United Parcel Service, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 667 (N.L.R.B. 1985)

UNITED PARCEL SERVICE
United Parcel Service, Inc. and Dominic Garcia.
Case 32-CA-5233
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 14 March 1984 Administrative Law Judge
Harold A. Kennedy issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent did not
violate Section 8(a)(1) of the Act by discharging al-
leged discriminatee Dominic Garcia and later re-
ducing his discipline to a suspension. In so finding,
the judge failed to rule on the Respondent's princi-
pal argument that the dispute should be deferred
under Spielberg Mfg. Co.' to the decision of a joint
labor management committee. Without passing on
the merits of the alleged unfair labor practice, we
find that the judge erred in not deferring to the
grievance award and, on that basis, we shall dis-
miss the complaint in its entirety.
The facts2 show that the Respondent operates a
facility in Stockton, California, where it is engaged
in the distribution of packages. The Respondent's
delivery drivers at the Stockton Center are repre-
sented by the Union3 and are covered by the
"Northern California Package Rider," a collective-
bargaining agreement effective from 1 May 1982
through 1 June 1985. On 24 January 19834 Do-
minic Garcia was employed as a delivery driver for
the Respondent at its Stockton Center. On that day
Garcia was accompanied on his route by Supervi-
sor Bruce Winslow, who instructed Garcia on at
least two occasions to honk his horn when making
residential deliveries as that was one of the deliv-
ery methods developed by the Respondent to pro-
mote effective and efficient deliveries. Garcia re-
fused, stating that he believed such action would be
against the law. After returning to the facility,
1 112 NLRB 1080 (1955)
2 The General Counsel excepted to the judge's failure to make credibil-
ity resolutions with regard to disputed testimony Although the judge
may not have resolved minor conflicts in the testimony , the facts which
are essential to the resolution of this case are not in dispute
General Teamsters Local No 439, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica
* All dates are 1983 unless otherwise indicated
667
Garcia and shop steward Joe Gatz attended two
meetings with management representatives during
which Garcia admitted that he refused Winslow's
direct order to honk his horn and reiterated that he
thought tapping the horn would violate a city ordi-
nance or the State's vehicle code. During the
second meeting District Manager Robert Elizondo
suggested that rather than refuse a direct order
Garcia initially should follow the horn tap instruc-
tions and, at a later time, take the matter up with
the union business agent or file a grievance. When
Garcia persisted in his refusal to perform his work
as directed, he was discharged for insubordination.
The Union immediately filed a grievance over
Garcia's discharge. On 8 February the grievance
was heard by the "Teamsters-UPS Labor Manage-
ment Committee" pursuant to article 7, section 2,
of the parties' collective-bargaining agreement.
That provision reads, in pertinent part:
(A) There shall be a United Parcel Service
Labor-Management Committee composed of
three (3) representatives of the Union . . . and
there shall be three (3) representatives of the
Employer.
The Committee shall formulate such rules of
procedure as it may deem advisable, and such
rules of procedure will be made known to all
parties under the Agreement.
Regular meetings of the Committee shall be
held on the agreed upon day of each month to
pass upon matters referred to it . . . .
A majority decision of the Committee shall
be final and binding upon the parties.5
According to article 7, section 1(a), of the collec-
tive-bargaining agreement, it is the function of the
Joint Committee to resolve disputes which cannot
be settled by representatives of the Respondent and
the appropriate local union within 5 days of the oc-
currence of the matter in dispute.
Garcia attended the hearing on his grievance and
was represented by his business agent and shop
steward Gatz. The facts relating to the events of 24
January were presented to the Joint Committee, in-
cluding the conversations between Garcia and
Winslow on the delivery truck and the remarks
made at the two meetings subsequently held at the
facility. The text of section 27001 of the California
Motor Vehicle Code6 was recited to the panel, and
5 The collective-bargaining agreement's lengthy grievance provisions
provide for the processing of grievances through several stages A major-
ity decision at any stage is final and binding , and a deadlock provides for
appeal to a higher stage
Sec 27001 provides, in pertinent part, that
(a) The driver of a motor vehicle when reasonably necessary to
insure safe operation shall give audible warning with his horn
Continued
274 NLRB No. 93
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the provisions of article 11, sections 2 and 3, of the
collective-bargaining agreement7 were relied on by
Garcia and his union representative as justification
for Garcia's refusal to honk his horn. In essence,
the Union argued that the Respondent could not
demand that Garcia honk his horn because honking
under the Respondent's policy was against the law.
The Respondent argued that Garcia's persistent re-
fusal to follow instructions constituted gross insub-
ordination. After hearing the arguments and testi-
mony of both parties, the panel issued its final and
binding award. As indicated in the minutes of its 7-
8 February meeting,8 the Joint Committee agreed
to reduce Garcia's discharge to a 10-day suspension
to run concurrently with a previous 5-day suspen-
sion resulting from matters not at issue here.9
The judge found that Garcia's refusal to follow
his supervisor's instructions to honk his horn when
making deliveries in residential areas was not pro-
tected concerted activity. Relying on the Board's
recent decision in Meyers Industries,10 the judge
concluded that Garcia acted alone in refusing to
tap his horn and that his protest had a purely per-
sonal basis . In view of his finding that Meyers was
controlling, the judge declined to address the Re-
spondent's Spielberg defense. The General Counsel
contends that the judge erroneously overlooked the
distinction between the employee's purely personal
conduct in Meyers and an individual's assertion of a
right grounded in a collective-bargaining agree-
ment. The latter conduct has been recognized as
"concerted activity" under the Board's longstand-
ing Interboro doctrine, i i which doctrine recently
was endorsed by the Supreme Court in its decision
in NLRB v. City Disposal Systems. i 2 The General
Counsel further argues that deferral to the decision
of the Joint Committee is inappropriate as that de-
cision is repugnant to the Act. We agree with the
General Counsel that the judge erroneously applied
the rationale of Meyers as opposed to Interboro to
(b) The horn shall not otherwise be used except as a theft alarm
system
7 Art 11, sec 2, of the agreement provides , in relevant part, that
Under no circumstances will an employee be required or assigned
to engage in any activity involving dangerous conditions of work or
danger to person or property or in violation of any applicable statute
or court order , or in violation of a government regulation relating to
safety of person or equipment
Art 11, sec 3, provides in relevant part
No driver shall be required to violate traffic laws or overloading
regulations
s During its 2-day meeting , the Joint Committee discussed approxi-
mately 30 grievances
9 The record shows that written minutes are kept for each Joint Com-
mittee meeting by the secretary of the committee The minutes are re-
viewed for accuracy by the employer and union "co-chairmen" prior to
publication as official minutes
10 268 NLRB 493 (1984)
11 Interboro Contractors, 157 NLRB 1295 (1966), enfd 388 F 2d 495 (2d
Cir 1967)
12 104 S Ct 1505 (1984)
the facts involved in this case. However, we do not
here consider the merits of the underlying unfair
labor practice allegation because we find merit in
the Respondent's contention in its brief to the
Board that we should defer to the decision of the
Joint Committee.13
It is well established that the Spielberg doctrine is
applicable to final and binding decisions of a bipar-
tisan panel such as the one involved in this case.14
Regarding the Spielberg criteria, as elucidated re-
cently in Olin Corp., i 5 there is no question that the
Joint Committee's proceedings were fair and regu-
lar and that the parties agreed to be bound. Fur-
ther, the General Counsel concedes that the con-
tractual issue is factually parallel to, the unfair labor
practice issue and that the panel was presented
generally with the facts relevant to resolving the
unfair labor practice. In Olin, the Board majority
emphasized that the party arguing against deferral
must demonstrate that there are deficiences in the
arbitral process or award requiring the Board to
ignore the resulting award and subject the case to
de novo review. For reasons stated below, we find
that the General Counsel has failed to sustain this
burden and has failed to establish that the Joint
Committee's award is "clearly repugnant to the
Act" as that phrase is defined in Olin Corp.
In City Disposal the Supreme Court recognized
that the principal tool by which an employee in-
vokes the rights granted him in a collective-bar-
gaining agreement is the processing of a grievance
according to whatever procedures his contract es-
tablishes. In that case, an employee, rather than
filing a grievance, chose to refuse to drive a truck
that he believed to be unsafe. The Supreme Court
noted that the employee's refusal to drive the truck
was reasonably well directed toward the enforce-
ment of the employee's contractual right to be free
of an obligation to drive an unsafe vehicle, and that
the employee had no other means available by
which to enforce his rights. The Court reasoned
that, had the employee gone ahead and driven the
truck, the issue may have been moot The Supreme
Court further noted that the alternatives available
to an employee depend in part on the employer's
reaction to an employee's initial protest and in part
on the nature of the right at issue. Here, the Re-
spondent's response to Garcia's protest was to urge
him to file a grievance, and a grievance was indeed
13 In light of our decision to defer, we need not pass on the judge's
comment that Meyers is contrary to Transport Service Co, 263 NLRB 910
(1982), and that the latter case therefore is without precedential author-
ity Member Hunter agrees with the judge 's comments and would find
that Transport Service has been sub silentio overruled by Meyers
14 Denver-Chicago Trucking Co, 132 NLRB 1416 (1961), Terminal
Transport Co, 185 NLRB 672 (1970)
i5 268 NLRB 573 (1984)
UNITED PARCEL SERVICE
filed, heard, and decided by the Joint Committee
within about 2 weeks of the incident. i 6
The Supreme Court in City Disposal rejected the
employer's argument that the Interboro doctrine un-
dermines the arbitration process and automatically
shifts dispute resolution from the grievance and ar-
bitration process to Board adjudication. The Su-
preme Court emphasized that, to the extent the fac-
tual issues raised in an unfair labor practice action
have been or could be addressed through the griev-
ance process, the Board may defer to that process.
We have determined that in this case deferral to
the Joint Committee's award is appropriate. Al-
though the award is brief, the Joint Committee's
minutes state that the decision was based on the
facts presented by the parties. Whether the Board
might have resolved the statutory issue under the
facts submitted to the Joint Committee in a differ-
ent manner does not affect the validity of the
award. Further, we note that in City Disposal the
Supreme Court, while finding that an employee's
activity was concerted, declined to pass on wheth-
er the activity also was protected. Even so, the
Court, as discussed above, suggested that the activ-
ity might not be protected if the employee had an
alternative means to secure his rights. Undoubted-
ly, the joint grievance committee involved here
was presented with the facts necessary to resolve
whether the grievance procedure presented a rea-
sonable alternative to Garcia's refusal to tap his
horn as instructed and whether Garcia's refusal to
work as directed properly subjected him to some
form of discipline. We conclude that under the
standards reaffirmed in Olin Corp., the General
Counsel has failed to demonstrate that the Joint
Committee's decision is "palpably wrong," i.e., that
it is not susceptible to an interpretation consistent
with the Act. We further find that the General
Counsel has failed to furnish us with a sufficient
basis for departing from our established policy of
giving binding effect to awards such as the one in-
volved here. 17
16 In July the Joint Committee heard and resolved a grievance filed by
the Union requesting clarification of art 11, sec 3, of the contract in
light of sec 27001 of the California Vehicle Code Based on the Re-
spondent's statement that it would assume full responsibility for any cita-
tion issued under sec 27001, that grievance was denied
17 Member Hunter notes that City Disposal has no bearing on the
standard for deferral but concerns only the issue of whether an individ-
ual's assertion of a right grounded in a collective -bargaining contract is
concerted activity Thus, Member Hunter believes that his colleagues' ex-
tensive discussion of City Disposal is misplaced in that , even assuming
Garcia's conduct to be concerted activity, the sole issue here is whether
the General Counsel has met his burden of showing that the arbitration
award is palpably wrong Insofar as his colleagues conclude that the
General Counsel has not met this burden, Member Hunter agrees with
that conclusion
669
We agree with the Respondent that the volun-
tary resolution of disputes promotes industrial
peace and stability between labor and management.
The Union and the Respondent have utilized their
agreed-on method of resolving disputes in a fair, ef-
ficient, and economical manner. The elaborate and
lengthy grievance procedure established by their
collective-bargaining agreement, as described
above, has been followed for many years and pre-
sumably satisfies both the Union and the Respond-
ent as serving its purpose. As the underlying dis-
pute herein has been fully resolved by the binding
decision of the Joint Committee, a refusal to defer
could undercut the purpose of the grievance mech-
anism and discourage the Union and the Respond-
ent from negotiating their differences and abiding
by their settlements.
For these reasons, we conclude that it would ef-
fectuate the policies of the Act to give conclusive
effect to the award of the Joint Committee and, on
that basis, we shall dismiss the complaint in its en-
tirety.
ORDER
The complaint is dismissed.
DECISION
HAROLD A KENNEDY, Administrative Law Judge.
Respondent United Parcel Service, Inc. (UPS) is charged
in this proceeding, arising out of a complaint issued on
April 26, 1983, with violating Section 8(a)(1) of the Na-
tional Labor Relations Act (Act) by discharging the
Charging Party, employee Dominic Garcia, on February
24, 1983, and not reinstating him "until on or about Feb-
ruary 9, 1983."
The case was heard in Stockton, California, on Sep-
tember 29, 1983. Having considered the entire record
and determined that the General Counsel did not estab-
lish any violations of the Act, the complaint is being dis-
missed. i
The essential facts are not in dispute. Respondent
admits the following facts alleged in the complaint:
1 On February 8 Garcia filed a charge which was
served on Respondent by certified mail about February
11.
2. Respondent is an Ohio corporation engaged in the
distribution of packages and has an office and place of
business in Stockton, California.
3. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act Respondent has sold and shipped, on an annual
basis, goods or services valued in excess of $50,000 di-
rectly to customers located outside of the State of Cali-
fornia. Also, on an annual basis, Respondent has derived
gross revenues in excess of $500,000. Further, during a
12-month period Respondent has purchased and received
1 All dates refer to 1983 unless otherwise stated Certain errors in the
transcript are noted and corrected
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
goods or services valued in excess of $5000 originating
outside of the State of California.
4. General Teamsters Local No. 439, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is a labor orga-
nization within the meaning of the Act.
5 The following persons hold the positions indicated
and are supervisors and agents of Respondent. Robert
Hooper-supervisor; Bruce Winslow-Stockton Center
supervisor,2 Dennis Mahan-Sierra division manager.
6 Respondent discharged Garcia about January 24 and
reinstated him about February 9.
The complaint alleges that Respondent discharged
Garcia-
. . because Dominic Garcia engaged in protected
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, in-
cluding but not limited to refusing to obey a super-
visor's order to violate the State of California Vehi-
cle Code, where such refusal was permitted under
the terms of a collective bargaining agreement.
On January 24 Charging Party Dominic Garcia
worked as a delivery driver for Respondent UPS, driv-
ing and making package deliveries in the Stockton, Cali-
fornia area. On that particular day Garcia was accompa-
nied by Supervisor Bruce Winslow, who pointed out to
Garcia that one of the delivery methods that a UPS
driver was to utilize when making home deliveries was
to honk the vehicle's horn. Garcia indicated in response
that he would not utilize such method as he believed it
to be in violation of the law. Garcia did not honk the
horn in making any deliveries that day. Garcia attended
two meetings with management representatives later that
day and restated that he would not utilize such delivery
method as he believed it to be a violation of law. Garcia
was discharged effective January 24 for insubordination
On February 8 a Teamsters-UPS Labor Management
Committee panel, after hearing presentations by the
Company and the Union, reduced the discharge to a 10-
day suspension, such suspension "to run concurrently
with the previous five (5) day suspenion" that had been
issued the previous day by another Teamsters-UPS panel
which had considered a grievance filed in protest to the
Company's notice of intent to discharge Garcia for inad-
equate production.
The following exhibits were offered by the parties at
the outset of the hearing:
Joint Exhibit 1-UPS' discharge letter dated January
25 stating that Garcia was being discharged as of
Monday, January 24, for "gross insubordination" for re-
fusing to work as directed.
Joint Exhibit 2-UPS' National I.E. Bulletin 4 which
outlines use of the "Four-Way Attack Attention
Method" (tap horn, call out, knock, and ring bell) in
making single family residential stops.
Joint Exhibit 3-Northern California Package Rider
agreement between certain Teamsters Locals, including
2 Winslow testified that he became manager of another UPS center
(Harbor Center) shortly before the trial of this matter
Local 439, and United Parcel Service, covering the
period May 1, 1982, through June 1, 1985.
Joint Exhibit 4-Text of section 27001 of the Califor-
nia Vehicle Code, which reads:
27001 (a) The driver of a motor vehicle when
reasonably necessary to insure safe operation shall
give audible warning with his horn.
(b) The horn shall not otherwise be used, except
as a theft alarm system which operates as specified
in Article 13 [commencing with Sec. 28085] of this
chapter.
Joint Exhibit 5-"List of California Vehicle Code Vio-
lations Used in Negligent Operator Count," a publication
available through California's Division of Motor Vehi-
cles.
Joint Exhibit 6-Teamsters-UPS Labor Management
Committee Minutes dated February 7 and 8. One entry
(UPS 02-83-1587) indicates that the proposed discharge
of Dominic Garcia (for inadequate production) was re-
duced to 5 workdays' suspension Another entry (UPS
02-83-1594) indicated that the discharge of Dominic
Garcia for insubordination was reduced to a 10-day sus-
pension "to run concurrently with the previous five (5)
day suspension."3
Five witnesses testified, two for the General Counsel
and three for Respondent The General Counsel recalled
one of its witnesses, Charging Party Garcia, as a rebuttal
witness, and Respondent recalled one of its witnesses,
Stockton Center Manager Bruce Winslow. Their testimo-
ny will be summarized in order of their appearance.
Dominic Garcia, the Charging Party, testified that he
had worked for UPS for 16 years in different capac-
ities-as a washer, shuttle driver, feeder driver, and final-
ly as a delivery driver. Garcia stated that for the last
year and a half he had been delivering packages out of
the Stockton Center. He testified that about 90 percent
of his deliveries were made to businesses with the bal-
ance being made to residences. He said he works 5 days
a week, Monday through Friday, starting at 8:15 a.m.
and working "until . . . finished," which is usually
around 6:30 p in.
a The parties later offered Jt Exh 7, the minutes taken July 26-27, at
the Western Conference of Teamsters-UPS Labor Management Commit-
tee The minutes, which admittedly involve hearsay statements, indicate
the disposition made of the Union's grievance that had requested clanfi-
cation concerning California law pertaining to use of horn-sec 27001(b)
of California Motor Vehicle Code prohibits indiscriminate horn honk-
ing-company is requiring drivers to honk horn in residential areas Nor
Cal rider [art 11, sec 3] relieves driver of responsibility for refusing to
break traffic laws Union does not want terminations over this, and asks
for a clarification
Company has checked with Stockton Police Department, who stated
this is enforced only upon "excessive noise" situations-company states
this practice alerts consignees and provides safety benefits Stockton
Police Department told company that there have been no citations for
this, it would not go on individual's DMV abstract , and as a "fix-it" type
citation, the company would be responsible, not the individual
Based on the Company 's statement that they would bear full responsi-
bility for any citations issued under California MVC 27001(b), the griev-
ance is denied Furthermore, the company is required to secure and post
a letter from the appropriate law enforcement agency or agencies regard-
ing the interpretation referred to by the Company in their presentation
UNITED PARCEL SERVICE
Normally Garcia drives his route alone, but on occa-
sion a supervisor may accompany him to observe his
performance or give instructions. On January 24 Stock-
ton Center Manager Winslow accompanied Garcia on
his route Garcia recalled that Winslow had asked him to
honk the horn in front of a house before making a deliv-
ery Quoting from his direct testimony:
I told him that I believed this was against the law
and that I wouldn't do it He said, "Are you refus-
ing to do it then?" And I said, "Yes, because I be-
lieve it's against the law."
Garcia was asked to attend a meeting in Winslow's
office by Winslow shortly after the two of them had re-
turned to the Stockton Center that day. The meeting was
attended by Garcia, Winslow, Division Manager Dennis
Mahan, and Shop Steward Joe Gatz, the latter appearing
at Garcia's request. At the meeting Winslow related to
Mahan that Garcia had refused "a direct order" to honk
the horn. Mahan asked Garcia why he had refused, and
Garcia stated that he had refused because he thought it
was against a city ordinance and the vehicle code.
Mahan then advised Winslow that Garcia should be dis-
charged, whereupon Garcia left the meeting.
Garcia said he returned to the office shortly thereafter
because he was uncertain whether he was being dis-
charged "off the fob."4 A second meeting then ensued
with the same persons except that an additional person,
UPS District Manager Bob Elizondo, was present.
Garcia described this meeting on his direct examination
as follows:
Bruce Winslow stated that today while he was
with me that he instructed me to honk my horn in
front of the house I had a delivery for and that I
said, "I don't do that." And he said, "Are you re-
fusing to do it then?" and I said, "Yes." That was
his statement.
Bob Elizondo turned to me and says, "Dominic,
did you refuse to do his order?" And I said, "Yes,
because I believe it's against the law." Bob Eli-
zondo said, "Dominic, if you have a problem with
doing as you're told, you can take it up with Tiny
or sign a grievance, but you don't have the right to
refuse a direct order." I repeated, "I don't have to
break the law."
He said, "You double-park, don't you?" I said,
"Yes. But that is a parking violation; UPS gets
cited, not me, and UPS has always agreed to pay
the fine." Bob Elizondo said, "Well, that's beside
the point. You still don't have the right to refuse a
direct order." I said, "Stockton had a new city ordi-
nance. I really don't know what it covers, but it
also-I also believe it's a violation of the vehicle
code, but I don't know the section. I would have to
look it up. If it was not against the law, I would do
it.,,
Garcia explained under the applicable collective-bargaining agree-
ment certain offenses call for the employee to stay on the job while
others require immediate removal
671
Bob Elizondo then turned sort of towards Joe
Gatz and says, "Joe, does he realize what he is
saying," and asked Joe if Joe realized what I was
saying. Joe said that his understanding was that I
believed it was against the law and I wouldn't do it.
That if it was not against the law, I would do it.
Dennis Mahan then spoke up and he says, "Do-
minic, you can't continue to resist our methods." I
said, "Dennis, I am not resisting the methods. I
have done everything today that Bruce asked me to
do except that. Isn't that right, Bruce?" Bruce says,
"Yes, that's right, you did "
Dennis says, "Dominic, we're not going to ask
you to break the law "
According to Garcia, Mahan repeated to Garcia that
he could not refuse a direct order even if there were
"some law" the Company was not aware of. The meet-
ing concluded with Mahan saying that the Company had
no choice but to discharge Garcia and, as Garcia re-
called, Elizondo nodded his head.
Garcia explained that "Tiny," whom he had referred
to, was the business agent for Local 439. Garcia said he
had been a reserve police officer and had known for
some time that there was a provision in the law about
honking a horn. He stated that he knew that as the oper-
ator he would be subject to being cited, but he was not
certain whether a violation would carry "points" or not.
Garcia said he did not know UPS wanted its drivers
to honk the horn in making deliveries at residences until
January 24, although he said he had heard drivers talking
about it previously in the locker room He was unaware
at that time of any UPS drivers being cited for honking.
Garcia testified that he had been discharged at one
time by UPS for refusing to work during his lunch
period. Such discharge was reversed later, and his action
was ruled "disrespectful." There were occasions, he said,
when he had refused to drive vehicles for safety reasons
(no horn, air leak). Another vehicle was provided on
such occasions.
Garcia said he had filed grievances previously for
being asked to perform tasks that he thought were con-
trary to the collective-bargaining agreement-after he
had performed the tasks He said he had refused to honk
the horn as requested by Winslow because of his concern
for his driving record and the effect it might have on his
employment.
Garcia stated that on January 24 there was pending, at
the arbitration level, a grievance that had been filed over
the Company's attempt to discharge him for inadequate
production. There had been an earlier attempt to dis-
charge him on the same ground, although the Company
had "dropped the arbitration" with Garcia being sus-
pended for 5 days.
On cross-examination it was brought out that UPS re-
quires a certain level of productivity (too high, Garcia
thought), that in July 1982 the Company had issued
Garcia a written warning for low production, and that in
November 1982 the Company notified him that he was
subject to a 5-day suspension for low production. In De-
cember 1982 the Company sent him another letter advis-
ing that he was being discharged for poor productivity.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garcia testified that in February a joint committee griev-
ance session considered his grievance over his discharge
for poor production and for insubordination. On Febru-
ary 8 Garcia was given a 5-day suspension for poor pro-
duction On the following day, February 9, the January
24 incident, the subject of this proceeding, was presented
to a panel and Garcia received a 10-day suspension for
insubordination Garcia denied that he was told the
Company would pay for any citation issued and said he
did not recall being told that the Company would not
ask him to do anything knowingly unlawful. Garcia ac-
knowledged that he had double parked frequently when
making deliveries in downtown, commercial areas and
that the Company would pay for any traffic citations
that might result.
Joseph A. Gatz, a UPS driver and shop steward at the
Stockton Center, testified that he accompanied Garcia, at
Garcia's request, to the two meetings with UPS manage-
ment representatives at the Stockton Center on January
24 Gatz recalled Garcia had stated at the first meeting
with Winslow and Mahan that "he believed that [it] is or
was against a city ordinance and against the vehicle
code, and he refused to do so until he find out different,
and if he found out different, he would do it." The meet-
ing ended with Winslow telling Garcia that he was being
discharged. Gatz said Garcia then called him back into
the second meeting which included another UPS official,
Bob Elizondo. Testifying on direct, Gatz recalled this
meeting as follows:
The second meeting, again Bruce had opened up
the meeting by stating that Dominic had refused
to-a direct order to honk his horn while making a
residential stop. And Elizondo had asked Dominic
if he-well, why he did that. And Dominic felt
that-he said it was he believed it was against the
law. And then Dom-Elizondo turned and said,
you know, if he had some kind of problem with
doing as he's directed, you know, to take it up with
Tiny or write a grievance , but he didn 't have the
right to refuse a direct order And Dominic said he
didn't have to break the law, though
And then Elizondo, Bob, asked, "You know, do
you double-park?" And he says, yes, he does. And
he-and he said that "Isn't that against the law?"
And then he said , "Yes, it is, but UPS has always-
it was against UPS and UPS always agreed to pay
the-the parking tickets." And Elizondo said that
was beside the pont, he didn't have a right to, you
know, to refuse the direct order. And Dominic said,
well you know, he-in his-in his belief it was-
you know. Stockton had a city ordinance and it was
against the vehicle code, he didn't know the sec-
tions, and that a-but he'd, you know, find out, and
he would do it if it was not against the law.
And then that turn-and at that time Bob Eli-
zondo turned to me and asked me, "Joe, do you un-
derstand"-no, "Does Dominic understand what
he's saying, and do you understand what he's
saying?" And I said, "Yes I believe Dominic is
saying that he-in my understanding, I believe Do-
minic, you know, is-believes that it's against the
law, and he would not do it until he found out dif-
ferent "
And at that time Dennis said that "Dominic, you
can't continue to resist, you know, the methods,
our-our methods." And Dominic said he wasn't,
he didn't-he wasn't resisting meth-the methods;
he'd done everything he was asked to do that day.
And Bruce acknowledged that he did.
And then that's when Dominic and Dennis got in
a discussion over something in Sacramento I
didn't-didn't really pay attention to that. It was
something that happened years ago. I wasn't-well
And then Dennis after that discussion said,
"Look, Dominic. You don't have the right to refuse
a direct order," and if there's some law that they
weren't aware of, it still didn't give him a right to
refuse a direct order.
And that's the way the meeting ended.
Before Gatz left the Stockton Center that day Eli-
zondo asked Gatz, in the presence of Mahan and Wins-
low, to talk to Garcia about returning to work on the
following morning on the basis that there had been a
misunderstanding between Garcia and Winslow. Gatz
tried to find Garcia but Garcia had already left.
Gatz said he was aware on January 24 that UPS had
wanted its drivers to honk the horn in making residential
deliveries, but he regarded it as a "suggestion" on the
part of the Company "to enhance" deliveries and not a
requirement. Gatz estimated that 80 percent of the stops
on his route were residential. He had honked when asked
to do so by accompanying supervisors, but he had not
always honked in making deliveries. He said he had
double-parked in making commercial deliveries because
the Company wanted fast deliveries, although UPS had
never told him to do so
Gatz said he had not been aware of Section 27001 of
the Vehicle Code before January 24, but that evening he
went to a "CHP office" and was shown a copy of the
provision.
On cross-examination Gatz said he never refused to
tap the horn when requested and had never filed a griev-
ance on behalf of any employee who maintained that he
had been given "an incorrect order." He also stated he
was not aware of any UPS driver ever being cited for
tapping his horn.5
Gatz agreed on cross-examination that grievances
could proceed no further after being resolved at the joint
committee level. He acknowledged that he, along with
Garcia and Business Representative Tiny Trammell, had
appeared before the joint committee in February 1983 on
behalf of Garcia to present the Union's side relative to
Garcia's January 24 discharge.
Bruce Winslow, who rode with Garcia on January 24,
identified certain officials in the UPS hierarchy. Winslow
has worked for the Company for 10 years and has man-
aged different UPS centers. On January 24 he was the
manager of UPS' Stockton Center where Garcia was sta-
s Gatz stated on redirect that he had not been asked to tap the horn
after January 24
UNITED PARCEL SERVICE 673
tioned, but at the time of the hearing Winslow was man-
ager of another UPS center (Harbor Center). While at
Stockton Winslow reported to Division Manager Dennis
Mahan, who in turn reported to District Manager Bob
Elizondo
Winslow explained that Garcia, as every package de-
livery driver, is supervised by on-road supervisors. Su-
pervisors accompany drivers on occasion to give instruc-
tions in delivery methods and because of production
problems. Winslow stated that he accompanied Garcia
on January 24 because of Garcia's performance deficien-
cies Winslow asserted Garcia was "the worst performer
in the district."
Referring to Joint Exhibit 2, Winslow stated that the
"horn tapping requirement" had been used primarily in
residential areas and "for several reasons. to announce
his presence in the neighborhood, to alert any neighbors
should the primary consignee not be home, they would
have an opportunity to come over and accept the pack-
age for the person who was not at home." Drivers work-
ing out of the Stockton Center routinely tapped their
horns in making deliveries, Winslow said, and without
protest.
Winslow described on direct examination the relevant
events that occurred on January 24 as follows.
We had completed our business-type deliveries,
completed our business pick-ups, and started deliv-
ering in a residential area which is the very end
of-of Dominic's delivery area. Upon coming up to
the first stop, I observed Dominic make that deliv-
ery and failing to tap his horn
When he came back to the car, I explained the
four-way attract attention . . tap the horn when
we come up to the delivery stop to attract atten-
tion, to facilitate the delivery of the package, so
that the neighbor could look out the window and
see that the UPS vehicle is there, that it would help
him to facilitate the delivery.
Q. What, if anything, did he respond?
A He said, "I don't do that."
Q What happened next?
A. I was kinda taken back by that response So
we went on to the next stop, and he failed to tap his
horn at the next stop.
After that stop was completed, again I explained
the reason. I thought perhaps Dominic didn't under-
stand the complete reason for tapping the horn. So
again I reiterated the reasons why we use the four-
way attract attention , that it 's an accepted method
by United Parcel Service
He again refused to tap. He said , "I'm not going
to tap the horn because I think it' s against the law,
and I 'm not gonna do it."
I told Dominic, as we proceeded through the de-
liveries, I explained to him that I understood that he
might have a problem with my instructions, think-
ing it was against the law, but regardless of whether
he might have problems with that or not, he didn't
have the right to just refuse to work He did in fact
have the right, contractual right to file a grievance
on anything that I told him to do that he felt was a
violation of the contract, or in this case, a violation
of the law.
Q And what, if anything, did he respond to that?
A He really didn't make a specific response, but
he did not honk the horn, tap the horn again.
Winslow's account of the two meetings that took place
that day after he and Garcia had returned to the Stock-
ton Center were similar to those given by Garcia and
Gatz Garcia brought Shop Steward Gatz along to act as
his union representative at both meetings
According to Winslow, Garcia indicated at the first
meeting that he would continue to refuse to tap the horn
in making deliveries until he learned what the law pro-
vides After making it clear to Garcia and Gatz that.he
thought Garcia was grossly insubordinate, Winslow
stated that he was terminating Garcia. Garcia and G4tz
then left the meeting. The UPS officials also left the
office but continued their discussion and indicated a
desire to talk with Garcia The three UPS officials then
met with Garcia and Gatz again Elizondo explained to
Garcia that he had the right to file a grievance after the
fact but that he could not refuse to honk the horn when
directed to do so. Garcia responded that he would not
do so until he determined whether " it's against the law."
Elizondo explained to Garcia that UPS would pay any
penalties in the event that Garcia should be cited for
honking the horn, but Garcia again indicated he would
not honk the horn until he found out what the law pro-
vides. At this point, Elizondo told Garcia that he was
being discharged "for gross insubordination."
Winslow said he was aware of no citation being issued
to any driver for violation of section 27001. He said he
had not been aware that any company policy was in vio-
lation of law. Winslow acknowledged, however, that
UPS drivers were required to double-park if there was
no loading zone or other place to park. Winslow said
there had been occasions when he rode with Garcia and
observed Garcia double-park without making protest.
Finally, Winslow told on direct examination of attend-
ing a joint committee meeting in February at which Gar-
cia's discharge for insubordination was considered.
Garcia conceded at such meeting, according to Winslow,
that he knew of no one ever being cited for honking the
horn.
Winslow conceded on cross-examination that the state-
ment he had prepared for the joint committee meeting
held in connection with his insubordination discharge
made no mention of the offer to pay Garcia for traffic
tickets. Winslow said he was not sure to whom parking
tickets are issued . He said he had ordered drivers to
double-park and the drivers had complied. Winslow
stated that there are production standards, but he was
uncertain what was specifically expected of Garcia when
delivering in the residential areas of his route. It is ex-
pected, he said, that on routes largely of a residential
nature, such as the one assigned to Joe Gatz, that it
would run "probably in the neighborhood of 19 stops an
hour."
Winslow said there were at least two productivity dis-
charge letters issued to Garcia, and two separate hear-
ings with regard to them, one in late 1982 and a later one
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in February 1983 (the day before the hearing was held
on the insubordinate discharge of Garcia).
Dennis Mahan identified himself as the manager of
UPS' Sierra division and an employee of UPS for over
14 years. He is responsible for several UPS centers and
monitors "the company's service commitments and cost
control." He enforces company policies, working with
the various center managers. He explained there are 400
UPS delivery drivers working within the UPS' Sacra-
mento Valley district which includes much of Northern
California and Northern Nevada.
Mahan said he was unaware of any UPS driver ever
being cited for violation of section 27001. He said he was
also unaware of any UPS driver, except for Garcia, ever
refusing to tap the horn when making deliveries as re-
quested Mahan stated that UPS drivers are directed to
follow a 19-item checklist (set forth in sec. 340 of UPS
instruction material) but, he said, they are not terminated
merely because they forgot to comply with an item.
Mahan also testified concerning the two meetings held
with Garcia and his union representative, shop steward
Joseph Gatz, at the Stockton Center on January 24.
Mahan indicated that he informed Elizondo that he was
discharging Garcia that day as the UPS procedure re-
quired him to do so. Mahan said he explained to Garcia,
both at the first and second meetings, that Garcia's refus-
al to tap the horn when requested required his discharge.
At the second meeting, attended by Elizondo, it was ex-
plained to Garcia that the Company would pay for any
citation and that the grievance was available to Garcia if
he disagreed with the instruction to honk. Garcia stated
that he would not tap the horn until he checked the law,
whereupon Elizondo discharged Garcia
Mahan stated that on January 24 he had no reason to
believe the Company's horn tapping requirement violat-
ed the law. He stated that UPS drivers are required to
double park in downtown areas in order to make timely
deliveries, and no driver had ever protested the require-
ment
Mahan stated on cross-examination that he had not
ridden with Garcia but had with Gatz. Gatz usually
tapped his horn in making residential deliveries when ap-
propriate. When told to do so, Gatz would comply.
Robert Elizondo, an employee of UPS for more than 13
years and manager of UPS' Sacramento Valley district
for over 2 years, gave his version of the meeting he at-
tended with Garcia present on January 24 around 7 p.m.,
as he recalled Elizondo stated that prior to meeting with
Garcia, Mahan had told him of the earlier meeting with
Garcia that day, and he (Elizondo) thought it "a little in-
credulous" that Garcia would not comply with the
simple request of tapping on the horn, "especially in
light of the fact that he was already under a notice of
discharge " Elizondo said he wanted to "hear it firsthand
what had transpired" so the participants of the earlier
meeting were called together again.
Elizondo testified that "Dennis Mahan, Bruce Wins-
low, myself, Dominic Garcia and Joe Gatz went back
into Bruce Winslow's office." Elizondo brought up the
subject of double-parking, an activity with which Garcia
had no quarrel Elizondo explained to Garcia that he
could file a grievance but that he could not refuse a
direct order. Garcia insisted, however, that he would not
tap the horn until he found "if it's against the law." Eli-
zondo stated that after Garcia and Gatz indicated that
"both of them understood the consequences" of the posi-
tion taken by Garcia, Elizondo told Garcia he was being
discharged "for gross insubordination." Garcia asked if
he should not come to work on the following day, and
Elizondo replied: "Yes. That means you're off roll. You
don't come to work."e
Under Section 7 of the Act employees have the right
to engage in "concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection."7
For an employee's activity to be concerted and protected
under the Act, the General Counsel must prove support
by other employees. Meyers Industries, 268 NLRB 493
(1984). The General Counsel failed to do so in the case
at bar, and the compaint will, therefore, be dismissed.
In its recent decision in Meyers Industrial, supra in-
volving the discharge of an employee named Kenneth
Prill because of his safety complaints and refusal to drive
an unsafe truck-trailer after reporting its condition to the
Tennessee Public Service Commission, the Board indicat-
ed it would no longer deem an activity "concerted" on
the basis that it involved "an issue about which employ-
ees ought to have a group concern" as it had in Alleluia
Cushion Co., 221 NLRB 999 (1975) Finding the driver's
refusal to drive the truck and his safety complaint to the
state agency in Meyers Industries to have been "made by
himself and for himself alone" the Board determined tht
there was no concerted activity and dismissed the com-
plaint. It is apparent that Meyers Industries provided a
stronger basis for finding concerted activity than does
the present case. The Board said in Meyers Industries, 268
NLRB at 498:
The record is clear that Prill merely overheard
Gove's8 complaint while in the office on another
matter, and there is no evidence that anything else
occurred. The record reflects, and the judge found,
only that Prill stood by when Gove made his com-
plaint; the judge correctly made no factual finding
that Prill and Gove in any way joined forces to
protest the truck's condition. Indeed, the most that
can be inferred from this scenario is that another
employee was individually concerned, and individ-
8 Elizondo, Mahan, and Winslow appeared at the labor -management
committee meeting in February 1983 and presented the Company's posi-
tion with respect to the discharge of Garcia for insubordination Elizondo
stated that the Union 's position , which was presented by Union Business
Agent "Tiny" Trammell, Shop Steward Gatz, and Garcia, was that the
Company could not force an employee to violate the law
Sec 7 of the Act provides
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or all of
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).
Ben Gove, another employee of Meyers Industries, Inc , drove the
truck-trailer when Prill was absent from work Gove had experienced
steering problems with the equipment and had told a supervisor in Prill's
presence that he would not drive it further until it was repaired
UNITED PARCEL SERVICE
ually complained, about the truck's condition.
Taken by itself, however, individual employee con-
cern, even if openly manifested by several employ-
ees on an individual basis, is not sufficient evidence
to prove concert of action.
I find that Meyers Industries to be applicable and dis-
positive of the case at bar. The record here indicated
that Charging Party Garcia acted alone in refusing to tap
his horn. Garcia's testimony, as pointed out in Respond-
ent's brief, indicated his protest had only a purely per-
sonal basis:
I was under two previous discharges for pro-
duction, and I had a genuine concern that my very
likelihood and very well-very well may rest on
my driving record.
I also agree with Respondent that Garcia had no rea-
sonable basis for believing he faced any personal liability
for tapping the horn in residential areas. But under the
Board's recent Meyers Industries decision it is clear that
Garcia's protest was not protected whether or not he
could be properly cited personally. I interpret the
Board's Meyers Industries decision as being contrary to
Transport Service Co., 263 NLRB 910 (1982), a case relied
on by the General Counsel. Thus, I consider the latter
case as having no precedential authority.9
9 Respondent's principal argument in this proceeding is that the dispute
should be deferred under Spielberg Mfg Co, 112 NLRB 1080 ( 1955), to
675
Having determined that Respondent's discharge of Do-
minic Garcia for his refusal to tap the horn as requested
on January 24, 1983, did not constitute protective activi-
ty, I find no violation of Section 8(a)(1) of the Act as al-
leged.
On the basis of the above findings of fact and on the
entire record in the case, I make the following
CONCLUSIONS OF LAW
1. United Parcel Service, Inc is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. General Teamsters Local No. 439, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is now, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act
3. It had not been established that Respondent violated
the Act as alleged.
On these findings of fact and conclusions of law and
the entire record, I issue the following recommended i o
ORDER
The complaint is dismissed in its entirety.
the resolution made by the joint labor management committee, but I do
not reach this issue or any other contentions advanced by Respondent
10 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, pur-
poses