United Parcel Service, Inc.

National Labor Relations Board - Board Decisions

May 10, 1976

223 N.L.R.B. 1381 (N.L.R.B. 1976)

UNITED PARCEL SERVICE, INC. 1381
United Parcel Service, Inc. and Teamsters Local
Unions Nos . 70, 78, 87, 137, 150, 241 , 278, 287, 315,
431,439, 490, 576, 624, 665, 684, 856, 890, 912, 980,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 20-CA-10475
May 10, 1976
DECISION AND ORDER
By MEMBERS JENKINS , PENELLO, AND WALTHER
On February 10, 1976, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
a charge filed September 26 by International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereinafter referred to as the Union. The com-
plaint alleges that United Parcel Service, Inc., hereinafter
referred to as Respondent, violated Section 8(a)(5) and (1)
of the National Labor Relations Act, hereinafter referred
to as the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross- examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is now, and at all times material herein has
been, an Ohio corporation engaged in the operation of a
parcel delivery service in 36 States, including California.
During the past year, Respondent, in the course and con-
duct of its business operations, received gross revenues in
excess of $50,000 earned in the interstate transportation of
parcels. I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, United Parcel Service,
Inc., Northern California and Sparks, Nevada, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F .2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS , Administrative Law Judge: This
matter was heard at San Francisco, California, on January
8, 1976.' The complaint,2 issued September 30, is based on
1 All dates hereinafter are in 1975 unless stated to be otherwise.
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is now, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates an extensive transportation system
for delivery of parcels. The parcels are sorted and assem-
bled for delivery at delivery centers manned by sorters,
truckdrivers, clerks, and managers. Roy Hebebrand is dis-
trict manager for Northern California, with responsibility
for 10 or 11 divisions which administer 39 delivery centers.
Managers of the division report to Hebebrand.
The parties to this controversy are parties to a collective-
bargaining agreement ° effective July 1, 1973, to March 31,
1976. The agreement provides that all regular drivers shall
be offered not less than 5 days (8 hours each) of employ-
2 As amended at hearing to add the name of Charles Buckridge to par. 5.
3 On January 23, 1976, General Counsel filed a motion to reopen the
record and to permit introduction of G.C. Exh. 3 for identification , inadver-
tently not offered into evidence at hearing . Said motion states that a copy
thereof was served upon Respondent . No opposition having been filed to
the motion, and good cause appearing therefor, said motion hereby is grant-
ed and said exhibit is admitted into evidence.
4 G.C. Exh. 2.
223 NLRB No. 208
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment in any I scheduled week , and also provides for over-
time pay. The agreement includes a section that lists
straight time hourly rates for all employees in the bargain-
ing unit.
The Company has determined normal production fig-
ures for parcel sorters and drivers . Each driver run is com-
puted to require , under normal circumstances , a given peri-
od of time . As the contract has been administered in the
past by the parties , if a driver completes an 8-hour route in
less than 8 hours, the Company can require that he work
out his 8-hour shift on another route , or it can release the
driver for the rest of the day. If the driver is released, the
Company is required by the contract to pay him for the full
8 hours of the shift . If a driver requires more than 8 hours
to complete a route , he is paid overtime for all hours
worked in excess of the 8-hour shift.
On May 27 Respondent unilaterally instituted a pay
plan 5 which was intended to provide an incentive for in-
creased driver production.' The Union was not notified
that the plan was going to be introduced, nor was it noti-
fied by Respondent after it was introduced . The pay plan
was instituted at all delivery centers on May 27, at 6 cen-
ters on June 22, and at various other centers in June, July,
September , October, and November . Under the pay plan,
if a driver completes an 8-hour route in 6 hours and works
on another route for the remaining 2 hours of the shift, he
is paid for 10 hours of work . If the driver wants to go home
after completing an 8-hour run in 6 hours , he may do so
and he will receive pay for 8 hours . However, Respondent
retains the right to send the driver on another route for the
remaining 2 hours, if such is necessary.
spokesman for Respondent was Charlie Campillo and that
Campillo proposed a method of computing wages on other
than a straight-pay-per-hour basis . Chapman said Jerry
Beatty, chief spokesman for the Union, replied with strong
and obscene language and stated "We don't want that kind
of thing like they have down in Los Angeles." Frank Del-
lari testified that he participated in all negotiations prior to
execution of the collective -bargaining agreement and took
notes of all meetings . He stated that he recalled no discus-
sion such as that related by Chapman and further stated
that Beatty is a religious person who seldom swears. Based
on observation of the witnesses and their demeanor, Del-
lari is credited. It is found that the subject of the pay plan
was not mentioned during the aforesaid negotiation ses-
sions.
Hebebrand acknowledged that, in early June, he was in-
formed by some delivery center managers that the Union
posted on bulletin boards notices to employees instructing
them not to honor the pay plan. He said he probably saw
the notices, and he testified that he instructed the delivery
center managers to take the notices off the boards . On June
I 1 Joe Conley, president of Local 439, addressed a letter 7
to Hebebrand in which the Union protested the pay plan
as a violation of the collective-bargaining agreement. Del-
lari testfied that he received the letter and that no action
was taken relative thereto. Dellari said he believed a griev-
ance about the pay plan was filed pursuant to the contract,
but later was withdrawn . Bernard Zarry credibly testified
that he attended a Teamsters conference in Vancouver on
June 19, 1975, at which Charles Buckridge, Respondent's
national labor relations manager, was present. Zarry stat-
ed:
B. The Issue
Respondent acknowledges that it did not discuss institu-
tion of the pay plan with the Union. It contends that insti-
tution of the plan is not a subject concerning which it is
required to bargain , and that the pay plan is not subject to
the grievance procedure of the contract between the par-
ties.
C. Discussion
Respondent agrees that the pay plan gives drivers a bo-
nus or paid-time off if the employee completes a certain
amount of work in less than the time assigned for that
work by the Company.
William Chapman testified that as secretary -treasurer of
Local 278 he participated in all of the 15 or 20 negotiations
that resulted in the bargaining agreement between the par-
ties. He stated that, during the negotiations, the chief
3 The pay plan had been in effect a number of years prior to May 27 at
locations not involved in this controversy.
6 A somewhat similar plan was tried several months ago for sorters, but
was discontinued . Based on the principles discussed below, that introduc-
tion possibly may have been a violation of Sec. 8 (a)(5) of the Act. However,
the matter was not pleaded or litigated as a violation of the Act, and there
appears to be some question as to whether the matter was discussed with the
Union . In any event, the Order recommended for the violation found below
is adequate to remedy any possible violation inherent in the experimental
pay plan for sorters.
The main purpose of the meeting was called to find
out if United Parcel Service headquarters knew what
was happening here in Northern California as far as
the pay plan was concerned.
Zarry testified "Everybody was more or less up at arms,"
and that a strike was threatened . He said Buckridge told
him he would look into the matter . Dellari testified he
talked about the matter with Buckridge , but received no
instructions relative thereto . Hebebrand testified that, to
his knowledge, the Teamsters never agreed to implementa-
tion of the pay plan.8
In view of the record thus made it is clear , and found,
that the Union did not expressly waive any right to object
to the pay plan nor had it, as stated by Respondent in its
brief, "slept on such right" or failed to pursue its objective
"with due diligence ." Even had the Union remained silent,
which as shown above it did not, such silence would not
constitute a waiver of its contractual rights. Waiver can be
shown only on the basis of specific expression of a clear
and unmistakable nature' Nor is there any testimony or
evidence on which to base an implied waiver.
t G.C. Exh. 4.
s The Union filed an unfair labor practice charge herein on July 30.
' Wisconsin Aluminum Foundry Co., Inc.. 173 NLRB 1160 (1968). enfd.
440 F .2d 393 (C.A. 7, 1971); Federal Compress & Warehouse Company, 166
NLRB 664 (1967 ), enfd. in relevant part 398 F .2d 631 (C.A. 6, 1968); Per-
kins Machine Company, 141 NLRB 98 (1963); The Jacobs Manufacturing
Company. 94 NLRB 1214 ( 1951); Timken Roller Bearing Company, 138
NLRB 15 (1962), enfd . 325 F .2d 746 (C.A. 6. 1963).
UNITED PARCEL SERVICE, INC. 1383
So far as the pay plan itself is concerned, it is without
question, as acknowledged by Hebebrand, in the nature of
"a bonus or paid time off if the employee completes a cer-
tain amount of work in less than the time assigned for that
work.... " Respondent argues that ". . . the pay pro-
gram was merely the extension of the daily guarantee con-
cept in the contract. . . ." That argument is without merit,
for several reasons: (a) Hebebrand agreed that the plan
constituted a "bonus" or "paid time off"; (b) the Union
did not like the plan, and said so in strong and certain
terms; (c) Respondent, and admittedly Hebebrand, knew
the Union did not like the plan; (d) if the plan was no
different from, or only an "extension," of the contractual
provision, there would be no necessity for treating it as an
innovation, as Respondent clearly did; and (e) Hebebrand
acknowledged that the purpose of the plan was to provide
an incentive for greater production. Under such circum-
stances, it is clear, and found, that the pay plan differed
from the wage provisions of the contract between the par-
ties and was a subject that required bargaining with the
Union.10
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with the operations of Re-
spondent as set forth in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action necessary to effectuate the policies of the Act.
I shall also recommend that Respondent, upon request,
shall rescind the pay plan and shall cease and desist from
instituting changes in the wages, hours, and other terms
and conditions of employment of its employees during the
effective term of the collective-bargaining agreement cov-
ering said employees without first reaching agreement with
the Union concerning such changes.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All package drivers, pickup and parcel delivery help-
10 C & S Industries , Inc., 158 NLRB 454 (1966); C & C Plywood Corp., 385
U.S. 421 (1967).
ers, delivery center positioners, servicemen, center clerks,
central sorters, way billers, belt workers, fork lift drivers,
tractor drivers and hostlers, hub employees, hub sorters,
delivery center employees, tire service persons, parts per-
sons, assistant parts managers, warehouse persons, file
clerks, mail clerks, typist, telephone receptionist, teletypist,
records clerks, supply clerks, customer service clerks, per-
sonnel clerks, automotive clerks, accounts payable clerks,
accounts receivable clerks, payroll clerks, center clerks, de-
livery information clerks, and air department clerks em-
ployed by Respondent in its Northern California and
Sparks, Nevada locations; excluding confidential employ-
ees, professional employees, guards and supervisors as de-
fined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein the Union has been, and
is, the exclusive representative of all employees within said
appropriate unit for the purposes of collective bargaining.
5. By unilaterally instituting an incentive pay plan, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. The aforesaid unfair labor practices affect commerce,
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER II
Respondent, United Parcel Service, Inc., Northern Cali-
fornia and Sparks, Nevada, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the above-
named labor organization as the exclusive representative of
its employees in the following appropriate unit with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment:
All package drivers, pickup and parcel delivery
helpers, delivery center positioners, servicemen, center
clerks, central sorters, way billers, belt workers, fork
lift drivers, tractor drivers and hostlers, hub employ-
ees, hub sorters, delivery center employees, tire service
persons, parts persons, assistant parts manager, ware-
house persons, file clerks, mail clerks, typist, telephone
receptionist, teletypist, records clerks, supply clerks,
customer service clerks, personnel clerks, automotive
clerks, accounts payable clerks, accounts receivable
clerks, payroll clerks, center clerks, delivery informa-
tion clerks, and air department clerks employed by
Respondent in its Northern California and Sparks,
Nevada locations; excluding confidential employees,
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employees , guards and supervisors as de-
fined in the Act.
(b) Making unilateral changes in wages, rates of pay, or
other terms and conditions of employment of its employees
in the above-described appropriate unit during the term of
the contract without first reaching agreement with the
above-named Union concerning such changes.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Upon request of the above-named Union, rescind
any pay plan which Respondent may have unilaterally in-
stituted.
(b) Post at all its delivery centers in Northern California
and Sparks, Nevada , copies of the attached notice marked
"Appendix" 12 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by Respondent 's representative , shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter , in con-
spicuous places , including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
12 In the event the Board 's 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"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclu-
sive representative of the employees in the following
bargaining unit:
All package drivers, pickup and parcel delivery
helpers, delivery center positioners, servicemen,
center clerks, central sorters, way billers, belt work-
ers, fork lift drivers, tractor drivers and hostlers, hub
employees, hub sorters, delivery center employees,
tire service persons, parts persons, assistant parts
managers, warehouse persons, file clerks, mail
clerks, typist, telephone receptionist, teletypist, rec-
ords clerks, supply clerks, customer service clerks,
personnel clerks, automotive clerks, accounts paya-
ble clerks, accounts receivable clerks, payroll clerks,
center clerks, delivery information clerks, and air
department clerks employed by Respondent in its
Northern California and Sparks, Nevada locations;
excluding confidential employees, professional em-
ployees, guards and supervisors as defined in the
Act.
WE WILL NOT unilaterally institute changes in wages,
hours, or other terms and conditions of employment
of the employees in the bargaining unit described
above during the term of any collective-bargaining
agreement covering said employees, without first con-
sulting with and bargaining with the Union concern-
ing such changes and reaching agreement on any
modification of the terms of the contract.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union as the exclusive representative of all the
employees in the bargaining unit described above with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if
an understanding is reached, embody such an under-
standing in a signed agreement.
WE WILL revoke the incentive pay plan for our em-
ployees which we unilaterally instituted on or about
May 27, 1975.
UNITED PARCEL SERVICE, INC.