415–416; CP Exh. 5 (p. 75) (posting
on Vote No page by Kerr to voice unhappiness about UPS
management).)
X. October 27, 2014 – Atkinson Fails to Download EDD be-
fore Starting His Route
In the morning on October 27, Atkinson reported to work
and joined other drivers in the customary routine of attending
the PCM and preparing to start their routes. During the PCM,
DeCecco informed drivers that they would not be able to wear
their UPS hoodies while on duty (even in the wintertime), and
thus Atkinson spent part of his morning fielding questions from
drivers about DeCecco’s announcement. Atkinson then left the
facility to start his route, but without first downloading EDD on
to his DIAD.40 (Tr. 141–142, 289–290, 362–363; R. Exhs. 20
(Bates 00337–00338), 62; see also Jt. Exhs. 3–4 (section 1(vii),
stating that drivers should perform the “get EDD” function as
part of their morning pre trip routine), 9 (explaining that drivers
must be on UPS facility premises to be connected to UPS wire-
less intranet and perform the “get EDD” function; attempting to
get EDD while not on UPS facility premises will produce an
error message).)
After making a few deliveries, Atkinson discovered that he
did not have EDD on his DIAD and communicated the problem
to Kerr and Larimer (Atkinson, Kerr and Larimer were already
talking in a three-way telephone call about the morning PCM).

Atkinson as a trouble maker or said that they needed to get rid of At-
kinson. Those limited denials fall well short of refuting the evidence in
the record about what Blystone reported to Kerr and Atkinson. (Tr.
1296, 1389, 1392–1393; see also generally Tr. 1420–1482, 1485–1597,
1600–1624 (Bartlett’s testimony, which did not address Blystone’s
remarks to Kerr and Atkinson); Tr. 1555–1556 (while testifying about
another topic, Bartlett noted that his office at the New Kensington
center was adjacent to the office space used by Alakson, Blystone and
DeCecco).)
40 I do not credit Atkinson’s testimony that he attempted to down-
load EDD in the morning and received an error message. Atkinson
conceded that it was a “confusing morning [with] a lot of things going
on,” so it is certainly plausible that under those circumstances Atkinson
forgot to download EDD. (Tr. 142, 290.) In addition, UPS presented
credible evidence that Atkinson’s DIAD: (a) was functioning properly
and received multiple automatic downloads in the morning on October
27; (b) did not show a record of any unsuccessful attempts to download
EDD in the morning; and (c) did show unsuccessful attempts to down-
load EDD in the late afternoon on October 27. (R. Exh. 16, 62 (p. 1);
Tr. 963–972, 1327–1328.)
I note that Atkinson denied attempting to download EDD in the af-
ternoon on October 27. While it certainly seems plausible that Atkin-
son may have tried to download EDD in the afternoon in light of the
morning’s events, that detail is not material to my analysis. Instead,
what matters is that the DIAD records unsuccessful download attempts,
and did not record an unsuccessful download in the morning before
Atkinson started his route.
UNITED PARCEL SERVICE 29
Larimer offered to call Alakson at the UPS facility because he
thought Alakson might be more understanding and could bring
Atkinson a new DIAD with EDD.41 Once Larimer’s call to
Alakson was connected (thereby adding Alakson to the confer-
ence call) Alakson advised Atkinson to continue making deliv-
eries, and that Alakson would bring a new DIAD to Atkinson at
a meeting point on Atkinson’s route. (Tr. 142–145, 290, 352–
353, 407–408, 421–422, 579–581, 602–603, 1187–1188, 1373–
1374; CP Exh. 16; R. Exhs. 17 (Bates 00307), 20 (Bates
00337–00338).)
After the conference call, Alakson notified DeCecco that At-
kinson needed a new DIAD with EDD. DeCecco and Alakson
spoke with Atkinson again to determine where Atkinson was on
his route, and then, following the advice of McCready, drove
together to meet Atkinson. At the meeting point, Atkinson
asserted that he tried to download EDD before leaving the UPS
facility that morning, but erroneously believed that the down-
load was successful despite receiving a transmission error mes-
sage at the time. DeCecco verified that Atkinson did not have
EDD on his original DIAD and provided Atkinson with a new
DIAD that had EDD (Atkinson also kept the original DIAD
until he finished his route). Atkinson asked DeCecco what was
going to happen regarding the DIAD incident, and DeCecco
responded that they would talk about it at another time. With
the new DIAD in hand, Atkinson completed the remainder of
his route without incident. (Tr. 146, 1188–1193, 1197–1198,
1279–1280, 1301–1302, 1331–1332, 1373–1375, 1378, 1681–
1682; R. Exh. 17 (Bates 00307–00308), 59 (Atkinson’s two
timecards for October 27, with one timecard relating to his
original DIAD, and the other timecard relating to his replace-
ment DIAD with EDD).)
Y. October 28, 2014—UPS Discharges Atkinson for Failing to
Download EDD
1. The October 28 discharge
On or about October 27, Washington, DeCecco and Alakson
spoke with McCready about Atkinson’s failure to download
EDD. Collectively, those managers decided to discharge At-
kinson for the incident in part because Atkinson: was already
on two separate discharges; had an overall unacceptable work
record; and, based on his failure perform a routine task like
downloading EDD, did not appear to be trying to change his
behavior. (Tr. 961–962, 1057, 1066, 1198–1199, 1279, 1301,
1650–1652.)
On October 28, Washington and DeCecco met with Atkinson
and Kerr and advised them that UPS was discharging Atkinson
for not following UPS methods, procedures and instructions.42
Specifically, Washington explained that UPS’s decision to
discharge Atkinson was based on Atkinson’s failure to down-

41 Larimer believed that Alakson would be more understanding in
part because Alakson brought Larimer a replacement DIAD in summer
2014, when Larimer discovered that one of two DIADs he was using
did not have EDD. (See FOF, Section II(Y)(2), infra.)
42 Bartlett was reassigned to another UPS facility on or about Au-
gust 1, 2014, and thus did not participate in the October 28 discharge.
Washington attended the discharge meeting because John Lojas, the
new center manager at the New Kensington center, was on vacation.
(Jt. Exh. 6; Tr. 962, 1057, 1651.)
load EDD before leaving the facility to start his route on Octo-
ber 27. Atkinson asserted that UPS was singling him out for
discipline because he was the shop steward. (Tr. 140, 147–148,
291–293, 418, 1186, 1650–1651; see also Tr. 1651 (noting that
UPS also maintained that Atkinson should not have tied up
Kerr and Larimer with addressing his problem of not having
EDD).)
On October 29, UPS followed up on the October 28 meeting
by sending Atkinson a discharge letter that stated as follows:
Dear Mr. Atkinson:
On October 28, 2014, a meeting was held in the New Ken-
sington Center. Present were you, Union Representative
Mark Kerr, Supervisor Matt DeCecco, and myself. Discussed
was your continued failure to follow the proper methods, pro-
cedures and instructions along with your overall unacceptable
work record.
Despite our efforts to assist you, you have failed to follow the
proper methods and procedures. You have been trained on
the proper methods and are expected to follow these methods
at all times while performing your daily work assignment.
Failure to do so places our reputation as a quality service pro-
vider in jeopardy to our valued customers. Actions such as
yours will not be tolerated.
It is apparent by your actions and blatant disregard for your
job responsibilities that you have no intention of correcting
this problem; therefore, you have given UPS just cause to dis-
charge you from our employ.
This is an official discharge letter as outlined in our current
labor agreement between UPS and the International Brother-
hood of Teamsters, Local #538.
(GC Exh. 12.)
Atkinson filed two grievances to contest the October 28 dis-
charge, and thus continued working for UPS while the griev-
ances were pending. In the grievances, Atkinson asserted that
UPS was intimidating, harassing, coercing and overly supervis-
ing/disciplining him because of his union and steward activi-
ties. Atkinson added that UPS’s actions were retaliatory and
discriminatory and violated Section 8(a)(3) of the NLRA. (GC
Exhs. 18(a)–(b); Tr. 149, 290–291, 962–963.)
1. Comparator evidence (concerning DIADs and EDD)
The comparator evidence is limited regarding when and
whether UPS has disciplined drivers at the New Kensington
center for problems with their DIADs and EDD, primarily be-
cause the issue does not arise frequently and when it does, driv-
ers often correct the problem without UPS’s knowledge. (Tr.
1000, 1186–1187, 1377, 1654; see also Tr. 974–975, 1000,
1069, 1378–1379, 1408, 1653 (noting that UPS does not disci-
pline drivers when they need a new DIAD because their origi-
nal DIAD crashes, malfunctions or loses battery power); Tr.
553–554, 558–559 (noting that Lange neglected to download
EDD, but returned to the UPS facility on his own to complete
the download); R. Exh. 20 (Bates 00336) (same, regarding
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Morris).)43
However, in summer 2014, UPS did not discipline Larimer
when he discovered that one of two DIADs he was using did
not download EDD properly (Larimer was running a “combina-
tion route” that had a few bulk delivery stops on one DIAD,
and Larimer’s usual route on a second DIAD). In that instance,
Alakson agreed drive out from the facility and meet Larimer to
give him a replacement DIAD, in part because Alakson be-
lieved that the replacement DIAD would assist with Alakson’s
recordkeeping (as opposed to Larimer making the bulk deliver-
ies without a DIAD).44 (577–579, 603–604, 1393–1394, 1408–
1409; R. 20 (Bates 00338))
Z. Comparator Evidence (Treatment of Other Employees in
Western Pennsylvania Who Were Union Stewards and/or Vote
No Campaign Supporters
The evidentiary record includes some information about the
extent to which UPS disciplined certain other employees who
UPS knew were union stewards and/or were active participants
in the Vote No campaign in Western Pennsylvania. Those
employees include, but are not limited to:45
Employee Type of Activity
(with date if availa-
ble)
Discipline in 2013–
2015?
J.B. Social media post-
ings in support of
Vote No campaign
(R. Exh. 22 (Bates
01887–01888)
April 2014 – Social
media posting ex-
pressing frustration
with UPS methods
and procedures (R.
Exh. 55 (Bates
01783); see also
January 10, 2014 –
Warning letter for
failing to follow
proper methods,
procedures and
instructions (R.
Exh. 66)
Otherwise still
employed (Tr.
820–821, 1680–
1681.)

43 UPS provided testimony about one driver who was disciplined in
summer 2016, for failing to download EDD, and another driver who
was disciplined on an unspecified date for losing his DIAD. I have
given little weight to that testimony because the incidents are too re-
mote in time and location (there is no evidence that either driver
worked in the New Kensington center) from the events at issue in this
case. (See Tr. 1546–1547, 1653–1654.)
44 Kerr also testified that Alakson brought him a replacement
DIAD (in summer 2013) because Kerr did not have EDD. Alakson
denied that this incident occurred. (Compare Tr. 408–409 and R. Exh.
20 (Bates 00337) with Tr. 1377, 1393.) I have not given weight to
Kerr’s testimony on this point because it was only equally credible to
Alakson’s denial.
45 In my view, it is not necessary to include an exhaustive list here
of every UPS employee mentioned in the record who supported the
Vote No campaign and/or served as a union steward. (See R. Posttrial
Br. at 23–24 (listing some additional employees who were Vote No
campaign supporters and/or union stewards).) The list of employees
here is sufficient to make the point (which does not appear to be in
dispute) that UPS did not discipline all Vote No campaign supporters or
union stewards.
FOF, Section M,
supra)
Generally active in
the Vote No cam-
paign (Tr. 1553,
1563)
R.DiF. Union steward (Tr.
819, 1006–1008,
1680)
Generally active in
the Vote No cam-
paign (Tr. 1012–
1013, 1018)
None (Tr. 1680–
1681)
M.F. Union steward (Tr.
819, 1680)
None (Tr. 1680–
1681)
M.H. Posted Vote No
literature on a UPS
bulletin board (Tr.
1016–1017, 1032–
1033; R. Exh. 58
(Bates 002374–
002375))
Generally active in
the Vote No cam-
paign (Tr. 1012–
1013)
None (Tr. 1033)
D.L. December 2013 –
Displaying Vote No
signs (R. Exh. 22
(Bates 01824))
July 26, 2013 –
Warning letter for
unacceptable at-
tendance record (R.
Exh. 66)
Otherwise still
employed (Tr.
820–821, 1680–
1681.)
G.P. Social media post-
ings in support of
Atkinson’s cam-
paign to be the new
Local 538 business
agent (R. Exh. 22
(Bates 01913,
02036)
July 2013 – quoted
and photographed
for a Vote No flyer
(R. Exh. 58 (Bates
002355); Tr. 1013–
1015, 1028–1029)
March 2014 – quot-
ed in article about
the Vote No cam-
None (See (R. Exh.
58 (Bates 002356);
Tr. 820–821, 1030)
UNITED PARCEL SERVICE 31
paign (CP Exh. 2)
April 2014 – social
media posting indi-
cating that UPS
management is
hypocritical with its
rules (R. Exh. 55
(Bates 01779))
Generally active in
the Vote No cam-
paign (Tr. 820,
1012–1013.)
Union steward (Tr.
1006–1008)
K.M. May 2013 – distrib-
uting Vote No peti-
tion (R. Exh. 22
(Bates 01839–
01840, 02101); Tr.
1018)
January 2014 –
expressing his dis-
pleasure with local
union officials who
recommended vot-
ing yes on the sup-
plement (R. Exh. 22
(Bates 01867)
Union steward (Tr.
1006–1007, 1680)
Generally active in
the Vote No cam-
paign (Tr. 1012–
1013)
None (Tr. 820–
821, 1680–1681)
M.M. Union steward (Tr.
1006–1008, 1680)
Generally active in
the Vote No cam-
paign (Tr. 1012–
1013)
None (Tr. 1680–
1681)
R.N. Union steward (Tr.
1006–1007, 1018)
Generally active in
the Vote No cam-
paign (Tr. 1012–
1013, 1018–1019)
January 14, 2014 –
Warning letter for
failing to follow
proper methods,
procedures and
instructions (R.
Exh. 66)
October 29, 2015 –
Warning letter for
failing to follow
proper methods,
procedures and
instructions (R.
Exh. 66)
Otherwise still
employed (Tr.
1006, 1680–1681.)
R.S. August 2013 – dis-
tributing Vote No
flyer (R. Exh. 58
(Bates 002370); Tr.
1017, 1030–1031)
Generally active in
the Vote No cam-
paign (Tr. 1012–
1013)
None (See (R. Exh.
58 (Bates 002360);
Tr. 820–821, 1033)
AA. November 4, 2014 – Grievance Panel Rules on Atkin-
son’s May/June Grievances
On November 4, a grievance panel issued its rulings on the
Atkinson’s grievances for the following disciplinary actions:
May 19 (3–day suspension for not completing DIAD training in
a timely manner); June 18 (10–day suspension for avoidable
accident); June 19 (discharge for supervised vs. unsupervised
performance); and June 20 (discharge for methods infractions
during June 18 blended ride). The grievance panel did not find
that UPS retaliated or discriminated against Atkinson for en-
gaging in protected activity, and reached the following deci-
sions:
Original discipline imposed Grievance panel decision
3–day suspension (May 19) Reduced to a written
warning letter
10–day suspension (June 18) Reduced to a 3–day suspen-
sion
Discharge (June 19) Reduced to a 45–day suspension
with a final warning
Discharge (June 20) Deadlocked (no decision—
grievance may proceed to arbitration)
(GC Exhs. 14–17; see also Tr. 117–118, 134–137, 139, 893,
931, 942–944, 953–954.) UPS was aware that Atkinson and
other individuals posted on Atkinson’s Facebook page about
the grievance panel’s decisions. (CP Exh. 5 (pp. 63–65).)
BB. Late 2014—Atkinson Serves His Suspension and Hears an
Explanation from the Center Manager of the New Kensington
Center
In late 2014, Atkinson began serving the suspensions (a total
of 48 days) set forth by the grievance panel. Towards the end
of the suspension period, Atkinson spoke with John Lojas, who
had become the center manager for the New Kensington center
in August 2014. (Tr. 150, 180, 1544; Jt. Exh. 6.) The follow-
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing conversation occurred:
Atkinson: Hey. You know, you seem like a nice guy.
I’m sorry that you seem to be caught up in a lot of stuff
here that you probably didn’t wto be caught up in.
Lojas: Yeah, yeah. It’s tough.
Atkinson: You know, it started with those window
signs back in January.
Lojas: I definitely agree that’s what put you on the radar. 46
(Tr. 180–181.) 47
CC. December 18, 2014 – Atkinson Files Unfair Labor Prac-
tices Charge in Case 06–CA–143062
On December 18, 2014, Atkinson filed an unfair labor prac-
tices charge against UPS in Case 06–CA–143062. The charge
set forth the following statement of facts constituting the al-
leged unfair labor practices:
(1) [UPS], through its officers, agents, and representatives:
(2) discriminatorily enforced a bulletin board policy;
discriminatorily issued the disciplines described in ULP
Charge No. 06–CA–131900;
(3) discriminatorily terminated Mr. Atkinson again on Octo-
ber 28, 2014; and
(4) On or about November 4, 2014, explicitly relied on Mr.
Atkinson’s filing of Charge No. 06–CA–131900 as a justifica-
tion for his termination.
All of the above-listed actions were taken because Mr. Atkin-
son’s protected activities including vigorously representing
co-workers as a steward, organizing opposition to a proposed
CBA, running for union office, and filing a ULP against the
Employer. They constitute part of a pattern and practice of in-
terference with his protected activity.

46 UPS did not call Lojas as a witness during trial, and thus Atkin-
son’s testimony about this conversation is unrebutted. I also note that
although Atkinson quoted himself as saying that window signs were
posted in January (2014) and I have found that Atkinson and other
drivers posted Vote No signs in their vehicle windows in March 2014
(see FOF, Section II(J), supra), I do not find that difference in dates to
be material to my analysis.
47 The General Counsel presented testimony from Lange that in or
about February 2015 (and thus after Atkinson’s discharge was final-
ized), manager Nicholas Passaro told Lange and Kerr that the New
Kensington center “was a problem center, and I’m here to fix the prob-
lem. We already got rid of one problem.” Passaro denied making that
remark. (Tr. 523, 560–561, 1598–1599; see also Jt. Exh. 6.) I have not
given weight to Lange’s testimony on that point because (among other
reasons): it was at most only equally credible to Passaro’s; and Kerr did
not corroborate Lange’s testimony about what Passaro said. (See Tr.
541–548.)
The General Counsel also presented testimony from former UPS
driver Mitchel Rodriguez that in or about July 2015, Rodriguez was
speaking to DeCecco about seniority concerns when DeCecco stated
“You’re really trying to be like Rob Atkinson, aren’t you. I can take
your job just like I did to him.” DeCecco denied making that remark.
(Tr. 637–638, 1239–1240, 1296.) I have not given weight to Rodri-
guez’s testimony on this point because it also was at most only equally
credible to DeCecco’s.
(GC Exh. 1(a); see also R. Exh. 54 (explaining that in the
charge in Case 06–CA–131900, Atkinson alleged that UPS
violated the Act by suspending him on May 19 and June 18,
2014, and by discharging him on June 19 and 20, 2014).)
DD. January 15, 2015—Grievance Panel Rules on Atkinson’s
Grievances Regarding the October 28 Discharge
On January 14, 2015, a grievance panel conducted a hearing
and ruled on Atkinson’s grievances regarding UPS’s decision
to discharge him on October 28 for not downloading EDD onto
his DIAD. UPS, through McCready, contested Atkinson’s
allegations that UPS retaliated against him (Atkinson) for en-
gaging in union activities. (R. Exhs. 17, 20; Tr. 293, 295–296,
962–963, 975–976, 978–985, 999–1000.) Ultimately, the
grievance panel denied Atkinson’s grievances and upheld At-
kinson’s October 28 discharge, stating its decision (in its entire-
ty) as follows:
Based on the facts presented and the grievant’s own testimony
the committee finds no violations of any contract articles
therefore the grievances (#22310 and #22311) are denied.
NRNP.
(GC Exh. 18; R. Exh. 21; Tr. 1062; see also Tr. 151 (noting that
Atkinson learned of the grievance panel’s decision the evening
before he was scheduled to return to work after serving his
suspensions); Tr. 136–137 (explaining that the notation
“NRNP” stands for non-referencing, non-precedent setting).)
EE. May 9, 2015—Atkinson Posts on Facebook about Eans
and McCready
On May 9, 2015, Atkinson made the following post on
Facebook in response to posts by other individuals:
Here’s a couple more names for people to watch out for:
Rob Eans . . . this piece of garbage is the District Labor man-
ager that has insinuated himself into every step of my disci-
pline . . . a condescending, self righteous little man who’s
creepy demean[or] will just plain make your skin crawl . . . I
have to say I have never seen a man sit in a chair and cross his
legs in a more dainty and effeminate way, he legitimately
looks like he should be sitting on a tuffet eating his curds and
whey! . . . he definitely gives off the impression that he’s try-
ing as hard as he can to compensate for something. . . . my
guess, erectile dysfunction [smiley face indicated by semico-
lon and parenthesis]
Tom McCready . . . this knuckle dragger is the Division Man-
ager who [buffoons] his way along trying to do his master
Rob Eans bidding . . . he’s a cross between Barney Rubble,
Shrek, and Captain Caveman . . . listening to him talk is actu-
ally quite humorous, it sounds like he’s chewing on cotton
balls and marbles . . . I’ve yet to hear him ever say one intelli-
gent thing, but then again, it’d be difficult to decipher it if he
did [smiley face indicated by semicolon and parenthesis]
(R. Exh. 5.) Atkinson admitted to (and said he was sorry for)
making the Facebook posting about Eans and McCready, and
explained that he made the statements because he believed Eans
and McCready lied about Atkinson and took away his career.
UNITED PARCEL SERVICE 33
McCready saw Atkinson’s post and believed Atkinson’s re-
marks were attacks on his disability (McCready’s voice and
difficulty with pronunciation). (Tr. 345, 378–380, 383, 1039–
1040.)
UPS has issued an “Equal Opportunity Statement” that out-
lines its policies concerning discrimination, harassment and
other misconduct. The equal opportunity statement reads, in
pertinent part:
UPS is committed to a policy of treating individuals fairly and
recruiting, selecting, training, promoting and compensating
based on merit, experience and other work-related criteria.
We comply with all laws governing fair employment and la-
bor practices. We do not discriminate against any applicant
for employment or any employee in any aspect of their em-
ployment at UPS because of age, race, religion, sex, disability,
sexual orientation, gender identity, military status, pregnancy,
national origin or veteran status. . . .Freedom from wrongful
discrimination includes freedom from any form of discrimina-
tory harassment. Prohibited harassment includes conduct that
is intended to interfere or that has the effect of unreasonably
interfering with a fellow employee’s work performance or
creating an environment that is intimidating, hostile or offen-
sive to the individual.
Additional information can be found in the UPS Professional
Conduct and Anti-Harassment Policy available from Human
Resources. . . .
(R. Exh. 6 (p. 1); see also Tr. 1042.) As indicated in its Equal
Opportunity Statement, UPS also has issued a Professional
Conduct and Anti-Harassment Policy. That policy states, in
pertinent part:
UPS is proud of its professional and congenial work environ-
ment and will take all necessary steps to ensure that our
workplace remains pleasant for everyone. In order to remain
a positive work environment, all employees must treat each
other with courtesy, consideration, and professionalism. The
Company prohibits unprofessional and discourteous actions,
even if those actions do not constitute unlawful harassment.
In addition, harassment of any person or group of persons on
the basis of race, sex, national origin, disability, sexual orien-
tation, gender identity, veteran/military status, pregnancy, age
or religion is a form of unlawful discrimination which is spe-
cifically prohibited in the UPS community and which may
subject the Company and/or the individual harasser to liabil-
ity. Accordingly, derogatory or other inappropriate remarks,
slurs, threats or jokes will not be tolerated. . . .
(R. Exh. 6 (p. 2); see also Tr. 1042.)
In 2013, and 2014, UPS discharged several employees cov-
ered by the Western Pennsylvania supplement for engaging in
conduct that violated UPS’s Professional Conduct and Anti-
Harassment Policy. The discharge letters in the evidentiary
record do not provide any specific factual details about the
nature of the misconduct/harassment that led UPS to discharge
the employees. Atkinson was not aware of, and the record does
not include evidence of, any employees in the New Kensington
center who were disciplined or discharged for engaging in con-
duct that violated UPS’s Professional Conduct and Anti-
Harassment Policy. (R, Exh. 23; Tr. 381–382, 1043.)
McCready testified, however, that UPS would not tolerate the
types of remarks that Atkinson made in his May 9, 2015 post
because UPS has a zero-tolerance policy and issues immediate
discharges for remarks such as Atkinson’s. (Tr. 1041–1042;
see also R. Exh. 23.)
FF. NLRB Region 6’s Deferral Decisions
1. March 30, 2015 – Region 6 dismisses the charges in
Cases 06–CA–131900 and 06–CA–143062
In a letter dated March 30, 2015, the Regional Director for
Region 6 of the NLRB contacted counsel for the Charging Par-
ty about unfair labor practice charges filed in Cases 06–CA–
131900 and 06–CA–143062 (as well as additional charges in
cases not at issue here). The Regional Director advised counsel
that the charges in those cases would be dismissed, stating as
follows:
We have carefully investigated and considered [the charges
filed in Cases 06–CA–131900 and 06–CA–143062] that
United Parcel Service . . . [has] violated the National Labor
Relations Act.
Decision to Dismiss: Based on that investigation, I have de-
cided to dismiss these [charges because] there is insufficient
evidence to establish a violation of the Act.
(R. Exh. 26; see also id. (notifying counsel of the right to ap-
peal the decision to the General Counsel); Tr. 1565–1566.)
3. December 24, 2015 – the General Counsel sustains the
Charging Party’s appeal in part and denies the appeal in part
On December 24, 2015, the General Counsel sent a letter to
counsel for the Charging Party to advise (among other things)
that the General Counsel would sustain in part and deny in part
the Charging Party’s appeal of the Regional Director’s decision
to dismiss the unfair labor practice charges in Cases 06–CA–
131900 and 06–CA–143062. The General Counsel stated as
follows in his letter:
This office has carefully considered your appeal in the above
captioned cases. We are sustaining the appeal in part and
denying the appeal in part.
In Case 06–CA–131900, we are denying the appeal. In this
regard, we agree with the Regional Director’s decision to de-
fer to the first [grievance] panel decision addressing the disci-
pline of the alleged discriminatee in May and June [2014].
There is insufficient evidence to establish that the panel deci-
sion did not meet the standards set forth under Spielberg
Manufacturing Co., 112 NLRB 1080 (1955) and Olin Corpo-
ration, 268 NLRB 573 (1984).
. . .
In Case 06–CA–143062, we are sustaining the appeal in pa
. . .
To the extent that you reiterated conduct alleged in 06–CA–
131900, such allegations are encompassed by the deferral
decision in that case. However, we are remanding the Section
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8(a)(3) allegation that the Employer unlawfully discharged
the alleged discriminatee on October 28, 2014, back to the
Regional Office for further proceedings, including possible
deferral to the parties’ grievance and arbitration proceedings.
(R. Exh. 45; see also id. (noting that absent a settlement of the
charges in the sustained appeals, the Regional Director would
issue a complaint and an administrative law judge would hold a
hearing); Tr. 1566–1567.)
2. December 24, 2015—the General Counsel sends a corrected
letter concerning the Charging Party’s appeal
Later on December 24, 2015, the General Counsel sent coun-
sel for the Charging Party a corrected letter to clarify its deci-
sion on the Charging Party’s appeal. The General Counsel
stated as follows in his corrected letter:
In reviewing the appeal in the instant case, we are sending a
corrected copy to clarify the findings concerning the specific
allegations contained in the instant charges. We apologize for
any confusion that may have occurred with our previous letter
dated December 24, 2015. We are sustaining the appeals in
part and denying the appeals in part.
In Case 06–CA–131900, the charge alleged that the Employer
unlawfully suspended the Charging Party on May 19, 2014
and June 18, 2014. The charge also alleges that the Employer
discharged the Charging Party on June 19, 2014 and June 20,
2014. The investigation disclosed that an arbitration panel re-
viewed the suspensions issued on May 19 and June 18, as
well as the June 19 discharge. Concerning the arbitration
panel decision, we are denying the appeal with respect to the
suspensions and the June 19 discharge. In this regard, we
agree with the Regional Director’s decision to defer to the
panel decision addressing the suspensions of the alleged dis-
criminatee in May and June, and the June 19 discharge. We
find there is insufficient evidence to establish that the panel
decision did not meet the standards set forth under Spielberg
Manufacturing Co., 112 NLRB 1080 (1955) and Olin Corpo-
ration, 268 NLRB 573 (1984).
Also in Case 06–CA–131900, the charge alleged that the Em-
ployer unlawfully terminated the Charging Party on June 20,
2014. We adhere to the Regional Director’s original decision
to defer such allegation under Collyer Insulated Wire, 192
NLRB 837 (1971), pursuant to the parties’ arbitration pro-
ceedings. Accordingly, we deny the appeal in Case 06–CA–
131900.
In Case 06–CA–143062, we are sustaining the appeal in part
and denying the appeal in part. Initially, we note that Case
06–CA–143062 alleged, inter alia, that the Employer discrim-
inatorily issued the disciplines alleged in 06–CA–131900. To
the extent that the Charging Party reiterated the allegations
that the Employer unlawfully issued the May 19, June 18 and
June 19 disciplines, these allegations are encompassed by our
decision in the earlier case to defer to the first panel decision
addressing the disciplines. However, the evidence indicated
that the parties reached a [deadlock] on the June 20, 2014 dis-
charge and the parties never resolved that grievance. In light
of our finding in Case 06–CA–143062, discussed infra, that
the Employer unlawfully discharged the Charging Party on
October 28, we find that the outstanding grievance on the
June 20, 2014 discharge is no longer moot. Accordingly, that
allegation is remanded back to the Region for further proceed-
ings. . . .
(R. Exh. 54; see also id. (upholding the Regional Director’s
decision, based on the new standards set forth in Babcock &
Wilcox Construction Co, 361 NLRB 1127 (2014), not to defer
to the January 14, 2015 arbitration panel decision concerning
the October 28, 2014 discharge); Tr. 1568.)
Discussion and Analysis
It is well established that before considering the merits of the
allegations in the complaint, I first must resolve the threshold
issue of whether the Board should defer the dispute to the
grievance-arbitration procedure set forth in the collective-
bargaining agreement. See St. Francis Regional Medical Cen-
ter, 363 NLRB No. 69, slip op. at 17 (2015) (pre arbitration
deferral); United Hoisting & Scaffolding, Inc., 360 NLRB No.
137, slip op. at 4 (2014) (same); Olin Corp., 268 NLRB 573,
574 (1984) (post arbitration deferral), overruled on other
grounds, Babcock & Wilcox Construction Co., 361 NLRB 1127
(2014). Accordingly, in the analysis below I first address the
issues that the parties have raised concerning deferral, and I
then (because I have found that deferral is not appropriate)
address the merits of the allegations in the complaint.
A. Was it Permissible for the General Counsel to Include the
June 20, 2014 Discharge as an Allegation in the Complaint in
this Case?
1. Background
At some point in the summer of 2014, Atkinson filed an un-
fair labor practices charge in Case 06–CA–131900 to contest
UPS’s decisions to suspend him on May 19 and June 18, 2014,
as well as UPS’s decisions to discharge him on June 19 and 20,
2014. On or about August 26, 2014, Region 6 decided to defer
Case 06–CA–131900 to the parties’ grievance and arbitration
procedure. Later, on March 30, 2015, Region 6 notified the
parties that based on its investigation, it would be dismissing
the charges in Case 06–CA–131900 (as well as the charges in
Case 06–CA–143062). (FOF, Section II(CC), (FF)(1); Tr. 19.)
Through counsel, Atkinson appealed the Region’s March 30,
2015 dismissal decisions and succeeded in getting some of the
charges reinstated. The General Counsel denied Atkinson’s
appeal in Case 06–CA–131900, explaining that it agreed with
the Region’s decision to defer to the grievance panel’s Novem-
ber 4, 2014 order concerning Atkinson’s May and June 2014
suspensions and Atkinson’s June 19, 2014 discharge. On the
other hand, the General Counsel sustained Atkinson’s appeal in
part in Case 06–CA–143062, and remanded that case to the
Region for further proceedings not only on Atkinson’s October
28, 2014 discharge, but also on Atkinson’s June 20, 2014 dis-
charge that was (also) contested in Case 06–CA–131900. In
support of that outcome, the General Counsel explained that
although it agreed with the Region’s decision to defer the June
20 discharge to the grievance and arbitration procedure, the
grievance panel deadlocked on the June 20 discharge and thus
the grievance was never resolved and was “no longer moot.”
UNITED PARCEL SERVICE 35
Thereafter, the General Counsel issued the complaint in this
case and alleged that Respondent violated Section 8(a)(3) and
(1) of the Act when it discharged Atkinson on June 20 and
October 28, 2014. (FOF, Section II(FF)(3); GC Exh. 1(c).)
2. Analysis
At the start of trial and in its posttrial brief, Respondent re-
quested that I dismiss the allegation in the complaint that Re-
spondent violated the Act when it discharged Atkinson on June
20, 2014, or alternatively remand that allegation to the griev-
ance and arbitration procedure. (R. Posttrial Br. at 2–3; Tr. 19–
21.) The General Counsel and Atkinson oppose Respondent’s
request. (GC Posttrial Br. at 58–60; CP Posttrial Br. at 2–6.)
The essence of Respondent’s argument for dismissal/deferral
of the June 20 discharge allegation is that the allegation is not
properly before the Board (and, if anything, should be proceed-
ing through the parties’ grievance and arbitration procedure).
The Board has explained, however, that the General Counsel
has discretion to choose “procedures for processing unfair labor
practice charges, including whether and under what circum-
stances to defer to arbitration before issuing complaints.” Bab-
cock & Wilcox Construction Co., 361 NLRB 1127, 1139
(2014); see also BCI Coca-Cola Bottling Co. of Los Angeles,
361 NLRB 839, 843 5 to “[decide] what steps to take before
issuing a complaint, including how to investigate the charge
and whether to defer to pending or possible arbitration of the
charge”). More pointedly, the Board has stated:
[D]eferral is a matter of discretion. . . . ‘There is no question
that the Board is not precluded from adjudicating unfair labor
practice charges even though they might havee subject of an
arbitration proceeding and award.’
Babcock & Wilcox Construction Co., 361 NLRB 1127, 1129
(quoting International Harvester Co., 138 NLRB 923, 925–926
(1962), enfd. 327 F.2d 784 (7th Cir. 1964), cert. denied 377
U.S. 1003 (1964)); see also Babcock & Wilcox Construction
Co., 361 NLRB 1127, 1130 (explaining that “the discretionary
aspect of the Board’s deferral policy is particularly significant
in 8(a)(3) and (1) cases such as this, where employees’ contrac-
tual rights, implicated in the grievance, are separate from their
rights under the Act”).
Based on the Board’s guidance, I find that it was within the
General Counsel’s discretion to include the June 20 discharge
allegation in the complaint, particularly where the June 20 dis-
charge had not been resolved through the grievance and arbitra-
tion procedure and was part of a progression of disciplines and
discharges that Atkinson asserted (in Case 06–CA–143062)
were unlawful.48 Accordingly, I deny Respondent’s request

48 I am not persuaded by Respondent’s argument that Atkinson only
reasserted that UPS issued discriminatory “disciplines” in the charge in
Case 06–CA–143062, and thus did not reassert that the June 20 dis-
charge was discriminatory. (See R. Posttrial Br. at 3.) I do not agree
that the charge in Case 06–CA–143062 should be read so narrowly,
particularly given that Atkinson explained in the charge that he be-
lieved UPS was engaging in a pattern and practice of interfering with
his protected activities. Perhaps more important, even if I agreed that
Atkinson only reasserted that UPS issued discriminatory disciplines in
the charge, the General Counsel would still be within its rights to chal-
lenge the June 20 discharge in the complaint because the June 20 dis-
that I dismiss that allegation for lack of jurisdiction or remand
that allegation to the grievance and arbitration procedure.49
B. Should the Region Have Deferred to the Grievance Panel’s
Decision to Uphold Atkinson’s October 28, 2014 Discharge?
1. Background
Under the national master collective-bargaining agreement
and the Western Pennsylvania supplement (both of which took
effect on April 25, 2014), a UPS employee may use the griev-
ance/arbitration procedure to contest disciplinary action that the
employee believes is discriminatory under federal or state law.
(FOF, Section II(A)(4), (L).) As previously noted, Atkinson
filed two grievances to contest UPS’s October 28, 2014 deci-
sion to discharge him for failing to download EDD. In the
grievances, Atkinson (among other things) explicitly asserted
that the October 28 discharge was retaliatory, discriminatory
and violated Section 8(a)(3) of the NLRA. (FOF, Section
II(Y)(1).)
After the Western Pennsylvania grievance panel conducted a
hearing on January 14, 2015, concerning Atkinson’s grievances
of his October 28 discharge, the grievance panel upheld UPS’s
decision to discharge Atkinson. The grievance panel’s decision
stated (in its entirety) as follows:
Based on the facts presented and the grievant’s own testimony
the committee finds no violations of any contract articles
therefore the grievances (#22310 and #22311) are denied.
NRNP.
(FOF, sec. II(BB).) UPS maintains that the Region should have
deferred to the grievance panel’s decision. By contrast, the
General Counsel and Atkinson maintain that deferral is not
appropriate and that I should address the merits of the com-
plaint allegation that UPS violated the Act when it discharged
Atkinson on October 28.
2. Applicable legal standard for post arbitration deferral
On December 15, 2014, the Board modified its standard for
deferring to decisions that an arbitrator or grievance panel is-
sues pursuant to the parties’ grievance/arbitration process.
Under the new standard for post arbitration deferral, “if the
arbitration procedures appear to have been fair and regular, and
if the parties agreed to be bound, the Board will defer to an
arbitral decision if the party urging deferral shows that: (1) the
arbitrator was explicitly authorized to decide the unfair labor

charge is closely related to the allegations in the charge in Case 06–
CA–143062. See Columbia College Chicago, 363 NLRB No. 154, slip
op. at 30 (2016) (explaining that to decide whether complaint allega-
tions are closely related to the allegations in a timely filed charge, the
Board evaluates whether the complaint allegations are factually and
legally related to the charge).
49 In light of my finding here, I need not address the General Coun-
sel’s and Atkinson’s argument that deferral of the June 20 discharge
would not be appropriate because conflict of interest issues and bias
against Atkinson would prevent any grievance/arbitration proceedings
from being fair and regular. (See CP Posttrial Br. at 12–16 (arguing
that Atkinson’s representative and members of the panel supported
ratifying the national collective-bargaining agreement and the Western
Pennsylvania supplement, and thus were at odds with Atkinson, who
opposed ratification); GC Posttrial Br. at 59–60 (same).)
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
practice issue; (2) the arbitrator was presented with and consid-
ered the statutory issue, or was prevented from doing so by the
party opposing deferral; and (3) Board law reasonably permits
the award.” Babcock & Wilcox Construction Co., 361 NLRB
1127, 1131. The Board added that the new standard for post-
arbitration deferral would apply to all future arbitrations (i.e.,
arbitrations after December 15, 2014) in cases where parties
have already, either contractually or explicitly for a particular
case or cases, authorized arbitrators to decide unfair labor prac-
tice claims. Id. at 14.
3. Analysis
The modified standard for post arbitration deferral that the
Board announced in Babcock applies in this case because the
national collective-bargaining agreement and Western Pennsyl-
vania supplement authorize arbitrators and grievance panels to
hear and decide claims that UPS unlawfully discriminated
against an employee in violation of federal law. Unfair labor
practice claims under the NLRA are covered by that broad
grant of authority.
Applying the post arbitration deferral standard set forth in
Babcock to this case, I find that UPS did not carry its burden of
demonstrating that the Board should defer to the grievance
panel’s decision to uphold Atkinson’s October 28 discharge.50
Specifically, UPS did not show that the grievance panel consid-
ered the statutory issue of whether Atkinson’s discharge violat-
ed the NLRA. There is no dispute that Atkinson asserted in his
grievances that his discharge violated the Act, and there is no
contention that Atkinson prevented the grievance panel from
considering the NLRA aspects of his grievances. The griev-
ance panel’s decision, however, only states that Atkinson’s
discharge did not violate any contract articles, and thus (at best)
leaves one to speculate as to whether the panel’s decision im-
plicitly includes a finding that Atkinson’s discharge was not
discriminatory or retaliatory within the meaning of the NLRA.
That level of ambiguity is not sufficient to justify post arbitra-
tion deferral, particularly given the Board’s instruction that a
finding that “the arbitrator has actually considered the statutory
issue” is only warranted “when the arbitrator has identified that
issue and at least generally explained why he or she finds that
the facts presented either do or do not support the unfair labor
practice allegation.” See Babcock & Wilcox Construction Co.,
361 NLRB 1127, 1133; see also id. at 6 (explaining that that
Board will no longer countenance post arbitration deferral
where there is “simply no way to tell” whether the grievance
panel considered the statutory issue of whether an employee’s
discharge violated the Act). Accordingly, I find that it is not
appropriate to defer to the grievance panel’s decision concern-
ing Atkinson’s October 28 discharge.

50 To the extent that Respondent asserts that post-arbitration deferral
is warranted concerning the October 28 discharge because the griev-
ance panel hearing was “fair and regular,” I reject that argument be-
cause it relies on case law that pre-dates (and thus does not account for)
the modifications to the post-arbitration deferral standard that the Board
set forth in Babcock. (See R. Posttrial Br. at 33–35 (citing, inter alia,
Botany 500, 251 NLRB 527 (1980).)
C. Did UPS Violate the Act when it Discharged Atkinson on
June 20, 2014 and/or on October 28, 2014?
Before evaluating the merits of the General Counsel’s claims
that UPS discharged Atkinson unlawfully, it is important to
understand the General Counsel’s (and Atkinson’s) theory for
this case. The General Counsel contends that UPS requires its
drivers to comply with a myriad of procedures and rules (e.g.,
the 340 methods) that, while facially valid, drivers will inevita-
bly break as they complete their work. Within that context, the
General Counsel maintains that because of Atkinson’s union
and protected concerted activities, UPS improperly found op-
portunities to discipline, and ultimately discharge, Atkinson for
various rule violations. Respondent, on the other hand, main-
tains that its decisions to discharge Atkinson were valid and
nondiscriminatory.
As explained below, I find that the General Counsel demon-
strated that UPS discharged Atkinson unlawfully on June 20
and October 28. Although the General Counsel’s theory of the
case was a challenging one to prove, the General Counsel pre-
sented persuasive evidence that UPS, through key managers
who were involved in the decisions to discharge Atkinson, was
motivated to get rid of Atkinson because of his union and pro-
tected concerted activities.
1. Complaint allegations
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by, on or about June 20, 2014,
discharging employee Robert Atkinson because he refrained
from supporting and assisting the Teamsters Local 538 and
otherwise engaged in protected concerted activities. (GC Exh.
1(c) (pars. 7(a), 8).)
The General Counsel also alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by, on or about October 28,
2014, discharging employee Robert Atkinson because he re-
frained from supporting and assisting Teamsters Local 538 and
otherwise engaged in protected concerted activities. (GC Exh.
1(c) (pars. 7(b), 8).)
2. Applicable legal standard
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences
that may be drawn from the record as a whole. Farm Fresh
Co., Target One, LLC, 361 NLRB 848, 860–861 (2014); see
also Roosevelt Memorial Medical Center, 348 NLRB 1016,
1022 (2006) (noting that an administrative law judge may draw
an adverse inference from a party’s failure to call a witness who
may reasonably be assumed to be favorably disposed to a party,
and who could reasonably be expected to corroborate its ver-
sion of events, particularly when the witness is the party’s
agent). Credibility findings need not be all-or-nothing proposi-
tions — indeed, nothing is more common in all kinds of judi-
cial decisions than to believe some, but not all, of a witness’
testimony. Farm Fresh Co., Target One, LLC, 361 NLRB 848.
861. My credibility findings are set forth above in the findings
of fact for this decision.
The legal standard for evaluating whether an adverse em-
UNITED PARCEL SERVICE 37
ployment action violates Section 8(a)(3) of the Act is generally
set forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
To sustain a finding of discrimination, the General Counsel
must make an initial showing that a substantial or motivating
factor in the employer’s decision was the employee’s union or
other protected activity. Pro-Spec Painting, Inc., 339 NLRB
946, 949 (2003). The elements commonly required to support
such a showing are union or protected concerted activity by the
employee, employer knowledge of that activity, and animus on
the part of the employer. Consolidated Bus Transit, Inc., 350
NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009);
see also Medic One, Inc., 331 NLRB 464, 475 (2000) (noting
that “[e]vidence of suspicious timing, false reasons given in
defense, failure to adequately investigate alleged misconduct,
departures from past practices, tolerance of behavior for which
the employee was allegedly fired, and disparate treatment of the
discharged employees all support inferences of animus and
discriminatory motivation”).
If the General Counsel makes the required initial showing,
then the burden shifts to the employer to prove, as an affirma-
tive defense, that it would have taken the same action even in
the absence of the employee’s union or protected activity. Bal-
ly’s Atlantic City, 355 NLRB 1319, 1321 (2010) (explaining
that where the General Counsel makes a strong initial showing
of discriminatory motivation, the respondent’s rebuttal burden
is substantial), enfd. 646 F.3d 929 (D.C. Cir. 2011); Consoli-
dated Bus Transit, Inc., 350 NLRB at 1066; Pro-Spec Painting,
339 NLRB at 949. The General Counsel may offer proof that
the employer’s reasons for the personnel decision were false or
pretextual. Pro-Spec Painting, 339 NLRB at 949 (noting that
where an employer’s reasons are false, it can be inferred that
the real motive is one that the employer desires to conceal —
an unlawful motive — at least where the surrounding facts tend
to reinforce that inference.) (citation omitted); Frank Black
Mechanical Services, Inc., 271 NLRB 1302, 1302 fn. 2 (1984)
(noting that “a finding of pretext necessarily means that the
reasons advanced by the employer either did not exist or were
not in fact relied upon, thereby leaving intact the inference of
wrongful motive established by the General Counsel”). How-
ever, a respondent’s defense does not fail simply because not
all the evidence supports its defense or because some evidence
tends to refute it. Ultimately, the General Counsel retains the
burden of proving discrimination. Farm Fresh Co., Target
One, LLC, 361 NLRB 848, 861
3. Analysis—he June 20 discharge
Turning to the merits of the General Counsel’s allegation
that UPS violated the Act when it discharged Atkinson on June
20, I find that the General Counsel made an initial showing that
Atkinson’s union and protected concerted activities were a
substantial or motivating factor in UPS’s decision to discharge
Atkinson. First, I find that Atkinson engaged in union and
protected concerted activities during the relevant time period
(from mid 2013 to October 28, 2014). Atkinson led the Vote
No campaign in the New Kensington center by, among other
things, using the following methods to encourage drivers to
vote against ratifying the Western Pennsylvania supplement:
maintaining a Vote No webpage; posting on social media; post-
ing and/or distributing Vote No literature; and creating Vote No
signs that drivers could display in the windshields of their per-
sonal vehicles.51 In addition, Atkinson was a ringleader among
employees who used social media to voice (often sarcastically)
their frustrations with UPS’s extensive rules and procedures for
package car drivers. (FOF, Section II(D), (G), (I), (J), (L) .)
Second, there is no dispute that UPS was aware of Atkin-
son’s union and protected concerted activities. Specifically,
from various sources as well as from their own monitoring of
the Vote No campaign, managers in UPS’s labor department
and at the New Kensington center were aware of Atkinson’s
postings on social media, and were also aware of Atkinson’s
activities at the New Kensington center. Indeed, Alakson
warned Atkinson to be careful about what Atkinson was post-
ing on Facebook, and DeCecco spoke to Atkinson about the
guidelines that Atkinson needed to follow regarding posting or
distributing Vote No literature at the UPS facility, and about the
Vote No window signs that employees were displaying in their
vehicles. Similarly, after being assigned to the New Kensing-
ton center in April 2014, Bartlett learned that Atkinson was
leading the Vote No campaign and was also communicating
with other employees in a sarcastic manner about the challeng-
es of running their routes efficiently while complying with
UPS’s procedures and methods. (FOF, section II (D), (G), (I)–
(J), (L)–(M).)
Third, the evidentiary record establishes UPS’s animus to-
wards Atkinson’s union and protected concerted activities.
Shortly after employees (at Atkinson’s urging) began display-
ing Vote No signs in their vehicles, McCready confronted At-
kinson by saying that he saw the Vote No signs and telling
Atkinson “I guess you can do whatever you want.” Consistent
with McCready’s sentiment, Lojas agreed (in December 2014)
with Atkinson that the Vote No window signs put Atkinson “on
the radar.” As for the social media postings, Alakson gave
Atkinson and his coworkers several friendly but ominous warn-

51 It is well established that the NLRA protects union dissident ac-
tivities. See, e.g., Town & Country Supermarkets, 340 NLRB 1410,
1411 (2004) (finding that a union violated the Act by asking the em-
ployer to suspend and discharge an employee because of her union
dissident activity, which included opposing the union’s efforts to secure
quick ratification of a successor collective-bargaining agreement);
Paperworkers Local 1048 (Jefferson Smurfit Corp.), 323 NLRB 1042,
1043–1044 (1997) (union unlawfully attempted to cause employer to
discipline employee because the employee had engaged in union dissi-
dent and other protected concerted activities). To be sure, there are
some exceptions (such as certain unprotected wildcat strikes, see, e.g.,
Energy Coal Partnership, 269 NLRB 770, 770–771 (1984)), but none
of those exceptions is applicable here.
In this case, Respondent maintains that many of Atkinson’s activities
in support of the Vote No campaign were not protected by the Act
because, in Respondent’s view, the Vote No campaign should have
ended in June 2013, when a majority of bargaining unit members voted
to ratify the national collective-bargaining agreement. (R. Posttrial Br.
at 26–27.) That argument fails, however, because the Western Penn-
sylvania supplement was not ratified in June 2013 (or after another
ratification vote in January 2014), and Atkinson and other Vote No
campaign supporters were well within their rights to continue exhorting
bargaining unit members to vote against ratifying the supplement.
(FOF, section II(A)(2), (E), (I).)
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ings that they should watch what they posted on Facebook.
And perhaps most directly, in July 2014, Blystone told Atkin-
son that Bartlett, DeCecco, and Alakson52 were singling Atkin-
son out and trying to get rid of Atkinson because of Atkinson’s
activities (such as generally being a troublemaker and orches-
trating the Vote No signs that employees posted in their vehicle
windows).53 (FOF, section II(G), (J), (L), (V), (BB).)
As an affirmative defense to the General Counsel’s initial
showing that UPS discriminated against Atkinson when it dis-
charged him on June 20, UPS asserts that it would have dis-
charged Atkinson even in the absence of his union and protect-
ed activities because Atkinson committed methods infractions
during his June 18 blended ride with Bartlett. The problem
with Respondent’s theory is that it was Bartlett who decided (in
his discretion) to convert Atkinson’s safety ride into a blended
ride that would serve as both a safety ride and an OJS ride fol-
lowup, and it was Bartlett who cited Atkinson for the methods
infractions in question. Since I have found that Bartlett (and
others) had an unlawful goal of using UPS’s rules to single out
and get rid of Atkinson because of his union and protected con-
certed activities, the June 18 blended ride is tainted, as is the
June 20 discharge that resulted from methods infractions that
Bartlett identified in that ride.54 Indeed, the taint remains even
though it is true that Atkinson committed at least some methods
infractions during the blended ride (such as rolling through a
stop sign and having trouble finding certain packages) and it is
true that UPS has a track record of disciplining drivers for
committing methods infractions – even with those facts, the
fact remains that UPS (through Bartlett and other supervisors)
unlawfully had its thumb on the proverbial scale when it decid-
ed to discharge Atkinson on June 20 based on methods infrac-
tions that Bartlett found Atkinson committed during the June 18
ride. (FOF, Section II(S), (T)(3), (Z).) Because of that taint,
UPS’s affirmative defense falls short, and I find that UPS vio-
lated Section 8(a)(3) and (1) when it discharged Atkinson on
June 20, 2014.
Analysis—the October 28 discharge
For the same reasons cited above concerning Atkinson’s
June 20 discharge, I find that the General Counsel made an

52 I pause here to note that although Alakson delivered friendly
warnings to Atkinson and others to be careful about what they posted
on social media, that fact is not inconsistent with Alakson supporting a
plan to get rid of Atkinson because of Atkinson’s union and protected
activities. Alakson could have had any number of reasons for support-
ing a plan to get rid of Atkinson, including but not limited to going with
the crowd, following the lead of his supervisor (Bartlett), or simply
tiring of Atkinson’s protected activities.
53 In litigating this case, UPS has posed the question of what makes
Atkinson so special, and thus a target for an unlawful discharge, as
opposed to countless other Vote No campaign supporters and union
stewards? (See, e.g., R. Posttrial Br. at 21–23, 28.) The evidence of
UPS’s animus towards Atkinson that I have set forth here (among other
evidence) answers that question.
54 I realize that my reasoning would also apply to Atkinson’s June
19 discharge for supervised vs. unsupervised performance, which also
arose out of the June 18 blended ride. That discharge, however, is not
before me, since it was resolved by the grievance panel and the General
Counsel deferred to the panel’s decision.
initial showing that Atkinson’s union and protected concerted
activities were a substantial or motivating factor in UPS’s deci-
sion to discharge Atkinson on October 28, 2014. It suffices to
note that UPS’s animus towards Atkinson was still present in
October 2014, as indicated by the fact (among others evidence)
that: the June 20 and October 28 discharges occurred roughly
within four months of each other; Blystone admitted in July
2014, that Bartlett, DeCecco, and Alakson were aiming to get
rid of Atkinson because of Atkinson’s union and protected
activities; and Lojas told Atkinson in December 2014 that he
agreed the Vote No window signs put Atkinson on the radar
(thereby indicating that the animus persisted throughout the
relevant time period). (See Discussion and Analysis, Section
C(3), supra.)
As its affirmative defense concerning the October 28 dis-
charge, UPS asserts that it would have discharged Atkinson
even in the absence of his union and protected activities be-
cause Atkinson committed a methods infraction on October 27
by failing to download EDD before leaving the facility and
starting his route. There is no dispute that Atkinson did not get
EDD before leaving the facility on October 27. (FOF, Section
II(X).) UPS, however, does not have an established track rec-
ord of disciplining drivers for not downloading EDD, in part
because the issue does not arise frequently, and in part because
on some occasions when the issue has arisen, UPS has handled
the problem informally (i.e., without discipline) or drivers have
returned to the facility on their own to complete the EDD
download without notifying management.55 (FOF, Section
II(Y)(2).) In addition, as with the June 20 discharge, the fact
remains that UPS’s decision to discharge Atkinson on October
28 was tainted by UPS’s unlawful plan to use its rules to single
out and get rid of Atkinson because of his union and protected
concerted activities. Indeed, although Bartlett was no longer
assigned to the New Kensington center, DeCecco and Alakson
were still present and were directly involved in both UPS’s
initial response to Atkinson’s failure to get EDD and in UPS’s
decision to discharge Atkinson. (FOF, section II(V), (X),
(Y)(1).) Because of the persisting taint from the plan to get rid
of Atkinson and because UPS lacks a clear track record of dis-
ciplining drivers for not downloading EDD, UPS’s affirmative
defense falls short, and I find that UPS violated Section 8(a)(3)
and (1) when it discharged Atkinson on October 28, 2014.
CONCLUSIONS OF LAW
1. By discharging Robert Atkinson on June 20, 2014, be-
cause he refrained from supporting and assisting the Interna-
tional Brotherhood of Teamsters and/or Teamsters Local 538
and otherwise engaged in protected concerted activities, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
2. By discharging Robert Atkinson on October 28, 2014, be-
cause he refrained from supporting and assisting the Interna-
tional Brotherhood of Teamsters and/or Teamsters Local 538
and otherwise engaged in protected concerted activities, Re-

55 Presumably, using Telematics and DIAD records, UPS could de-
termine when a driver returns to the facility to download EDD after
starting his or her route. There is no evidence, however, that UPS has
used Telematics or DIAD records to identify drivers who engage in that
sort of self-help regarding downloading EDD.
UNITED PARCEL SERVICE 39
spondent violated Section 8(a)(3) and (1) of the Act.
3. By committing the unfair labor practices stated in Con-
clusions of Law 1–2 above, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
REMEDY
A. Does After-Acquired Evidence about Atkinson’s Remarks
about McCready and Eans affect the Remedies that are Availa-
ble to Atkinson?
The Board has held that if an employer satisfies its burden of
establishing that the discriminatee engaged in unprotected con-
duct for which the employer would have discharged any em-
ployee, reinstatement is not ordered and backpay is terminated
on the date that the employer first acquired knowledge of the
misconduct. Tel Data Corp., 315 NLRB 364, 367 (1994), re-
versed in part on other grounds, 90 F.3d 1195 (6th Cir. 1996);
Marshall Dublin Poultry Co., 310 NLRB 68, 69–70 (1993),
reversed in part on other grounds, 39 F.3d 1312 (5th Cir. 1994);
John Cuneo, Inc., 298 NLRB 856, 856–857 (1990); see also
Bob’s Ambulance Service, 183 NLRB 961, 961 (1970) (ex-
plaining that the issue of employee misconduct goes to the
remedy (i.e., whether reinstatement with full backpay is appro-
priate) and not to compliance with the remedy). The Board
follows this rule concerning after-acquired evidence of discrim-
inatee misconduct to “balance [its] responsibility to remedy the
Respondent’s unfair labor practice against the public interest in
not condoning” the discriminatee’s misconduct. John Cuneo,
Inc., 298 NLRB at 856.
In this case, UPS presented evidence that on May 9, 2015,
Atkinson made a social media post in which (among other
things) he questioned Eans’ masculinity and whether Eans was
compensating for having erectile dysfunction, and described
McCready as a knuckle dragger who sounds as if his mouth is
full of cotton balls when he (McCready) speaks. Atkinson
admitted that he made the post. McCready, meanwhile, ex-
plained that he has struggled for some time with his voice and
pronunciation. (FOF, sec. II(EE).)
There is no dispute that UPS maintains an Anti-Harassment
policy that prohibits harassment of any person or group of per-
sons on the basis of race, sex, national origin, disability, sexual
orientation, gender identity, veteran/military status, pregnancy,
age or religion. The Anti-Harassment policy also states that
UPS will not tolerate derogatory or other inappropriate re-
marks, slurs, threats or jokes. Consistent with that language,
UPS has a track record of immediately discharging employees
who violate its Anti-Harassment policy. McCready testified,
without rebuttal, that Atkinson’s May 9, 2015 posting violated
UPS’s Anti-Harassment policy and would have led to Atkin-
son’s immediate discharge.56 (FOF, sec. (DD).)
Based on the evidentiary record concerning Atkinson’s May
9, 2015 remarks about Eans and McCready, I find that rein-
statement is not an appropriate remedy because Respondent has

56 In this connection, I note that none of the parties maintain that
UPS tolerated remarks like Atkinson’s in the New Kensington center or
elsewhere. Accordingly, any arguments to that effect have been
waived.
demonstrated that, under its Anti-Harassment policy, it would
have discharged any employee for making remarks like Atkin-
son’s. I also find that Atkinson is not entitled to full backpay.
However, since Respondent did not present evidence about
when it first learned of Atkinson’s May 9, 2015 remarks,57 I
will set June 21, 2016 (the day that UPS presented evidence at
trial about Atkinson’s May 9, 2015 remarks – see Tr. 378–383),
as the cutoff date for Atkinson’s backpay award.
B. Applicable Remedies
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent, having discriminatorily discharged Robert At-
kinson, must make him whole for any loss of earnings and oth-
er benefits up to the backpay cutoff date of June 21, 2016.58
The make whole remedy shall be computed in accordance with
F.W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). In accordance with King Soopers,
Inc., 364 NLRB No. 93 (2016), Respondent shall compensate
Atkinson for search-for-work and interim employment expens-
es regardless of whether those expenses exceed his interim
earnings. Search-for-work and interim employment expenses
shall be calculated separately from taxable net backpay, with
interest at the rate prescribed in New Horizons, supra, com-
pounded daily as prescribed in Kentucky River Medical Center,
supra.
In accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB 101 (2014), Respondent shall compensate
Atkinson for the adverse tax consequences, if any, of receiving
a lump sum backpay award, and, in accordance with AdvoServ
of New Jersey, Inc., 363 NLRB No. 143 (2016), Respondent
shall, within 21 days of the date the amount of backpay is fixed
either by agreement or Board order, file with the Regional Di-
rector for Region 6 a report allocating backpay to the appropri-
ate calendar year(s). The Regional Director will then assume
responsibility for transmitting the report to the Social Security

57 The closest that UPS came to identifying when it learned of Atkin-
son’s May 9, 2015 remarks was when McCready answered a question
about whether he heard anything from Atkinson after Atkinson’s Octo-
ber 28, 2014 discharge. McCready responded that he heard from At-
kinson “indirectly” because there was a social media post that Atkinson
made four to five months after the grievance panel decision (i.e., a post
that Atkinson made in May 2015, which would have been roughly four
months after the January 2015 panel decision). McCready stopped
short, however, of providing a date when he or anyone else at UPS
learned of the May 2015 post. (Tr. 1038–1039.)
58 As part of its request for make whole relief, the General Counsel
asked that I order Respondent to pay consequential damages to reim-
burse Atkinson for costs he incurred as a result of Respondent’s unfair
labor practices. As the Board has recognized, a change in Board law
would be required for me to award consequential damages. See, e.g.,
Guy Brewer 43 Inc., 363 NLRB No. 173, slip op. at 2 fn. 2 (2016).
Since I must follow existing Board law (which does not authorize me to
award consequential damages), I deny the General Counsel’s request
for consequential damages.
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Administration at the appropriate time and in the appropriate
manner.
Last, Respondent shall be required to expunge from its files
any references to its unlawful June 20 and October 28, 2014
decisions to discharge Atkinson, and within 3 days thereafter
shall notify Atkinson that this has been done and that those
unlawful decisions will not be used against him in any way.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended59
ORDER
Respondent, United Parcel Service, Inc., North Apollo,
Pennsylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they refrain from sup-
porting and assisting the International Brotherhood of Team-
sters and/or Teamsters Local 538 and otherwise engage in pro-
tected concerted activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Robert Atkinson whole for any loss of earnings
and other benefits suffered as a result of the unlawful June 20
and October 28, 2014 discharges against him, less any net inter-
im earnings, plus interest, plus reasonable search-for-work and
interim employment expenses.
(b) Within 14 days from the date of this Order, remove from
its files any references to the unlawful June 20 and October 28,
2014 discharges of Robert Atkinson and, within 3 days thereaf-
ter, notify him in writing that this has been done and that those
unlawful discharges will not be used against him in any way.
(c) Compensate Robert Atkinson for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file with the Regional Director for Region 6, within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the ap-
propriate calendar year(s).
(d) Within 14 days after service by the Region, post at its
New Kensington center facility in North Apollo, Pennsylvania,
copies of the attached notice marked “Appendix A.”60 Copies
of the notice, on forms provided by the Regional Director for
Region 6, after being signed by Respondent’s authorized repre-
sentative, shall be posted by Respondent and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, the notices shall be distrib-

59 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
60 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.”
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if Respondent
customarily communicates with its employees by such means.
Reasonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, Respondent has gone out of business or closed the
facilities involved in these proceedings, Respondent shall du-
plicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Re-
spondent at its New Kensington center at any time since June
20, 2014.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated, Washington, D.C. November 25, 2016
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 violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge employees because they refrain from
supporting and assisting the International Brotherhood of
Teamsters and/or Teamsters Local 538 and otherwise engage in
protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL make Robert Atkinson whole for any loss of earn-
ings and other benefits suffered as a result of the unlawful June
20 and October 28, 2014 discharges against him, less any net
interim earnings, plus interest, plus reasonable search-for-work
and interim employment expenses.
WE WILL, within 14 days from the date of the judge’s Order,
remove from our files any references to the unlawful June 20
and October 28, 2014 discharges against Robert Atkinson and
WE WILL, within 3 days thereafter, notify him in writing that this
has been done and that those unlawful discharges will not be
used against him in any way.
WE WILL compensate Robert Atkinson for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and WE WILL file with the Regional Director for Region 6, with-
in 21 days of the date the amount of backpay is fixed, either by
UNITED PARCEL SERVICE 41
agreement or Board order, a report allocating the backpay
award to the appropriate calendar year(s).
UNITED PARCEL SERVICE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/06-CA-143062 or by using the QR
code below. Alternatively, you can obtain a copy of the deci-
sion from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by
calling (202) 273-1940.
APPENDIX B
[Appendix B omitted from publication.]