United Parcel Service, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1985

274 N.L.R.B. 396 (N.L.R.B. 1985)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Parcel Service, Inc. and Ronald Ashcraft.
Case 7-CA-20250
27 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 20 July 1984 Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
Charging Party filed exceptions and a supporting
brief, and the Respondent filed an answering brief
in response to the Charging Party's exceptions.
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 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' The Charging Party has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. The
trial of the matter commenced before me on May 8,
1984, at Detroit , Michigan , pursuant to an unfair labor
practice charge filed on January 27, 1982, by Ronald
Ashcraft , an individual , against United Parcel Service
(Respondent), and a complaint issued by the Regional
Director on January 11, 1984. The complaint alleges,
inter alia, that Respondent harassed, discriminated
against, and ultimately discharged Ashcraft because of
his union membership and activities as a union steward.
Respondent 's answer denied the commission of unfair
labor practices . Respondent 's amended answer filed on
May 4 , 1984, raised as an affirmative defense that the
issues herein had been raised in arbitration and therefore
the Board should defer to a decision of the Joint Area
Committee State Panel upholding the discharge, and
cited in support thereof Spielberg Mfg Co ., 112 NLRB
1080 (1955), Olin Corp., 268 NLRB 573 (1984); and
United Parcel Service, 270 NLRB 290 ( 1984).
At the trial , Respondent renewed its motion to dismiss
that it had made in its amended answer. Respondent
argued that the Board 's policy, as reaffirmed and expli-
cated in the Olin decision and the most recent United
Parcel decision , mandated dismissal . Respondent argued
that the United Parcel decision involved identical issues
raised by the discharge of the charging party therein,
Charles E. Lewis, an employee who had been terminated
from Respondent' s Battle Creek area facility, allegedly
for his activities as a union steward.
In the Lewis case, that discharge had been upheld by
the same arbitration mechanism and contractual griev-
ance procedure involved here at Respondent's Detroit
area facilities. In that case Respondent raised the same
deferral issue. At the trial in that case Administrative
Law Judge Dyer received certain evidence, adjourned
the hearing without date, and subsequently issued an
Order dismissing the complaint on the grounds that the
unfair labor practice issue had been resolved by the
above-named panel, i.e , a joint committee panel of union
and respondent representatives. The Board, citing Spiel-
berg and Olin decisions, upheld Judge Dyer.
At the trial here, in support of its motion to dismiss,
Respondent adduced the arbitration panel decision,
which on its face constituted a cryptic denial of the
grievance much the same as in the Lewis case. As Judge
Dyer had done in the Lewis case, I permitted, over the
General Counsel's objections, testimony from a member
of the panel as to the issues raised in the arbitration pro-
ceeding and as to the deliberations of the panel in execu-
tive session. Respondent also adduced into evidence a
transcript of the arbitration proceeding, whereas Ash-
craft freely and voluntarily participated with the assist-
ance of a union representative and where he acknowl-
edged that he had been provided with the opportunity to
present "anything" that he wished the panel to consider
and that he had been fairly represented by the Union.
In the Olin decision the Board reviewed the Spielberg
conditions for deferral, i.e., apparent fair and regular pro-
ceedings, all party agreement to be bound, and absence
of repugnancy to the purposes and policies of the Act
The Board further set forth 268 NLRB at 574 the fol-
lowing criteria for a determination as to whether the ar-
bitrator had adequately considered the unfair labor prac-
tice.
(1) [T]he contractual issue is factually parallel to the
unfair labor practice issue, and (2) the arbitrator
was presented generally with the facts relevant to
resolving the unfair labor practice
The apparent meaning of the Board's language is that
with respect to criteria 2, the Board does not now re-
quire that the arbitrator be presented with all or virtually
all the relevant facts, although in the Olin case it noted,
at 576 that "the evidence before the arbitrator was essen-
tially the same evidence necessary for determination of
the merits of the unfair labor practice charge."'
In Olin the Board now places the burden of proof
upon the party advocating rejection of deferral. Thus it
found that in that case the General Counsel failed to es-
tablish that the conditions and criteria for deferral were
not met, and in particular stated, "Accordingly, we find
' In cases cited by the Board as support for its approach , the arbitrator
appeared to have been presented with full records or all evidence relative
to the unfair labor practice See Kansas City Star Co, 236 NLRB 866
(1978), Atlantic Steel Co, 245 NLRB 814 (1979)
274 NLRB No. 66
UNITED PARCEL SERVICE
that there is no evidence that the statutory and contrac-
tual issues are factually dissimilar or that facts generally
relevant to the unfair labor practice issue were absent
from the record made before the arbitrator" (at 576).
The General Counsel here seeks rejection of deferral
an the ground that criteria 2 was not met by the arbitra-
tion panel in that the panel was not presented with suffi-
cient evidence so as to justify a conclusion that it was
presented generally with the relevant facts. The General
Counsel further argued that the complaint here raised
certain matters , primarily evidence of background
animus, that were not considered by the panel as well as
other critical evidence concurrent with the events in fact
considered by the panel
Inasmuch as the General Counsel had the burden of
proof, I concluded that the General Counsel was entitled
to adduce evidence to demonstrate that critical evidence
was excluded from the arbitration proceeding to such an
extent as to be in noncompliance with the Olin criteria,
i.e , criteria 2 I therefore overruled Respondent's subse-
quent objection to the receipt of any evidence I rejected
Respondent's argument that the issue could be resolved
by a mere reading of the complaint. The General Coun-
sel therefore was provided full opportunity to adduce
that evidence, which was claimed to have been not pro-
vided to the arbitrator, in order that I might be able to
decide whether or not there was a general presentation
of the relevant evidence to that panel.2 Respondent was
provided with opportunity to cross-examine or rebut that
evidence.
The hearing was adjourned without date upon the
completion of submission of evidence on the deferral
issue on May 9 The parties argued orally and reserved
the right to file written briefs A date was set for submis-
sion of briefs which I awaited, but subsequently no briefs
were filed as apparently the parties decided to rely on
oral argument.
Based on the record on the issue of deferral, I make
the following3
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
Respondent maintains its principal office and place of
business in Livonia , Michigan It maintains other places
of business in Michigan and other States in the continen-
tal United States, including its place of business located
at 25600 Northline, Taylor, Michigan, which is the only
facility involved here . Respondent is engaged in the
pickup and delivery of packages, and meets an appropri-
ate jurisdictional Board standard and is engaged in com-
merce within the meaning of the Act.
2 Initially I deferred ruling on Respondent 's motion until the conclu-
sion of the General Counsel 's case in chief, but changed my ruling at the
conclusion of the testimony of Ashcraft , at which time Respondent re-
newed its motion and argued further in support of it Upon reviewing the
probable course of litigation I decided that limitation of evidence to the
issue of deferral was more expeditious The Board , moreover , recently
observed that deferral is a threshold issue that must be resolved prior to
the litigation of the merits L E Myers Co, 270 NLRB 1010 (1984)
2 P 113, 1 9 of the transcript is corrected to read , "Well, start with
one and then get the other "
11. THE UNION
397
Local 243, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union) is a labor organization within the meaning of the
Act
III. THE ARBITRATION DECISION
The Union and Respondent maintain a collective-bar-
gaining relationship and a grievance and arbitration pro-
cedure described above and described fully in the above-
mentioned United Parcel Service decision involving
Charles E. Lewis. On January 25, 1982, Ashcraft, a
package preloader and union steward at the Taylor
center , filed a grievance which alleged that on January
18 and 19 his supervisor Manual Orona threatened his
job and his life with a "hit squad for people like me" that
he and Orona argued , that the confrontation was con-
trived to cause his termination, and that he was improp-
erly discharged on January 20.
The written record of the arbitration proceeding re-
veals that the panel considered Respondent 's presentation
which indicated that Ashcraft, while in the process of
being cross -trained for a different route than his normal
route on January 18 and 19, but in the same function as
preloader , engaged in acts of insubordination to Supervi-
sor Manual Orona . The insubordination consists of a re-
fusal to engage in preparatory study for the position, in-
sults, ethnic slurs, obscenities , and threats of physical vi-
olence, and that when notified of a suspension on Janu-
ary 20 because of this insubordination , he threatened to
kill Supervisor Orona. Because of the insubordination of
January 20, Ashcraft was discharged.
The presentation on behalf of Ashcraft included the
contention that insubordination was a pretext and that
the events of January 18 and 19 were contrived to harass
him and cause his discharge because of his activities as
union steward. Specific reference was made to Ashcraft's
inquiries to Orona and to the Union concerning a pay
shortage of employee Diane Twitty.4 The presentation
by Ashcraft made reference to a conversation between
Orona and Ashcraft on January 14, wherein Orona in-
quired of Ashcraft whether he called the Union concern-
ing Twitty's backpay claim and that upon receipt of an
affirmative response he was summoned to Orona's office
and told that it was necessary for him to be retrained for
a different job (i . e., same job function , different route)
Ashcraft 's presentation dealt with Orona's instruction
that Ashcraft avail himself of training charts on his own
time over the weekend to prepare to assume the function
of this different route; Ashcraft's refusal on grounds that
it was unfair and burdensome ; and the consequential dif-
ficulty of performing the new functions attendant with
harassment by Orona wherein he threatened Ashcraft
with termination.
4 She had not received a raise that had been due to a job promotion
Ultimately she received over S1000 Ashcraft testified that his inquiry of
her shortage was originally made several months before January He tes-
tified that although there was some delay over the ultimate correction of
her pay Orona readily agreed with him that her shortage was improper
and that she should be paid Ashcraft described the problem as a delay in
reimbursement
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To the panel Ashcraft alluded to background hostility
as early as November 1981 and oral statements allegedly
made by unidentified employees for which he had no
documentation to the effect that Respondent intended to
eliminate his employment within 2 months. Ashcraft also
asserted that Orona had several times in direct confronta-
tions, threatened to "get rid" of him At that point in the
presentation, an unidentified person, probably a panel
member, questioned him further as to whether he had
written statements from these other employees. He said
that he did not, but that 3 days earlier the employees had
promised to sign statements but that they were in fear of
losing their jobs. The panel did not pursue that area and
Ashcraft's narration was directed, apparently by the
union representative, to January 20 when he threatened
to kill Supervisor Orona. Ashcraft responded, "I don't
doubt I said something to that effect .. I really don't
remember what I said."5
At the arbitration proceeding, Respondent further con-
ceded that Ashcraft had engaged in union steward activi-
ties prior to the Twitty pay rate claim and he had com-
municated with the Union in order for the Union to
make inquiry with Respondent, but asserted that such
past conduct had not been penalized by Respondent. Re-
spondent submitted a business explanation for the need to
cross-train Ashcraft.
Charles Young, a Respondent representative on the
panel, testified credibly and without contradiction He
testified that the panel considered the factual presenta-
tion as was reflected in the written record of the pro-
ceeding and no other evidence. Further, he testified that
in executive session the panel considered Ashcraft's con-
tention that he had been subjected to discriminatory
treatment because of his advocacy of employee Twitty's
backpay claim, but concluded that he was discharged be-
cause of the insubordinate conduct, particularly the
threat to kill his foreman. The panel rejected his conten-
tion that Respondent was "out to get him" because of his
activities on behalf of the Union as a steward, and noted
that there was an absence of evidence of any past dispar-
ity of treatment of him even though he had been a stew-
ard since May 1981.
IV. THE ALLEGED RELEVANT EVIDENCE NOT
PRESENTED TO THE ARBITRATION PANEL
A. Background Animus
Paragraphs 8(a) and (b) and 9(a) of the complaint
allege certain coercive conduct directed to Ashcraft by
Respondent because of his activities as a union steward.
Such background evidence was not submitted to the ar-
bitration panel. Paragraph 8(a) alleges that about Septem-
ber 1981 Supervisor Orona threatened Ashcraft with
S Ashcraft testified that on January 19 he heatedly insulted Orona with
a derogatory ethnic epithet accompanied by an obscenity Aschraft fur-
ther testified that on January 20, he had angrily thrown his study charts
on the floor upon being notified of his suspension, "stormed" away from
Orona, and retorted to Orona's instruction to punch out before he left
with a threat to kill Orona General Counsel witness Pisek, now a super-
visor at another location but at that time a union committeeman , testified
that he was present and heard Ashcraft curse the Company and state to
Orona that he would "slit his throat "
transfer to a more onerous job because of Ashcraft's
complaint about supervisors performing bargaining unit
work.
Ashcraft was hired in 1975 In May 1981 he succeeded
Paul Smith as steward. Before then Ashcraft served as
union committeeman and substituted as steward in
Smith's absence. Ashcraft testified that on occasions
when he substituted for Smith he observed Orona per-
forming bargaining unit work and requested that he stop,
and that on one occasion in December 1980 Orona led
him to observe Smith's work station, i.e., preloading of
the Monroe route and told him that "this could happen"
to him, and asked Ashcraft, who was assigned one of
two Taylor routes, whether he wanted the Romulus
routes. Ashcraft responded that it was "fine" with him.
However, according to Ashcraft, Orona went on to say
that Ashcraft should not "police the contract strongly
enough about supervisors," and that occasionally super-
visors must perform unit work Ashcraft admitted on
cross-examination that Orona had always taken the posi-
tion that supervisors are entitled to perform unit work in
certain circumstances, i.e., training of employees and
emergency substitution for employees. No grievances
were filed over the incidents as of that time. As to
whether the Monroe route offer was meant as a threat of
imposition of a more burdensome job, the record does
not clearly establish that the Monroe duties were of such
burdensome nature as to constitute a punishment. Al-
though there is some inconclusive, unfounded testimony
that the packages of Monroe route are heavier than the
Taylor route, Ashcraft admitted that the Monroe posi-
tion on the unloading conveyor belt, which transports
packages from a semitruck trailer to delivery van pre-
loaders, is a favored position because it is the last posi-
tion and thus eliminates the need of a preloader to sort
out packages only for his route from other packages.
After Smith's departure, the Monroe route job was per-
formed by Jerome Rutkowski. Although Rutkowski tes-
tified as a General Counsel witness on other points, he
was silent as to anything onerous about his duties on the
Monroe assignment . Finally, Ashcraft admitted that he
never had any personal objection to the assignment to
any particular route. Moreover, Ashcraft had a reputa-
tion as an excellent preloader and was in fact in Septem-
ber 1981 praised as a good worker by Orona at an em-
ployee work gathering Therefore, the suggestion to the
higher skilled preloader that he might be used at another
more demanding position is not indicative of punitive
motivation. In fact he was not transferred and, according
to Ashcraft, Orona maintained a friendly attitude toward
him.6
Despite Ashcraft's testimony as to his past activity as
substitute steward no apparent retaliation occurred. With
respect to the prior steward, Smith, there is no clear evi-
dence as to just how active he was with respect to union
representation. The evidence does not support an infer-
ence that he was an active steward, or that he was as-
6 Ashcraft's testimony conflicts with his pretrial affidavit wherein he
states that up to December 1981 Orona was not performing any unit
work and therefore he did not make complaints until the second week in
December 1981
UNITED PARCEL SERVICE
signed duties which in fact were onerous to him . Pursu-
ant to a leading question , Ashcraft testified that during
the above December 1980 conversation Orona said to
Ashcraft, "look what is happening to Mr. Smith." Short-
ly afterward Smith was transferred to the Allen Park
route. There is insufficient, competent , probative evi-
dence to infer that such an assignment was punitive and
retaliatory . There is no evidence of overall Respondent
hostility toward stewards or others who attempt to
police the contract . There is no evidence as to whether
attempts to police the contract are normal everyday oc-
currences or whether they are extraordinary.
From some date in January until September 1980,
however, Supervisor Orona was assigned to a shift other
than Ashcraft 's shift and they had no contact. Brian Ker-
utis appears to have been Ashcraft 's direct supervisor
His testimony as to when his alleged problems with
Orona resumed with respect to the supervisory perform-
ance of unit work is contradictory and is placed by him
variously in December, November, and September 1981.
By September 1981, Orona was again Ashcraft 's immedi-
ate supervisor . At one point Ashcraft testified that he
complained about other supervisors performing unit
work, but these incidents are not clearly described,
except that he purportedly complained to Kerutis about
once a week and that most of the time Kerutis simply ig-
nored him. On cross-examination he admitted that the re-
sponse he invariably received was that the supervisor
considered the incident as falling under a contractual ex-
ception . Although he reported these incidents to the
union representatives who serviced the contract, it was
never decided to carry the matter to the level of a
formal grievance , nor apparently even a verbal inquiry
from the local union agent . Thus up to September 1981,
Ashcraft's queries as to the propriety of supervisors
doing unit work do not appear to have been impactive
upon Respondent or the Union and resulted in no appar-
ent retaliation
In September , Orona returned as Ashcraft 's immediate
supervisor . However , for unexplained reasons, Kerutis
also remained in the vicinity as a supervisor. Ashcraft
testified as to an incident where he observed Orona load-
ing packages , i e., performing unit work , and he asked
him to stop but received no response . Ashcraft testified
that he made several other similar complaints to Orona
from September through November , but admitted that
Orona's attitude remained friendly toward him until the
onset of the busy season shortly before Christmas. How-
ever, as noted above, he contradicted himself several
times as to when his problems resumed with Orona.7
Ashcraft 's testimony as to a September 1981 confronta-
tion is not supportive of the complaint allegation and is
contradictory to the testimony of General Counsel wit-
ness Pisek . According to Pisek , he overheard the con-
frontation which was caused by the performance of unit
work by Kerutis, not Orona, and that Ashcraft com-
plained to Orona who did not remain silent but stated in
response to a request that Kerutis cease, "Sure I'll tell
him to quit. Yes I'll tell him , but we have ways of deal-
' Ashcraft 's entire testimony suffers from numerous inconsistencies and
contradictions , and his demeanor exhibited uncertainty and confusion
399
ing with people like you. Starting next week you'll have
the Allen Park Route."
Ashcraft remained on the Taylor Route. As noted
above, it is unclear that the Allen Park Route is particu-
larly onerous , although there is some unfounded testimo-
ny by Ashcraft that the Taylor route involves lighter
packages . I find it difficult to credit Pisek on this point,
in light of Ashcraft's own testimony because it is unlike-
ly that Ashcraft would forget the threat if it occurred,
and he was the immediate participant in that conversa-
tion. I therefore conclude that the General Counsel did
not adduce sufficient probative evidence upon which to
support an inference that Respondent harbored pre-Sep-
tember 1981 animosity toward Ashcraft or toward union
steward activities , or that it threatened Ashcraft as al-
leged in paragraph 8(a) of the complaint.
The next pre-January 1982 background event is al-
leged to have centered about the visitation by Orona to
Ashcraft's home to ascertain the legitimacy of his sick
leave. The evidence does not support an inference that
Respondent's conduct in this incident was discriminatory
or that Ashcraft was treated disparately . Ashcraft testi-
fied that he became ill with chest pains in November
1981, that he called in to Respondent but that he did not
report his absence to his own supervisors but to a super-
visor of a different department . Ashcraft had shortly
before this moved his residence . Orona went to the old
residence and left a note with a message for Ashcraft to
call Respondent. A telegram was also read to Ashcraft
to contact Respondent . Ashcraft conceded that Orona
later explained that he was concerned that Ashcraft not
be construed to be in violation of Respondent ' s absent-
without-notification policy which calls for discharge for
such absences of 3 days or more. There is no evidence as
to why the visitation should be construed to constitute
harassment. No evidence was adduced to demonstrate
that Respondent 's behavior in the visitation or in inter-
viewing Ashcraft as to his chest pains was unreasonable
or unusual. Ashcraft himself was not even certain that he
had ever been absent for illness in the past . I conclude
that the evidence with respect to Ashcraft 's absence is
not supportive of an inference that he was subject to har-
assment or intimidation as alleged in paragraph 9(a) of
the complaint.
No other acts of intimidation or harassment are alleged
to have occurred until January 1982. Paragraph 8(b) is
unsupported by any evidence.
The remaining evidence centered about the events of
and leading to the confrontations of January . Initially,
Ashcraft testified that the only other complaint that he
raised as a steward dealt with the Twitty backpay issue
which arose in September . According to Ashcraft , in late
September Twitty told him that she thought that she was
being shorted in her pay . She did not explain why. Ash-
craft merely asked Orona to check on it. Orona made no
response. Ashcraft initially testified that he did not speak
about the Twitty matter again with Orona until late De-
cember pursuant to Twitty's request that he do so
Orona promised to do so . Ashcraft testified that he
raised no other complaints between September and his
absence in November, but that from November to De-
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cember he had complained at least three times a week to
Orona about supervisors performing unit work and that
occasionally he made the same complaint to Kerutis At
one point he testified that they did not respond, but on
cross-examination he conceded that they had asserted a
contractual right to perform unit work under certain cir-
cumstances
Employee Pisek testified that on December 12 he had
a conversation with Orona in the office where Kerutis
was also present. According to Pisek on direct examina-
tion, Orona referred to Ashcraft as a bad apple who
would be gone by the end of January. However, Orona
explained to Pisek that he had been informed by an em-
ployee that Ashcraft was organizing an employee slow-
down. On cross-examination, Pisek testified that what
Orano said was that if it were true that Ashcraft was or-
ganizing concerted work slowdowns that he would be
terminated in about a month. There was no reference to
any other conduct of Ashcraft as being construed to be
objectionable or grounds for retaliation, other than that
of organizing a slowdown which is not activity protect-
ed by the Act.
Ashcraft and Pisek testified that pursuant to his re-
quest Union Business Agents Cooper and Degroat met
with several employees at Respondent's place of business
and that Orona also appeared and that the subject of su-
pervisors performing unit work was discussed. Their tes-
timony is mutually inconsistent and contradictory on sev-
eral points, including the date of meeting and what tran-
spired.8 Ashcraft placed it in September or October.
Pisek placed it about 1 week after the December 12 "bad
apple" statement Pisek testified that the union agents
stated that it was agreed that supervisors would not per-
form unit work. Ashcraft, however, indicated that they
were not receptive to his complaints and referred to his
report as "hearsay." It is conceded that Orona asserted
his right to perform unit work under certain circum-
stances, and that the Union as such neither grieved the
matter nor formally protested in any other manner. Nei-
ther Ashcraft nor anyone else grieved the issue.
Ashcraft testified that on December 18 Orona orally
reprimanded him for stacking packages. Stacking occurs
because the preloader is unable to retrieve packages from
the incoming conveyor belt and place them quickly
enough to be fed to the delivery vans Although Orona
purportedly threatened to write up Ashcraft, he did not
do so. Other General Counsel witnesses testified that
Orona is a demanding supervisor who runs a "tight
ship," tolerates no slowdown, and frequently reprimands
employees for package stacking, which, even Ashcraft
admits, is a practice prohibited except in unusually heavy
work circumstances. The evidence in the record does not
support an inference that Orona treated Ashcraft dispar-
ately or deviated from past practice with respect to the
package stacking episode
Ashcraft testified that the Twitty backpay claim was
not resolved by late December so he therefore tele-
phoned Local Union Representative Degroat and ex-
8 On several points Ashcraft was self-contradictory , e g , whether a
meeting took place at all or was disbanded as soon as Orona made an
appearance Pisek testified it lasted no more than 5 minutes
plained the situation. In early January during the first
week, Orona casually mentioned to Ashcraft that he was
going to be cross-trained to perform his duties for an-
other route Ashcraft did not complain. Indeed, he con-
ceded that he had no objection to cross-training or work-
ing at any assigned job. The next confrontation over the
Twitty backpay claim, according to Ashcraft's direct ex-
amination,' occurred on January 14. However, on cross-
examination , he contradicted this testimony and an earli-
er testimony by asserting that he had been arguing with
Orona for several months about the Twitty matter Such
testimony also is inconsistent with his other testimony on
cross-examination that Orona actually agreed with the
merits of Twitty's complaint and that the real problem
was merely the delay of payment, and that as far as he
knew. Orona was actually trying to obtain backpay for
Twitty.
According to Ashcraft, on January 14 Orona sum-
moned him to the office and inquired whether he had
contacted the Union with respect to the Twitty backpay
claim and he said that he did so Ashcraft testified in
contradiction to earlier testimony that he had raised the
matter of the pay shortages for 15 minutes of overtime
due to several other employees, including himself, prior
to the January 14 confrontation. On cross-examination he
conceded that there was no contest raised on that claim
as Respondent readily conceded a payroll error and paid
the claim. However, Ashcraft testified that when Orona
confronted him, Ashcraft referred to this other payroll
matter and that Orona told him that payroll matters were
none of his business.
Later on January 14, Ashcraft was summoned again to
the office where he met with Orona and Kerutis and was
told that he would be cross-trained for the Monroe job
and that Orona intended to make a precedent of him
"like Paul Smith." In view of the lack of any evidence of
adversity befalling Paul Smith, such a statement remains
an enigma , and falls short of constituting a threat of dis-
crimination. Pursuant to Ashcraft's request, employee
Dorotinski was summoned to the office as a witness
Ashcraft was told that he was expected to take home
study charts in order to prepare himself properly for the
cross-training. Other General Counsel witnesses indicat-
ed that they also have been Subjected to such instruc-
tions when they underwent similar training for new posi-
tions. There is also testimony that cross-training is a
common occurrence. Ashcraft himself did rot find train-
ing to be burdensome nor even unwelcome His objec-
tion was limited to the time period of 5 days, imposed
for learning the job. Under the contract, 22 days are pro-
vided to a new probationary employee. Ashcraft was a
skilled, experienced employee with a reputation as a
good worker. Ashcraft did not explain why it was such
an onerous deadline to learn a route which was on the
favored location on the conveyor belt. There is also tes-
timony from a General Counsel witness that learning the
study charts is an easy function even for a new employee
and that there is no set time period for learning routes.
Thus it would appear that any time period alloted for
study preparation in cross-training would be made on an
ad hoc basis and would take into consideration the skill
UNITED PARCEL SERVICE
and experience of the employee. Under such circum-
stances, it cannot be inferred that Respondent had treat-
ed Ashcraft discriminatorily or disparately by placing the
deadline of 5 days on him, a skilled, experienced employ-
ee, to learn to perform his same job function for a new
route, i.e., learning to identify appropriate Monroe ad-
dresses on packages and their direction to the appropri-
ate van.
With respect to the events of January 18, 19, and 20,
the General Counsel adduced evidence not presented to
the arbitrator on the proffered grounds that such evi-
dence demonstrated Respondent 's animus toward Ash-
craft because of his union activities as steward. One ele-
ment sought to be established was that Ashcraft was
treated harshly and unfairly by Orona, who reprimanded
him and unduly scrutinized his work to the point of
provocation of the insubordinate language admittedly
used by Ashcraft. However, the evidence fails to estab-
lish that Ashcraft was treated disparately, or more harsh-
ly than other employees. The workweek started out by
Ashcraft's refusal to study for the cross-training on his
own time, as other employees had been requested to do.
Pisek testified that Ashcraft bragged to him that he
would use the study sheets to line the floor of his pet
bird's cage. Ashcraft admitted that his performance was
consequently poor. He admitted that poor work normal-
ly elicits reprimands. He admitted that Orona gave him
instructions on how to correct his work. He admitted
that this is normal supervisory behavior. He admitted
that the preloader regularly assigned to the Monroe
route was assigned to assist him and actually do so while
he learned the route. He admitted that Kerutis offered
him whatever assistance he desired. There is no evidence
that any of Orona's criticisms of Ashcraft's work in
cross-training were unjustified
With respect to the alleged reference by Orona to a
"hit squad" as evidence of preexisting animus, that was
generally presented to the arbitration panel. There is no
other evidence that Orona used vulgarity, obscenity, or
provocative insults. The actual decision to discharge
came subsequent to the suspension, particularly the
threat to kill or "slit" the throat of Supervisor Orona,
which was not shown to have been precipitated by any
menacing gesture or words by Orona. Ashcraft testified
that he does not normally lose his temper, nor use vul-
garity or obscenities in his speech. Thus, his behavior
during the January confrontations is all the more stark.
There is no evidence that Respondent normally tolerates
or has ever tolerated similar insubordination.
Although the General Counsel alleges that Ashcraft
was transferred to the Monroe route effective January
18, there is no evidence that Ashcraft was being assigned
to that job for a purpose other than what was stated to
him, i.e., cross-training which is not shown to be an un-
usual procedure Thus evidence adduced to the effect
that a vacancy for the Monroe position was not created
until the following April by Rutkowski's promotion is ir-
relevant. In any event, Rutkowski testified that he bid on
the driver's job in March 1981, as he had done a year
earlier, but that he was informed 4 or 5 months earlier
that the next driver opening was his for the bidding
Thus, the General Counsel's evidence indicates that Re-
401
spondent was aware in January of a possibility of a
future vacancy for the Monroe job. That evidence also
discloses that Rutkowski was the only person who per-
formed the Monroe job. It therefore cannot be inferred
that it was unreasonable for Respondent to cross-train
someone else for that preloader job, particularly a good
preloader like Ashcraft
The General Counsel elicited testimony from a former
Christmas season 1981, temporary employee, Patricia
Szatanski to the effect that Orona urged her not to quit
because a Taylor route would become available in 90
days inasmuch as Respondent was "cleaning people out "
There were, however, two Taylor routes. It is not clear
which Taylor route he meant Moreover, it is not clear
whether Orona meant that Ashcraft would be terminated
in 90 days, or that his position would be vacated in about
90 days, i.e., April 1, when he might be transferred to
the Monroe job when it was vacated by Rutkowski.
There is no evidence of the existence or nonexistence of
other vacancies. Szatanski's testimony is thus too ambig-
uous to be of probative value
Finally, the General Counsel adduced testimony in
support of paragraph 8(d) of the complaint which was
not encompassed within the arbitration presentation. On
January 21, according to Pisek, whose recollection was
refreshed by his pretrial affidavit given to a Board agent,
Orona asked him to sign a statement prepared by Re-
spondent as to what Pisek had witnessed regarding the
Ashcraft confrontation Pisek refused, and Orona told
him that he ought to sign it, that if he did not that it
would be akin to dishonesty, and Respondent did not
like dishonesty, and that he would "end up like Ash-
craft " On cross-examination he admitted that the pre-
pared statement was truthful and accurate. He further
testified that he explained to Orona that he would not go
out of his way to help eliminate a fellow employee but
that if it came to a "union hearing" he would tell the
truth. Despite a refusal to sign the statement, he suffered
no adverse action of any kind Indeed, he was later pro-
moted to a supervisor's job.
The General Counsel's theory of 8(a)(1) violation of
the Pisek incident is based solely on the allegation that
Orona engaged in this conduct toward Pisek "because of
[Ashcraft's] activities as the union steward." There is no
allegation that such conduct is coercive in itself There is
no evidence that Respondent's documentation of insubor-
dination to support a discharge decision, possibly in the
future grievance proceedings, is unusual behavior It
cannot be inferred that Respondent's purpose in obtain-
ing documentation was determined by the union activi-
ties of the terminated employee. A discriminatory pur-
pose as alleged in the complaint cannot be inferred. In
any event this allegation is necessarily dependent on the
merit of the basic issue of Ashcraft's discharge , i.e , it
must first be determined that Ashcraft was discriminated
against because of his activity as union steward
V. CONCLUSIONS
The General Counsel was provided with full opportu-
nity to adduce all the evidence that is contended consti-
tutes relevant evidence that was not presented to the ar-
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bitration panel, in order to sustain his burden of demon-
strating that the Olin criteria was not satisfied. In view of
the foregoing factual findings and analysis, I cannot con-
clude that the arbitration panel was foreclosed from rele-
vant evidence to such an extent that in effect it was not
presented generally with the relevant evidence. The
General Counsel's evidence does not support the allega-
tions of the complaint not encompassed by the arbitra-
tion presentation. The General Counsel's evidence,
which augments that presented to the panel, is not of
such probative value as to necessitate a conclusion that
the arbitration panel did not have before it the essential
facts as to the issue litigated. The evidence adduced by
the General Counsel and from cross-examination rather
strengthens and supports the arbitration decision.
Accordingly, I conclude that the General Counsel has
failed- to carry his burden of proof as to the, rejection of
the arbitration decision, and accordingly, I issue the fol-
lowing
i
ORDER
It is ordered that the hearing in this matter be closed
and that the Complaint be dismissed in its entirety.9
9 The parties are referred to Sec 102 27 of the Board Rules and Regu-
lations which provide that a party must seek a review of an Order dis-
missing a case on a motion within 10 days of the date of the Order of
dismissal and provide copies to the other parties