United Parcel Service, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1962

136 N.L.R.B. 713 (N.L.R.B. 1962)

UNITED PARCEL SERVICE, INC. 713
[The Board certified Local 1132, United Automobile, Aircraft and
Agricultural Implement Workers of America, UAW, AFL-CIO, as
the designated collective-bargaining representative of the employees
at the Hopkins, Minnesota, plant of Motec Industries, Inc., and
certified Local 1146, United Automobile, Aircraft and Agricultural
Implement Workers of America, UAW, AFL-CIO, as the designated
collective-bargaining representative of the employees at the Lake
Street, Minneapolis, Minnesota, plant, Mohawk Foundry Division,
and Motec Engineering Division, of Motec Industries, Inc., in the
units herein before found appropriate by the Board.]
MEMBER BROWN took no part in the consideration of the above
Decision on Review and Certification of Representatives.
United Parcel Service, Inc. and Vincent G . Guertin . Case No.
1-CA-3535. March 30, 1962
DECISION AND ORDER
On January 8, 1962, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief, and the General Counsel
filed a brief.
Pursuant to Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner!
1 The following is to be inserted in the notice below the sentence beginning "This
notice must remain posted . . ': Employees may communicate directly with the Board's
Regional Office, Boston Five Cents Savings Bank Building, 24 School Street , Boston 8,
Massachusetts , Telephone Number LAfayette 3-8100, if they have any question concern-
ing this notice or compliance with its provisions.
136 NLRB No. 68.
714 DECISIONS OP' NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Vincent G. Guertin , an individual , the General Counsel of
the National Labor Relations Board, by the Regional Director for the First Region,
issued his complaint , dated September 14, 1961 , against United Parcel Service, Inc.,
herein called the Respondent . With respect to the unfair labor practices , the com-
plaint alleges , in substance , that Respondent ( 1) discharged Vincent G. Guertin on
May 26, 1961 , because of his union membership and activities , ( 2) interrogated an
employee concerning his union sympathies , activities , and desires , and (3 ) thereby
engaged in unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and ( 3) and Section 2(6) and ( 7) of the National Labor Relations Act,
herein called the Act. In its duly filed answer , Respondent denies, generally, all
unfair labor practice allegations.
Pursuant to notice , a hearing was held before me at Providence , Rhode Island,
on October 16 and 17, 1961 . All parties appeared and were given full opportunity
to be heard, to examine and cross-examine witnesses , to introduce relevant evidence,
and to engage in oral argument before the close of the hearing . On November 27,
1961, the General Counsel and the Respondent filed briefs, which I have fully con-
sidered. Respondent 's motion to dismiss the complaint , made before the close of the
hearing and upon which I reserved ruling, is hereby denied in accordance with the
findings and conclusions made below.
Upon the entire record 1 in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
United Parcel Service, Inc., a Delaware corporation , maintains its principal place
of business in New York, New York, and additional places of business and facilities
in various States throughout the United States where it is engaged in the trans-
portation and delivery of parcels and related items The only facility involved in
this proceeding is located in Providence , Rhode Island. Respondent annually per-
forms services valued in excess of $500,000 , of which services valued in excess of
$50,000 are performed in States other than the State of New York where Respond-
ent's New York facility is located. At its New York facility , Respondent annually
receives materials, valued in excess of $50,000, from points outside the State of
New York; at its Providence facility, Respondent annually performs services valued
in excess of $50,000 for firms engaged in interstate commerce.
Upon the above admitted facts, I find , as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , the record shows, and I find, that
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, Local 251, herein called the Union or the Teamsters , is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent operates a national parcel delivery service. On March 9 , 1960, Re-
spondent established a delivery operation at Providence , Rhode Island, under the
managership of Michael J. Fitzgerald , known as the Providence operating center
supervisor . Vincent G. Guertin was referred by the Teamsters Local in Providence
as an applicant for a position as a parcel delivery driver . After being interviewed
by Fitzgerald and one of Respondent 's personnel men from Philadelphia and having
received a test score of 6 on the 12-minute Wonderlic Personnel Test given to such
applicants , he was hired by Fitzgerald on March 18, 1960 , as a parcel delivery driver
Respondent admits that it was satisfied with the manner in which Guertin performed
his work. During the course of his employment , Guertin engaged in certain union
and concerted activities and disclosed his desire to become the union steward. On
lI hereby note and correct the following obvious errors in the typewritten transcript
of testimony: Page 123 , line 19, "they " is corrected to read "I" : page 160, line 15.
"pressing" is corrected to read "present" , page 266 , line 2, "dirtier " is corrected to
read "dirty "
UNITED PARCEL SERVICE, INC. 715
March 26, 1961, Guertin was discharged for the asserted reason that he had indicated
ambitions for advancement to supervision and the test score which he had received
on March 18, 1960, was lower than the minimum established by Respondent for the
employment of parcel delivery drivers.
The issues litigated in this proceeding are (1) whether the discharge of Guertin
was discriminatorily motivated in violation of Secton 8(a)(3) and (1) of the Act,
and (2) whether Fitzgerald, the manager of the Providence facility and an admitted
supervisor within the meaning of the Act, engaged in independent acts of inter-
ference, restraint, and coercion violative of Section 8(a)(1) of the Act.
A. Discrimination with respect to hire and tenure of employment 2
1. Respondent's relationship with the Teamsters
At the very inception of its Providence operation in early March 1960, Respondent
orally agreed to recognize the Teamsters Local 251 as the bargaining agent of its
parcel delivery drivers. During the initial recruiting period, the Teamsters referred
about 20 to 25 applicants for the position of parcel delivery drivers. Of this number
only four-Guertin, Anderson, Chisholm, and Hynes-were hired; Hynes volun-
tarily resigned on August 4, 1960, and Chisholm and Anderson were discharged for
cause on May 4, and November 16, 1960, respectively. Upon the commencement
of the Providence operation, the Respondent also orally authorized the checkoff of
union dues from all employees, recognized Anderson as the union steward appointed
by the Teamsters Business Agent Hylek, and by May 1960 further required em-
ployees to become union members within 30 days of their employment. No written
contract had ever been executed during the period material herein, although negotia-
tions were still in progress at the time of Guertin's discharge in May 1961.
2. Guertin's employment record
As previously noted, Guertin was hired by Fitzgerald as a parcel delivery driver
on March 18, 1960. Respondent's counsel stipulated at the hearing that Guertin was
a good driver and a satisfactory worker.
About November 1, Fitzgerald selected Guertin to serve as a temporary lead
driver during the busy season which lasted about 3 months. His duties were to train
other parcel delivery drivers on the routes and to teach them the delivery job, how
to load the vehicles in a logical manner, the proper methods of "sheeting" and of
getting signatures for deliveries, and the procedure for turning in c.o.d.'s and delivery
sheets for the day. Lawrence Reall, the permanent lead driver who testified as a
witness for Respondent, admitted that Guertin was a temporary lead driver and
"was doing the duties I was doing, more or less." Although Fitzgerald testified that
Guertin was not a lead driver "in the formal sense of the word," he grudgingly admit-
ted that Guertin did perform the functions of a lead driver during that period by
training drivers on delivery routes and delivery jobs and that in conjunction there-
with Guertin "probably" did supervise and coordinate the men when they loaded
the trucks in the morning and "probably" had supervision over more than one
man at any one time on the loading platform.
During this 3-month period, Guertin trained four new parcel delivery drivers,
Mackisey, Demus, Plourde, and White. After training Mackisey for a few days,
Guertin reported to Fitzgerald that the boy was slow in "catching on," that he wore
contact lenses, and that when dust would come up from the road he would pull off
on the side of the road. Fitzgerald replied that Mackisey "can't be the right man for
the job." Mackisey was discharged a few days later. Guertin trained Demus for 3
or 4 days. After about a month, Demus voluntarily left Respondent's employ. At
that point Fitzgerald remarked to Guertin that "it seems as though we get the men
trained, get them where we want them [and then] they have to part with us." Guertin
replied, "Well, that's the way it goes." Plourde was trained by Guertin for about
1 week. After the first 3 or 4 days, Fitzgerald asked Guertin how Plourde was doing.
Guertin replied that Plourde "was catching on very fast," but that he was an
excessive speeder and was hard on the clutch. On the sixth day, Fitzgerald sent
Guertin out to check on the manner in which Plourde was packing a load. On
another occasion at the end of the week, Fitzgerald sent Guertin out to check on
Plourde's speeding. On March 3, 1961, after being employed almost 3 months,
Plourde was discharged for running through a stop sign and into an automobile.
2 Unless otherwise indicated, the factual findings In this section are based on credited
evidence and testimony which is either admitted or undenied.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White was trained by Guertin for 4 or 5 days. This was the occasion when Fitz-
gerald assigned Guertin to a route with which Guertin was not familiar . When Guer-
tin pointed out that he had never been on that route , Fitzgerald replied that he had
confidence in Guertin because he knew that Guertin could train a man there . Guertin
then proceeded to train White on that route. White was still working as a parcel
delivery driver for Respondent at the time of the hearing in this proceeding.3
On March 15 , 1961, Guertin received a wallet and an honor certificate from
Respondent in appreciation for his record of driving 1 year without an avoidable
accident . In the April 1961 issue of Respondent 's New England publication entitled
"Big Idea," there is a picture and special feature article about Guertin and his family,
with comments that Guertin "joined our driver team as a charter member," that "he
is presently on our Safety Honor Roll, having notched his one year Safe Driving
record," and that "the Guertins will be moving into their new home this summer,
making their dream a reality . All of us at UPS wish them the best of everything."
3. Guertin 's activities in connection with the Teamsters Local and
Fitzgerald 's responses thereto
Guertin had been a member of the Teamsters Local 251 in Providence for about
a year prior to his employment by Respondent . When he was out of work in March
1960, he went to the union hall and was referred by Business Agent Hylek to Fitz-
gerald as an applicant for a parcel delivery driver. Fitzgerald learned of Guertin's
union background during his hiring interview.
Sometime in the fall of 1960 there was a scheduled election for a business agent
of the Teamsters . Of the four parcel delivery drivers who had been hired upon
referral by the Teamsters , Guertin and Anderson were the only ones left in Respond-
ent's employ at that time . All the other parcel delivery drivers were neophyte union
members who first joined after becoming employed by Respondent . Guertin was
trying to get the other parcel delivery drivers at the warehouse interested in the union
election, urging them to go down to the union hall with him to vote. On this oc-
casion , Fitzgerald told Guertin that "these fellows are new, don't push it." 4
As previously noted, Anderson was initially appointed steward by Business Agent
Hylek. However, the parcel delivery drivers had expressed dissatisfaction with
Anderson 's ineffectiveness as a union steward. Even Hylek admitted that Anderson
was not any good as a shop steward. With the discharge of Anderson for cause on
November 16, 1960, Guertin became the sole survivor of the four package delivery
drivers who had been hired upon referral by the Teamsters . Ever since Anderson's
discharge , the subject of the need of a union steward and who would make a good
replacement for Anderson , became a topic of considerable discussion by the parcel
delivery drivers in and around the Respondent 's warehouse . Guertin's name was
frequently mentioned by the parcel delivery drivers as one who would make a good
steward.5 Although two or three other names were also mentioned by some of the
drivers, there is no showing that anyone but Guertin had expressed an interest in
being shop steward and had indicated his willingness to accept the position if chosen.
3 Fitzgerald admitted that Guertin trained four or five now drivers during the 3-month
period that he served as a temporary lead driver . He also admitted that Guertin re-
ported back to him as to how the new men were progressing He testified that lie did
not recall what Guertin reported about Diackisey ' s progress and that he did not recall
whether Guertin trained White , although he admitted that Guertin could have trained
White He denied that Guertin reported that Plourde was an excessive speeder, and
testified that be reported that Plourde was hard on the clutch but that he did not recall
anything else that Guertin said about Plourde In view of Fitzgerald ' s lack of memory
as to Mackisey and White and the disclosure of his faulty memory relating to the timing
of Guertin 's ICC physical examinations required by Respondent , I do not credit Fitzgerald's
denial or his testimony to the extent that it conflicts with that of Guertin
4 These findings are based on the credited testimony of Guertin Fitzgerald denied hav-
ing made this statement to Guertin . Fitzgerald testified that he remembered the occasion
of this union election and that his only comment was made to a few employees that he
"didn ' t want the walls plastered up with different posters and everything " I have previ-
ously found that Fitzgerald ' s memory is not reliable In addition, Fitzgerald did not
Impress me as a frank and candid witness . He testified in a manner which indicated to
me more of a concern not to give answers which might be regarded as unfavorable to
the Respondent than to disclose the true facts as he knew them Under all the circum-
stances , including my observation of the demeanor of Fitzgerald and Guertin while testify-
ing under oath, I do not credit Fitzgerald 's contrary testimony.
5 Kirby testified under subpena that during the four or five conversations at which he
was present , Guertin is the only name he can remember being discussed
UNITED PARCEL SERVICE, INC. 717
Fitzgerald admitted that he could not help but overhear discussions among the parcel
delivery drivers concerning the replacement of Anderson as shop steward.
During the busy season in the latter part of November 1960, a group of parcel
delivery drivers were conversing in Respondent 's warehouse concerning the effect
of the heavy workload on their lunch hours . One of the drivers stated that "We
need a shop steward around ." At this point, Fitzgerald remarked "We don't need a
shop steward . United Parcel does what it wants , and not the way the union wants." 6
About February 1, 1961, Fitzgerald asked Guertin, while the latter was in the
warehouse , if he would accept the position of union steward . Guertin replied that
he would accept the position . During the first part of the following month, a group
of parcel delivery drivers were conversing in the warehouse about the need of a shop
steward. Fitzgerald overheard the conversation as he was passing by, and stated to
the drivers that "I 'll be shop steward." In April 1961, Fitzgerald again questioned
Guertin as to whether he would accept the position of union steward. When Guertin
again replied in the affirmative , Fitzgerald stated that "it means a lot" when you
have a shop steward who can handle men. Fitzgerald then asked Guertin , "Why do
you think we need a shop steward?" and added that "I don't think we need one."
Guertin replied that he did not think it was "always right to have a man run to the
boss all the time." When Fitzgerald restated his position that he did not think they
needed one, Guertin added that he thought "it would be nice" to have "the steward
back them up," that "the men would feel a lot secure." 7
One Friday, about the middle of April 1961 , a group of about 9 or 10 parcel
delivery drivers agreed to go with Guertin , at the latter 's suggestion, to the union
hall to have dues stamps put in their union books. When Guertin arrived at the
union hall the next day , the group of drivers were waiting for him outside. They
then went into the union hall where Business Agent Hylek gave them the stamps for
their books . The group then questioned Hylek as to whether they would be affected
by the rumored strike of the trailer drivers in the area. Hylek replied that they
would not be affected at all by such a strike. Guertin asked when they were going
to get their contract . Hylek replied that a contract could not be written overnight
and explained the procedures and mechanics involved in negotiating a contract.
Hylek was then questioned about the appointment of a steward to replace Anderson,
and replied that Anderson had done no good as a steward , that it would not do any
good for anyone else to be a steward without a contract , and that he himself would
act as the shop steward until they got a signed contract . This admittedly was the
first time that this information had been conveyed to the employees by Hylek.
Although all the employees in the group had asked questions, Guertin had done most
of the talking.8
About a week after Guertin 's visit to the union hall with the group of parcel
delivery drivers , as set forth in the preceding paragraph, Fitzgerald called Guertin
into his office one evening after work . Fitzgerald then stated , "I hear you 're unhappy
with your job." Guertin answered , "Why? Am I not doing my work?" Fitzgerald
then remarked , "What hurts me, I have to get this from outside sources and not
the inside ." Guertin replied that he was just as happy working there as he was before.
6 The findings in this paragraph are based on the credited testimony of Guertin
Fitzgerald denied having made such a statement and testified that lie had told the parcel
delivery drivers that "United Parcel states the way a job is to be done, it will be done
that way and only that way " For the reasons previously indicated, I do not credit
Fitzgerald 's contrary testimony.
7 The findings in this paragraph are based on the credited testimony of Guertin Fitz-
gerald admitted having made the remark that "I ' ll be shop steward ," after overhearing
the conversation as he was passing by Fitzgerald was the first witness called by the
General Counsel At that time lie testified that "I do not recall ever speaking to Vincent
Guertin . . about his being shop steward ," and that "it 's possible I could have men-
tioned something like that I never went after him looking to find out what his in-
tentions were " However , when called as a witness by Respondent in the presentation
of its case , Fitzgerald was asked by Respondent ' s counsel if lie had ever asked Guertin if
he wanted to be the shop steward, and testified , "No, I did not " Upon consideration of
all the foregoing as well as for the reasons previously indicated , I do not credit
Fitzgerald 's denial.
8 The findings in this paragraph are based upon a composite of the mutually consistent
testimony of Guertin , Kirby, Real], and Hylek, the only witnesses who testified with re-
spect to this meeting The 'testimony of Guertin and Kirby that Guertin did most of the
talking stands unrefuted ; Reall testified that each of the employees asked some questions,
and Hylek testified in addition that there was no spokesman for the group.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Guertin's discharge on May 26, 1961
On the evening of May 26, 1961, Fitzgerald called Guertin into his office and
told him that he was discharged. Guertin thereupon exclaimed, "Why? What have I
done9" Fitzgerald then gave as the reason that the Company periodically reviews
the tests taken by applicants and that it was discovered that Guertin had flunked
the test which he took in March 1960 by two points. Guertin replied that it "seems
funny" that they should notify him about that after he had been working there 15
months. Fitzgerald stated that Guertin had done a good job there, that he hated
to see him go, and that he would do anything to get him back.
5. Discussions with Business Agent Hylek
Upon being informed by Guertin of his discharge, Hylek had Fitzgerald appear
at the union office to give an explanation for the discharge. Fitzgerald told Hylek
that Guertin was let go on "orders from Watertown," Massachusetts, Respondent's
main office in the New England area. When Hylek requested more information as
to the specific reason for discharging Guertin, Fitzgerald promised to check into it
and to let him know. Shortly thereafter, Fitzgerald visited Hylek's office again,
and informed Hylek about Guertin not receiving the minimum score required by
Respondent in the personnel test and that although a long time had elapsed since
Guertin had taken the test, they had just caught up with it and it was necessary
to resolve the matter at that time because Guertin had ambitions to get into
supervision.
Dissatisfied with this explanation, Hylek telephoned to Edward Polusky, Respond-
ent's operations manager for northern New England, stationed in Watertown,
Massachusetts. About 2 weeks later, Polusky and Fitzgerald both visited Hylek's
office for a further discussion about Guertin's discharge. Polusky and Fitzgerald
reported the same reason for discharging Guertin. When Hylek restated his position
that Guertin had been employed there long enough and that he could not under-
stand why it had taken so long to make up their minds, they explained that "Water-
town didn't catch up with it" and, in substance, informed Hylek that "they wanted
to be in a position if and when they sign a contract that they didn't want to have
any trouble with the union." Hylek stated that he felt they were being unjust and
asked them to reconsider their position. Polusky and Fitzgerald adhered to their
position and refused to change their minds .9
6. Position and contentions of Respondent
Admitting that Guertin was a satisfactory employee, Respondent contends in its
brief that the decision to discharge Guertin was based solely on Respondent's strict
policies with respect to the hiring and promotion of its personnel. In support of its
position, Respondent relies primarily on the testimony of Michael Fitzgerald, who
was the local manager of the Providence operation, and of Edward Polusky, who
was the operating manager for northern New England. The testimony of these
two witnesses is, in substance, as follows:
The Respondent regularly administers a 12-minute test, known as the Wonderlic
Personnel Test, to all package delivery driver applicants. Each applicant receives a
converted test score which may range from 1 to 20. The minimum converted test
score which such an applicant must achieve in order to be employed by Respondent
is 8. When Guertin took the personnel test in March 1960, he attained a score of 6.
Fitzgerald was informed that Guertin had been referred by the Teamsters Local 251
and had received a test score of 6. In order not to disappoint the Teamsters because
all but a few of the applicants referred by the Teamsters had been rejected and
because "Guertin seemed like an eager, sincere fellow," Fitzgerald decided to hire
Guertin Two or three months after Guertin was employed, Polusky first found out
that Guertin had received a test score of 6. At that time Polusky mentioned to
Fitzgerald that the latter had an employee in Providence "who certainly did not
come up to our minimum standards in this test score" and that Polusky "felt it would
be best if we separated the man from our service as quickly as possible." Polusky
did nothing further about it until the spring of 1961 because Respondent was busy
with its expansion program in 1960, because of the busy season in November and
A The findings in this section are based on a composite of the mutually consistent testi-
mony of Fitzgerald, Polusky, and Hylek Neither Fitzgerald nor Polusky denied the
testimony of Hylek, who was subpenaed as a witness by Respondent, that at the third
meeting "they as much as informed me they wanted to be in a position if and when they
sign a contract that they didn't want to have any trouble with the union."
UNITED PARCEL SERVICE, INC. 719
December, and because of the very severe winter in January and February. In
May of 1961, Polusky "recalled to mind a conversation that I had back in the early
part of 1960 was left unfinished," and he went to Providence, where he reviewed
the personnel with Fitzgerald for potential supervisory material. Polusky brought
up Guertin's test score, asked how his work was, and what type of person he was.
Fitzgerald stated that Guertin was doing a good job and that he was satisfied with
his work. Polusky asked if Guertin was ambitious and eager to get ahead. Fitz-
gerald replied in the affirmative, pointing out that Guertin had recently inquired
about the steps necessary for advancement to supervision. Polusky replied that with
a test score as low as Guertin's he would never qualify for supervision, would in
the future become a "frustrated" employee and turn into a "bad apple," and that it
would be best to eliminate that problem by discharging Guertin now. After some
further discussion, Fitzgerald agreed, and Guertin was discharged.'°
I fully agree with the statements in Respondent's brief that neither "the soundness
of the Company's business judgment" nor "the reasonableness of the Company's
personnel standards" are at issue. What is at issue is a determination as to the
Respondent's true motivation for the discharge of Guertin. After careful considera-
tion of Respondent's contentions and the foregoing testimony, I am unable to accept
the contentions or to credit the testimony that the discharge of Guertin was truly
motivated by the reasons advanced by Respondent.
The record shows that Respondent did not adhere strictly to its personnel policies
in other cases. Thus, Polusky testified that in order for a package delivery driver
to be considered for the position of lead driver, he must achieve a minimum test
score of 10; and in order to be considered for a supervisory position, he must achieve
a minimum test score of 12. Yet Polusky admitted, as Respondent's own exhibits
show, that at the Providence operation Reall was made a regular lead driver and
Flack had been made a safety supervisor, with Polusky's knowledge that each had
received a test score of only 9. He also admitted that another package delivery driver
with a test score of only 9, Dantuono, might have a chance of becoming a supervisor.
Indeed, he further admitted that the test score is only a guide to be considered and
does not always truly reflect the person's demonstrated capabilities. Although
Guertin had received the lowest test score among the Providence parcel delivery
drivers, he had already proved himself, and was recognized by Respondent, to be an
exemplary employee. Fitzgerald had recognized his leadership qualities by selecting
him to act as temporary lead driver for a period of about 3 months. In this capacity,
Guertin trained and passed judgment on the abilities of four drivers, three of whom
had received a test score of 10 and the other a test score of 12.11 Two of these drivers
failed to make the grade and were discharged for cause.
Polusky further testified that Guertin was discharged on the basis of his low test
score plus the fact that Fitzgerald had mentioned that Guertin had spoken to him
about the possible chances of future promotion within the Company. He admitted
that he did not consider all the package delivery drivers at the Providence operation
as potential supervisors. He testified, however, that he does not consider discharging
them because he had no knowledge that they aspire to become supervisors.
Significantly, the only reason which Fitzgerald gave Guertin at the time of his
dicharge was that it was discovered that Guertin had flunked the applicant's test by
two points. Finally, Polusky further admitted that, even if Guertin had not in-
quired about the possibilities for advancement, he still would have ordered his
discharge solely on the basis of the low test score which he received in March 1960.
Yet, he admittedly had not ordered Guertin's discharge when he first learned of
Guertin's low test score in the spring of 1960, before Guertin had had an op-
portunity to demonstrate his ability to perform satisfactorily. Polusky's testimony
that about a year later he recalled to mind that the conversation he had with Fitz-
gerald in regard to Guertin in the early part of 1960 was left unfinished, strains
credulity to the breaking point and is not credited. No explanation was given as to
why Polusky would have ordered Guertin's discharge after he admittedly had al-
ready made the grade, as demonstrated by his employment record, solely because
he had received too low a test score 15 months earlier, a test score whose admitted
purpose was merely to serve as a guide in determining whether Guertin could have
made the grade. Respondent's inconsistency in this respect is further emphasized
by Polusky's testimony that they feel they have accomplished something when they
1o After the filing of the charge in this proceeding, Polusky reviewed Guertin's test and
found an error In the scoring, which should have been 5 instead of 6. However, he testi-
fied that the decision to discharge Guertin was based on the test score of 6.
11 The test scores of the four drivers trained by Guertin were as follows: Mackisey, 12;
Demus, 10; Plourde , 10; and White, 10.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hire a package delivery driver who "makes the grade." Moreover, in those areas in
New England where Respondent has made exceptions by hiring package delivery
drivers with test scores even lower than that of Guertin, these employees are still
in Respondent's employ because they are performing satisfactorily. Polusky ad-
mitted that there was an extremely large turnover among the package delivery
drivers, that it was necessary to interview about 100 applicants to get about 6
qualified package delivery drivers, and that a tight labor market existed in the
Providence area during the few months preceding the instant hearing. In the
light of these admitted facts, it seems strange, to say the least, that Polusky should
refuse, as he testified, even to consider rehiring Guertin, a man who admittedly had
already made the grade as a package delivery driver.
I am convinced and find that the reasons asserted by Respondent for the dis-
charge of Guertin were pretexts seized upon to conceal Respondent's true motivation.
7. Concluding findings
Respondent is not an antiunion employer in the traditional sense of the word.
It has recognized locals of the Teamsters as bargaining agents of its drivers at
other facilities. When the Providence operation was established, Respondent orally
recognized the Teamsters Local 251 as bargaining agent, authorized the checkoff of
union dues, agreed to require employees to become members within 30 days of their
employment, and recognized Anderson as the shop steward.
There was, however, no written contract governing terms and conditions of em-
ployment at the Providence operation. Of the large number of applicants referred
by the Teamsters for parcel delivery driver positions, only four were hired by Fitz-
gerald; by November 16, 1960, Guertin was the lone survivor of these four. The
remaining work force of parcel delivery drivers, although having become new mem-
bers within 30 days of their employment, were new to unionism and did not appear
to display an active interest in union affairs. There was no forceful and energetic
union steward on the premises. Anderson had been ineffective as a union steward
and had not accomplished anything. And with the discharge of Anderson on
November 16, 1960, there was no union steward employed at the Providence opera-
tion and virtually no igrievances processed by the Union. The foregoing quiescent
relationship with the Teamsters was the status quo enjoyed by the Respondent and
which it was desirous of maintaining. For it enabled Respondent, as Fitzgerald
told a group of parcel delivery drivers, to do "what it wants, and not the way the
union wants." Guertin's activities and ambitions to become union steward posed a
threat to the continuance of this status quo.
Fitzgerald knew that Guertin's membership in the Teamsters Local 251 extended
back to about a year before he was hired by Fitzgerald. Guertin sought to stimulate
an interest among the parcel delivery employees to become more active and to
participate in union affairs. Thus, when there was a scheduled election for a
business agent of the Teamsters in the fall of 1960, Guertin tried to get the other
drivers to take an interest in the election and to go with him to the union hall to
vote. Fitzgerald at that time cautioned Guertin not to "push it," "that these fellows
are new."
After Anderson's discharge, there was considerable discussion among the parcel
delivery drivers at Respondent's warehouse about the need for a union steward and
as to who would make a good replacement for Anderson Admittedly aware of such
discussions, Fitzgerald sought to discourage the employees from selecting any
effective steward. Thus, in the latter part of November 1960, when the parcel
delivery drivers were discussing the effect of the heavy workload on their lunch hours,
one of the drivers pointed out the need for a shop steward. Fitzgerald took issue
with this observation, stating that "We don't need a shop steward. United Parcel
does what it wants, and not the way the Union wants."
Guertin's name was frequently mentioned by the men, in their discussions around
Respondent's warehouse, as one who would make a good steward to fill the vacancy
resulting from Anderson's discharge Fitzgerald had overheard Guertin's name
mentioned in this respect. While a few other names had also been mentioned by
some of the drivers, Fitzgerald's interest centered only on Guertin. Fitzgerald was
aware that Guertin was an energetic, eager worker with demonstrated leadership
qualities while serving as a temporary lead driver, that he was the only parcel
delivery driver still working at the Providence operation who had been referred by
the Teamsters, and that he was attempting to get the other drivers to take a more
active interest and participation in union affairs. That Fitzgerald was concerned
only about Guertin, among those who had been mentioned for shop steward, is
demonstrated by the fact that only Guertin was interrogated by-him in this con-
UNITED PARCEL SERVICE, INC. 721
nection. I am convinced that this concern was based upon his apprehension that
Guertin would be an energetic, forceful, and effective union steward who would
make it more difficult for United Parcel to do "what it wants, and not what the union
wants."
Fitzgerald thereupon first undertook to determine whether Guertin would accept
the position of union steward by interrogating him in this connection in February
and April 1961. When Guertin informed Fitzgerald on both occasions that he
would accept, Fitzgerald attempted to discourage him by taking the position that he,
Fitzgerald, did not think they needed a union steward and by asking Guertin why he
thought one was needed. Guertin's reply revealed the importance and value which
he attached to the position. Thus, Guertin indicated that it would be more effective
to have a man running to his steward with a grievance than to his boss, and that the
men would feel much more secure to have a steward to back them up in their griev-
ances These views tended to confirm Fitzgerald's fears that with a union steward
like Guertin, Respondent would be confronted with frequent union grievances which
would make it more difficult for Respondent to have its own way.
About the middle of April 1961, a group of 9 or 10 parcel delivery drivers fol-
lowed Guertin's suggestion and went with him to the union hall, where Business
Agent Hylek was questioned about the effect of a rumored strike among the trailer
drivers, about the progress on a contract for the delivery drivers, and about the
appointment of a steward to replace Anderson Although all the employees asked
questions, Guertin did most of the talking and was the one who wanted to know when
they would get their contract. About a week later, Fitzgerald called Guertin into his
office, accused him of being "unhappy" with his job, and reproached him because
he (Fitzgerald) had to learn about these matters from "outside sources and not the
inside." Under all the circumstances, I find that Fitzgerald had reference to Guertin's
discussions with Hylek at the union hall the previous week.
Polusky admitted that he knew that Respondent had recognized the Teamsters
Local upon the inception of the Providence operation, that the practice was followed
of having an employee sign a form authorizing dues deductions as part of the hiring
interview, that Anderson had been recognized as the union steward, that Anderson
was discharged in November 1960, and that there was no union steward at the
Providence operation after Anderson's discharge. In view of the fact that the fore-
going details had been reported to Polusky, I am convinced and find that Fitz-
gerald also informed Polusky, when the latter visited the Providence operation in
May 1961, of Guertin's union activities, his consideration by the drivers for the
vacancy of union steward, his expressed desire to become the union steward, his
exemplary employment record and leadership qualities, and Fitzgerald's concern
that Guertin would conduct himself in such a forceful and effective manner as a
union steward as to disrupt Respondent's quiescent relationship with the Union.
After further discussion, the decision was made to forestall such eventualities by the
immediate discharge of Guertin. The low test score which Guertin had received as
an applicant 15 months ago, plus his alleged ambition for advancement to super-
vision were seized upon as suitable pretexts for the discharge. Without any prior
notice or warning, Fitzgerald then summarily discharged Guertin for the asserted
reason that it was discovered that he had flunked the applicant's test by two points
at the time when he was hired.
I have no doubt that concern over Guertin's ambitions played a part in motivating
his discharge. But the concern was over his ambition to occupy the position of
union steward. My conviction that this truly was the primary motivating cause for
his discharge is further strengthened by the admission of Polusky and Fitzgerald
in the postdischarge meeting with Hylek that "they wanted to be in a position if and
when they sign a contract that they didn't want to have any trouble with the union,"
as well as by the fact that the "explanation of the discharge offered by Respondent
did not stand up under scrutiny." i2
Upon consideration of all the foregoing and the entire record as a whole, I find
that the decision to discharge Guertin was motivated by his union activities and his
expressed interest and desire to become the union steward. By such conduct, Re-
spondent discriminated with respect to Guertin's hire and tenure of employment,
thereby discouraging membership in a labor organization, in violation of Section
8(a)(3) and (1) of the Act.
B. Interference, restraint, and coercion
In agreement with the General Counsel, I find, as alleged in the complaint, that
under all the circumstances disclosed by this record,, Respondent independently inter-
is N L R B v. Abbott Worsted Mills, Inc., 127 F. 2d 438, 440 (C.A. 1).
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered with , restrained , and coerced Guertin in the exercise of his statutory rights, in
violation of Section 8(a)( I) of the Act, by the conduct of Fitzgerald in interrogating
Guertin on two separate occasions as to whether he would accept the position of
union steward , and on the second occasion also interrogating Guertin as to his views
and beliefs concerning the need for a union steward contemporaneously with Fitz-
gerald 's announcement that they did not need a union steward.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and from in any other manner 13
interfering with, restraining, and coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act. I will further recommend that Respondent take
certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily discharged Vincent G. Guertin on
May 26, 1961, in violation of Section 8(a)(3) and (1) of the Act, I will recommend
that Respondent offer him immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of earnings he may have suffered by
payment to him of a sum of money equal to the amount he normally would have
earned as wages from the date of his discharge to the date of Respondent's offer of
reinstatement, less his net earnings during said period, with backpay to be computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, 291-294. I will also recommend that Respondent pre-
serve and make available to the Board or its agents, upon request, for examination
and copying, all payroll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to analyze and compute
the backpay.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local 251, is a labor organization within the meaning of Section
2 (5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of Vincent
G. Guertin, thereby discouraging membership in the above-named labor organiza-
tion, the Respondent has engaged and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By the foregoing and by the conduct set forth in section III, B, supra, the Re-
spondent has interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed by Section 7 of the Act and thereby has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, as amended, I hereby recommend that United
Parcel Service, Inc., Providence, Rhode Island, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local 251, or any other labor or-
ganization, by discriminatorily discharging or refusing to reinstate any of its employees
or by discriminating in any other manner in regard to their hire and tenure of em-
ployment or any term or condition of employment.
ie See N.L.R.B. V. Entwistle Mfg. Co., 120 F. 2d 532 (CA. 4).
UNITED PARCEL SERVICE, INC. 723
(b) Interrogating employees with respect to their desires, views, and attitudes
concerning the position of union steward, in a manner constituting interference,
restraint, and coercion within the meaning of Section 8(a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to Vincent G. Guertin immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole in the manner set forth above in the section
entitled "The Remedy" for any loss of earnings he may have suffered by reason of
the discrimination against him.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll and other records pertinent to an analysis
of the amount due as backpay.
(c) Post at its facility in Providence, Rhode Island, copies of the notice attached
hereto marked "Appendix." 14 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20 days from the date of
the receipt of this Intermediate Report, what steps the Respondent has taken to
comply herewith.15
I further recommend that unless within the prescribed period the Respondent
notifies the said Regional Director that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
14 In the event that these recommendations be adopted by the Board, the words "A Deci-
sion and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event the Board's Order be enforced by a decree
of a United States Court of Appeals, the words "Pursuant to a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursu-
ant to a Decision and Order."
15 In the event that these recommendations be adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in witting, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 2-) 1, or
any other labor organization of our employees, by discriminatorily discharging
or refusing to reinstate any of our employees or by discriminating in any other
manner in regard to their hire and tenure of employment or any term or condi-
tion of employment.
WE WILL NOT interrogate employees with respect to their desires, views, and
attitude concerning the position of union steward, in a manner constituting inter-
ference, restraint, and coercion within the meaning of Section 8(a)(1) of the
Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their right to self-organization, to form, join, or assist
64179:5-03-v of 136--47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for their mutual aid or pro-
tection, or to refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section 8(a)(3)
of the Act , as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer to Vincent G. Guertin immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to his seniority or
other rights and privileges , and make him whole for any loss of earnings he may
have suffered as a result of his discharge.
UNITED PARCEL SERVICE, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posited for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Penobscot Bay Longshoremen 's Local 1519 [Jarka Corporation
of New England ] and Walter S. Hickson and Ernest Beam.
Cases Nos. 1-CB-690 (1-2) and 1-CB-699. March, 30, 1962
DECISION AND ORDER
On October 16, 1961, Trial Examiner Sidney Lindner issued his
Intermediate Report herein finding that the Respondent had engaged
in and was engaging in unfair labor practices in violation of Section
8(b) (1) (A) and (2) of the Act and recommending that it cease and
desist therefrom and take certain affirmative action as set forth in
the Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.' The General Counsel filed a brief in support of the Inter-
mediate Report.2
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs, and
the entire record in this case and adopts the findings, conclusions, and
recommendations of the Trial Examiner.
'The Respondent requested oral argument in this case. However , as the record and
the briefs in this case adequately present the positions of the parties , the motion Is
hereby denied.
2 The General Counsel filed a motion requesting permission to file Its brief late. Due
to inadvertence , notice of an extension of time for filing exceptions was not communi-
cated to counsel for the General Counsel . As no objections were raised to General
Counsel's motion , we hereby grant It.
136 NLRB No. 69.