United Parcel Service, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 2008

353 N.L.R.B. 426 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 39
426
United Parcel Service, Inc. and Teamsters Local 177.
Case 22–CA–27863
October 28, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On June 20, 2008, Administrative Law Judge Mindy
E. Landow issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel and the Charging Party filed answering briefs.
The Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 reversing the findings.
In adopting the judge’s finding that, under Collyer Insulated Wire,
192 NLRB 837 (1971), deferral is inappropriate in this case, we do not
rely on Stevens Graphics, Inc., 339 NLRB 457, 461 (2003). In that
case, there were no exceptions to the judge’s rejection of the em-
ployer’s deferral argument. In addition, we do not rely on the judge’s
finding that deferral is inappropriate because this case presents “claims
of employer animosity to the employee exercise of rights which are
protected under the Act.”
In finding that the Respondent violated Sec. 8(a)(3) and (1) by its re-
fusal, because of Shop Steward Chris Eltzholtz’ protected conduct, to
rescind the warning letter for insubordination issued to employee
Ernest Griffin, the judge properly distinguished Onyx Environmental
Services, LLC, 336 NLRB 902 (2001), on its facts. We also note that
there were no exceptions in that case to the judge’s conclusion that the
suspension and discharge of an employee in response to the employee’s
inappropriate and threatening conduct was not unlawful.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by telling Griffin that it was refusing to rescind his warning
letter for insubordination because of Eltzholtz’ protected conduct,
Chairman Schaumber notes that the Respondent does not except to this
finding apart from its contention that the General Counsel’s witnesses
should not be credited. Chairman Schaumber additionally does not rely
on the judge’s analysis under Atlantic Steel Co., 245 NLRB 814 (1979).
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
that the Respondent, United Parcel Service, Inc., Secaucus,
New Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Saulo Santiago, Esq., for the General Counsel.
Edward P. Lynch, Esq. (Day Pitney, LLP), of Morristown, New
Jersey, for the Respondent.
Edward O’Hare, Esq. (Zazzali, Fagella, Nowak, Kleinbaum &
Friedman), of Newark, New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. Based upon
a charge filed on March 15, 2007, and an amended charge filed
on July 31, 2007,1 by Teamsters Local 177 (the Union), in Case
22–CA–27863, a complaint and amended complaint were is-
sued against United Parcel Service, Inc. (Respondent) on July
31 and November 28, respectively.
The complaint, as amended, alleges essentially that on or
about February 9, the Respondent, by Tracy Celmer, violated
Section 8(a)(1) of the National Labor Relations Act (the Act)
by stating that a warning letter issued to employee Ernest Grif-
fin would not be rescinded because of the protected conduct of
his shop steward, and that Respondent further violated Section
8(a)(1) and (3) of the Act by refusing to rescind said warning
letter.2 The Respondent’s answer denied the material allega-
tions of the complaint and posed the affirmative defense that
the matter should be deferred to the parties’ grievance-
arbitration process.
A hearing on the allegations of the complaint was held be-
fore me on February 5, 2008, in Newark, New Jersey.
On the entire record,3 and considering the briefs filed by the
parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-

1 All dates herein refer to 2007 unless otherwise specified.
2 On July 31, the Regional Director for Region 22 dismissed that
portion of the charge alleging that Respondent had violated Sec. 8(a)(3)
of the Act and issued complaint on the remaining allegation. As a result
of the Union’s appeal of the dismissal of the 8(a)(3) allegation, the
Regional Director revoked his decision to dismiss that portion of the
charge on October 29.
3 To the extent a determination of the facts involved herein requires
an assessment of the credibility of the witnesses, or findings of fact
based upon competing versions of events, certain apparent or nonap-
parent conflicts in the evidence may not be specifically addressed
herein. My findings are based upon a review of the entire record. I have
additionally carefully observed the demeanor of the witnesses, includ-
ing whether they testified in a forthright or evasive manner, and have
also considered their apparent interests, the consistency and inconsis-
tency of their testimony, and the corroboration or lack of it by other
witnesses and events. I have additionally considered inherent probabili-
ties and reasonable inferences drawn from the record as a whole. To the
extent my credibility resolutions are not specifically discussed below,
testimony in contradiction to my factual findings has been considered,
but discredited.
UNITED PARCEL SERVICE 427
ness at 493 County Avenue, Secaucus, New Jersey, is engaged
in the transportation of packages and goods. During the past
year, Respondent has derived gross revenues in excess of
$50,000 from the transportation of packages and goods from
the State of New Jersey directly to points outside the State of
New Jersey. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent additionally admits, and I find,
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union represents a unit of employees including drivers,
sorters, loaders, porters, office clerical employees, mechanics,
and other classifications of employees employed by the Re-
spondent. The most recent collective-bargaining agreement
between the parties is effective from August 1, 2002, to July
31, 2008.
Respondent operates numerous package delivery centers in-
cluding the one involved herein, the Hackensack Center located
in the Meadowlands Building in Secaucus, New Jersey, which
was also referred to in the record as the Secaucus facility. Ap-
proximately 43 package delivery drivers are employed in and
from that facility.
Ernest Griffin is a package delivery driver assigned to the
Hackensack Center who has worked for Respondent for 20
years. Celmer is the facility’s business manager and Michael
Matteo occupies the position of dispatch planning supervisor.
Chris Eltzholtz has worked as a driver for Respondent for over
16 years and is the union shop steward for the facility. He has
served in this capacity for approximately 10 years.
B. The Disciplinary Meetings
On February 9, Respondent held its daily preworking com-
munication (PWC) meeting with employees. This meeting typi-
cally consists of a short informative talk, presented by a super-
visor, to discuss subjects such as safety, training, and other
matters of importance to the drivers. At that time, the names of
employees with whom management wishes to meet are an-
nounced, and they are expected to report to the office after the
meeting concludes. On that morning, Griffin was summoned
and, accompanied by Shop Steward Eltzholtz, reported to Busi-
ness Manager Celmer’s office. Dispatch Planning Supervisor
Matteo was also present.4
The purpose of the meeting was to discuss a delivery scan
audit performed the prior day on Griffin’s truck which indi-
cated that he had failed to deliver a package to 14 Mill Street in
Lodi, New Jersey.5 Disciplinary meetings with package car

4 The office where the meeting was conducted is a small one, ap-
proximately 9 x 10 feet in size. There is a manager’s desk and desk
chair, and behind them a credenza with file cabinets and a computer.
Against the front wall of the office are two side chairs, separated by a
small table. On one side of the manager’s desk, against the wall is
another side chair and file cabinet.
5 A scan audit is made of the packages on a driver’s truck in the
morning before deliveries are made for the day. The driver is then
required to scan packages as they are delivered. When the driver returns
drivers for such discrepancies are not uncommon, and Eltzholtz
has, as shop steward, represented employees in connection with
such issues on numerous occasions. The record also reflects
that Griffin had been summoned to meetings to discuss similar
infractions on four or five occasions.
Celmer told Griffin that he would be receiving a warning let-
ter for the missed scan. Eltzholtz requested to see the delivery
records. Celmer stated that six packages had been scanned for
that location. At first, Eltzholtz found only four deliveries, but
Griffin explained that he had missed two packages during his
initial stop and that he had returned to that location later in the
day.6 After looking through the records, Eltzholtz found two
additional delivery scans for 14 Mill Street and pointed that out
to Celmer. She took the delivery records and began comparing
the tracking numbers. According to Celmer, the six deliveries
listed in the records failed to reflect the missing package, and
Eltzholtz asked how she definitely knew it was on Griffin’s
truck.7
Griffin was protesting during this exchange, stating that he
did his job; that there had been six packages and he had deliv-
ered all six. Celmer was on her computer, tracking the package
numbers. Griffin and Eltzholtz were continuing to talk, and
Griffin was continuing to insist that he had made all his deliver-
ies. Then Celmer asked Griffin how did she know that he did
not steal the package. According to both Eltzholtz and Griffin,
Celmer made a direct accusation relating to Griffin’s possible
theft of the package.8
Upon hearing Celmer’s comments, Griffin stood up and
stated that he was not a thief. He argued that in 20 years, he had
never been accused of stealing. Griffin pulled various items
from his pockets, said he had his “own stuff” and did not need
anyone else’s. According to Celmer, Griffin approached her
desk and came to the side of her chair, turned to Matteo and

at the end of the workday, the scan audit is compared to the delivery
scans made by the driver, to ensure that packages have been delivered
to the appropriate address.
6 Page 14 of Griffin’s delivery records showed four packages deliv-
ered to 14 Mill Street and p. 7 of his records showed two more pack-
ages delivered to that address.
7 According to Respondent, Griffin had improperly scanned one de-
livery twice.
8 Eltzholtz has a practice of taking notes of disciplinary meetings and
maintains such notes in a small booklet. Celmer acknowledged that
Eltzholtz was taking notes on this occasion. Eltzholtz’ contemporane-
ous notes read: “How does she know if he did not steal package.” Both
Celmer and Matteo phrase Celmer’s comments differently. According
to Celmer she told him that this “creates a very big problem for our
customers, for us as a company. And I asked him, you know, what
happened to it, did the pre-loader take it, did it get lost somewhere in
the building, did the customer take it, did he take it.” I do not credit this
version, as I find it unlikely that Celmer would be openly speculating
about errors made by others in this meeting which ostensibly had been
called to address a mistake and issue discipline to Griffin. In any event,
as the testimony of all witnesses and subsequent events makes clear,
Griffin interpreted Celmer’s comments as an accusation of theft. In
fact, under cross-examination, Celmer acknowledged that Griffin had
been calm up to that point, and that both Griffin and Eltzholtz articu-
lated to her that they understood Celmer to have accused Griffin of
stealing. I further note that there is no evidence that Celmer did any-
thing to dispel this notion during the course of events that ensued.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD428
protested that he (Matteo) knew him and that he did not steal.
Celmer told Griffin to step back and sit down; but he did not
follow her directive and continued to remonstrate. Eltzholtz
told him to take a seat as well. Eltzholtz turned to Matteo and
said that what Celmer said was not right, and Matteo said that
he didn’t think Celmer had meant it the way she said it. Celmer
again told Griffin to sit down. Griffin continued to insist that he
had not stolen anything. At that point Celmer told Griffin that
he would be receiving additional warning letters for poor atten-
dance and insubordination and ended the meeting.9
According to Eltzholtz, he and Griffin then left the office.
Eltzholtz was trying to calm Griffin down, and told him that he
would contact the union office about the warning letters. A
short while later, Celmer summoned the two men back to her
office. Celmer entered the office first, and by the time Eltzholtz
got there she was sitting at her desk. Griffin was still upset, and
repeated the phrase, “I’m hot.” As Eltzholtz walked through the
door, he turned to Griffin, who was behind him, and said,
“Ernie, I’d be hot too, if someone accused me of stealing.” As
Eltzholtz testified, Celmer then became angry and stated that
she had been going to rescind the warning letter for insubordi-
nation but because he (referring to Eltzholtz) had “opened his
mouth,” Griffin would be receiving it. Eltzholtz’ notes state:
“Came back in & she was going to take the W/L away but I
opened mouth.”10 In a similar vein, Griffin testified that Celmer
said, “Well, I was going to take away the insubordination warn-
ing letter but your shop steward got you that one, too.”
According to Celmer’s account of the initial meeting Griffin
did not sit down, but he did eventually step back. Feeling in-
timidated by his conduct in her small and crowded office, she
exited first, walking past Griffin, and went onto the pedestrian
walkway where one of the supervisors was standing. Griffin
left the office after her, and went to the “belt” where his pack-
age car was parked and continued to rant in front of other em-
ployees who were working in the area. As Celmer testified:
“[h]e was very loud and boisterous. He was grandstanding in
front of other employees. And as soon as he had their full atten-
tion he continued in a more boisterous fashion.” According to
Celmer, she was about 50 feet away from Griffin and heard his
comments. He was saying, “you come in here, you just try to do
your job. You’re just trying to work hard and you get accused
of being a thief and being a liar.” Celmer walked over to Griffin
and told him he could not be out there behaving in that fashion
and instructed him to return to her office. They returned to the
office, and Eltzholtz and Matteo, who had been standing
nearby, joined them.
As Celmer testified, as they were walking into the office, she
asked Griffin if he wanted to sit down and discuss this profes-
sionally, and stated that she would be willing to take away the
warning letter for insubordination. Griffin was rocking back
and forth on his feet; seeming very agitated and told Celmer to

9 It appears from the record that Griffin was not issued a warning let-
ter for poor attendance.
10 As discussed in further detail below, Eltzholtz’ attribution of Cel-
mer’s words was not recorded using marks indicating that it was a
direct quotation (“. . .”). Respondent relies upon this point to challenge
Eltzholtz’ credibility and the veracity of this entry in his log.
“do what you got to do.” He accused Celmer of calling him a
liar and a thief. Celmer testified that Griffin did not calm down;
nor did he sit down. Eltzholtz then addressed Griffin, stating
that Celmer was calling him a liar and telling him that he was
stealing, and that he would be upset too. Celmer told Eltzholtz
that he needed to stop “egging him on.” According to Celmer,
Eltzholtz made some other comments, repeating that she could
not call Griffin a liar and that he would act the same way. At
this point Celmer stated that she would not rescind the warning
letter. Celmer testified that it was not because of anything
Eltzholtz had said, but because Griffin would not calm down.
She denied telling Eltzholtz that her decision to issue the warn-
ing letter had anything to do with what he said.
According to Matteo, after Celmer ended the first meeting,
he and Eltzholtz remained behind. He heard Griffin’s voice,
describing it as “animated,” as he continued to protest that he
did not steal, and he came to do a job. Celmer directed every-
one to return to the office and Matteo entered and stood by
Celmer’s desk. According to Matteo, Griffin was still angry and
continued to insist that he had delivered the packages, and had
not stolen them. Celmer told Griffin that he needed to calm
down and Eltzholtz said that he did not blame the guy, because
you are accusing him of stealing. Eltzholtz added that he’d be
mad too, if it were him. Matteo quotes Celmer as stating to
Eltzholtz: “If you keep egging him on, I’m going to have to
give him a warning letter for improper behavior.”
After this meeting concluded both Griffin and Eltzholtz ex-
ited the office and went to their trucks, which were the only
ones left in the dock. A few minutes later, Eltzholtz observed
Celmer standing by Griffin’s truck. Although he could see the
two of them, he did not hear what was said. Griffin testified
that during the exchange Celmer told him that his shop steward
was getting him the warning letters. Later that evening
Eltzholtz ran into Griffin at the facility and asked him what had
occurred during the discussion with Celmer at the truck. Griffin
told him that Celmer had repeated her earlier statement that he
was getting the warning letter because of what Eltzholtz had
said. Celmer denied walking out to Griffin’s truck and further
denied making any such comment to him.
On March 1, Griffin received two warning letters. One re-
ferred to “your unacceptable behavior on February 9, 2007
when you were insubordinate and wagged your finger toward
the face of a Manager. This is unacceptable behavior.” The
second concerned “your failure to follow the proper delivery
methods by not scanning a package for 14 Mill St. Lodi on
February 9, 2007.”
III. ANALYSIS AND CONCLUSIONS
A. The Deferral Issue
In its answer to the complaint, and again at hearing and in its
posthearing brief, Respondent contends that the instant matter
should be deferred to arbitration pursuant to the principles of
Collyer Insulated Wire Co., 192 NLRB 837(1971); and United
Technologies Corp., 268 NLRB 557 (1984).
It appears from the record that Respondent and the Union
have had a long bargaining history. Both the national master
united parcel agreement (NMA) and the Local 177 supplement,
UNITED PARCEL SERVICE 429
which apply to the circumstances herein, contain broad griev-
ance and arbitration provisions. Article 4 of the NMA contem-
plates that the responsibilities of job stewards shall include:
“The investigation and presentation of grievances with the Em-
ployer or the designated company representative in accordance
with the provisions of the collective-bargaining agreement.” In
relevant part, article 4 also provides:
Stewards and/or alternate stewards shall not be subject to
discipline for performing any of the duties within the scope of
their authority as defined in this section, in the manner permit-
ted by this section. Recognizing the importance of the role of
the union steward in resolving problems or disputes between
the Employer and its employees, the Employer reaffirms its
commitment to the active involvement of union stewards in
such processes in accordance with the terms of this article.
Further, article 4 makes clear that “[t]he Employer recog-
nizes the employee’s right to be given requested representation
by a steward, or the designated alternate, at such time as the
employee reasonably contemplates disciplinary action.”
In addition, Article 21, entitled “Union Activity,” provides in
pertinent part as follows:
Any employee member of the Union acting in any official ca-
pacity whatsoever shall not be discriminated against for acts
as such officer of the Union so long as such acts do not inter-
fere with the conduct of the Employer’s business, nor shall
there be any discrimination against any employee because of
union membership or activities. . .
Article 47 of the Local 177 supplement, entitled “Dis-
charge,” specifically references warning letters:
Section 1
The following shall be causes for immediate suspension or
discharge of an employee: drinking, or proven or admitted
dishonesty.
Section 2
In all other cases involving the discharge or suspension of an
employee, the Company will give three (3) working days’ no-
tice to the employee of their discharge or suspension and the
reason therefore. Such notice shall be also given to the Shop
Steward and the Local Union office. Any warning notice shall
not remain in effect more than twelve (12) months.
On April 1, 2005, Respondent and the Union appeared be-
fore Arbitrator Carol Wittenberg to arbitrate a grievance
brought under the collective-bargaining agreement concerning
the Union’s challenge to the Company’s issuance of a warning
letter to an employee on a matter unrelated to the instant pro-
ceeding. Of note to the instant case, however, was the issue
presented to the arbitrator which was whether, under the collec-
tive-bargaining agreement, warning letters “standing alone”
could be arbitrated, or whether they were subject to arbitration
only when subsequent more severe discipline, i.e., suspension
or discharge, was issued and based in part on progressive disci-
pline stemming from the earlier warning letter. In that instance,
the Union took the position that it was entitled to arbitrate the
warning letter. The Employer argued to the contrary: that a
warning letter standing alone was not arbitrable, and that, con-
sistent with article 47, the only disciplinary matters which may
be referred to arbitration are discharge and suspension.
In an opinion and award dated July 16, 2005, Arbitrator Wit-
tenberg held that warning letters, standing alone, may not be
arbitrated. In so concluding, the arbitrator looked to the lan-
guage of the collective-bargaining agreement, the history and
practice of the parties since at least 1990, and the Union’s ap-
parent agreement to the parties’ rebuttal procedure,11 which was
found by the arbitrator to provide an adequate remedy should
the employee in question be subject to more severe discipline.12
Respondent contends that the allegations of the complaint
are covered by the foregoing contractual provisions and are
subject to grievance and arbitration under the conditions
adopted by the parties, as described by Arbitrator Wittenberg.
Both the General Counsel and the Union argue, to the contrary,
that the matter is not amenable to deferral.
It is well settled that the Board has “considerable discretion
to defer to the arbitration process when doing so will serve the
fundamental aims of the Act.” Wonder Bread, 343 NLRB 55,
55 (2004) (citations omitted). As the Board has held, deferral is
appropriate when the following factors are present:
[T]he dispute arose within the confines of a long and produc-
tive collective-bargaining relationship; there is no claim of
employer animosity to the employees’ exercise of protected
statutory rights; the parties’ agreement provides for arbitration
of a very broad range of disputes; the arbitration clause clearly
encompasses the dispute at issue; the employer has asserted
its willingness to utilize arbitration to resolve the dispute; and
the dispute is eminently well suited to such resolution.
Id. (citing United Technologies Corp., 268 NLRB 557, 558
(1984))
In support of its argument that deferral is appropriate, Re-
spondent argues that no claim of employer animosity to em-
ployee exercise of protected rights has been asserted in this
case. Further, Respondent contends that: “UPS has expressed
its willingness to arbitrate the issue of these letters as provided
for in the collective bargaining agreement and as Arbitrator
Wittenberg found—once a subsequent disciplinary action has
been taken” (emphasis added). In support of its position, Re-
spondent relies upon August A. Busch & Co., 309 NLRB 714,
716 (1992), where the Board found that while the contract at
issue did not obligate either party to resort to the grievance and
arbitration procedures, it was the availability of that machinery
which triggered the deferral doctrine. In that case the Board
determined that the dispute was cognizable by the grievance
arbitration procedure and all other factors favoring deferral

11 The Union and the Employer have agreed upon a procedure which
allows an employee to “rebut” a warning letter, which in effect enables
the Union to contest it at a later date should the employee suffer more
severe progressive discipline.
12 As the arbitrator stated: “Under the parties’ procedure, a warning
letter is either removed from the employee’s file or can be arbitrated as
part of a suspension or discharge case. In either case, the individual
employee’s rights are protected.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD430
were present.13
In disagreement with the Respondent, I find that all the fac-
tors called for by Collyer, United Technologies and their prog-
eny are not present here. In particular, I find that the relevant
provisions of the parties’ collective-bargaining agreement, as
interpreted by the arbitrator (in apparent agreement with argu-
ments advanced by Respondent), fail to provide a mechanism
to resolve the underlying statutory issue and further fail to pro-
vide an appropriate remedy for the alleged violations.
The General Counsel argues, in its brief, that article 21 of the
NMA does not apply to Griffin insofar as this provision pro-
tects employees only insofar as they function as an officer of
the Union. I do not agree with this assertion, and find that the
second clause of article 21, which is a general nondiscrimina-
tion provision, arguably would cover Griffin in this instance.
Nevertheless, I further conclude that the dispute is not amena-
ble to resolution through the collective-bargaining process. In
particular, Arbitrator Wittenberg has specifically ruled that
“stand alone” warning letters are not arbitrable. Thus it would
appear that the issue of whether Respondent’s issuance of (or,
as presented by the General Counsel, its failure to rescind) the
warning letter stemmed from Griffin’s insubordination or be-
cause of protected conduct cannot be considered under the col-
lective-bargaining agreement. I note that Respondent does not
take the position that this issue could or should be considered
by the case in its present posture, but argues only that the warn-
ing letter could be arbitrated in conjunction with subsequent
discipline, in the event any should be issued to Griffin.
In a variety of contexts, the Board has held that deferral is
not appropriate where the issue involved is not arguably cov-
ered under the contract. See Pepsi Cola Co., 330 NLRB 474
(2000) (deferral not appropriate where arbitrator decided case
on procedural grounds without consideration of the merits); see
also Stephens Graphics, Inc., 339 NLRB 457, 461 (2003) (de-
ferral of Section 8(a)(1) charge not appropriate where there was
no specific contractual provision covering the dispute and there
was no assurance that the alleged Section 7 rights were covered
by the contract); Western Massachusetts Electric Co., 228
NLRB 607, 610 (1977), enf. denied on other grounds 573 F.2d
101 (1st Cir. 1978) (no deferral where arbitrator determined
unilateral suspension of employee benefit not arbitrable).
Here, while the arbitrator found that the parties’ agreed-upon
procedure protected employee rights under the collective-
bargaining agreement, this finding does not answer the question
of whether employees’ statutory rights are adequately protected
by such a procedure. Because it appears (and no party contests
otherwise), that the issuance of the warning letter to Griffin
would not be arbitrable under the contract, as interpreted by the
arbitrator, such a factor strongly militates against deferral.
I further note that the Board has declined to defer in in-

13 That instance involved an 8(a)(5) refusal-to-bargain allegation.
The Board specifically noted that there was no evidence or allegation of
employer animosity toward the employees’ exercise of protected rights.
In that regard, the Board drew a distinction to the circumstances pre-
sented by Kenosha Auto Transport Corp., 302 NLRB 888 fn. 2 (1991),
where it was held that deferral of an alleged 8(a)(5) allegation was
inappropriate in light of allegations of 8(a)(3) and independent 8(a)(1)
violations.
stances where an appropriate remedy cannot be fashioned
through the arbitral forum. For example, in Clarkson Industries,
312 NLRB 349, 351 (1993), the Board considered whether
alleged violations of Section 8(a)(1) and (3) should be deferred
to arbitration. That case involved a warning issued to a shop
steward and an alleged threat to hold that steward to a higher
standard of conduct than that demanded of other employees. In
that case, the shop steward was arguably covered by contract
language prohibiting discrimination on the basis of union
membership or activity. However, the arbitration provision
provided that the arbitrator “shall not have the right or authority
to subtract to or alter any provision of this Contract, nor may
the arbitrator make any recommendations for future actions by
the company or the Union.” The Board found that this provi-
sion would prevent an arbitrator from imposing the functional
equivalent of a “cease and desist” remedy, which is directed at
future actions. The arbitrator would be, therefore, precluded
from fashioning an appropriate remedy for the alleged threat
and, as the Board held, deferral was not warranted. See also
Ramey Supermarkets, 314 NLRB 9, 10 (1994), where the
Board affirmed the administrative law judge’s refusal to defer a
discharge case to arbitration under Collyer because the con-
tract’s grievance-arbitration procedure limited backpay awards
to 20 days.14
Similarly, in this instance, the contractual forum fails to offer
a remedy which would be consistent with the purposes of the
Act. To the contrary, it appears that an arbitrator would be pre-
cluded from issuing an award pertaining to the propriety of the
warning letter issued to Griffin or to direct the Respondent to
take any remedial action with regard thereto. In this regard, the
Respondent’s stated position that the warning letter may be
arbitrated in the event it forms the basis for some future disci-
pline offers nothing by way of remedy to any unfair labor prac-
tices which may be found herein.15
With regard to whether the alleged 8(a)(1) statement could or
should be subject to deferral, “[t]he Board has consistently
held that it will not defer one issue if it is closely related to
another issue that is not deferrable.” Clarkson Industries, supra
at 352 (citing Everlock Fastening Systems, 308 NLRB 1018 fn.
8 (1992); 15th Avenue Iron Works, 301 NLRB 878, 879 (1991),
enfd. 964 F.2d 1336 (2d Cir. 1992)). Here too, the alleged
8(a)(1) statement arises from the same set of circumstances and
is entwined with the Respondent’s alleged unlawful failure to
rescind the warning letter. To defer this aspect of the complaint
to arbitration, therefore, would result in precisely the sort of
“piecemeal” approach disfavored by the Board.
In support of its argument for deferral, Respondent cites to

14 The Eighth Circuit reversed the Board’s decision on the ground
that the Board erroneously failed to analyze the case under United
Technologies, supra. Applying those factors, the Eighth Circuit con-
cluded that deferral was appropriate, and further found the scope of
available remedies was relevant but not dispositive. NLRB v. Ramey
Supermarkets, 55 F.3d 382, 388–389 (8th Cir. 1995).
15 As noted above, the warning letter expires after a 12-month pe-
riod. That fact, however, goes to the scope of the remedy for the alleged
unfair labor practices, not to whether the Respondent’s conduct was, in
fact, violative of the Act in the first instance or whether the contract
contemplates a remedy which would meet statutory prerogatives.
UNITED PARCEL SERVICE 431
United Technologies Corp., supra at 560. There, the Board
overruled existing Board precedent and held that it would be
appropriate, given certain conditions, to defer alleged violations
of Section 8(a)(1) of the Act. It is true, as Respondent contends,
that in that case, “the dispute center[ed] on a statement a single
foreman made to a single employee and a shop steward . . . .”
The Board found that the facts of that case made it “eminently
well suited for deferral.” Id. In United Technologies, however,
the threat alleged to be violative of Section 8(a)(1) was “clearly
cognizable” under the broad grievance-arbitration provisions of
the parties’ collective agreement. In the instant case, by con-
trast, there is no support for the proposition that the grievance-
arbitration process could be invoked either to address or to
offer a meaningful remedy for the dispute in question. As dis-
cussed above, Respondent has predicated its argument for de-
ferral on contractual provisions which may become applicable
only should unforeseen events come to pass. And, as noted
above, Respondent has consistently taken the position that
“stand alone” warning letters are not arbitrable which, in my
view, not only fails to evince a willingness to arbitrate the in-
stant dispute but suggests exactly the opposite.16
Accordingly, based upon the foregoing, I find that the allega-
tions of the complaint are not suitable for deferral under Col-
lyer, United Technologies, and their progeny, and will proceed
to evaluate the merits of the case.
B. Applicable Legal Principles
Under Section 8(a)(1) of the Act, it is an unfair labor practice
for an employer to “interfere with, restrain or coerce employees
in the exercise of the rights guaranteed” by Section 7 of the
Act.17 Section 8(a)(3) provides that it shall be an unfair labor
practice for an employer to “discriminate in hiring, or any term
of condition of employment, [or] to encourage or discourage
membership in a union.” Any conduct found to be a violation
of Section 8(a)(3) would also discourage employees’ Section 7
rights, thereby constituting a derivative violation of Section
8(a)(1). Chinese Daily News, 346 NLRB 906, 933 (2006).
As noted above, the complaint alleges that Respondent re-
fused to rescind the warning letter issued to Griffin because of
the protected conduct of his shop steward.18 Respondent has
asserted that its refusal to rescind the warning letter stemmed,
not from Eltzholtz’ protected conduct, but from Griffin’s in-
subordination. Thus, under the General Counsel’s theory of the
case, and Respondent’s corresponding defenses to the allega-
tions of the complaint, the reasons for Respondent’s actions in
disciplining Griffin are in dispute. The General Counsel, in its
brief, argues that the instant case should be evaluated under the
principles set forth in Wright Line, 251 NLRB 1083 (1980),

16 I further note that, contrary to Respondent’s suggestion, this case
does present claims of employer animosity to the employee exercise of
rights which are protected under the Act.
17 Sec. 7 of the Act provides, in relevant part, that “employees shall
have the right to self organization, to form, join or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.”
18 The complaint does not allege that the discipline issued to Griffin
was due to his own protected conduct.
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Similarly, Respondent argues that under a Wright Line
analysis, the complaint should be dismissed. Inasmuch as the
parties have placed the employer’s motivation at issue, I find
that an analysis under Wright Line is appropriate. In addition,
however, because I also have concluded that Griffin’s conduct,
or alleged misconduct, was intertwined with protected activity,
the circumstances of this case render it amenable to analysis
under the factors set forth in Atlantic Steel, 245 NLRB 814
(1979). See Felix Industries, 331 NLRB 144, 146 (2000), enf.
denied and remanded 251 F.3d 1051(D.C. Cir. 2001), on re-
mand Felix Industries, 339 NLRB 195 (2003), as will be dis-
cussed below.
C. Application of the Wright Line Standards
In cases which turn on employer motivation, to establish a
violation of the Act under Section 8(a)(3), the General Counsel
must first show, by a preponderance of the evidence, that the
employee engaged in protected concerted activity, the employer
was aware of that activity, and the activity was a substantial or
motivating reason for the employer’s action. Wright Line, su-
pra; Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999).
Proof of an employer’s motive can be based upon direct evi-
dence or can be inferred from circumstantial evidence, based on
the record as a whole. Ronin Shipbuilding, 330 NLRB 464
(2000); Robert Orr/Sysco Food Services, 343 NLRB 1183
(2004); enfd. mem. 184 Fed. Appx. 476 (6th Cir. 2006); Em-
bassy Vacation Resorts, 340 NLRB 846, 848 (2003). The
Board has long held that, where adverse action occurs shortly
after an employee has engaged in protected activity, an infer-
ence of unlawful motive is raised. See McClendon Electrical
Services, 340 NLRB 613 fn. 6 (2003) (citing La Gloria Oil, 337
NLRB 1120 (2002), enfd. mem. 71 Fed Appx. 441 (5th Cir.
2003).
Once the General Counsel has made out the elements of a
prima facie case, the burden of persuasion then shifts to the
employer to “demonstrate that the same action would have
taken place even in the absence of the protected conduct.” Sep-
tix Waste, Inc., 346 NLRB 494 (2006); Williamette Industries,
341 NLRB 560, 563 (2004); Wright Line, supra. To meet its
Wright Line burden, “[a]n employer cannot simply present a
legitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected activity.” W. F. Bolin
Co., 311 NLRB 1118, 1119 (1993), petition for review denied
70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir.
1996). See also Manno Electric, Inc., 321 NLRB 278, 280 fn.
12 (1996).
As noted above, a prerequisite for finding a violation under
Section 8(a)(3) of the Act is protected conduct. Here, I find that
the General Counsel has established that both Griffin and
Eltzholtz were engaged in union activity and conduct otherwise
protected under the Act.
The Board historically has held that processing and present-
ing grievances is concerted activity protected by Section 8(a)(1)
and (3) of the Act. Bowman Transportation, Inc., 134 NLRB
1419 (1961). This is true even when the grievance in question
is not formally stated or does not take place under the auspices
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD432
of a contractual-grievance procedure. Clara Barton Terrace
Convalescent Center, 225 NLRB 1028, 1033 (1976) (and cases
cited therein). The term “grievance,” as used in Section 9(a) of
the Act, refers “to both disputes over interpretation and applica-
tion of a collective-bargaining agreement and those matters
delimited in Section 9(a) of the Act: rates of pay, wages, hours
of employment, or other conditions of employment.” Dow
Chemical Co., 227 NLRB 1005 (1977). Here, the meetings in
question were held pursuant to delineated contractual provi-
sions for the purpose of discussing discipline to be issued to a
bargaining unit employee. Clearly, both Eltzholtz and Griffin
were thereby engaging in union and concerted, protected activi-
ties by virtue of their participation in such meetings.
Moreover, in Union Fork & Hoe Co., 241 NLRB 907
(1979), the Board reaffirmed the principle that in presenting
and processing grievances shop stewards retain the protection
of the Act except for extreme misconduct in the performance of
their union duties.
As discussed above, the circumstances which led to the
meeting in Celmer’s office on February 9 are essentially not in
dispute. Griffin was called into the office to discuss and receive
a written warning for a discrepancy between a scan audit and
his delivery records. It is also essentially undisputed that during
the course of this meeting, Eltzholtz, acting in his representa-
tional capacity, asked to review the company records and ques-
tioned whether such discipline was warranted. It is also not
disputed that when Griffin was accused of theft, a discharge-
able offense, he became distressed and argumentative and re-
fused to follow Celmer’s instructions to step back and sit down.
Celmer ended the meeting.
The central feature of the instant dispute concerns what
happeded subsequent to this initial meeting. The General
Counsel and the Charging Party contend that Celmer refused to
rescind Griffin’s insubordination warning because of Eltzholtz’
protected conduct. Respondent, contends that the reason for the
refusal to rescind the warning was due to Griffin’s continued
insubordinate behavior. In this regard, Respondent relies upon
Tradewaste Incineration, 336 NLRB 902, 905–906 (2001),
where the Board affirmed an administrative law judge’s con-
clusion that a suspension of an employee was not unlawful
when it occurred in response to that employee’s use of profane
language and threatening conduct.19
For the reasons discussed below, I find that Eltzholtz’ entire
course of conduct and, in particular, his intervention during the
second meeting, was not only sanctioned by the express terms
of the parties’ collective-bargaining agreement (as described
above) but also continued to warrant the protections of the
Act.20 I further find that the General Counsel has met its bur-
den of showing that this protected conduct was a motivating or
substantial factor leading to Respondent’s refusal to rescind

19 The events in question in that case occurred when the employee in
question went to a supervisor’s office to request his personnel file. The
administrative law judge concluded that this was not protected conduct
because the employee was not asserting a protected right under Sec. 7
or acting on behalf of others, but was engaging in conduct which was
individual in nature which was, further, not a continuation of prior
protected conduct.
20 My analysis of Eltzholtz’ conduct is set forth in sec. III. E., below.
Griffin’s warning for insubordination.
D. Credibility Determinations
Respondent argues that neither Eltzholtz nor Griffin can be
credited. With regard to Eltzholtz, Respondent cites to pur-
ported discrepancies in his testimony. As Respondent notes,
Eltzholtz testified that Celmer, “[B]asically said that I was go-
ing to take the warning letter for insubordination, but because
he opened his mouth, you’re getting it.” Respondent further
notes that in his pretrial affidavit, Eltzholtz similarly stated that
Celmer said, “I was going to take away the letter for insubordi-
nation but because he opened his mouth, you still have a warn-
ing letter.” According to Respondent, the references to “you”
and “he” in Eltzholtz’ testimony and affidavit demonstrate that
Celmer’s comment was addressed to Griffin. Respondent then
points to the fact that, during his cross-examination, Eltzholtz
initially testified that Celmer addressed Griffin, but then
equivocated on this point, stating that Celmer, “. . . said it to
both of us, I guess.” Respondent thus challenges the veracity of
Eltzholtz’ testimony and the reliability of his memory. I find
Respondent’s arguments in this regard to be unpersuasive. This
is nothing more than a minor inconsistency. Moreover, as Re-
spondent apparently concedes, Eltzholtz’ testimony was consis-
tent with his pretrial affidavit, and his apparent indecision on
cross-examination regarding whether Celmer addressed her
comments to Griffin or to both men is insufficient to rebut it.
Moreover, Eltzholtz’ testimony on this issue generally is con-
sistent with the underlying facts and the inherent probabilities
of the situation.
Respondent additionally challenges the notations made in
Eltzholtz’s notebook on two grounds. One concerns the fact
that the first comment attributed to Celmer in conjunction with
the February 9 meeting appears in quotation marks, while the
second does not. Respondent also contends that a physical ex-
amination of the document indicates that Eltzholtz fabricated
the second statement, and made the notation after-the-fact, to
generate support for the charge.21 Again, I find these arguments
to be unconvincing. As an initial matter, Eltzholtz credibly
explained that he took his notes regarding the second statement
made by Celmer in a hurry, as he was exiting the room.22 This
explanation makes sense, and corroborates Eltzholtz’ account
of events to the extent he testified that the second meeting was
of a very brief duration. Moreover, with regard to Eltzholtz’
credibility in general, I find that as a long-term employee of the
Respondent and the shop steward, he would have no reason to
fabricate statements attributable to Celmer, especially where
the interaction in question had been witnessed by another man-
ager. Indeed, such falsehoods would surely work against
Eltzholtz’ interests both as an employee and with regard to the

21 In particular, Respondent argues that the second statement attrib-
uted to Celmer looks as though it had been written in a narrow space
which was left between Eltzholtz’ log entry for February 9, and one for
a subsequent meeting with management on February 13.
22 As Eltzholtz testified: “Probably because I was walking out of the
office when I was writing that down, I was just in a hurry, because we
were in the office for the second time, 10 to 15 seconds.”
UNITED PARCEL SERVICE 433
future representation of employees at the facility.23 I addition-
ally found that, for the most part, Eltzholtz testified in a forth-
right manner and withstood a vigorous cross-examination by
Respondent’s counsel.
Respondent challenges Griffin’s credibility by noting certain
inconsistencies between the record and his pretrial affidavit.
Certain of these inconsistencies are inconsequential, such as
whether Celmer actually used Eltzholtz’ name or referred to
him as the shop steward. There are other, more significant in-
consistencies which pertain to his accounts of the first and sec-
ond meetings with Celmer. As Respondent notes, paragraph
five of Griffin’s pretrial affidavit deals with the second meet-
ing. Nowhere in that paragraph is any discussion of whether
Celmer stated anything to Griffin about issuing him a warning
letter or not removing a warning letter because of the conduct
of the shop steward. Rather, Griffin’s references to such state-
ments occur in his description of what occurred subsequently,
when he spoke with Celmer at his truck. This is a significant
discrepancy from Griffin’s testimony at the hearing, to be sure,
but based upon my observation of Griffin’s testimony and the
record as a whole, I do not find it a sufficient basis to discredit
Griffin’s testimony in its entirety.24 Griffin explained this
omission by contending: “You got to remember, sir, a lot of this
stuff is lumped in together, that’s what I did.” I credit that ex-
planation, because it is consistent with Griffin’s demeanor and
his manner of testimony generally. Griffin appeared to make an
effort to testify truthfully, to the best of his recollection. He,
too, was subjected to a rigorous cross-examination and he was
respectful and cooperative throughout.
In contrast, I find that Celmer was not a credible witness in
many respects. As an initial matter, I fail to credit her testimony
regarding the nature and extent of Griffin’s alleged insubordi-
nate behavior. By way of example, Celmer testified that after
walking out of her office after the first meeting, Griffin pro-
ceeded to the belt where his package car was situated, grand-
standing for his coworkers in a loud and boisterous manner. It
is inherently improbable, in my view, that had Griffin been
acting in such an uncontrolled and inappropriate manner, as
described by Celmer, that she would have wanted him to return
to her small office, where she had previously found his conduct
to be intimidating. I additionally find it inherently improbable
that Celmer would have then broached the subject of rescinding
the warning for insubordination had Griffin been acting in such
a fashion.25 It is far more likely that the level of discipline is-
sued to him would have increased in its severity in such an
instance. Further, the warning letter issued to Griffin describes
his misconduct as consisting of insubordination and “wagg[ing]

23 The Board has found that “the testimony of current employees
which contradicts statements of their supervisors is likely to be particu-
larly reliable because these witnesses are testifying adversely to their
pecuniary interests . . . .” Flexsteel Industries, 316 NLRB 745 (1995)
(citations omitted). See also Advocate South Suburban Hospital, 346
NLRB 209, 209 fn. 1 (2006).
24 See Gold Circle Department Stores, 207 NLRB 1005, 1010 fn. 5
(1973).
25 I additionally note that although Matteo testified that Griffin’s
voice was “animated,” he did not report any disruptive behavior on
Griffin’s part.
[his] finger toward the face of a Manager.” There is no refer-
ence to grandstanding or loud or boisterous conduct in the pres-
ence of other employees, or any other conduct generally disrup-
tive of the work environment, conduct which surely would have
been subject to discipline had it occurred. Accordingly, for the
above reasons, I fail to credit Celmer’s account in this regard.26
In the same vein, I do not credit Celmer’s version of what
transpired once the parties reconvened in her office. Again,
there is no specific reference to any misconduct on the part of
Griffin, as testified to by Celmer, in the warning letter that was
issued to him. In this regard, I note that Matteo acknowledged,
contrary to Celmer, that she made an express connection be-
tween Griffin’s discipline and the activities of his shop steward
when she said to Eltzholtz: “If you keep egging him on, I’m
going to have to give him a warning letter.” This testimony is
fundamentally corroborative of that offered by Eltzholtz and
Griffin, and is evidence that it was Eltzholtz’ advocacy, rather
than Griffin’s behavior, which prompted Celmer’s decision to
proceed with the warning for insubordination.
I further credit Griffin’s testimony about his subsequent con-
versation with Celmer at his truck. Again, I find that, as a 20-
year employee, it would not be in his interest to fabricate false
testimony regarding statements made by his manager.27 I fur-
ther note that Griffin’s account is at least partially corroborated
by Eltzholtz, who witnessed the two speaking, although he did
not overhear what was said.
Thus, I find that the General Counsel has established that
Eltzholtz’s protected conduct in his role as Griffin’s shop stew-
ard was a substantial or motivating factor in Respondent’s de-
termination not to rescind the warning letter issued to Griffin
for insubordination. Based upon my assessment of the credibil-
ity of the witnesses, coupled with the inherent probabilities of
the situation, I find that Respondent has failed to meet its bur-
den of proving by a preponderance of the evidence that it would
have issued the warning to Griffin in the absence of Eltzholtz’
protected conduct. Thus, under the Wright Line analysis urged
by both the General Counsel and the Respondent, I find that by
failing to rescind Griffin’s warning for insubordination, Re-
spondent violated Section 8(a)(1) and (3) of the Act.
E. The Atlantic Steel Criteria
Even if I were to accept the fundamental premise of Respon-
dent’s defense, that Griffin was disciplined due to his behavior
and not as a result of anything Eltzholtz might have said or
done, I would still be constrained to find that Respondent vio-
lated the Act. There is no dispute that the warning letter at issue
grew out of events at the February 9 meetings with Celmer and
Matteo concerning a perceived scanning error, for which Grif-
fin was subject to discipline. As discussed above, I have found
that both Eltzholtz and Griffin were engaging in protected con-

26 In support of its contentions that Respondent’s accounts of Grif-
fin’s alleged insubordinate behavior are fabricated, the General Counsel
further points to the fact that Celmer did not contact security and that
Griffin was allowed to take his truck on the road that day.
27 As noted above, in Griffin’s pretrial affidavit, he discusses this
conversation, alleging that Celmer stated to him that “your shop stew-
ard got you another warning letter, the one I was going to take away,
insubordination.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD434
duct during these meetings. Thus, even under Respondent’s
theory of the case, the imposition of discipline can be found
lawful only if Griffin’s conduct is found to have lost the protec-
tions of the Act. Inasmuch as Respondent has contended that
Griffin’s conduct was provoked by Eltzholtz, I will undertake
an analysis of his conduct under the Atlantic Steel criteria, as
well.
The Board has long held that, “in the context of protected
concerted activity by employees, a certain amount of leeway is
allowed in terms of the manner in which they conduct them-
selves. Although flagrant, opprobrious conduct may sometimes
cause an employee’s concerted activity to lose the protection of
the Act, impropriety alone does not strip concerted conduct of
statutory protection.” Aroostook County Regional Ophthalmol-
ogy Center, 317 NLRB 218, 220 (1995), enf. denied in part 81
F.3d 209 (D. C. Cir. 1996) (footnotes and citations omitted).
Here, I find that neither Eltzholtz nor Griffin engaged in con-
duct which would have caused either of them to lose the protec-
tions of the Act or for any such misconduct to have been law-
fully imputed to Griffin.
Under Atlantic Steel, supra, four factors are analyzed to de-
termine whether conduct has lost the protection of the Act: (1)
the place of the discussion; (2) the subject matter of the discus-
sion; (3) the nature of the employee’s outburst; and (4) whether
the outburst was, in any way, provoked by an employer’s unfair
labor practices. Addressing the first factor—the place of the
discussion—I note that the conduct at issue occurred at a meet-
ing, called by Respondent, in a private office outside the ear-
shot of other employees,28 to discuss discipline to be issued to a
bargaining unit member. Clearly, this meeting was an appropri-
ate forum to discuss, and to dispute, whether such discipline
was warranted.
As to the second Atlantic Steel factor—the subject matter of
the discussion—I find that Eltzholtz was acting squarely within
his role as union representative by questioning Celmer about
whether Griffin had, in fact, missed a scan; by disputing her
suggestion that Griffin had stolen the package, an offense for
which he could be discharged; and subsequently by attempting
to explain the basis for Griffin’s angry reaction to Celmer’s
accusation, a reaction for which he had been disciplined. Simi-
larly, Griffin’s protestations that he had not stolen the package,
something he could well have suffered serious discipline for,
was protected in this context.
The third Atlantic Steel factor concerns the nature of the
conduct at the meeting. Addressing the initial meeting, I find
that the conduct exhibited by Eltzholtz was neither provocative
nor unreasonable and was far within the bounds of conduct
which has been sanctioned by the Board as regards shop stew-
ard advocacy generally. Union Fork & Hoe, supra; see also
Severance Tool Industries, 301 NLRB 1166, 1170 (1991); No-
ble Metal Processing, Inc., 346 NLRB 795, 800 (2006) (and
cases discussed therein). While Griffin admittedly became an-
gry and refused instructions to step back and sit down, the
Board has held that “there are certain parameters within which

28 As noted above, I do not credit Celmer’s testimony that Griffin
engaged in “grandstanding” or loud, boisterous behavior in the pres-
ence of other employees.
employees may act when engaged in concerted activities.”
Consumers Power Co., 282 NLRB 130, 132 (1986). In particu-
lar, the Board has noted that “disputes over wages, hours and
working conditions are among the disputes most likely to en-
gender ill feelings and strong responses.” Id. In assessing
whether an employee’s protected, concerted activity loses the
protection of the Act, the Board has found that a line “is drawn
between cases where employees engaged in concerted activities
that exceeds the bounds of lawful conduct in a moment of ani-
mal exuberance or in a manner not motivated by improper mo-
tives and those flagrant cases in which the misconduct is so
violent or of such a character as to render the employee unfit
for further service.” Prescott Industrial Products Co., 205
NLRB 51, 51–52 (1973). Here, I do not believe that Griffin’s
conduct crossed that line. My conclusions in this regard are
buttressed by the undisputed evidence that Celmer considered
withdrawing the warning letter for insubordination even after
this conduct occurred.
With regard to the second meeting, even if I were to credit
Celmer that Griffin entered the office, remained agitated,
rocked back and forth on his feet, and continued to protest that
Celmer had called him a liar and a thief, I would not find that
this conduct exceeded permissible bounds. In this regard, I note
that there is no evidence that Griffin at any time during this
encounter made any threatening gestures or directed any pro-
fanity or derogatory statements toward Celmer or any other
management official. Eltzholtz’s statement to Celmer, to the
effect that he’d be angry too, if accused of theft, must be con-
sidered in context, as he was acting as Griffin’s official repre-
sentative during the meeting. I do not find this statement was
insubordinate or that it somehow sanctioned insubordinate be-
havior on Griffin’s part.29
Regarding the fourth Atlantic Steel factor, whether the con-
duct at issue was provoked by the Respondent’s unfair labor
practices, I note that the General Counsel has not alleged that
the initial announcement of the warning letter was unlawful. I
find therefore that any unfair labor practices here occurred after
the fact, as a consequence of Eltzholtz’ advocacy, and were not
a precipitating factor.
On balance however, the application of the Atlantic Steel cri-
teria strongly suggests that neither Eltzholtz nor Griffin lost the
protections of the Act by any of their conduct on February 9.
Thus, the very conduct to which Respondent attributes the
issuance of Ernest Griffin’s warning for insubordination was
and remained, in and of itself, protected conduct. Under its own
theory of the case, therefore, Respondent’s defense to the alle-
gations of the complaint lacks merit.
Based upon the foregoing, I conclude that Respondent’s re-
fusal to rescind Griffin’s warning letter for insubordination
violated Section 8(a)(1) and(3) of the Act.
I further find that Celmer’s statement to Griffin that, his re-
ceipt of the warning letter for insubordination was because of
the activities of his shop steward reasonably tended to coerce,
restrain, and interfere with Griffin’s right to seek union repre-
sentation and therefore independently violated Section 8(a)(1)

29 In this regard, I additionally note that Respondent has not asserted
that Eltzholtz acted in an insubordinate manner during either meeting.
UNITED PARCEL SERVICE 435
of the Act, as alleged.
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. Teamsters Local 177 is a labor organization within the
meaning of Section 2(5) of the Act.
3. By stating that a warning letter issued on March 1 to
Ernest Griffin would not be rescinded because of the protected
conduct of his union representative, Respondent violated Sec-
tion 8(a)(1) of the Act.
4. By failing and refusing to rescind the warning letter for in-
subordination issued to Ernest Griffin on March 1, Respondent
violated Section 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent, having discriminatorily disciplined Ernest
Griffin must, to the extent it has not already done so, rescind
the March 1 warning letter for insubordination, remove all ref-
erences to such discipline from Griffin’s personnel file and
notify him in writing that it has done so and that the discipline
will not be used against him in any way.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended30
ORDER
The Respondent, United Parcel Service, Inc., Secaucus, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that discipline will not be rescinded
because of the protected conduct of their union representatives.
(b) Disciplining employees because of the protected conduct
of their union representatives.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discipline
issued to Ernest Griffin, and within 3 days thereafter notify
Griffin in writing that this has been done and that the discipline
will not be used against him in any way.
(b) Within 14 days after service by the Region, post at its fa-
cility in Secaucus, New Jersey, copies of the attached notice
marked “Appendix.”31 Copies of the notice, on forms provided

30 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
31 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
by the Regional Director for Region 22 after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 9,
2007.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT tell our employees that discipline will not be
rescinded because of the protected conduct of their union repre-
sentatives.
WE WILL NOT discipline or otherwise discriminate against
employees because of the protected conduct of representatives
of Teamsters Local 177 or any other Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful discipline
issued to Ernest Griffin, and WE WILL within 3 days thereafter
notify Ernest Griffin in writing that this has been done and that
the discipline will not be used against him in any way.
UNITED PARCEL SERVICE, INC.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”