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National Labor Relations Board - Board Decisions

Jun 14, 2000

331 N.L.R.B. 338 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
United Parcel Service, Inc. and David Dunning. Case
7–CA–41784
June 14, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On January 26, 2000, Administrative Law Judge Bruce
D. Rosenstein issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel and the Charging Party filed answering
briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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,1 and conclusions2
and to adopt the recommended Order, except that the
attached notice should be substituted for that of the ad-
ministrative law judge.3
In his decision, the judge found that the Respondent
violated Section 8(a)(1) of the Act, inter alia, by orally
promulgating an overly broad no-distribution rule
prohibiting employees from distributing literature in non-
work or mixed-use areas during nonworktime. The
judge also found that the Respondent violated Section
8(a)(1) by discriminatorily enforcing its existing written
no-distribution rule when it did not allow employee
David Dunning to distribute the Convoy Dispatch, a
Teamsters for a Democratic Union publication, in the
Respondent’s package car warehouse area during the
prestart worktime. In adopting this finding, we rely on
the fact that the Respondent routinely permitted drivers
to pass out contest forms, raffle tickets, and golf and fish-
ing flyers in that location. We do not, however, rely on
the drivers’ solicitation of signatures on get well cards or
the collection of money for the purchase of flowers or
other items. In our view, such conduct is more in the
nature of “solicitation” rather than “distribution” as was
engaged in by Dunning.

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. Further, the Respondent, in its brief,
asserts that some of the judge’s credibility findings demonstrate bias.
On careful examination of the judge’s decision and the entire record,
we are satisfied that the contention is without merit.
2 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by its prohibiting the distribution of union-related materials,
Member Hurtgen relies solely on the judge’s finding that the Respon-
dent discriminatorily enforced its no-distribution rule. See his dissent
in United Parcel Service, 327 NLRB 317 (1998).
3 In his decision, the judge inadvertently omitted the cease-and-
desist provision in the notice. We shall issue a new notice to conform
to the Order.
We also find no merit to the Respondent’s contention
that the distribution of the Convoy Dispatch was a poten-
tial littering hazard in the facility. The record shows that
the Respondent regularly permitted drivers to read non-
union-related newspapers and that the periodicals did not
cause any disruption to the Respondent’s daily operation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United Parcel Service, Inc.,
Saginaw, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order, ex-
cept that the attached notice should be substituted for that
of the administrative law judge.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT enforce our no-distribution rule in the
package car warehouse area prior to the starting time of
the package car drivers.
WE WILL NOT discriminatorily enforce our no-distri-
bution rule against employees who are distributing union
or other protected publications.
WE WILL NOT threaten employees with progressive
discipline including termination if they distribute litera-
ture in nonwork or mixed-use areas during nonworktime.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

UNITED PARCEL SERVICE, INC.

Richard F. Czubaj, Esq., for the General Counsel.
Carey A. DeWitt, Esq. and Joseph M. Rogowski II, Esq., of
Detroit, Michigan, for the Respondent.
Barbara Harvey, Esq., of Detroit, Michigan, for the Charging
Party.
331 NLRB No. 53
UNITED PARCEL SERVICE 339
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried before me on September 28 and 29, 1999,1 in
Detroit, Michigan, pursuant to an order consolidating cases and
amended consolidated complaint and notice of hearing (the
complaint) issued by the Regional Director for Region 7 of the
National Labor Relations Board (the Board) on July 26. The
complaint, based on original charges in Cases 7–CA–41784 and
7–CA–419642 filed by David Dunning, an individual, alleges
that United Parcel Service, Inc. (the Respondent or the Em-
ployer) has engaged in certain violations of Section 8(a)(1) of
the National Labor Relations Act (the Act). The Respondent
filed a timely answer to the complaint denying that it had com-
mitted any violations of the Act.
Issues
The complaint alleges that the Respondent orally promul-
gated an overly broad no-distribution rule prohibiting employ-
ees from distributing literature in nonwork or mixed-use areas
during nonworktime, discriminatorily enforced its existing
written no-distribution rule and threatened to discharge an em-
ployee if he distributed literature in nonwork or mixed-use
areas during nonworktime or if he distributed literature during
nonworktime in areas in which other employees are permitted
to distribute literature during nonworktime.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the interstate
and intrastate transportation of goods and has maintained its
principal office and place of business in Atlanta, Georgia. Re-
spondent maintains other facilities through out the United
States, including one in Saginaw, Michigan. It annually derives
gross revenues in excess of $50,000 for the transportation of
freight between and among the various States of the United
States. 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 and that the International Brotherhood of
Teamsters, AFL–CIO (the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
At all material times, Respondent has recognized the Union
as the exclusive collective-bargaining representative of the
employees in the unit with regard to wages, rates of pay, hours
of employment, and other terms and conditions of employment.
Such recognition has been embodied in successive collective-
bargaining agreements, the most recent of which is effective by
its terms from August 1, 1997, through July 31, 2002.

1 All dates are in 1999 unless otherwise indicated.
2 The General Counsel’s motion to sever Case 7–CA–41964 from
Case 7–CA–41784 was granted at the hearing without opposition from
the parties. Accordingly, this decision will only address the issues in
Case 7–CA–41784.
The subject case is strikingly similar to a prior case consid-
ered by the Board in United Parcel Service, 327 NLRB 317
(1998).3 In that case, the Board affirmed the judge’s finding
that the Respondent violated Section 8(a)(1) of the Act by en-
forcing its no-distribution rule in the check-in area and by dis-
criminatorily applying the rule against David Dunning in the
check-in area. The judge found that during the hour before the
drivers’ starting time at 8:30 a.m., the prestart period, the driv-
ers openly read, lounge, engage in social conversation, and
generally use the check-in areas as assembly and waiting
rooms. She also found that while supervisors occasionally give
some instructions or supplies to drivers in the check-in areas
during the prestart period, this is the exception and not the rule.
The judge concluded that the check-in areas are nonwork areas,
or at most, mixed-use areas. The Respondent, therefore, was
not privileged to ban distributions in such areas.
B. The Facts
The Saginaw facility routinely handles approximately 29,000
packages daily that are delivered or picked up by its 93-
package car drivers. The package car drivers are the heart and
sole of the business and officially begin their paid workday at
8:40 a.m. when they attend a mandatory precommunication
meeting before departing the facility to commence delivery of
their packages. Prior to the package drivers’ arrival at work,
part-time loader employees are charged with removing the
packages from large trailers before placing them on one of four
conveyor belts. The conveyor belts run through the middle of
the facility and enable the package cars to be backed up to
ramps on both sides of the belts. Thereafter, the packages are
off-loaded by the part-time loaders into the individual package
cars (Jt. Exh. 1, depicts the conveyor belts and an outline of the
facility).
A number of drivers and supervisors arrive for work as early
as 7:30 a.m. While some drivers use the locker rooms, they
eventually proceed to office complex A to clock-in and obtain
their hand held diads.4 Thereafter, drivers that arrive before
8:40 a.m. are free to talk, read newspapers and magazines,
drink coffee, smoke cigarettes, or stand around until there as-
signed starting time. The evidence discloses that some drivers
congregate around office complex A, others go to the check-in
area while a large number of drivers lean on the front bumpers
of their package cars or mill around in groups in the package
car warehouse area,5 while waiting to commence work. It is
during this period that all of the drivers are together at the facil-
ity before departing to commence their package deliveries.
During this prestart period, drivers pass around such items as
entry blanks for fishing and bowling tournaments, horseshoe
contests, golf outings, and sign get well cards or take up collec-
tions to purchase flowers or other items. Package drivers return
to Respondent’s facility anytime between 4:30 to after 8 p.m.,
upon the completion of their delivery runs.
3 That case is presently pending appeal in the United States Court of
Appeals for the Sixth Circuit.
4 A diad is a hand held computer that keeps track of deliveries and
the drivers’ time throughout the day. Although the drivers’ clock-in on
their arrival at work, they do not officially get paid until they start work
at 8:40 a.m. Before 8:40 a.m., the drivers are on nonworktime.
5 The package car warehouse area, depicted on Jt. Exh. 1, is the point
between the front bumpers of the package cars to the wall area in front
of office complex A, and stretches from circle (balloons) 1 to 17.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
The Respondent utilizes the package car warehouse area for
employer sponsored events such as the United Way Campaign
and its Founders Day celebration.6 Refreshments are placed on
tables in the package car warehouse area for which employees
are encouraged to attend and participate.
The Respondent maintains a written no-solicitation rule that
provides, in pertinent part, as follows:7

1. No employee shall solicit or promote support for
any cause or organization during his or her working time
or during the working time of the employee or employees
at whom such activity is directed.
2. No employee shall distribute or circulate any written
or printed material in work areas at any time, or during his
or her working time or during the working time of the em-
ployee or employees at whom such activity is directed.

David Dunning is a package car driver who has been em-
ployed for 25 years by the Respondent. Since about 1980,
Dunning has also been a steward for the Union. Commencing
in July 1997 Dunning distributed without supervisory interfer-
ence during the prestart period in the locker room, check-in
area, and the package car warehouse area, copies of a newspa-
per called the Convoy Dispatch,8 a publication of the Teamsters
for a Democratic Union (TDU). Likewise, during the 7:30 to
8:40 a.m. time period and in the same areas, Dunning distrib-
uted collective-bargaining updates and copies of the parties’
collective-bargaining agreement to fellow employees and su-
pervisors.
On February 11, Dunning was in the process of distributing
copies of the Convoy Dispatch in the package car warehouse
area during the prestart period, when Supervisor Russ Spauld-
ing apprised him that he was not permitted to distribute the
newspaper in that area. Dunning told Spaulding that he
previously distributed the newspaper in the warehouse area and
was never told by anyone in supervision that he could not dis-
tribute it. Accordingly, he would continue to do so. Spaulding
informed Facility Business Manager Brian Haack that Dunning
refused to cease distributing the newspaper in the package car
warehouse area. Haack checked with his Division Manager
Dan Klinkner, who informed Haack that Dunning was not per-
mitted to distribute the newspaper in the package car warehouse
area. Haack then proceeded into the package car warehouse
area and informed Dunning that he could not distribute the
newspaper in that area. Although Dunning disagreed with

6 The Respondent permits employees to make contributions to the
numerous charities under the United Way umbrella. Founders Day is a
yearly event on August 27 to celebrate the founding of the Employer.
7 The rule has been posted on the bulletin board in the check-in area
since approximately June 1997. It is found at the bottom portion of a
large poster board that contains other notices to employees such as
“Employee Polygraph Protection Act,” “Family and Medical Leave
Act,” “Federal Minimum Wage Information,” “Policy on Sexual Har-
assment,” and “Equal Employment Opportunity Information.” The
portion concerning the no-distribution rule is in small print and prohib-
its the distribution of written or printed material in work areas at any
time. Both employees David Dunning and Marti Murphy credibly
testified that they were not aware that the rule was posted in the check-
in area. I conclude that the no-distribution rule was not widely publi-
cized or disseminated and is misleading and confusing to employees in
that it is captioned under a “No Solicitation Rule” heading and is found
at the bottom in small print among a number of other notices to em-
ployees (R. Exh. 5).
8 The Convoy Dispatch is distributed 9 months during the year.
Haack’s instructions, he ceased distributing the newspaper and
has refrained from doing so to the present day. Later that day,
Dunning had a conversation with Klinkner who told him that he
would be restricted to the locker room, the stairs outside the
locker room and the parking lot for the distribution of the Con-
voy Dispatch. In a later conversation with Haack sometime in
March 1999, Dunning was informed that he could also distrib-
ute the Convoy Dispatch in the check-in area.
On February 18 Dunning was in Lansing, Michigan, attend-
ing a state board grievance meeting on behalf of another em-
ployee. During a recess, Labor Manager Tim Hoy and Klink-
ner called Dunning into the hallway. Hoy informed Dunning
that he was not to distribute the Convoy Dispatch in the check-
in or package car warehouse area or he would be subject to
progressive discipline up to and including termination.
C. Respondent’s Enforcement of its No-Distribution Rule
In this case, there is no question that the Convoy Dispatch
newspaper is entitled to protection of Section 7 of the Act. It
primarily contains articles about current workplace issues and
commentary about the Union’s efforts to represent employees
with respect to those issues. Accordingly, I find that the Con-
voy Dispatch is entitled to protection of Section 7 of the Act.
McDonnell Douglas Corp., 210 NLRB 280 (1974).
The Respondent argues that it can lawfully ban distribution
of the Convoy Dispatch in the package car warehouse area
because it is a work area during the entire course of the day
including the prestart period. In support of this contention, the
Respondent cites record evidence that during the prestart period
work is regularly performed by employees and supervisors. In
this regard, Respondent argues that porters pick up trash and
collect soiled uniforms, the on duty mechanic attends to minor
repairs on the package cars, and part-time loaders regularly
transport incompatible packages on carts throughout the pack-
age car warehouse area.9 Additionally, when conducting in-
spections, the safety committee walks through the package car
warehouse area, and the director of human resources conducts
an orientation for prospective employees in that area. Further,
the Respondent points out that supervisors and employees regu-
larly talk about work-related issues during the prestart period in
the warehouse area.
The evidence shows, however, that during the prestart period
the package car drivers are not on the clock and they do not
perform work. Dunning credibly testified that while some em-
ployees ask supervisors work related questions during the
prestart period, it is undertaken because this is the only portion
of the day that the drivers and the supervisors are together for a
finite period of time. Correspondingly, the parties’ collective-
bargaining agreement does not require an employee to respond
to a supervisor’s work related question during the prestart pe-
riod. Although Dunning acknowledges that some drivers have
performed work in and around their package cars during the
prestart period, he has discouraged this practice and has cau-
tioned those drivers that the collective-bargaining agreement
prohibits such conduct. Dunning and employee Marti Murphy
credibly testified that during the prestart period drivers regu-
larly drink coffee, read the newspaper, and generally mill
around and utilize the package car warehouse area as an assem-
9 Packages in excess of 70 pounds that will not fit on the conveyor
belts are classified as incompatibles. These packages are individually
loaded on the package cars by the part-time loaders.
UNITED PARCEL SERVICE 341
bly area. Additionally, supervisors often join employees during
this period and drink coffee while conversing about nonwork-
related matters. This was confirmed by the testimony of Su-
pervisors Barry Bonadurer, John Spangler, Richard Prevost,
and Klinkner.
In regard to the Respondent’s position that certain work
functions are ongoing in the package car warehouse area during
the prestart period, Supervisors Klinkner, Spangler, and Haack
testified that the package car drivers do not interfere with the
work of the porters, mechanics, or the movement of incompati-
ble packages. In this regard, the porters pick up trash between
7 and 7:40 a.m., the mechanics, according to Spangler, work
very infrequently during the prestart period, and the incompati-
ble packages are placed on a cart that is pushed to the location
of the package car. Likewise, the four employee members of
the safety committee inspect the entire facility only twice a
month including a walk through the package car area while the
orientation of prospective employees takes place once or twice
a month between 7 and 8 a.m.
The Board has long held that an employer may lawfully pro-
hibit employees from distributing literature in work areas in
order to prevent the hazard to production that could be created
by littering the premises. Stoddard Quirk Mfg. Co., 138 NLRB
615 (1962). However, the Board has also held, with court ap-
proval, that this rule does not apply to a mixed-use area.
Transcon Lines, 235 NLRB 1163, 1165 (1978), affd. in perti-
nent part 599 F.2d 719 (5th Cir. 1979) (employer failed to meet
burden of establishing that distribution, which took place in
area used for recreation as well as work, occurred in a work
area or during worktime); Rockingham Sleepwear, 188 NLRB
698, 701 (1971) (sewing area which is work area for greater
portion of day, but used as lunch area during lunch period, not
“work area” within meaning of Stoddard Quirk for duration of
lunch period, but lunchroom where distribution may not law-
fully be prohibited). The concerns for protecting the produc-
tion process which were at issue in Stoddard Quirk do not rise
to the same level when an employer compromises a work area
by permitting nonwork use of it.
Based on the forgoing, I find that the package car warehouse
area is used as a nonwork or, at most, mixed-use area between
7:30 a.m. and the drivers official start time of 8:40 a.m. How-
ever, it is a nonwork area for the package car drivers who are in
a nonwork status during that period.
Therefore, I find that the Respondent violated Section 8(a)(1)
of the Act by enforcing its no-distribution rule in the package
car warehouse area during the prestart period.
D. The Enforcement of the Distribution Ban Against Dunning
There is no dispute that on February 11 Respondent prohib-
ited Dunning from distributing the Convoy Dispatch in the
package car warehouse area during the prestart period. Like-
wise, I find that on February 18 Labor Manager Hoy apprised
Dunning that if he did not cease distributing the Convoy Dis-
patch in the package car warehouse area during the prestart
period, he could be subject to progressive discipline including
termination.
The record evidence shows that the drivers routinely distrib-
ute such materials as fishing contest, horseshoe, golf, and bowl-
ing flyers, obtain signatures on get well cards, or collect money
for flowers in the package car warehouse area during the
prestart period.10 There is no evidence showing that Respon-
dent’s written no-distribution rule was enforced against the
drivers who engaged in the above activities in any way.11
However, Dunning was informed he would be subject to pro-
gressive discipline including termination if he continued to
distribute the Convoy Dispatch under the same conditions and
in the same area under which the other materials are distributed.
In the particular circumstances of this case, I fully credit the
testimony of Dunning and Murphy, that Supervisors Prevost
and Spangler and Business Manager Haack were present when
contest forms, raffle tickets, and get well cards were openly and
routinely distributed in the package car warehouse area during
the prestart period. Schaeff, Inc. v. NLRB, 113 F.3d 254 (D.C.
Cir. 1997) (Board had adequate support for inference that man-
agement knew of employees’ union activities because there was
evidence that employees openly talked about the activities at
work and a manager regularly mingled with the employees
when they were working).
Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(1) of the Act by discriminatorily enforcing its no-
distribution rule against Dunning for distributing the Convoy
Dispatch and threatening him with discipline for engaging in
protected concerted activity.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
orally promulgating an overly broad no-distribution rule pro-
hibiting employees from distributing literature in nonwork or
mixed-use areas during nonworktime. The Respondent further
violated Section 8(a)(1) of the Act by discriminatorily enforc-
ing its existing written no-distribution rule and by threatening
employee David Dunning with progressive discipline including
termination for distributing literature in nonwork or mixed-use
areas during nonworktime.
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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12

10 I specifically credit the testimony of Dunning, which was sincere
and forthright, that Supervisors Haack, Prevost, and Hardin were pre-
sent during the prestart period when the bowling flyers were distributed
in the package car warehouse area (G.C. Exh. 3). Likewise, I credit
Murphy’s testimony that bowling, fishing, and horseshoe flyers were
routinely distributed in the package car warehouse area during the
prestart period and that he observed supervisors in the immediate area
including Spangler.
11 Haack testified that all supervisors have the authority to enforce
Respondent’s rules.
12 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342
ORDER
The Respondent, United Parcel Service, Inc., Saginaw,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Enforcing its no-distribution rule in the package car
warehouse area prior to the starting time of the package car
drivers.
(b) Disparately enforcing its no-distribution rule against em-
ployees with respect to their distribution of protected publica-
tions.
(c) Threatening to take progressive discipline including ter-
mination against employees for distributing literature in non-
work or mixed-use areas during nonworktime.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them 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 after service by the Region, post at its fa-
cility in Saginaw, Michigan, copies of the attached notice
marked “Appendix.”13 Copies of the notice, on forms provided

13 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately on receipt and maintained for 60 con-
secutive days in conspicuous 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 Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 11, 1999.
(b) 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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

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