UNITED PARCEL SERVICE, INC.

National Labor Relations Board - Administrative Judge Opinions

Jan 5, 2018

18-CA-193426 (N.L.R.B. Jan. 5, 2018)

JD–01–18
Coralville, IA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
UNITED PARCEL SERVICE, INC.
and Case 18–CA–193426
MARK DAVID HAM
David Stolzberg, Esq.
for the General Counsel.
Bradley Bakker, Esq.
for the Respondent.
DECISION
INTRODUCTION1
ANDREW S. GOLLIN, Administrative Law Judge. This case was tried on November 14–15,
2017,2 in Coralville, Iowa. The amended complaint alleges the United Parcel Service, Inc.
(Respondent) unlawfully threatened and later disciplined driver/union steward Mark David Ham.
The alleged threat followed a February 16 disciplinary meeting Ham attended as a steward in
which supervisors disciplined another driver/union steward for methods violations. The discipline
was unexpected, and Ham reacted by loudly saying, “You’ve got to be fucking kidding me. This
is fucking bullshit.” He added, “You are fucking with a union steward.” Respondent’s Business
Manager John Henson was present and told Ham to calm down, and that he could not speak to
them that way. Ham replied that as a steward he has the right to say whatever he needed to
say, as long as he was not threatening them. At the end of the meeting, Ham stated that he and
the other steward would be filing charges with the National Labor Relations Board (Board).
Henson responded that he viewed that as a threat.
On February 17, Ham attended a labor-management meeting to discuss outstanding
grievances. At the meeting, Respondent’s Labor Relations Manager Randy Ervin said he
understood that Ham had been “loud and abusive” towards management during the disciplinary
meeting the previous day, and that Ham cannot treat management that way. Ervin gave Ham a
copy of Respondent’s “Professional Conduct and Anti-Harassment Policy” to review and sign.
Ervin stated he understood it was Ham’s job to represent the union, but it was his job to make
sure that Ham does it in a professional, respectful manner. Ervin later warned Ham that “this is
progressive discipline” and if Ham acted in an unprofessional manner toward management in
the future, he would receive progressive discipline, up to and including discharge.

1 Abbreviations in this decision are as follows: “Tr.” for transcript; “Jt. Exh.” for Joint Exhibit; “GC Exh.” for
General Counsel’s Exhibit; “R. Exh.” for Respondent’s Exhibit; “GC Br.” for General Counsel’s brief; and
“R. Br.” for Respondent’s brief.
2 All dates refer to 2017, unless otherwise stated.
JD–01–18
2
Two months later, Business Manager Henson informed drivers that if they made
separate or unscheduled restroom stops during their routes they needed to record that time as a
break. On April 27, Ham challenged Henson about this break policy during a one-on-one
conversation. Ham said the break policy was not right and that he was tired of Henson “treating
employees like shit.” Ham then left Henson’s office. From outside the office door, Ham turned, 5
looked at Henson and stated that he did not appreciate having to work overtime that day when
he had requested to only work an 8-hour shift. According to Henson, Ham gave Henson a
“death stare” for a few seconds before walking away. On May 1, Henson held a meeting and
issued Ham a written warning. Henson informed Ham that his conduct on April 27 made him
feel intimidated and harassed, in violation of Respondent’s Professional Conduct and Anti-10
Harassment Policy.
The General Counsel alleges that Respondent violated Section 8(a)(1) of the National
Labor Relations Act (Act) on February 17, when Randy Ervin threatened Ham with unspecified
reprisals if he continued to engage in union activity and/or file charges with the Board. The
General Counsel further alleges that Respondent violated Section 8(a)(1) and (3) of the Act on 15
May 1, when John Henson disciplined Ham because he engaged in protected concerted and
union activities on April 27, including raising concerns about the new break policy. Respondent
denies the alleged violations and raises several affirmative defenses, including that the
allegations should be deferred. Respondent contends Ham’s behavior on February 16 and April
27 lost the protection of the Act because he abusively cursed and yelled at supervisors in a 20
manner completely uncalled for or warranted, refused to calm down and cease cursing at
supervisors as requested, and acted menacingly toward Henson.
Based upon my review of the evidence and the applicable law, I find that deferral is not
appropriate, and that Respondent committed the violations as alleged.
25
STATEMENT OF THE CASE
On February 21, Ham filed an unfair labor practice charge against Respondent, which
was docketed as Case 18–CA–193426. Ham filed three amended charges in Case 18–CA–
193426 on March 23, June 14, and July 18, respectively. On August 15, following an
investigation, the Regional Director for Region 18, on behalf of the General Counsel, issued a 30
complaint alleging Respondent violated Section 8(a)(1) of the Act on February 17, when Randy
Ervin threatened unspecified reprisals if employees [Ham] continued to engage in union activity,
and violated Section 8(a)(1) and (3) of the Act on May 1, when John Henson disciplined Ham
because of his protected concerted and union activities, including raising concerns about the
new break policy. On August 28, Respondent filed its answer and defenses to the complaint. 35
On November 9, the Regional Director for Region 18 issued an amended complaint, modifying
the first allegation to state that Respondent violated Section 8(a)(1) of the Act on February 17,
when Ervin threatened unspecified reprisals if employees [Ham] continued to engage in union
activity and/or file charges with the Board. On November 10, Respondent filed its answer and
defenses to the amended complaint.40
At the hearing, all parties were afforded the right to call, examine, and cross-examine
witnesses, present any relevant documentary evidence, and argue their respective legal
positions orally. Respondent and the General Counsel filed post-hearing briefs, which I have
carefully considered. Accordingly, based upon the entire record, including the post-hearing
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3
briefs and my observations and assessments of the credibility of the witnesses, I make the
following findings of fact,3 conclusions of law, and recommendations
FINDINGS OF FACT4
A. Jurisdiction and Labor Organization Status
Respondent, an Ohio corporation with headquarters located in Atlanta, Georgia and an 5
office and place of business in Coralville, Iowa, Respondent’s facility, is engaged in the delivery
of packages throughout the United States and the world. During the calendar year ending
December 31, 2016, Respondent purchased and received at its Coralville, Iowa facility goods
valued in excess of $50,000 directly from points outside the State of Iowa. Respondent admits,
and I find, that it has been an employer engaged in commerce within the meaning of Section 10
2(2), (6), and (7) of the Act. Based on the foregoing, I find this dispute affects commerce and
that the Board has jurisdiction of this case, pursuant to Section 10(a) of the Act.
Respondent admits, and I find, that the International Brotherhood of Teamsters, Local
238 (Union), is a labor organization within the meaning of Section 2(5) of the Act.
B. Respondent’s Operations and Drivers15
Respondent operates a customer center in Coralville, Iowa, where it employs drivers,
loaders, unloaders, porters, washers, and clerks. Business Manager John Henson is the
highest-ranking official at the Coralville center. Adam Miller is one of two On-Road Supervisors
responsible for overseeing the package car drivers. The term “package car” refers to the trucks, 20
vans, and other vehicles used to pick up and deliver packages to and from customers.
Depending on the season, there are approximately 35–45 package car drivers working out of
the Coralville center.5
Respondent expects its drivers to perform their routes in a safe, professional, and 25
efficient manner. To that end, Respondent has established methods, known as the “340
methods,” addressing each step in the pick-up and delivery process. These methods include,

3 Although I have included citations to the record to highlight particular testimony or exhibits, my findings
and conclusions are not based solely on those specific record citations, but rather on my review and
consideration of the entire record for this case.
4 The following factual summary is a compilation of the credible and uncontradicted testimony. To the
extent there is a key dispute in testimony, I have assessed the witnesses’ credibility considering a variety
of factors, including: the context of the witness’ testimony, the witness’ demeanor, corroboration or the
lack thereof, the weight of the respective evidence, established or admitted facts, and inherent
probabilities, and reasonable inferences that may be drawn from the record as a whole. Double D
Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen
Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed. Appx. 516 (D.C. Cir.
2003). Credibility findings need not be all-or-nothing propositions. Indeed, nothing is more common in
judicial decisions than to believe some, but not all, of a witness’ testimony. Daikichi Sushi, supra at 622;
Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179
F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). Finally, I have carefully
considered but discredited testimony in contradiction to my factual findings.
5 Each package car driver has a Delivery Information Acquisition Device (“DIAD”), which is a hand-held
device used for navigation, tracking orders, scanning packages, obtaining customer signatures, and
inputting timecard information (e.g., breaks, meal periods, etc.). The DIAD also can be used for
communication between the center and driver. The DIAD is about a 12x6 inches. (Tr. 421).
JD–01–18
4
but are not limited to, pre-trip inspections, planning stops in advance, parking and turning off the
vehicle, movement within the vehicle, exiting the vehicle, loading, storing and unloading
packages, interaction with customers, and tasks to perform upon returning to the center. (Tr.
41, 232, 358).
5
Respondent also uses telematics to monitor and collect data on drivers and their
movements while out performing their routes. (Tr. 357–358). For example, Respondent
monitors the speed and location of the vehicle, the amount of time the vehicle spends idling
before heading into traffic, and how long the bulkhead door (the door between the cabin and
package storage area in the back of the vehicle) is open. Respondent has expectations for how 10
long each step should take. Respondent also has expectations for how long drivers should take
to complete their routes, and it tracks whether they perform under, at, or over those set times.
Respondent conducts a yearly safe work methods observation for each driver, which is
referred to as an annual ride. (Tr. 361–362). A supervisor will accompany a driver on his/her 15
route for a certain number of stops to observe whether the driver is in compliance with certain
key observable methods. (Tr. 362–363). The supervisor will then review the results of the
annual ride with the driver.
In addition to performance expectations, Respondent has policies regarding how 20
employees are to conduct themselves while at work. The Professional Conduct and Anti-
Harassment Policy prohibits harassment on the basis of race, sex, national origin, disability,
sexual orientation, gender identity, veteran/military status, pregnancy, age, or religion. (Jt. Exh.
10). The policy also prohibits unprofessional and discourteous actions, even if those actions do
not constitute unlawful harassment, including derogatory or other inappropriate remarks, slurs, 25
threats or jokes, as well as inappropriate visual and nonverbal objects or conduct. Any
employee who witnesses or is subject to objectionable comments or conduct is to report it, and
Respondent will investigate. Violations of the policy may result in disciplinary action.
C. Collective-Bargaining Agreements and Protected Activity30
The Union represents the drivers, loaders, unloaders, porters, washers, and clerks
working at the Coralville center. The employees are covered by the National Master United
Parcel Service Agreement (“Master Agreement”), and the Teamsters Central Region and United
Parcel Service Supplemental Agreement to the National Master United Parcel Service 35
Agreement (“Supplemental Agreement”). (Jt. Exhs. 1 and 2). Both agreements are dated
August 1, 2013 through July 31, 2018.
Article 4 of the Master Agreement addresses “Stewards” and states in pertinent part:
40
Recognizing the importance of the role of the Union Steward in resolving
problems or disputes between the Employer and its employees, the Employer
reaffirms its commitment to the active involvement of union stewards in such
processes in accordance with the terms of this Article.
. . .45
The Employer recognizes the employee’s right to be given requested
representation by a Steward, or the designated alternate, at such time as the
employee reasonably contemplates disciplinary action. The Employer also
recognizes the steward’s right to be given requested representation by another
Steward, or the designated alternate, at such time as the Steward reasonably 50
contemplates disciplinary action. When requested by the Union or the employee,
JD–01–18
5
there shall be a steward present whenever the Employer meets with an
employee concerning grievances or discipline or investigatory interviews. In such
cases, the meeting shall not be continued until the steward or alternate steward
is present.
5
(Jt. Exh. 1, pgs 12–14).
Article 21 of the Master Agreement addresses “Union Activity.” It states in pertinent part:
Any employee member of the Union acting in any official capacity whatsoever 10
shall not be discriminated against for acts as such officer of the Union so long as
such acts do not interfere with the conduct of the Employer’s business, nor shall
there be any discrimination against any employee because of union membership
or activities.
15
(Jt. Exh. 1, pg. 66).
Article 36 of the Master Agreement addresses “Non Discrimination.” It states in pertinent
part:
20
The Employer and the Union agree not to discriminate against any individual . . .
because of such individual’s race, color, religion, sex, sexual orientation, national
origin, physical disability, veteran status or age in violation of any federal or state
law, or engage in any other discriminatory acts prohibited by law . . .
25
(Jt. Exh. 1, pgs. 127–128).
Article 37(a) of the Master Agreement addresses “Management Employee Relations.” It
states in pertinent part:
30
The Employer shall not in any way intimidate, harass, coerce or overly supervise
any employee in the performance of his or her duties. The Employer shall not
retaliate against employees for exercising rights under this Agreement . . . The
Employer will treat employees with dignity and respect at all times … Employees
will also treat each other as well as the Employer with dignity and respect.35
(Jt. Exh. 1, page 128).
D. Alleged Unfair Labor Practices
40
1. Background
On February 6, On-Road Supervisor Adam Miller asked driver/union steward Mark David
Ham to stay after the morning Pre-work Communication Meeting (“PCM”) to attend a meeting
with Dennis Peer, another driver/union steward.6 Ham agreed to attend. Miller, Peer, Ham, and 45
Business Manager John Henson met following the PCM at the customer counter area. Miller
began by saying he wanted to discuss the amount of time Peer’s bulkhead door was open and

6 Miller had been monitoring Peer, in part, because Peer was exceeding the allotted time set for him to
complete his routes. (Tr. 121–122).
JD–01–18
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the amount of time that his truck idled before moving into traffic. Miller went on to say he knew
from past observations that Peer’s bulkhead door was open for an extended period of time.
Peer responded that was “bullshit.” (Tr. 233). As far as idle time and pulling out into traffic, Peer
explained that he delivers on some very busy streets, and he has to wait for traffic to clear. At
the end, Ham asked whether these issues were going to lead to discipline, and Miller responded 5
it would not. (Tr. 45; 234).7
The following day, on February 7, there was another meeting with the same participants
at the same location. Henson began by pointing out that there had been a reduction in the
amount of time Peer’s bulkhead door was open the prior day, which was good, and Henson 10
asked Peer how he was able to do it. Peer explained it was because he took more packages
out through the back door, rather than through the bulkhead door. Henson asked why he would
do that. Peer responded so he would not have sit through another meeting about why his
bulkhead door was open too long. (Tr. 236). Henson replied that was not proper procedure, and
Peer should go back to taking packages out through the bulkhead door. At the end of this 15
meeting, Ham again asked whether this was going to lead to discipline. Miller responded that it
would not. (Tr. 47).
On February 8, the four met again at the same location. Miller began by stating he had
pulled Peer’s records from the day before and noticed Peer had two deliveries that were close 20
together, and Miller asked Peer why instead of making both deliveries from one location Peer
moved the truck to each location. (Tr. 238–239). Peer explained that because of parking on
the street, he was not able to make multiple deliveries from that spot. But Peer added that if
Miller looked at the rest of his day he would see that there were several occasions in which he
made multiple deliveries from one spot. (Tr. 239). Miller nodded and said nothing else. Ham 25
again asked if this would lead to discipline, and Miller said it would not. (Tr. 49).
On February 9, there was a fourth meeting with the same individuals at the same
location. Henson began by stating that he had made some changes to the way that Peer’s truck
was being loaded, and Henson asked Peer if he noticed any difference. Peer responded he 30
had not. Peer referenced back to one of their earlier conversations that week when he told
Henson that to reduce the amount of time his bulkhead door was open, he was no longer taking
time throughout the day to sort out the packages in his truck. Peer also stated to reduce his idle
time, he waited to start his truck until traffic was clear and he could pull straight out onto the
road. (Tr. 241). Henson responded those were not the proper procedures, and Peer should go 35
back to doing steps the way he had been. Henson also stated he was not asking Peer to be
perfect; he just wanted to see improvement. At the end of the meeting, Ham asked if this would
result in discipline, and Henson said it would not. (Tr. 51).
On February 10, Miller informed Peer that he would be conducting Peer’s annual ride 40
that day. Miller later accompanied Peer for the ride. Following the ride, Peer and Miller spoke
and Miller identified two items where he wanted to see improvement on from Peer. There was
no indication that Peer would be disciplined for these items. Peer later had a conversation with
Ham about his conversation with Miller after the ride. (Tr. 55).
45
On February 13, Ham saw Miller, and Miller said that Dennis Peer was going to need a
steward when they reviewed his ride. Ham told Miller that he would attend the review with Peer

7 Peer received no discipline for using profanity during this conversation. (Tr. 233–234).
JD–01–18
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as a steward. On February 15, after the PCM, Ham asked John Henson if they were going to
meet that day to go over Peer’s annual ride. Henson said they would meet the next day.
2. February 16 disciplinary meeting
5
On February 16, Henson, Miller, Peer, and Ham met to go over Peer’s annual ride.
Henson directed the group into the customer clerk’s office, which is behind the customer
counter area. The clerk’s office is approximately 15x8 feet, with a wooden door. It contains
shelves for packages, a chair, and a desk with a computer. The four entered the office and
closed the door. Ham leaned up against the wall facing the door. Peer stood near the desk. 10
Miller was inside the office facing Peer. Henson stood near Miller, with his back against the
door. They were all about 3 or 4 feet from one another.8
Miller began the meeting by going through his checklist from Peer’s annual ride, noting
that Peer had several methods violations.9 Miller informed Peer that because of the violations 15
Respondent was issuing him a warning letter. Miller then handed Peer a copy of the letter.
Ham, who had been quiet up to this point, said in a loud voice, “You’ve got to be fucking kidding
me. This is fucking bullshit.” He then said, “You guys can’t fucking do this. You are fucking
with a shop steward.”10 Henson, in a louder voice, told Ham to calm down and he could not talk
that way to them. Ham responded he could say whatever he needed to say as a union steward, 20
as long as he was not threatening them. Ham eventually calmed down. (Tr. 369, 493). Henson
then explained that Peer was receiving the warning because he continued to have methods
violations after receiving training earlier in the month. Ham stated this was not right and he and
Peer were going to file charges with the Board. (Jt. Exh. 3). Henson asked Ham why he always
threatens to file charges with the Board. Ham answered that it was not a threat, and Henson 25
responded that he was taking it as a threat. (Jt. Exh. 3). Ham asked for a copy of all the
paperwork given to Peer. Henson and Ham then left and made a copy of the paperwork at a
nearby copier. That was the end of the meeting.
Later that day, Henson and Miller each prepared a statement regarding what occurred 30
during the meeting. Also, Henson called Respondent’s Labor Relations Manager Randy Ervin
to tell him what happened and to ask how he should handle the situation. Ervin, who was
scheduled to be at the Coralville center the following day for a local level grievance meeting,
told Henson that they would talk about it more in the morning. Ervin explained to Henson that

8 Ham, Peer, Miller, and Henson testified about this meeting, and the record contains the statements
Miller and Henson each prepared following the meeting. (Jt. Exhs. 3 and 4). Although Miller
acknowledged he had limited recollection of the meeting, the four had similar recollections of the critical
aspects of what was said. However, I give greater weight to Henson’s written statement that was
prepared closer in time to the event and contains greater detail about what was said. (Jt. Exh. 3).
9 Peer had 39 methods violations out of 40 stops. Henson clarified that Peer did not commit 39 different
violations; he committed the same one or two violations at 39 of the 40 stops. (Tr. 363–364).
10 Henson testified Ham’s hands were going every which way, his face was red, and the veins in Ham’s
neck were bulging out. (Tr. 368). None of the other witnesses, including Adam Miller, recalled this. There
also is no mention of Ham’s hand gestures, facial color, etc. in Henson’s written statement. (Jt. Exh. 3).
Based on my observations at the hearing, Ham’s face reddened and the veins in his neck became more
visible when he spoke for more than a few minutes, regardless of the subject matter. Both became more
pronounced when he spoke more emphatically. He also maintained a serious or solemn expression
throughout the hearing, and he regularly spoke at above what I considered normal conversational
volume. And while he occasionally spoke with his hands, he did not do so excessively. I therefore credit
that Ham demonstrated all of these, except for the hand gestures, during the February 17 conversation.
JD–01–18
8
he normally would remind the employee of Respondent’s Professional Conduct and Anti-
Harassment Policy and have the employee sign a copy of Policy.11
3. February 17 grievance meeting
5
Respondent and the Union meet approximately every 6 weeks to discuss lower-level
grievances. The parties were scheduled to meet and met for this purpose on February 17. The
meeting occurred in the upstairs conference room at the Coralville facility. John Henson, Randy
Ervin, and an area human resource manager, Michael Arndt, attended for Respondent. Ham,
Peer, and business agents George Mika, Rob Walton, and Dave Miller attended for the Union. 10
During the meeting, the parties went through and discussed outstanding grievances.
At the end of those discussions, Ervin asked Ham to stay behind because he wanted to
talk to him.12 Peer left. Everyone else remained. Ervin began by saying that he wanted to talk
to Ham about what happened during the disciplinary meeting the day before. Ervin said he 15
understood Ham had been “loud and abusive” towards management. (Tr. 533). Ervin did not
specify what he meant by “loud and abusive.” He only said to Ham that he cannot talk that way
to management. Ervin told Ham he understood that it was Ham’s job to represent the Union,
but it was Ervin’s job to make sure that Ham does it in a professional, respectful manner. Ervin
did not explain further. Ervin then slid a copy of Respondent’s Professional Conduct and Anti-20
Harassment Policy across the table and told Ham to review and sign it.13 (Tr. 533). Ham
initially refused to sign the Policy, stating he did not have to because he was acting in his
capacity as a union steward during the meeting.14 (Tr. 170-171). The Union representatives
asked for a brief recess, and they and Ham left the room to speak. The four of them returned to
the conference room after a few moments. Ham said he would sign the Policy.15 Ervin asked 25

11 Respondent introduced evidence that it has requested employees (including supervisors and
managers) to sign or re-sign its Professional Conduct and Anti-Harassment Policy because they made
offensive or threatening statements or engaged in offensive or threatening conduct. (R. Exhs. 3-9).
12 Ham, Ervin, Henson, Arndt, Mika and Dave Miller each testified about this February 17 meeting. Miller,
Mika, Henson, and Arndt had limited or incomplete recollection of the meeting. Arndt left for part of the
meeting. Based on my observations, Ervin and Ham had clearer recollections. With the exception of one
statement, discussed below, Ervin and Ham had similar recollections of what was said. However, I find
that Ervin had a clearer, consistent recollection, which is largely corroborated by the other witnesses. As
a result, to the extent that there is a conflict, I credit Ervin regarding what was said during this meeting.
13 George Mika testified that at some point Ham mentioned filing charges with the Board, and Henson or
Ervin said, “We’re sick and tired of you threatening us with NLRB charges. We consider that as
harassment from you, and we’re now asking you to sign the Anti-Harassment Form.” (Tr. 296–297). I do
not credit these statements were made during this meeting, because Mika repeatedly acknowledged not
having a clear recollection of the events, and no other witnesses corroborated this statement.
14 Ham testified that when Ervin gave him a copy of the Policy to sign, Ervin said, “If you don’t sign that
form, I will do everything in my power to make sure something comes out of this.” (Tr. 71). I do not credit
Ham that Ervin made this particular statement, largely because it was uncorroborated. The other
witnesses either denied or could not recall the statement being made. I do not believe it is a statement
they all would have forgotten, or that Ham and the union agents would have responded to it with silence.
15 Ham testified that after he signed the Policy, Ervin told him that “I needed to stop being the instigator
and that I write – most of my grievances are worthless, and that I write more grievances than anyone else
in his district.” (Tr. 73). I do not credit Ham that Ervin made these statements during this meeting. To
begin with, the statements were not corroborated by any of the other witnesses present for the meeting.
Additionally, the statements are inconsistent with the overall context of the meeting. This portion of the
meeting was to discuss Respondent’s view of Ham’s conduct and statements during the meeting the day
before about the decision to discipline Peer. There was no mention during this part of the meeting, or at
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Ham if he would like to read through the policy first, and Ham said, “Nope, I know what it says.”
(Tr. 534). At some point during this exchange, Ervin told Ham, “this is progressive discipline,
and once we’ve covered this with you, if you don’t act in a professional manner with our
management team, we will follow progressive discipline up to and including discharge.” (Tr.
556–557).16 That was the end of the meeting. There was no grievance filed over this event.5
4. April 27 conversations regarding restroom break policy
In around April, an issue arose over drivers stopping to use the restroom while
performing their routes. Henson informed Dennis Peer and other drivers that if they made a 10
separate or unscheduled stop to use the restroom, they would need to clock out on break. Peer
later informed Ham about what Henson had been saying. (Tr. 78–79). On April 27, during a
meeting, Ham raised the restroom break policy with Henson. Ham told Henson he was wrong
about the restroom policy, and that he (Ham) had contacted OSHA to get information. Henson
then asked Ham why he had to take everything to an extreme. Ham replied, “I’m not taking it to 15
extreme. I just have a bunch of people that are wanting to know what’s going on with the
restroom policy.” (Tr. 77). Henson said he would check with Randy Ervin about it.
Later that day, Henson contacted Ham on his DIAD and told him to come to his office
after he completed his route. At around 5 pm, Ham arrived at Henson’s office. It was just the 20
two of them. Henson’s office is about 8x8 feet. Henson, who has an L-shaped desk, was sitting
behind his desk and Ham was standing at the other side of the desk, a few feet away, near the
wall. Henson recalled that Ham may have had his DIAD in one of his hands. Henson began by
telling Ham that he had spoken with Ervin about the issue of the breaks and confirmed that
drivers would need to clock out on break if they make a separate or unscheduled stop to use the 25
restroom while performing their routes. Ham responded “that’s not right.” Henson told him that
if he did not agree with him, then he could file a grievance. Ham replied, “I don’t want to file a
grievance, I’ll take care of it a different way.” Henson then asked Ham, “Why don’t you want to
file a grievance?” Ham again said, “I don’t want to file a grievance. I want to take care of it a
different way.” Ham added, “I’m tired of you treating people like shit.”17 (Tr. 82–83) (Tr. 384). 30
Henson then told Ham to leave his office.18 Ham then walked out into the open area outside of
Henson’s office, near the stairway. He turned and said to Henson, “By the way, thanks for not
[granting] another eight-hour request today, this is the fifth one in a row that I’ve not received.
Are you retaliating against me because I’m a union steward?”19 (Tr. 84–85). Henson responded
that it was not intentional. After Ham said this, he “just kind of stared [at Henson] … for two or 35

the meeting the day before, about the filing of grievances. That being said, as stated below, I credit that
Ervin did criticize the number and type of grievances Ham filed during other conversations. I simply do
not credit that Ervin made these statements during this particular conversation.
16 The Policy states any violation “may be subject to termination or other disciplinary action.” (Jt. Exh. 10).
17 Henson testified that when Ham spoke he made an up-down chopping motion with his forearm, and
that he did so each time he was trying to make a point. (Tr. 423–424).
18 Henson testified that he was concerned for his safety because there was no way out of his office
except going through Ham. Henson said one minute Ham was calm, and the next minute “he’s yelling
and out of control . . .” (Tr. 386). Henson did not specify how he believed Ham was “out of control.”
19 Article 37(b) of the Master Agreement sets forth the procedure when a package car driver wants to be
relieved from performing overtime (i.e., working beyond their 8-hour day). Under the procedure, the driver
must submit a written request no later than the start of his/her shift on the fifth (5th) calendar day
preceding the day being requested, and Respondent needs to approve or disapprove the request by the
end of the employee’s next working day. (Jt. Exh. 1, pgs. 128–129).
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10
three seconds.” Henson described it as “a death stare.” (Tr. 387). Ham then walked down the
stairs and left for the day.20
Following the conversation, Henson called Ervin and others about what occurred.
Henson testified that he reported that Ham “kind of went off the rails again.” (Tr. 389). After 5
speaking with Ervin, Henson prepared a “Progressive Discipline Letter Request Form and Fact
Sheet” and sent it to Ervin. (Jt. Exh. 11). The document goes through the exchange from
Henson’s perspective. In it Henson states Ham was “very unprofessional” and that “[t]his is not
the first time Mark has blown up.” Henson also attached a copy of the statement he prepared
following the February 16 disciplinary meeting and a copy of the Professional Conduct and Anti-10
Harassment Policy that Ham signed on February 17. (Jt. Exhs. 3 and 10).

5. May 1 disciplinary meeting
On May 1, Henson held a meeting with Ham, Adam Miller, and alternate steward Erik 15
Emerson to discuss Ham’s conduct on April 27. Henson read Respondent’s Professional
Conduct and Anti-Harassment Policy out loud and told Ham that he felt intimidated and
harassed by Ham’s conduct. Henson also gave Ham a written warning letter. (Jt. Exh 6). The
letter states that on April 27, Ham displayed “unprofessional behavior in the workplace” and
such behavior is “unacceptable and will not be tolerated.” The letter goes on to warn that20
“should you be involved in another incident of this type in the future further disciplinary action
could be taken without prior notice.” There was no grievance filed over this warning.21

DISCUSSION AND ANALYSIS
25
A. Deferral to Parties’ Grievance Arbitration Procedure
Prior to addressing the merits, a threshold issue is whether the allegations should be
deferred to the parties’ grievance-arbitration procedure. See United Technologies Corp., 268
NLRB 557 (1984); Collyer Insulated Wire, 192 NLRB 837 (1971). The Board has “considerable 30
discretion to defer to the arbitration process when doing so will serve the fundamental aims of
the Act.” Wonder Bread, 343 NLRB 55, 55 (2004). The Board has held pre-arbitral deferral is
appropriate where: (1) the parties’ dispute arises within the confines of a long and productive
collective-bargaining relationship; (2) there is no claim of animosity to employees’ exercise of
Section 7 rights; (3) the parties’ agreement provides for arbitration in a broad range of disputes; 35
(4) the parties’ arbitration clause clearly encompasses the dispute at issue; (5) the party seeking
deferral has asserted its willingness to utilize arbitration to resolve the dispute; and (6) the

20 In response to a leading question in which Respondent’s counsel asked about Ham’s eyes and what
did he do with his body, Henson replied that Ham leaned forward a little bit, chest was poked out, and his
eyes “looked like there was just pure madness and hate in there.” (Tr. 386). When asked to physically
describe Ham, Henson said he looked angry. When probed further, Henson replied, “Like I said, we just,
we just had an issue with the breaks that he disagreed with me on, so his face was still red.” (Tr. 388).
21 George Mika and Dave Miller testified the parties have an unwritten practice that the Union does not
grieve warning letters at the local level. Instead, the warnings are considered automatically protested
and, if the employee later receives progressive discipline, the Union can raise the warning as part of any
grievance filed over the subsequent discipline. (Tr. 324–325, 463–464). Miller, however, acknowledged
that nothing precludes the Union from grieving a warning letter. (Tr. 465). Ervin did not dispute this
unwritten practice, but stated that a grievance could have been filed. (Tr. 557–558).
JD–01–18
11
dispute is well suited to resolution by arbitration. See United Technologies, 268 NLRB at 558;
Collyer Insulated Wire, supra at 842.22
Having considered the arguments and the factual record, I find the second, fourth, fifth,
and sixth factors do not support deferral.23 As for the second factor, I find claims of animosity 5
toward Ham for exercising his Section 7 rights. Respondent allegedly threatened Ham with
unspecified reprisals because of his behavior while acting as a union steward during the Peer
disciplinary meeting, and later issued him a written warning after he challenged the break policy
and objected to having his contractual request not to work overtime denied. See Mobil Oil
Exploration & Producing, 325 NLRB 176, 177–178 (1997) (deferral is not appropriate when the 10
precipitating event leading to an adverse action is the employee’s protected activity), enfd. 200
F.3d 230 (5th Cir. 1999); Nissan Motor Corp., 226 NLRB 397, 397 fn. 1 (1976) (the very nature
of a case dictates non-deferral when it involves discipline of a steward for performing
contractual duties). See also St. Francis Regional Medical Center, 363 NLRB No. 69, slip op. at
2–3 (2015) (no deferral because dispute involved the alleged discipline and discharge of a union 15
steward for activity related to processing a grievance, and thus demonstrated a sufficient degree
of hostility to make deferral inappropriate). Compare to Babcock & Wilcox, Nuclear Operations
Group, Inc., 363 NLRB No. 50 (2015) (single allegation that employer unlawfully issued warning
letter to a union steward for engaging in protected union activity did not, by itself, establish
employer animosity to employees’ exercise of protected statutory rights); and Clarkson 20
Industries, 312 NLRB 349, 352 & fn. 16 (1993) (finding that allegations of an unlawful threat and
an unlawful disciplinary warning were “not so egregious as to render the use of the arbitration
machinery uncompromising or futile”). In this case, however, the evidence of animosity is not
limited to these two events. The record reflects that Respondent’s supervisors and managers
have expressed general irritation and frustration toward Ham’s performance as a steward. 25
Henson characterized Ham as “pushy” “kind of arrogant” and “like he runs the business . . ., not
us.” (Tr. 374–375). Union agent Dave Miller testified that Ervin commented to him that “there
are too many grievances coming out of the Coralville center and that [Ham] is soliciting them
all.” Ervin also commented to Miller that a lot of Ham’s grievances are “frivolous.” (Tr. 474–
475). Ervin made these statements approximately a half a dozen times between February and 30
April. (Tr. 475). Based on the foregoing, I find the claims of animosity do not favor deferral.
As for the fourth factor, there is an issue as to whether the parties’ arbitration clause
clearly encompasses the dispute. In Clarkson Industries, supra at 351, the Board considered
whether alleged violations of Section 8(a)(1) and (3) should be deferred to arbitration. That case 35
involved a warning issued to a shop steward and an alleged threat to hold that steward to a
higher standard of conduct than that demanded of other employees. In that case, the shop
steward was arguably covered by contract language prohibiting discrimination on the basis of
union membership or activity. However, the arbitration provision provided that the arbitrator

22 In Babcock & Wilcox Construction Co., 361 NLRB 1127, 1138–1139 (2014), the Board articulated a
new deferral standard and held that it will not defer Section 8(a)(3) or 8(a)(1) allegations to the arbitral
process “unless the parties have explicitly authorized the arbitrator to decide the unfair labor practice
issue, either in the collective-bargaining agreement or by agreement of the parties in a particular case.”
The Board held this new standard would apply prospectively, and not to contracts existing at the time of
its decision (December 15, 2014). Id. at 13–14. The agreements at issue were effective as of August 1,
2013; therefore, the Board’s pre-Babcock & Wilcox standard applies.
23 In its post-hearing brief, Respondent’s deferral arguments focus solely on the warning letter issued to
Ham on May 1. It does not address deferral of the February 17 threat of unspecified reprisals for
continuing to engage in union activities and/or file charges with the Board is appropriate for deferral. For
the reasons stated below, I conclude that deferral is not appropriate for either allegation.
JD–01–18
12
“shall not have the right or authority to subtract to or alter any provision of this Contract, nor may
the arbitrator make any recommendations for future actions by the company or the Union.” The
Board found that this provision would prevent an arbitrator from imposing the functional
equivalent of a “cease and desist” remedy, which is directed at future actions. The arbitrator
would be, therefore, precluded from fashioning an appropriate remedy for the alleged unlawful5
threat and, as the Board held, deferral was not warranted. In the present case, the parties’
grievance arbitration procedure contains similar language. Article 8, Section 6 of the Master
Agreement states that: “The arbitrator shall have the authority to apply the provisions of this
Agreement and to render a decision on any grievance coming before him/her but shall not have
the authority to amend or modify this Agreement or to establish new terms or conditions of 10
employment.” (Jt. Exh. 1, pg. 25). Under Clarkson Industries, I conclude that deferral of the
alleged 8(a)(1) threat of unspecified reprisals would be inappropriate.
As for the fifth factor, Respondent has not expressed a willingness to utilize arbitration to
resolve the dispute because it has not agreed to waive the contractual time limits for filing the 15
grievance(s). As stated in United Technologies, 268 NLRB at 560, the Board has not “deferred
cases to arbitration in an indiscriminate manner.” Rather, the Board has required that certain
conditions be satisfied before deferral is appropriate. Id. One critical requirement is that the
party seeking deferral agrees to waive any contractual time limitations. Id. The reason for this
requirement is to ensure that the arbitration process remains focused on the merits of the 20
dispute and is not distracted by arguments over the timeliness of the grievance under the
collective-bargaining agreement. Id. There has been no grievance(s) filed covering the alleged
unfair labor practices at issue, and both collective-bargaining agreements require that a
grievance be filed within 5–10 days, depending on the alleged infraction. At the hearing, I
raised with Respondent’s counsel the issue of whether Respondent had provided the General 25
Counsel or the Region with the necessary assurances to allow the matter to be deferred.
Respondent’s counsel stated he planned to file a motion at the close of evidence providing such
assurances, or that those assurances would be provided through testimony. (Tr. 22–23).
Respondent never filed a motion. Nor did Respondent give assurances in its post-hearing brief
that it would waive timeliness arguments and process the grievance(s) through the grievance-30
arbitration procedure. Respondent’s only witness to testify on this issue was Randy Ervin, and,
contrary to Respondent’s assertion, I find Ervin’s testimony fell well short of a clear waiver of the
timeliness arguments.24 Under the circumstances, I find Respondent has failed to give the

24 Ervin testified as follows about whether Respondent would agree to waive any timeliness arguments:
Q. Would, would the Labor Department at UPS have been willing to grieve this warning
letter or would they currently be willing to grieve this warning letter --
….
A: I think at the time they sure could have put in a grievance for the warning letter,
absolutely. The contract’s specific in that you need to grieve things within five days
unless it’s a payroll issue, or discipline, and that can be up to ten days.
A. So at this point the Company would probably take a stance that it’s untimely, but we
would still visit that.
Q. And has that timeliness issue been agreed to be waived by UPS and the Union
before?
A: I guess I’m not understanding the question, sorry.
Q. Can the Union -- can the Union and UPS agree to waive that timeliness to hear
issues as necessary?
A. We could, we normally don’t, we take what’s called a [point] of order --
Q. Okay.
JD–01–18
13
necessary assurances that the grievance(s), once filed, would proceed to arbitration on the
merits. See Union Electric Co., 214 NLRB 320, 321 (1974).
As for the sixth factor, I find the allegations, particularly those regarding the February 17
alleged threat, are not well-suited to resolution through arbitration. The Board considers an 5
issue to be well-suited to arbitral resolution when “the meaning of a contract provision is at the
heart of the dispute.” San Juan Bautista Medical Center, 356 NLRB 736, 737 (2011). Deferral is
not appropriate, by contrast, where no interpretation of the contract is pertinent to Respondent’s
contentions regarding its failure to comply with a particular contract provision. Id. citing
Struthers Wells Corp., 245 NLRB 1170, 1171 fn. 4 (1979). For example, deferral is 10
inappropriate where the dispute turns upon interpretation of the Act, or of other statutory
provisions incorporated into the agreement. The Master Agreement prohibits discrimination for
union activity (Article 21) and broadly prohibits “any other discriminatory acts prohibited by law”
(Article 36). However, the meaning(s) of these contractual provisions are not at the heart of the
dispute. The dispute centers on whether Respondent unlawfully threatened and later disciplined15
Ham because of his statutorily protected activities, including threatening him with unspecified
consequences after he indicated his intent to file charges with the Board. It is an unfair labor
practice for an employer to discipline or threaten to discipline an employee for filing a charge or
expressing intent to file a charge with the Board.25 See OPW Fueling Components, 343 NLRB
1034 (2004); Grand Rapids Die Casting Corp., 279 NLRB 662 (1986); Lustrelon, Inc., 289 20
NLRB 378, 383 (1988); and Premier Rubber Co., 272 NLRB 466 (1984). Resolution of
questions concerning access to Board processes has always been solely within the Board’s
province to decide. See Filmation Associates, 227 NLRB 1721 (1977); McKinley Transport, 219
NLRB 1148 (1975); and Kansas Meat Packers, 198 NLRB 543 (1972). In light of the foregoing, I
find Respondent’s alleged threat of reprisals based upon Ham’s conduct during the disciplinary 25
meeting in which he threatened to file charges with the Board is not appropriate for deferral.
Moreover, the Board has consistently held that it will not defer one issue if it is closely
related to another issue that is not deferrable. See Clarkson Industries, supra at 352 (citing
Everlock Fastening Systems, 308 NLRB 1018, 1019 fn. 8 (1992); 15th Avenue Iron Works, 301 30
NLRB 878, 879 (1991) enfd. 964 F.2d 1336 (2d Cir. 1992)). See also International Harvester
Co., 271 NLRB 647 (1984). Although the May 1 discipline is not alleged to be in violation of
Section 8(a)(4), that discipline is tied, in part, to Ham’s earlier conduct during the February 16
disciplinary meeting in which he threatened to file charges with the Board. Evidence that the
two events are tied together is reflected in Henson’s testimony about his conversation with Ervin 35
about the April 27 exchange in which he described Ham as “off the rails again.” Also, when
Henson prepared the Progressive Discipline Letter Request Form and Fact Sheet for the April
27 exchange, he noted that “[t]his is not the first time Mark has blown up” and Henson attached
his typed statement about the February 16 disciplinary meeting and a copy of the Professional
Conduct and Anti-Harassment Policy that Ham signed on February 17. I conclude that deferring40
the allegations over the May 1 discipline, but not the allegations over the February 17 threats, is
inappropriate because this evidence indicates they are closely related, and deferral of one but

A. -- and if that point of order is upheld, then the case is dismissed at the state level. If
that point of order is upheld, then the case goes away.
Q: Okay.
(Tr. 559–560).
25 Section 8(a)(4) provides that it is an unfair labor practice for an employer “to discharge or otherwise
discriminate against an employee because he has filed charges or given testimony under the Act.”
JD–01–18
14
not the other would result in precisely the sort of “piecemeal” approach disfavored by the Board.
I, therefore, find it is not appropriate to defer either allegation.
B. Threat of Unspecified Reprisals
5
The amended complaint alleges that Labor Relations Manager Randy Ervin violated
Section 8(a)(1) of the Act when he threatened Ham during the February 17 meeting with
unspecified reprisals if he continued to engage in union activity and/or file charges with the
Board. The General Counsel argues that Ervin specifically threatened Ham with unspecified
reprisals when he gave Ham a copy of Respondent’s Professional Conduct and Anti-10
Harassment Policy to sign and said that if he did not sign it he (Ervin) would do “everything in
his power to make sure something comes out of it.” As stated above, I do not credit that Ervin
made this particular statement. However, I do credit Ervin’s admission that after giving Ham the
Policy to sign, he warned Ham that “this is progressive discipline, and once we’ve covered this
with you, if you don’t act in a professional manner with our management team, we will follow15
progressive discipline up to and including discharge.”
Section 8(a)(1) prohibits an employer from interfering with, restraining, or coercing
employees in the exercise of their Section 7 rights. An employer violates Section 8(a)(1) by
directing employees to cease their protected concerted or union activities, and further violates 20
Section 8(a)(1) by threatening employees with unspecified reprisals if they do not comply with
the directive to cease such activities. See NC-DSH, LLP, 363 NLRB No. 185 (2016). It also is a
violation of Section 8(a)(1) for an employer to threaten an employee with discipline, including
discharge, if they file charges with the Board. See OPW Fueling Components, supra; Grand
Rapids Die Casting Corp., supra. In deciding whether an employer has made a threat in 25
violation of this prohibition, the Board applies an objective standard of whether the statement
would reasonably tend to interfere with, restrain, or coerce an employee in the exercise of their
statutory rights, regardless of the motivation for the statement or its actual effect. See Divi
Carina Bay Resort, 356 NLRB 316, 320 (2010), enfd. 451 Fed. Appx. 143 (3d Cir. 2011); Miller
Electric Pump & Plumbing, 334 NLRB 824, 824 (2001). The Board considers the totality of the 30
circumstances. Mediplex of Danbury, 314 NLRB 470, 471 (1994).
I conclude that under the totality of the circumstances telling Ham to sign the Policy and
threatening progressive discipline if he continued to engage in the same sort of conduct he
engaged in during the Peer disciplinary meeting violate Section 8(a)(1). Ervin began by 35
accusing Ham of being “loud and abusive” toward management during the meeting, and that he
could not treat management that way. Ervin, however, never specified how Ham was “abusive”
toward management. Later, Ervin said it was his job to make sure Ham performs his steward
job “in a professional, respectful manner.” He again failed to specify what that meant. It is
reasonable for an employee to conclude that Respondent viewed Ham’s behavior during the 40
Peer disciplinary meeting—including him being an advocate for Peer, protesting the discipline,
and threatening to file charges with the Board—as unprofessional and disrespectful toward
management, in violation of the Policy, and that such conduct would result in discipline, up to
and including discharge. Such statements and conduct under these circumstances has a
reasonable tendency to interfere with, restrain, or coerce an employee, particularly a steward, in 45
the exercise of his/her Section 7 rights, as well as his/her representational duties, in violation of
Section 8(a)(1).
Respondent defends that Ervin acted lawfully in reprimanding Ham and having him sign
the Policy because Ham was unprofessional and disrespectful toward management during the 50
Peer disciplinary meeting. Specifically, Respondent contends Ham abusively cursed and yelled
JD–01–18
15
at Henson and Miller in a manner completely uncalled for or warranted, refused to calm down
and cease cursing at supervisors as requested, and that such conduct is inappropriate and
subject to discipline.26 When an employee is disciplined for conduct that is part of the res
gestae of protected concerted activity, the question is whether the conduct is sufficiently
egregious or opprobrious to remove it from the protection of the Act. See Public Service Co. of 5
New Mexico, 364 NLRB No. 86 (2016); and Stanford Hotel, 344 NLRB 558, 558 (2005). When
an employee engages in abusive or indefensible misconduct during activity that is otherwise
protected, the employee forfeits the Act’s protection. See DaimlerChrysler Corp., 344 NLRB
1324, 1329 (2005). The Board, however, has held that the standard is high for forfeiting the
protection of the Act, stating that there must be egregious or offensive conduct to lose the Act’s 10
protection. Consolidated Diesel, 332 NLRB 1019, 1020 (2000) (citations omitted), enfd. 263
F.3d 345 (4th Cir. 2001); see also Trus Joist Macmillan, 341 NRLB 369, 371 (2004).
The Board has historically given some leeway to union stewards when they are
representing employees in the context of a grievance meeting or other similar setting. See 15
Union Fork & Hoe Co., 241 NLRB 907 (1979); and Dreis & Krump Mfg., 221 NLRB 309, 315
(1975), enfd. 544 F.2d 320 (7th Cir. 1976). Union stewards are considered to stand upon equal
footing with management with regard to addressing and resolving labor disputes. United States
Postal Service, 251 NLRB 252, 252 (1980). It is well established, however, that although union
stewards enjoy protections under the Act when acting in a representational capacity and such 20
employees are permitted some leeway for impulsive behavior when engaged in protected
activity, that leeway is balanced against “an employer’s right to maintain order and respect.”
Piper Realty, 313 NLRB 1289, 1290 (1994); Tampa Tribune, 351 NLRB 1324, 1325–1326
(2007). To determine whether an employee loses the Act’s protection, the Board balances the
following four factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) 25
the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked
by the employer’s unfair labor practices. Atlantic Steel Co., 245 NLRB 814 (1979). In assessing
whether the employee’s conduct removed the protections of the Act, the asserted impropriety
“cannot be considered in a vacuum” nor “separated from what led up to it.” NLRB v. Thor Power
Tool, Co., 351 F.2d 584, 586 (7th Cir. 1965); Emarco, Inc., 284 NLRB 832, 834 (1987).30
I conclude that Ham was engaged in protected concerted and union activity during the
February 16 Peer disciplinary meeting. He was present in his capacity as a union steward and
acting in that capacity when he protested Respondent’s decision to discipline Peer, arguing that
the discipline was unfair and potentially retaliatory because of Peer’s status as a steward. Ham35
also was engaged in statutorily protected activity when he threatened that he and Peer were
going to file charges with the Board. The issue, therefore, is whether he lost the protection of
the Act in the course of engaging in this statutorily protected activity. For the reasons stated
below, I conclude that Ham did not lose the Act’s protection.
40
The first Atlantic Steel factor is the place of the discussion. In evaluating the place of the
discussion, the Board considers the circumstances, such as whether it occurred in the work
area, occurred during work time, was observed by other employees or customers, caused a

26 The amended complaint does not allege that Ervin’s statements constitute unlawful discipline.
However, as stated, Ervin considered having Ham sign the Policy as “progressive discipline” and warned
that if Ham failed to act in a professional, respectful manner toward management in the future, he would
receive progressive discipline, up to and including discharge. It is unclear what meaning Ervin’s
statements have under Respondent’s progressive discipline policy, because that policy was not
introduced into evidence.
JD–01–18
16
disruption in the employer’s operations, and/or undermined workplace discipline. See generally,
Kiewit Power Constructors Co., 355 NLRB 708 (2010) enfd. 652 F.3d 22 (D.C. Cir. 2011)
(favored protection where employer determined the location by distributing warnings in a work
area during work time, and in front of other employees); Datwyler Rubber & Plastics, Inc., 350
NLRB 669, 670 (2007) (favored protection where discussion took place away from customary 5
work area); Noble Metal Processing, Inc., 346 NLRB 795, 800 (2006) (favored protection where
outburst occurred during meeting held away from work area causing no disruption to the work
process); DaimlerChrysler Corp., supra at 1329 (did not favor protection where disruption
occurred in a work area and was overheard by other employees); and Beverly Health &
Rehabilitation Services, 346 NLRB 1319, 1322, fn. 20, 1323 (favored protection when 10
confrontation was not overheard by patients or non-employees). Ham’s comments were made
during a closed-door disciplinary meeting in the customer counter clerk’s office—a location
selected by management. There is no evidence the comments made during this meeting were
overheard by anyone else, or that they affected others in the performance of their work.27 I,
therefore, conclude the first factor favors protection.15
The second Atlantic Steel factor is the subject matter of the discussion. This meeting
was to discuss Peer’s annual ride and the resulting written warning for his methods violations.
Article 4 of the Master Agreement provides for a steward to be present and to actively
participate in such meetings. As previously stated when Ham spoke up at this disciplinary 20
meeting, he was speaking in his capacity as a union steward and as an advocate for a fellow
bargaining unit driver and steward. His statements directly related to his views as to whether
the discipline was appropriate, and to challenge whether it was retaliatory because Peer is a
steward. I conclude this factor also favors protection.
25
The third Atlantic Steel factor is the nature of the outburst. The Board recognizes that
discipline and disputes over working conditions are the type of topics most likely to cause ill
feelings and strong responses. Kiewit Power Constructors Co., supra at 710 (2010). In
assessing whether an employee’s offending statements or conduct during otherwise protected
activity loses the protection of the Act, the Board has held that a line “is drawn between cases 30
where employees engaged in concerted activities that exceed the bounds of lawful conduct in a
moment of animal exuberance or in a manner not motivated by improper motives and those
flagrant cases in which the misconduct is so violent or of such a character as to render the
employee unfit for further service.” Prescott Industrial Products Co., 205 NLRB 51, 51–52
(1973). The Board has repeatedly held that loud, strong, profane, and foul language or what is 35
normally considered discourteous conduct, while engaged in protected activity, does not alone
justify discipline. See Postal Service, 364 NLRB No. 62, slip op. at 3 (2016).28 See also Goya

27 There is no evidence that this exchange was heard by anyone else. Ham has told Henson and Adam
Miller that others could hear meetings that occur downstairs and, therefore, Ham asked for meetings with
employees to be in the upstairs offices. (Tr. 211; 369:15–370:7, 503:18–505:3). Respondent decided to
hold this particular meeting downstairs in the customer clerk’s office. (Tr. 408–410).
28 In Postal Service, 364 NLRB No. 62 (2016), the Board addressed a similar but more egregious
situation. The steward became confrontational in the course of advocating for a fellow employee and told
the supervisor she was “being an ass” and used other profanity. Id., slip op. at 2. As the meeting ended,
the employee stood up, stepped toward the supervisor, shook her finger at the supervisor and screamed,
“I can say anything I want. I can swear if I want. I can do anything I want.” Id. When the supervisor began
to disagree, the employee took another step towards the supervisor and loudly repeated she could say
and do whatever she wanted, and added that the supervisor could not stop her. The Board found the
steward did not lose the protection of the Act during this confrontation and the discipline issued, in part,
as a result of this conduct violated the Act.
JD–01–18
17
Foods, Inc., 356 NLRB 476, 481 (2011); Alcoa, Inc., 352 NLRB 1222, 1225 (2008) (employee
acting in his union representational capacity, who called a supervisor an “egotistical fucker,” did
not lose the protection of the Act); Tampa Tribune, supra (employee who told two supervisors
that the employer’s vice president was a “stupid fucking moron,” did not lose protection of the
Act); Union Carbide Corp., 331 NLRB 356, 359 (2000), enfd. 25 Fed. Appx. 87 (4th Cir. 2001) 5
(employee who called manager a “fucking liar” was found not so “out of line” as to remove him
from the protection of the Act). But compare e.g., Public Service Co. of New Mexico, supra
(steward lost the protection when he interrupted training meeting by making his own demands,
refused to allow others to ask questions, initially refused to leave the meeting, and then, after
leaving and returning, demanded the meeting end and employees leave), and Waste 10
Management of Arizona, 345 NLRB 1339 (2005) (employee who loudly and repeatedly used
profanity in front of coworkers and others, refused to move the discussion to a private location,
threatened the supervisor, and refused to follow orders lost the Act’s protection). Additionally,
the nature of the outburst must be examined in the context in which it occurred. NLRB v. Thor
Power Tool, Co., supra. 15
Although Ham’s outburst was loud and profane, it was spontaneous, brief, and
unaccompanied by physical contact or threat of physical harm. The Board has held those types
of outbursts do not lose the protection of the Act. See Beverly Health and Rehabilitation
Services, Inc., supra at 1323 (employee conduct “consisted of a brief, verbal outburst of profane 20
language unaccompanied by insubordination, physical contact, or threat of physical harm);
Datwyler Rubber and Plastics, Inc., supra (employee outburst protected, as it was spontaneous,
brief, and unaccompanied by physical contact or threat of physical harm).
Ham’s outburst was spontaneous. His statements reflect his shock and disbelief over 25
Respondent’s decision to discipline Peer. He was shocked and in disbelief because at each of
the meetings prior to Peer’s annual ride when Henson or Miller raised issues about Peer’s
performance, Ham asked whether it could lead to discipline, and Henson and Miller repeatedly
told him that it would not. Plus, in Ham’s experience, drivers do not receive discipline for their
annual rides.30
Ham’s reaction was brief. Upon learning of the discipline, Ham’s immediate reaction
was to loudly state, “You’ve got to be fucking kidding me. This is fucking bullshit.” He then
accused them of “fucking with a shop steward.”29 When Henson told him to calm down and he
could not talk that way to them, Ham responded that he could say whatever he needed to say 35
as a union steward, as long as he was not threatening them. After that, Ham calmed down.30

29 Several witnesses testified about the use of profanity at the Coralville center, and the consensus was
that it was fairly common. If a supervisor is present when it occurs, and someone raises an issue about
the profanity, the supervisor likely will ask the profanity to stop. Respondent introduced examples of
certain employees who were required to review and sign the Professional Conduct and Anti-Harassment
Policy after they made threatening or offensive statements. However, there does not appear to be a
consistent practice or policy regarding when Respondent will require an employee to review and sign the
Policy. For example, during the February 6 meeting between Adam Miller, Ham, Peer, and Henson, Miller
commented that Peer had his bulkhead door open too long, and Peer responded that was “bullshit.” Peer
was not disciplined or reprimanded for using that term. Ham later used that same term, albeit more than
once and with other profanity, during the February 16 disciplinary meeting. Respondent labeled it
abusive and told Ham he needed to review and sign the Policy.
30 Respondent argues that Ham repeatedly cursed and yelled at Henson and Miller during this meeting.
While Ham yelled and used profanity, his comments were about the decision to discipline. He never
personally insulted Henson or Miller. See Wal-Mart Stores, Inc., 341 NLRB 796, 807–808 (2004)
JD–01–18
18
There was no physical contact or threat of physical harm during this meeting. Henson
testified Ham’s hands were going every which way, his face was red, and the veins in Ham’s
neck were bulging out. But there is no claim Ham made any movement or threatening gesture
toward anyone in the room. 5
Based on the foregoing, I conclude the nature of Ham’s outburst, when examined in its
context, favors continued protection.
The fourth Atlantic Steel factor is whether the misconduct was provoked by the 10
employer’s unfair labor practices. This does not require that the employer’s conduct be
explicitly alleged as an unfair labor practice, but rather includes conduct evincing intent to
interfere with protected rights. Postal Service, 360 NLRB 677, 684 (2014) (citing to Network
Dynamics Cabling, Inc., 351 NLRB 1423, 1429 (2007), and Overnite Transportation Co., 343
NLRB 1431, 1438 (2004)). As previously stated, Ham believed the decision to discipline Peer 15
was unfair, unprecedented, and retaliatory because of Peer’s status as a union steward. Peer
later filed an unfair labor practice charge over the discipline, but that charge was dismissed.
Regardless, under these circumstances, it was not unreasonable for Ham to view the discipline
as an unlawful attempt to interfere with how he and Peer exercise their duties as stewards.
20
Accordingly, I conclude all four Atlantic Steel factors favor that Ham did not lose the
protection of the Act, and Respondent, therefore, violated Section 8(a)(1) when Ervin threatened
him with unspecified reprisals if he continued his union activities and/or filed charges with the
Board.31
25
C. Written Warning
The amended complaint also alleges that Respondent violated Section 8(a)(1) and (3) of
the Act when Henson issued Ham a written warning on May 1 because of his protected
concerted and union activity. The General Counsel contends Respondent issued the warning in 30
response to Ham’s challenging the break policy and complaining about not receiving his
contractually requested 8-hour day.32
Respondent denies it discriminated against Ham because of any protected concerted or
union activities. Respondent also argues this case should be examined under Wright Line, 251 35
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982)
and approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Respondent
argues that under that standard, the General Counsel fails because there is no evidence of a
causal link between Ham’s alleged protected activity and the warning. In Wright Line, the Board
stated the General Counsel must make “a prima facie showing sufficient to support the 40
inference that protected conduct was a ‘motivating factor’ in the employer’s decision.” 251 NLRB
at 1089. However, where, as here, an employer defends disciplining an employee for conduct
that is part of the res gestae of the employee’s protected activity, Wright Line is inapplicable

(employee retained the protection of Act notwithstanding his use of profanity where employee used the
profanity to describe the employer’s policy and its effects rather than to describe a member of
management), enfd. 137 Fed.Appx. 360 (D.C. Cir. 2005).
31 Even if the fourth factor does not favor protection, Ham retained protection under the other factors.
32 The protected nature of Ham’s complaints does not turn on whether he was correct that this amounted
to a change in existing policy. See NLRB v. City Disposal Systems, 465 U.S. 822, 840 (1984).
JD–01–18
19
because the causal connection between the protected activity and the discipline is not in
dispute. Phoenix Transit System, 337 NLRB 510 (2002), enfd. mem 63 Fed.Appx. 524 (D.C.
Cir. 2003). Respondent next contends that even if Ham was engaged in statutorily protected
activity, he lost the protection of the Act by his conduct and statements during the exchange.
5
I conclude that Ham was engaged in protected concerted and union activity during his
April 27 exchange with Henson. Ham’s initial comments related to Respondent’s new break
policy that affected all drivers, which is both protected and concerted. Ham was present for this
conversation with Henson in his capacity as a Union steward, and was speaking as such
regarding the policy. As such, he was engaged in union activity. Ham’s later comments were10
about the denial (by Henson) of his request under the contract not to work overtime that day.
An employee is engaged in protected concerted activity when he/she exercises a contractual
right. See Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2nd Cir. 1967).
As previously stated, when an employee is disciplined for conduct that is part of the res 15
gestae of statutorily protected activity, the Board applies the Atlantic Steel factors to determine
whether the conduct is sufficiently egregious or opprobrious to lose the Act’s protection.33 For
the reasons stated below, I find Ham did not lose the Act’s protection.
The first factor—the place of the discussion—favors protection. Henson selected the 20
location of the discussion when he called Ham to his upstairs office to meet about the break
policy. There were no other employees present or in the area. There is no evidence that any
other employee overheard the discussion, or that the discussion had any effect on production.
The second factor—the subject matter of the discussion—also favors protection. As 25
previously stated, the two discussed the break policy—a policy affecting all drivers and one that
several of them had been discussing with Ham prior to this exchange. Ham and Henson also
discussed about Ham not receiving his contractually requested 8-hour day, and Ham’s belief
that Henson was denying those requests because of his role as a steward. Both subject
matters favor protection.30
The third factor—the nature of the outburst—favors protection. Respondent contends
Ham yelled, used profanity, and “acted menacingly” toward Henson during the exchange.
Henson testified that Ham got loud after Henson confirmed the restroom break policy. But
according to Ervin it was not uncommon for Ham to raise his voice and get red in the face, 35
particularly when he is trying to get his point across on a labor-management issue. (Tr. 548–
549). As for profanity, Ham said he was tired of Henson treating employees like shit. A single
profane comment does not lose the protection of the Act. See Alcoa, Inc., supra; Tampa
Tribune, supra. The “menacingly” aspect is less clear. Henson testified that Ham looked angry,

33 Respondent also argues that the framework set forth in NLRB v. Burnup & Sims, 379 U.S. 21 (1964)
applies in this case. The Board has held that Burnup & Sims applies in cases involving mistakes of fact,
not mistakes of law. Under Burnup & Sims, an employer violates the Act by disciplining an employee
based on a good-faith belief that the employee engaged in misconduct during otherwise protected
activity, if the General Counsel shows that the employee was not, in fact, guilty of that misconduct.
“Otherwise, the protected activity would lose some of its immunity, since the example of employees who
are discharged on false charges would or might have a deterrent effect on other employees.” 379 U.S. at
23. Plainly, this is not a “mistake of fact” case because management observed Ham’s protected conduct.
Therefore, Burnup & Sims does not apply. See also, Triple Play Sports Bar & Grille, 361 NLRB 308, 313
fn. 20 (2014).
JD–01–18
20
and that his eyes and face were red. However, when he was asked to explain why this was,
Henson testified that they “just had an issue with the breaks that he [Ham] disagreed with me
on, so his face was still red.” As for gestures, Henson testified Ham made a chopping motion
with his forearm while he was talking, but he confirmed that Ham did so when he was trying to
make a point. Finally, in response to leading questions, Henson testified that after leaving his 5
office, Ham turned around near the doorway and “leaned forward a little bit, chest was poked
out, and his eyes looked like there was just pure madness and hate in there.” Then, after Ham
then made a comment about being denied his 8-hour day, Ham allegedly gave Henson a “death
stare” for 2 or 3 seconds before walking away. Henson did not specify any other conduct.
10
The Board uses an objective, rather than a subjective, standard to determine whether
the conduct in question is threatening. Plaza Auto Center, Inc., 360 NLRB 972, 975 (2014).
Although Ham was loud and briefly profane, I again conclude his outburst was spontaneous,
brief, and unaccompanied by physical contact or threat of physical harm. The comments were
his immediate and brief reaction to learning that the break policy had been confirmed, and to 15
having his request for an 8-hour shift denied once again. Although he appeared angry with
Henson about both, he did not make any threatening statement, motion, or gesture. Instead, he
left Henson’s office, turned to make his comment, looked at Henson for a few seconds, and then
went home. Applying an objective standard, I conclude Ham’s reaction and expression—albeit
one of anger and frustration—was not so opprobrious to lose the Act’s protection. 20
The fourth factor—whether the misconduct was provoked by the employer’s unfair labor
practice—is again less clear but favors protection. Ham was angered by what he believed to be
an incorrect interpretation of or change to the established practice regarding restroom stops and
breaks. Ham also was angered about being denied his requested 8-hour day, causing him to 25
ask Henson whether he was retaliating against him because he is a steward. Under these
circumstances, I find the perceived unilateral change in break policy and discriminatory denial of
a schedule change provoked Ham’s reaction.34
Accordingly, in applying the Atlantic Steel factors, I conclude that Ham did not lose the 30
protection of the Act, and that Respondent violated Section 8(a)(1) and (3) when Henson issued
him a written warning for his protected concerted and union activities during the exchange.

CONCLUSIONS OF LAW
35
1. Respondent, United Parcel Service, Inc., has been an employer engaged in
commerce out of its Coralville, Iowa facility, within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Respondent violated Section 8(a)(1) of the Act on February 17, 2017, by 40
threatening Mark Ham with unspecified reprisals if he continued to engage in union activity
and/or filed charges with the National Labor Relations Board.
3. Respondent violated Section 8(a)(1) of the Act by issuing Mark Ham a written
warning on May 1, 2017, because he engaged in protected concerted activities.45
4. Respondent violated Section 8(a)(3) an 8(a)(1) of the Act by issuing Mark Ham a
written warning on May 1, 2017, because he engaged in union activities.

34 Even if the fourth factor does not favor protection, Ham retained protection under the other factors.
JD–01–18
21
5. The above-described unfair labor practices affect commerce within the meaning
of Section 2(6), and (7) of the Act.
REMEDY5
Having found that Respondent has violated the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action necessary to effectuate the purposes of the
Act. Respondent shall rescind and remove any reference to the May 1, 2017 written warning
issued to Mark David Ham relating to his conduct on April 27, 2017, remove any reference to 10
the Professional Conduct and Anti-Harassment Policy Ham signed on February 17, 2017, and
notify Ham in writing that this has been done and that none of these adverse actions will be
used against him in any way.
On these findings of fact and conclusions of law and on the entire record, I issue the 15
following recommended35
ORDER
Respondent, United Parcel Service, Inc., its officers, agents, successors, and assigns at
its Coralville, Iowa facility, shall:20
1. Cease and desist from
(a) Threatening employees with unspecified reprisals if they continue to engage in
union activities and/or threaten to file or file charges with the Board.25
(b) Disciplining or otherwise discriminating against employees because they engage
in protected concerted and/or union activities, including raising concerns about a new break
policy.
30
(c) In any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights listed above.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
35
(a) Within 14 days from the date of the Board’s Order,36 Respondent shall rescind
and remove any reference to the May 1, 2017 written warning issued to Mark David Ham
relating to his conduct on April 27, 2017, remove any reference to the Professional Conduct and
Anti-Harassment Policy Ham signed on February 17, 2017, and notify Ham in writing that this
has been done and that none of these adverse actions will be used against him in any way.40

35 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
36 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–01–18
22
(b) Within 14 days after service by the Region, post at its facility in Coralville, Iowa
copies of the attached notice marked Appendix. Copies of the notice, on forms provided by the
Regional Director for Region 18 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places throughout its Coralville, Iowa facility, including all places where notices to 5
employees are customarily posted. In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the 10
pendency of these proceedings, the Respondent has closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
February 17, 2017.
15
(c) 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 the Respondent has taken to comply.
20
DATED, WASHINGTON, D.C., JANUARY 5, 2018
_________________________________25
ANDREW S. GOLLIN
ADMINISTRATIVE LAW JUDGE
w&L-
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose a representative to bargain with us on your behalf;
• Act together with other employees for your benefit and protection;
• Choose not to engage in any of these protected activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
WE WILL NOT threaten you with unspecified reprisals for engaging in union activity.
WE WILL NOT threaten you with unspecified reprisals for stating your intent to file or filing
charges with the National Labor Relations Board.
WE WILL NOT discipline you because of your protected concerted and/or union activities,
including raising concerns about a new break policy.
WE WILL NOT require you to sign the UPS Professional Conduct and Anti-Harassment Policy
in response to you engaging in union activity.
WE WILL NOT require you to sign the UPS Professional Conduct and Anti-Harassment Policy
in response to stating your intent to file or filing charges with the National Labor Relations
Board.
WE WILL remove from our files any reference to the UPS Professional Conduct and Anti-
Harassment Policy signed by Mark David Ham on February 17, 2017, and WE WILL notify him
in writing that this has been done and the fact that he had signed the UPS Professional Conduct
and Anti-Harassment Policy on that date will not be used against him in any way.
WE WILL rescind and remove from our files all references to the May 1, 2017 warning letter
issued to Mark David Ham, and WE WILL notify him in writing that this has been done and that
the warning letter will not be used against him in any way.
UNITED PARCEL SERVICE, INC.
(Employer)
DATED: _____________________________ BY__________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Federal Office Building, 212 3rd Avenue S, Suite 200 Minneapolis, MN 55401–2221
(612) 348–1757, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/18-CA-193426 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (414) 297–3819.