UPS SCS

National Labor Relations Board - Board Decisions

Nov 4, 2011

357 N.L.R.B. 1295 (N.L.R.B. 2011)

UPS SUPPLY CHAIN SOLUTIONS, INC. 1295
357 NLRB No. 106
UPS Supply Chain Solutions, Inc. and Teamsters Lo-
cal Union No. 769, affiliated with International
Brotherhood of Teamsters. Cases 12–CA–
026437, 12–CA–026446, and 12–CA–026564
November 4, 2011
DECISION AND ORDER
BY MEMBERS PEARCE, BECKER, AND HAYES
On December 3, 2010, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
Respondent and the General Counsel filed exceptions
and cross-exceptions respectively and supporting briefs.
The General Counsel filed an answering brief to the Re-
spondent’s exceptions, and the Respondent filed an an-
swering brief to the General Counsel’s cross-exceptions,
as well as a reply brief to the General Counsel’s answer.
The National Labor Relations Board has considered
the decision and the record1 in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions as modified,
to amend the remedy, and to adopt the recommended
Order as modified and set forth in full below.
The consolidated complaint alleges, among other
things, that the Respondent violated Section 8(a)(1) of
the Act by maintaining and enforcing an overly broad
no-solicitation rule in its employee handbook, and by
threatening employees with discharge and job loss if they
selected the Union as their collective-bargaining repre-
sentative. The complaint also alleges that the Respond-
ent violated Section 8(a)(1) and (3) by discharging em-
ployee Irving Puig because of his union and otherwise
protected activities. The judge dismissed the complaint
allegations concerning the Respondent’s handbook rule
and the threats of job loss, but found that Puig was en-
gaged in protected concerted activities that were support-
ive of the Union, and that the Respondent unlawfully
discharged him for those activities. In addition, the
judge found that the Respondent violated Section 8(a)(1)
by announcing an overly broad no-solicitation rule at a
prework meeting.
For the reasons explained below, we adopt the judge’s
finding that the Respondent violated Section 8(a)(1) and

1 The Respondent has requested oral argument and the General
Counsel filed an opposition. The request is denied as the record, excep-
tions, and briefs adequately present the issues and the positions of the
parties.
2 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.
(3) when it discharged Puig for engaging in union and
other protected concerted activities.3 Contrary to the
judge, however, we find that the Respondent’s hand-
book’s no-solicitation rule was unlawful and that the
Respondent unlawfully threatened employees with job
loss.4 We further find it unnecessary to pass on the
judge’s finding concerning the alleged overly broad no-
solicitation rule announced at a prework meeting.
Facts
The relevant facts are fully set forth in the judge’s de-
cision. Briefly, the Respondent provides fully-integrated
logistical support to other companies’ supply chains. A
2009 union organizing campaign took place at one of the
Respondent’s warehouses in Miami, Florida—the rele-
vant facility in this proceeding. Soon thereafter, the Re-
spondent began conveying an antiunion message to em-
ployees at meetings conducted by its supervisors.
At a July 23, 20095 meeting, the Respondent’s human
resources supervisor, Clara Polanco-Guzman, showed
employees an antiunion video. Following the video, Po-
lanco-Guzman stated that some of the contracts that the
Respondent has with its clients require that it maintain a
nonunion work force. Polanco-Guzman further stated
that employees could lose their jobs by supporting a un-
ion because the Respondent could lose those clients, re-
sulting in loss of business. At the conclusion of her re-
marks, she asked employees whether they had any ques-
tions.
Employee Irving Puig raised his hand and stated that if
there were rumors about employees supporting a union,
these rumors were caused by employee unhappiness and
that the Respondent would need to address that unhappi-
ness. He cited numerous personal experiences with the
Respondent that exemplified the types of concerns that,
in his opinion, cause employees to support a union. Af-
ter the meeting, Polanco-Guzman reported to the Re-
spondent’s divisional operations manager, Alina Fernan-
dez, that Puig’s comments were disrespectful and disrup-
tive and that he should be disciplined for insubordina-
tion. On August 6, Supervisors Raul Echevarria and
Polanco-Guzman informed Puig that he was being dis-
charged for a history of insubordination that included his
conduct at the July 23 meeting.

3 As stated in fn. 10, Member Hayes would reverse the judge’s
8(a)(3) finding.
4 As stated in fn. 11, Member Hayes would not reverse the judge’s
dismissal of the job loss threat allegation.
5 All dates refer to 2009, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1296
Analysis
1. The handbook no-solicitation rule
The Respondent’s no-solicitation rule, as written in its
employee handbook and distributed to all employees,
provides that:

Employees of the company may not solicit or distribute
literature during work time or in work areas for any
purpose.

Work areas are all areas where employees perform
work.

Work time: Does not include break periods and meal
times or other periods during the work day when em-
ployees are not engaged in performing their work tasks.
Work time includes the time of both the employee do-
ing the solicitation or distribution and the employee to
whom the solicitation or distribution is directed.

It is undisputed that this rule was posted at various lo-
cations in the Respondent’s warehouse, and that the Re-
spondent reminded its employees of the rule. The judge
found the rule to be permissible because “[a] plain read-
ing of the entire rule . . . establishes that the rule did not
prohibit employees from soliciting other employees ‘on
their own time.’” Accordingly, the judge dismissed this
complaint allegation.
We find, contrary to the judge, that the Respondent’s
no-solicitation rule violates Section 8(a)(1).6 Employers
may ban solicitation in working areas during working
time but may not extend such bans to working areas dur-
ing nonworking time. See, e.g., Restaurant Corp. of
America v. NLRB, 827 F.2d 799, 806 (D.C. Cir. 1987)
(“[A]n employer may not generally prohibit union solici-
tation . . . during nonworking times or in nonworking
areas.”) (citing NLRB v. Babcock & Wilcox Co., 351 U.S.
105, 112–113 (1956); Republic Aviation Corp. v. NLRB,
324 U.S. 793, 797–798 (1945)).7 In discussing the Re-

6 As noted above, the judge found that the Respondent violated Sec.
8(a)(1) when Raul Echevarria, a supervisor, orally stated at a July 17
prework meeting that “[the Respondent] has a ‘No Solicitation’ policy,
where no solicitation of any kind is allowed in the workplace.” The
judge reasoned that this oral statement of the no-solicitation rule was
overly broad because it stated an absolute prohibition on solicitation,
without any accommodations for nonworking times. Because we find
that the no-solicitation rule in the employee handbook violates Sec.
8(a)(1), we find it unnecessary to pass on the judge’s finding that Eche-
varria’s statement at the July 17 meeting was unlawful, as that finding
would be cumulative and would not materially effect the remedy.
7 There are, however, exceptions, not relevant here, such as for retail
stores, restaurants, and hospitals, where solicitation in working areas
might interfere with sales, service, or care. See, e.g., Restaurant Corp.
spondent’s no-solicitation rule, the judge focused solely
on the restrictions placed on employees’ worktime.
However, the Respondent’s rule also prohibits solicita-
tion in work areas, and does so without qualification.
Fairly read, an employee would reasonably understand
the rule to ban solicitation in work areas even during
nonwork time. The rule is therefore impermissibly over-
broad and violates Section 8(a)(1).8
2. Puig’s discharge
The judge found that Puig’s conduct at the July 23
meeting was protected, concerted activity, and that this
conduct was the sole motivating factor in the Respond-
ent’s decision to discharge him. Therefore, the judge
applied the test articulated in Atlantic Steel, 245 NLRB
814, 816 (1979), to determine whether Puig’s conduct at
the July 23 meeting caused him to lose the Act’s protec-
tion. The Respondent argues that Puig’s history of in-
subordination combined with his conduct at the July 23
meeting provided a dual motivation for his discharge and
that the judge should have applied Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). We disagree
and find that the judge properly applied Atlantic Steel.9
Among the factors considered by the Board in apply-
ing the Atlantic Steel test is whether the outburst was
provoked by an employer’s unfair labor practice. Atlan-
tic Steel, supra. Despite finding that the Respondent
committed no unfair labor practice during the July 23
meeting, the judge found that the Respondent’s campaign
opposing the Union constituted sufficient provocation
under the Atlantic Steel test. As discussed below, we do
not rely on that reasoning because we conclude that Po-
lanco-Guzman’s statements regarding possible job losses
constituted an unlawful threat in violation of Section

of America, supra; Beth Israel Hospital v. NLRB, 437 U.S. 483, 492–
493 (1978).
8 In the alternative, the Respondent argues that because it does not
enforce the no-solicitation rule, the rule is permissible despite being
overbroad. The Respondent’s argument is flawed, because mere
maintenance of the rule, even without enforcement, violates the Act.
See Beverly Health & Rehabilitation Services, 332 NLRB 347, 349
(2000) (“Evidence of enforcement of the rule is not required to find a
violation of the Act . . . mere maintenance of an ambiguous or overly
broad rule tends to inhibit or threaten employees.”) (citations omitted),
enfd. sub nom. Beverly Health & Rehabilitation Services. v. NLRB, 297
F.3d 468 (6th Cir. 2002).
9 Even if Wright Line were applicable, Member Becker would find
that the Respondent failed to carry its burden of establishing that it
would have discharged Puig absent his protected activities. The simple
fact is that all of the other activities cited by the Respondent took place
before Puig’s protected concerted and union activities at the July 23,
2009 meeting and the Respondent had not considered discharging Puig
much less actually done so prior to his protected activities. In other
words, the Respondent’s prior conduct proves conclusively that it
would not have discharged Puig based on his prior conduct.
UPS SUPPLY CHAIN SOLUTIONS, INC.

1297
8(a)(1), and that Puig’s conduct was provoked by that
threat rather than the Respondent’s antiunion campaign.10
In all other respects, we agree with the judge’s applica-
tion of the Atlantic Steel test and adopt his finding that
Puig’s discharge violated Section 8(a)(1) and (3).11
3. Threat of job loss
The judge found lawful Polanco-Guzman’s statements
regarding the possibility of job loss due to client con-
tracts requiring the maintenance of a nonunion work
force, because the statements were couched in terms of
business necessity and did not imply that the Respondent
would terminate employees simply for voting in favor of
the Union. Contrary to the judge, we find that the state-
ments made by Polanco-Guzman were unlawful.
Under NLRB v. Gissel Packing Co.,12 an employer’s
predictions of job loss as a result of unionization are not
privileged under Section 8(c) unless the statements are
“carefully phrased on the basis of objective fact to con-
vey [the] employer’s belief as to demonstrably probable
consequences beyond [the employer’s] control.”13 At the
hearing, Polanco-Guzman could name only one client
that allegedly imposed such a contractual provision. She
was, however, unfamiliar with even the general terms of
that contract and admitted a general lack of knowledge of
any of the Respondent’s current client contracts, includ-
ing the named client. Moreover, it is impossible to de-
termine whether the contract of the named client actually
provides support for Polanco-Guzman’s claim, because
the Respondent failed to offer it into evidence. In short,
because the record does not provide objective support for
Polanco-Guzman’s prediction or, alternatively, indicates
that, at most, only one named client had a contract that
required the Respondent to remain nonunion, Polanco-
Guzman’s statement that multiple clients’ contracts re-
quire a nonunion work force was overbroad, unsupported
by objective fact, and therefore not protected as a lawful

10 Member Hayes adopts the judge’s Atlantic Steel analysis as to the
first three prongs. He does not, however, find that Puig’s outburst was
provoked by the Respondent. He nonetheless agrees that the weight of
the Atlantic Steel factors favor finding that Puig’s conduct did not lose
the protection of the Act, and that his discharge, therefore, violated Sec.
8(a)(1).
11 In finding that the discharge of Puig was unlawful under Sec.
8(a)(1) and (3), the judge stated that “Puig’s conduct . . . was support-
ive of the Union.” We reaffirm that Puig’s conduct at the July 23 meet-
ing constituted union activity, in addition to constituting protected
concerted activity, and that the Respondent’s discharge of Puig because
of his union and protected concerted activity violated Sec. 8(a)(1) and
(3). Though he agrees that Puig’s discharge violated Sec. 8(a)(1),
Member Hayes would find that Puig’s activity did not constitute union
activity, and would therefore reverse the judge’s finding that the dis-
charge violated Sec. 8(a)(3).
12 395 U.S. 575 (1969).
13 Id. at 618.
expression of opinion under Section 8(c).14 Accordingly,
we reverse the judge and find that Polanco-Guzman’s
statements violated Section 8(a)(1).15
AMENDED CONCLUSIONS OF LAW
1. The Respondent, UPS Supply Chain Solutions, Inc.,
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union, Teamsters Local Union No. 769, affili-
ated with the International Brotherhood of Teamsters, is
a labor organization within the meaning of Section 2(5)
of the Act.
3. By the following acts and conduct the Respondent
violated Section 8(a)(1) of the Act:
(a) Maintaining an overly broad rule prohibiting em-
ployees from engaging in protected solicitation during
nonworktime in work areas, and announcing that rule at
its July 17, 2009 meeting.
(b) Threatening employees with discharge and job loss
if they selected the Union to represent them.
4. By the following act and conduct the Respondent
violated Section 8(a)(3) and (1) of the Act:
Discharging employee Irving Puig on August 6, 2009,
because he engaged in protected concerted and union
activities at the July 23, 2009 meeting.
The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and take certain affirmative action designed to
effectuate the policies of the Act. Specifically, the Re-
spondent will be ordered to rescind, insofar as it has not
already done so, its overly broad no-solicitation rule, and
it will be ordered to inform employees in writing that it
has done so.16

14 See, e.g., Eldorado Tool, 325 NLRB 222, 223 (1997); Tellepsen
Pipeline Services Co., 335 NLRB 1232, 1233 (2001), enfd. in relevant
part 320 F.3d 554, 564 (5th Cir. 2003).
15 Member Hayes would adopt the judge’s finding that Polanco-
Guzman’s statements did not violate Sec. 8(a)(1). First, the statement
regarding job loss was permissible because it was phrased as a possibil-
ity resulting from a loss of clients, not from the act of unionization
itself. Polanco-Guzman stated that the Respondent could lose clients as
a result of unionization of the work force, and that such client loss
could lead to job loss. Additionally, the General Counsel did not offer
any evidence that contradicts the Respondent’s claim that some of its
client contracts, including the one Polanco-Guzman identified, required
a nonunion environment. In Member Hayes’ view, the uncontradicted
statements were statements of opinion about a possible outcome, and
were therefore lawful under Sec. 8(c) rather than unlawful threats.
16 Consistent with Guardsmark, LLC, 344 NLRB 809, 812 fn. 8
(2005), enfd. in relevant part 475 F.3d 369 (DC Cir. 2007), the Re-
spondent may comply with our Order by rescinding the unlawful provi-
sion and republishing its employee handbook without it. However,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1298
Having found that the Respondent violated Section
8(a)(1) and (3) by discharging an employee because he
engaged in union activity and protected concerted activi-
ty, we shall order the Respondent to offer him full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights and privilege pre-
viously enjoyed, and to make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him. Backpay shall be computed
in according with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010). The Respondent shall also be required to remove
from its files any and all references to the unlawful dis-
charge of the employee, and to notify him in writing that
this has been done and that the discharge will not be used
against him in any way. The Respondent will be ordered
to post and distribute an appropriate notice.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, UPS Supply Chains Solutions, Inc., Miami,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and announcing an overly broad no-
solicitation rule prohibiting employees from engaging in
protected solicitation during nonworktime in work areas.
(b) Threatening employees with job loss because they
supported the Union.
(c) Threatening employees with discharge because
they engaged in union or other protected concerted activ-
ities.
(d) Discharging or otherwise discriminating against an
employee for supporting Teamsters Local Union No.
769, a/w International Brotherhood of Teamsters, or any
other union or for engaging in any protected concerted
activity.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

because republishing the handbook could entail significant costs, the
Respondent may supply the employees either with handbook inserts
stating that the unlawful rule has been rescinded, or with a new and
lawfully worded rule on adhesive backing which will cover the old and
unlawfully broad rule, until it republishes the handbook without the
unlawful provision. Thereafter, any copies of the handbook that are
printed with the unlawful rules must include the new inserts before
being distributed to employees.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the overly broad no-solicitation rule pro-
hibiting employees from engaging in protected solicita-
tion during nonworktime in work areas.
(b) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the un-
lawful no-solicitation provision has been rescinded, or
(2) provide the language of a lawful provision; or publish
and distribute to all current employees a revised employ-
ee handbook that (1) does not contain the unlawful pro-
vision, or (2) provides the language of a lawful provi-
sion.
(c) Within 14 days from the date of this Order, offer
Irving Puig full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(d) Make Irving Puig whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, with interest, in the manner set forth in
the remedy section of this decision.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Irving Puig and, within 3 days thereafter, notify him in
writing that this has been done, and that the unlawful
discharge will not be used against him in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause show, provide at a reasonable place designat-
ed by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Miami, Florida, copies of the attached no-
tice marked “Appendix”17 in both English and Spanish.
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an

17 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-
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.”
UPS SUPPLY CHAIN SOLUTIONS, INC.

1299
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means.18 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 facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since July 17,
2009.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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 vio-
lated 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 behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain an overly broad no-solicitation
rule prohibiting employees from engaging in protected
solicitation during nonworktime in work areas.
WE WILL NOT threaten you with job loss because you
support the Union.
WE WILL NOT threaten you with discharge because you
have engaged in union or other protected concerted activ-
ity.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Teamsters Local Union
No. 769, or any other union or for engaging in protected
concerted activity.

18 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB 11 (2010), Member Hayes would not require electronic
distribution of the notice.
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.
WE WILL rescind from our employee handbook the
overly broad no-solicitation rule prohibiting employees
from engaging in protected solicitation during nonwork-
time in work areas.
WE WILL furnish all of you with inserts for the current
employee handbook that (1) advises you that the unlaw-
ful provision above has been rescinded, or (2) provides
the language of a lawful provision; or we will publish
and distribute to all of you a revised employee handbook
that (1) does not contain the unlawful provision, or (2)
provides the language of a lawful provision.
WE WILL, within 14 days from the date of the Board’s
Order, offer Irving Puig full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights and privileges previously enjoyed.
WE WILL make whole Irving Puig for any loss of earn-
ings and other benefits suffered as a result of his unlaw-
ful discharge, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the unlaw-
ful discharge of Irving Puig, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done,
and that the unlawful discharge will not be used against
him in any way.

UPS SUPPLY CHAIN SOLUTIONS, INC.

Nicholas M. Ohanesian, Esq., and John F. King, Esq., for the
General Counsel.
Kelly-Ann G. Cartwright, Esq. and Christine Fuqua Gay, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Miami, Florida, on April 5–8, 2010. Team-
sters Local Union No. 769, affiliated with International Broth-
erhood of Teamsters (the Union) filed the charge in Case 12–
CA–026437 on August 7, 2009, and amended it on September
18, 2009.1 The Union filed the charge in Case 12–CA–026446
on August 20 and amended it three times, September 18, Octo-
ber 30, and November 30. The Union filed the charge in Case
12–CA–026564 on November 30 and amended that charge on
December 23. Based on these charges, as amended, the General
Counsel issued an order consolidating cases, consolidated com-
plaint and notice of hearing on February 25, 2010.
The consolidated complaint alleges, inter alia, that UPS Sup-
ply Chain Solutions, Inc., the Respondent, violated Section

1 All dates are in 2009, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1300
8(a)(1) of the Act in various ways, during July and August
2009, in response to the Union’s nascent organizing campaign.
Specifically, it is alleged that the Respondent maintained and
enforced an overly broad no-solicitation rule, that several of the
Respondent’s supervisors told employees that they could not
possess nonwork-related literature at work and not to sign un-
ion authorization cards unless they spoke with the Respond-
ent’s supervisors, and threatened them with discharge and job
loss if they selected the Union as their collective-bargaining
representative. The complaint also alleges that the Respondent
violated Section 8(a)(1) of the Act by showing employees a
video entitled “Little Card Big Trouble,” which is alleged to
contain threats of plant closure and advice to employees to
report the union activities of their coworkers. Finally, the con-
solidated complaint alleges that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by discharging Irving Puig on
August 6 because of his union activities and support.
On March 9, 2010, the Respondent filed its answer to the
consolidated complaint, which it amended on March 29. 2010.
The Respondent has denied the unfair labor practice allegations
and raised several affirmative defenses, including a Wright Line
defense to the 8(a)(3) allegation.2 In addition to the factual and
legal issues raised by the pleadings, there is a dispute over
which version of the “Little Card, Big Trouble” video was
shown, whether a 1997 edition allegedly containing unlawful
statements, or later versions that the parties apparently agree
are free of any unlawful statements.3
On the entire record,4 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the business of
parcel and cargo handling at its facility in Miami, Florida,
where it annually derives gross revenues in excess of $50,000
for the transportation of freight in interstate commerce under
arrangements with and as agent for various common carriers,
including United Parcel Service Inc., each of which operates
between various States of the United States. In addition, the

2 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 988 (1982).
3 It appears from the General Counsel’s efforts to prove that the
1997 copyrighted version was shown, and the absence of any allegation
that the later versions contain unlawful statements, that the General
Counsel concedes that the latter do not run afoul of the Act’s proscrip-
tions.
4 On April 22, 2010, after the close of the hearing, General Counsel
and the Respondent filed separate motions to receive into evidence
agreed-upon translations of exhibits in Spanish that had been received
at the hearing. By Order dated April 26, 2010, I received the transla-
tions as Jt. Exhs. 1–8. Also on April 22, 2010, the General Counsel
filed a motion for a protective order with respect to videotapes that
were received at the hearing as GC Exhs. 28–30. I granted this unop-
posed request in a separate order on April 26, 2010. Copies of my two
orders are made part of the record and attached to this decision as ap-
pendices A & B, respectively.
Respondent annually purchases and receives at its Miami facili-
ty goods and services valued in excess of $50,000 directly from
points located outside the State of Florida. Based on these ad-
mitted facts, I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. See United Warehouse & Terminal Corp., 112 NLRB
959, 960 fn. 1 (1955); Siemons Mailing Service, 122 NLRB 81,
85–86 (1958).
Based on the undisputed testimony of Eduardo Valero, the
Union’s business agent, I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent is a fully-integrated logistical support com-
pany that manages other companies’ supply chains (i.e., prod-
uct inventories) from the assembly line to their customers’
physical locations, performing all intermediate functions related
to moving and storing goods for its customers. Although the
Respondent has facilities throughout the country, the only one
involved in this proceeding is a warehouse located at 10000
N.W. 25th Avenue in Miami, Florida. Approximately 125 em-
ployees work in the warehouse facility. Unlike the larger UPS,
to which the Respondent is related, the Respondent is a non-
union enterprise. The record reveals that the Union has unsuc-
cessfully tried to organize the employees at the Miami facility
on at least two occasions before the 2009 campaign involved
here.
The uncontradicted testimony of Business Agent Valero,
discriminatee Puig and former employees Mario Lopez and
Ricardo Arriaza establishes that the Union’s organizing cam-
paign began sometime in June or early July after Lopez con-
tacted Valero. According to Lopez, he got Valero’s phone
number from Puig. Lopez became the lead employee organizer
until he was discharged by the Respondent on July 15. Arriaza
replaced Lopez as lead employee organizer until he was fired a
short time later. The Union alleged in Case 12–CA–026437
that the Respondent violated Section 8(a)(3) and (1) of the Act
by discharging Lopez and Arriaza. Neither discharge is alleged
to be unlawful in the consolidated complaint before me, the
Regional Director having dismissed the allegation regarding
Lopez, after investigation, and the Union having withdrawn the
allegation regarding Arriaza.
Puig assumed the leadership role after Arriaza’s discharge.
There is no dispute that Puig was also discharged on August 6.
His discharge is the subject of the instant complaint. Valero
testified that, with Puig’s assistance, he arranged a meeting
with several of the Respondent’s employees that took place on
August 1, a Saturday, in a park not far from the Respondent’s
warehouse. Valero and Puig also testified that, before his ter-
mination, Puig solicited a number of union authorization cards.
There is no evidence in the record that the Respondent had any
direct knowledge of Puig’s union activities before his termina-
tion.5

5 The question whether the Respondent was aware of his union
“sympathies” will be addressed later in this decision.
UPS SUPPLY CHAIN SOLUTIONS, INC.

1301
The Respondent has an employee handbook that it distrib-
utes to employees which includes the following statement as
part of its “Employee Relations Philosophy”:

UPS SCS is in favor of maintaining a union-free environment.
Our past experience has shown that a third party is not able to
accomplish anything that we cannot accomplish by working
together as a team. We believe that this direct approach–
without interference by an outside party—is the best way to
maintain positive relationships.

The Respondent, at page 2 of the handbook, further explains
the basis for this philosophy in a section entitled, “A Word
About Unions”:

UPS Supply Chain Solutions works hard to maintain
an employee relations environment that promotes personal
development and achievement. Open communications, fair
treatment, competitive compensation are hallmarks of our
company. Our compensation and benefits plans are re-
viewed annually and necessary changes are made to en-
sure fairness and that our employees are provided wages
and benefits that are competitive within the logistics and
global industry. In addition, we provide a workplace
where all employees are treated with fairness, dignity, and
respect.
We do not believe that our employees would benefit
from outside union representation. Our employees do not
need to deal with cumbersome union rules; to assume the
financial costs and other obligations of union membership;
or to face the possibility of costly work stoppages to be
fairly compensated and be treated fairly at UPS SCS. We
already have processes in place such as our Open Door
Policy, Employee Dispute Resolution Program (EDR),
Employee Opinion Survey (EOS), and other opportunities
that allow our employees to have a critical voice in our
company and give them an opportunity to resolve con-
cerns quickly and fairly.

Our customers entrust us with significant portions of
their business.
They expect a business partner whose employees can
adapt to their changing needs and provide uninterrupted
service.
Our business and the jobs we provide depend upon our
employees’ ability to fulfill our service commitments. Un-
ion work rules and work stoppages could prevent us from
meeting our customers’ expectations.
Although UPS is unionized, it operates in a different
industry and was unionized in a different era. Its relation-
ship with the union began in the 1920’s, before laws guar-
anteed minimum wages, overtime, safety, and non-
discrimination. This relationship demonstrated UPS’
commitment to fair treatment of its people. UPS was able
to grow with limited competition for decades.
In contrast, UPS SCS began operations in a different,
highly competitive industry and in a time when laws and
company policies protect employees’ rights. Like UPS, we
are committed to treating our people fairly. But a union is
no longer necessary to demonstrate this commitment.
In summary, we don’t believe that a union could gain
anything more for our employees than what we can ac-
complish through our direct and open working relation-
ship. We believe strongly that the interests of our employ-
ees, our customers and our company are best served with-
out union intervention.

There is no dispute that the Respondent became aware of the
Union’s organizing efforts sometime in mid-July and that it
conducted a campaign to convince its employees that, as stated
in the handbook, a union was not needed. David Cole, the Re-
spondent’s director of human resources for the Americas Re-
gion, testified that he provided training to the Respondent’s
supervisors in July regarding what they could say legally to the
employees during the campaign. He referred to this training as
“TIPS,” an acronym for “threats, interrogation, promises and
surveillance,” essentially what the Act proscribes. According to
Cole, he also instructed supervisors that, if employees came to
them with questions, to discuss it with human resources before
answering the question.
The testimony and documents in the record show that the
Respondent conducted its campaign through a series of pre-
work communications meetings, or PCMs. The Respondent has
had a practice of communicating information to employees on a
regular basis through these PCMs, which are conducted by
front-line supervisors using scripts prepared by management to
ensure consistency. Beginning about July 17 and continuing
until the beginning of August, the subject of most of these
PCMs was the Union. The General Counsel has alleged that
some of the statements made by supervisors during these PCMs
violated the Act. In addition to the PCMs, as noted above, the
Respondent held a series of meetings around the same time at
which a video, “Little Card Big Trouble,” was shown to em-
ployees in small groups. Clara Polanco-Guzman, a human re-
sources supervisor at the Miami facility, conducted most if not
all of these meetings. As noted previously, the General Counsel
alleges that the video contains two statements that violate the
Act. Finally, according to the General Counsel’s theory of the
case, the Respondent’s campaign culminated with the discharge
of Puig on August 6, effectively ending the Union’s organizing
efforts.
A. No-Solicitation Rule
The Respondent’s handbook contained the following no so-
licitation rule, as it applies to employees:

In order to maintain and promote efficient operations,
discipline, and security, UPS SCS has established rules
applicable to all employees regarding solicitation, distribu-
tion of written material and entry into buildings and work
areas. All employees are expected to comply strictly with
these company rules

. . . .

Employees of the company: Employees of the compa-
ny may not solicit or distribute literature during work time
or in work areas for any purpose.
Work areas are all areas where employees perform
work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1302
Work time: Does not include break periods and meal
times or other periods during the work day when employ-
ees are not engaged in performing their work tasks. Work
time includes the time of both the employee doing the so-
licitation or distribution and the employee to whom the so-
licitation or distribution is directed.
The policy also applies to solicitation for personal in-
terests such as the sale of goods, subscriptions, products
and food.
*United Way is the only exception for the No Solicita-
tion Policy.

There is no dispute that, during the Union’s organizing cam-
paign, this rule was posted at various locations in the ware-
house. In addition, the Respondent had reminded employees of
the rule by memo and at PCMs conducted by the supervisors on
February 19. The PCM script quoted the rule verbatim as it
appeared in the handbook.
The Board has held almost since the Act’s inception that an
employer may, in normal situations, make and enforce a rule
prohibiting employees from engaging in solicitation during
“worktime,” but that a broad rule barring such activity during
nonworking time is presumptively unlawful. Stoddard-Quirk
Mfg. Co., 138 NLRB 615, 617–618 (1962). The Supreme Court
long ago affirmed the Board’s approach to such rules. Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 801–804 (1945), citing
Peyton Packing Co., 49 NLRB 828, 843 (1943). Although there
had been some disagreement among Board members over the
years over what precise language would pass muster, in Our
Way, Inc., the Board held that a rule barring solicitation during
“worktime” would be found valid as long as it states with suffi-
cient clarity that employees may solicit on their own time. 268
NLRB 394, 395 (1983). This is the standard applied by the
Board in recent years. See Cardinal Home Products, 338
NLRB 1004, 1005–1006 (2003), citing Grandview Health Care
Center, 332 NLRB 347, 349 (2000), enfd. sub nom. Beverly
Health & Rehabilitation Services v. NLRB, 297 F.3d 468 (6th
Cir. 2002).
The complaint alleges that the above rule, on its face, vio-
lates Section 8(a)(1) of the Act because it is overly broad. I
disagree. The portion of the handbook rule quoted in the com-
plaint and relied on by the General Counsel is taken out of con-
text. A plain reading of the entire rule, including its definitions
of work areas and worktime establishes that the rule did not
prohibit employees from soliciting other employees “on their
own time.” An objective employee reading the entire rule in the
handbook would reasonably believe that he could solicit his co-
workers when he and the other employee were not “performing
work tasks,” i.e., working. Accordingly, I shall recommend
dismissal of this allegation.
The Respondent also referenced the no-solicitation rule dur-
ing the July 17 PCM, which was the first conducted after the
Respondent became aware of the Union’s campaign. The script
for this series of PCMs deviates from the handbook version of
the rule by stating:

UPS has a “No Solicitation” policy, where no solicitation of
any kind is allowed in the workplace. This policy is posted in
the building.

According to the Respondent’s witnesses, and its established
practice with regard to PCMs, the supervisors were expected to
read this script verbatim and not deviate or improvise. I am
thus constrained to find that the Respondent’s supervisors in
fact told employees on July 17 that “no solicitation of any kind
is allowed in the workplace.” In contrast with the rule contained
in the handbook and reiterated in February, this version of the
Respondent’s policy is not limited to worktimes or work areas
and seems to apply whether or not the employees are working
at the time. To the extent the complaint alleges that the rule, as
conveyed to employees on July 17, is overly broad, I agree.
Accordingly, I find that the Respondent, on or about July 17,
violated Section 8(a)(1) of the Act when its supervisors, includ-
ing Operations Manager Raul Echeverria, during PCMs, broad-
ened the scope of its existing no-solicitation rule to prohibit
solicitation during nonworktimes.
B. 8(a)(1) Allegations Related to the Respondent’s
PCM Campaign
As noted above, the first PCMs conducted by the Respond-
ent’s supervisors that addressed the Union were held on or
about July 17. The script prepared for these meetings is in evi-
dence. The General Counsel also offered testimony from an
employee, Miguel Osorio, who was present at the July 17 PCM
delivered by Operations Manager Echeverria, one of the top
managers at this facility. The complaint alleges that Echeverria
violated the Act in the course of this meeting by telling em-
ployees that they could not possess nonwork-related material at
work, and by threatening employees with job loss if they se-
lected the Union as their bargaining representative.6
Osorio has been employed at this facility for about 3 years,
the first two as a temporary employee. In summer 2009, he
worked in the SPL department, supervised by Eduardo Diaz.
Osorio recalled attending meetings with his supervisor at which
the Union was discussed almost on a daily basis over a 2-week
period. These were PCMs at which Diaz read from a paper, in
English and then in Spanish. Osorio could not recall the dates
of any of these meetings and his recollection as to other specific
details was poor. He did recall that the very first meeting about
the Union was conducted by Echeverria and that it came about
suddenly, at the end of the workday. He and his fellow employ-
ees in the SPL department were called together with employees
in the Sony Ericcson and Intel departments.7 The meeting took
place in the Intel department with about 30 employees present.
The only other employee Osorio recalled by name was Juan
Millet. Osorio recalled that two other men from management
were there with Echeverria but he did not know them by name.
He recalled that Echeverria had a paper that he read from in
English, translating what he read into Spanish as he went along.
He also recalled that Echeverria spoke “with passion.”

6 The complaint, as drafted, does not clearly specify the date or
meeting at which these allegedly unlawful statements were made. It
appears from the evidence cited in counsel for the General Counsel’s
brief that these violations are alleged to have occurred during the July
17 meeting.
7 The Respondent’s departments are named after the customers each
services.
UPS SUPPLY CHAIN SOLUTIONS, INC.

1303
When asked to recount what Echeverria said, Osorio testified
that Echeverria told them that there were rumors of an organi-
zation forming in the place and that the company was not going
to permit a union to form.8 Echeverria told the employees to
think carefully about what they were going to do because “if a
union came, we could lose our jobs.” According to Osorio,
Echeverria also said that, because of the type of clients the
Respondent had in that building, the Company could not permit
a union to form or they would lose clients. In response to a
leading question, Osorio added that Echeverria said they could
close the building if the Company lost clients. Osorio testified
that Echeverria was speaking Spanish when he said these
things.
Osorio was also asked if he ever kept nonwork-related litera-
ture at his workplace and responded that he did not because he
knew it was not permitted under the company policies. When
questioned further about this, Osorio testified that Echeverria
also told the employees at this meeting that it was not permitted
to have union cards or flyers in their workplace. He then added
that he didn’t remember anyone else saying this, but it was a
“done deal.”
Although Osorio testified that Millett was at this meeting and
Millet testified as a witness for the General Counsel, he was not
asked about this meeting. Instead, Millett was asked about
statements his supervisor, Eduardo Diaz, made regarding au-
thorization cards. Millett testified that he did not recall any
meetings with supervisors about the Union. On cross-
examination, he testified that he did not recall being told by any
supervisors that work would decline or jobs be lost if the Union
came in.
The July 17 PCM text, which is in English, does not contain
any explicit threat of job loss upon the formation of a union nor
any reference to possession of nonwork-related material.9 The
text of the meeting opens with an explanation of the purpose of
the meeting, i.e., to answer questions from employees about the
recent efforts by the Union to organize them. In addition, the
text discusses the uncertainty of economic conditions and the
steps that the Respondent has and is taking to grow the busi-
ness. There is also a discussion of union authorization cards and
the disadvantages of having a union, including the costs of dues
and fees. The text also reiterates many of the themes contained
in the handbook’s statement about unions, i.e., the Respond-
ent’s preference for dealing directly with employees and its
commitment to fair treatment. The General Counsel does not
cite any specific language in the script for this PCM as being
violative of the Act and I can find none.
Echeverria denied making the statements attributed to him
by Osorio. These denials were elicited through leading ques-
tions from the Respondent’s counsel. With respect to the meet-
ing itself, Echeverria testified that he read the script verbatim
and did not expand on its contents. He also claimed that he
translated the script into Spanish word for word without any

8 Osorio, as did almost all the other witnesses for the General Coun-
sel, testified in Spanish with the aid of a translator.
9 As noted above, the text does refer to the no-solicitation rule but
says nothing about literature or other printed material.
deviation.10 The Respondent also called as a witness employee
Avellino Herrera.11 Herrera, a 5-year employee, was present at
the same meeting with Echeverria that Osorio attended. Ac-
cording to Herrera, Echeverria read from a script in English,
then repeated what he had said in Spanish. Another Human
resources representative, whose name Herrera did not know,
was there and assisted with the translation. When asked directly
what Echeverria said at the meeting, Herrera recalled that he
told the employees there was talk of a union in the facility and
that Echeverria wanted everybody to make sure they knew what
they were doing, not to let people mislead them into something
they did not want to do. In response to leading questions from
the Respondent’s counsel, Herrera denied that Echeverria said
anything about the building closing or the company losing cus-
tomers if the employees selected a union. Herrera did not recall
anything that was said about union authorization cards. Herrera
confirmed Osorio’s testimony that employees were not permit-
ted to have any outside literature in their work areas. He did
not, however, recall Echeverria mentioning this at the July 17
meeting. As Herrera recalled, the meeting was “extensive” and
it was at the end of the day when the employees were getting
ready to go home. His memory of what was said was really no
better than that of Osorio.12
1. Alleged prohibition of nonwork-related material
The complaint alleges that the Respondent violated the Act
at this meeting by Echeverria telling the employees that they
could not possess nonwork-related literature at work. The Gen-
eral Counsel cites Brooklyn Hospital, 302 NLRB 785 fn. 3
(1991), in support of this allegation. However, in that case, the
Board held that employees generally have a Section 7 right to
possess and display union materials at their workplace, absent
evidence that the employer restricted possession of other per-
sonal items. Thus, it would not be unlawful if the Respondent
had a policy prohibiting the possession of nonwork-related
materials in the work area, as long as it was not discriminatorily
promulgated or enforced. Here, both employees who testified,
Osorio and Herrera, apparently believed that the Respondent
had such a policy even before attending the meeting on July 17.
In fact, Osorio called it a “done deal.” The only evidence that
Echeverria attempted at the July 17 meeting to restrict only the
possession of union materials is the uncorroborated testimony
of Osorio, which I find insufficient to meet the General Coun-
sel’s burden of proof.
The text of the July 17 PCM makes no mention of this sub-
ject. Both Echeverria and Herrera testified that Echeverria
merely read the text and did not deviate from it, even when
translating the text into Spanish. Although General Counsel
called one other employee who was at this meeting to testify,
he did not corroborate Osorio’s version of the meeting. I credit
the testimony of Echeverria that he did not deviate from the

10 There is no dispute that, unlike later PCMs, there was no Spanish
version at the time Echeverria met with the employees. The text of this
PCM was translated into Spanish at a later time.
11 Herrera testified without an interpreter.
12 Herrera also recalled attending two or three other meetings with
his immediate supervisor, Pedro Garcia, on the subject of unions. These
meeting will be discussed later.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1304
text. Considering his position in the Respondent’s management
hierarchy and his experience having worked in a unionized
environment, it is highly unlikely that he would have deviated
from the script. There is no question that the Respondent react-
ed to the Union’s campaign quickly, but it did so in a carefully
orchestrated manner. The Respondent’s managers, and Eche-
verria in particular, certainly knew how not to violate the Act.
Accordingly, I find that the Respondent did not tell employees
on July 17 that they could not possess union, or other nonwork-
related material at their workplaces and shall recommend dis-
missal of this allegation.
The complaint alleged that Supervisor Eduardo Diaz also
told employees that they could not possess nonwork-related
literature at their workplace. As with most of the allegations,
the complaint is vague and nonspecific as to where and when
this is supposed to have occurred. In his brief, counsel for the
General Counsel concedes that there is no evidence that Diaz
ever said this to any employee.13 Instead, according to counsel,
this allegation is based on the testimony of former employee
Miguel Villarroel regarding a statement made by his supervisor,
Sam Rios, at a PCM held about 2 months before Villarroel left
the company.14
Villarroel testified that Rios conducted the meeting in the ar-
ea outside his office and that there were about 15–18 employ-
ees there. He also recalled that a man whose name he did not
know but was with the company was present as well as either
Belkis Cruz or Polanco-Guzman from Human Resources. Ac-
cording to Villarroel, Rios told the employees that he knew
there were employees who were unhappy with the Company
and that there was an organization being formed to bring a un-
ion into the Company. Rios also talked about union authoriza-
tion cards, telling the employees that they were a legal docu-
ment. He remembered Rios telling the employees not to sign
the union card. On cross-examination, Villarroel admitted that,
in his pretrial affidavit, he stated that he did not recall being
told not to sign a card unless he spoke to management first.
Villarroel testified that Rios also explained the disadvantages of
having a union, such as the loss of direct communication with
the Respondent and the intervention of a third party. It was in
this meeting, according to Villarroel, that Rios told employees
that the Respondent had a zero tolerance policy for people hav-
ing nonwork literature and that employees would be disciplined
if they were found to have any. Rios was called as a witness by
the Respondent. Although he denied telling employees that they
had to check with management before signing union authoriza-
tion cards, or otherwise threatening them, he did not specifical-
ly deny making the statement about nonwork-related materials
in the workplace.

13 As noted above, even if he did tell employees they could not pos-
sess nonwork-related materials at work, this would not be per se unlaw-
ful. There would need to be evidence that the prohibition was discrimi-
natorily promulgated or applied only to union materials.
14 Villarroel was employed by the Respondent at this facility from
December 1, 2003, until August 17, 2009. His memory was about as
poor as that of Osorio and Herrera. Thus, he recalled first hearing about
the union campaign 5 months before he left, which would have been in
March. The earliest any witness placed the beginning of any organizing
activity was in June.
Counsel for the General Counsel seeks, in his brief, to amend
the complaint to allege that Rios violated the Act by telling
employees that they could not possess nonwork-related material
in the work place and by telling employees not to sign union
authorization cards. Counsel argues that such a late amendment
is proper because the Rios’ allegations are similar to allegations
already in the complaint attributed to other supervisors and
because the issue has been fully litigated, citing Yellow Ambu-
lance Service, 342 NLRB 804, 824 (2004). As noted previous-
ly, the complaint, generally, is vague and nonspecific as to the
time and place of the independent 8(a)(1) allegations. But it is
specific as to the Respondent agent liable for committing the
alleged violation. Under these circumstances, I find that it
would be prejudicial to the Respondent to find a violation based
on Villarroel’s testimony regarding Rios’ PCM. Although the
Respondent’s counsel called Rios as a witness, she did not ask
any questions regarding these two statements allegedly made
by Rios. Instead, she had him generally deny making the threats
and other statements alleged in the complaint to have been
committed by the Respondent’s supervisors. Ordinarily, one
might draw an adverse inference from a parties’ failure to ad-
dress a specific allegation in the complaint. In this case, how-
ever, there was no allegation in the complaint attributed to
Rios. Counsel for the Respondent may have called him in an
overabundance of caution, not knowing what exactly he was
alleged to have done. Counsel for the General Counsel could
have moved at the hearing to amend the complaint, as soon as
he became aware that the wrong supervisor was named in the
complaint. Such a motion would have given the Respondent
time to object or otherwise respond to the new allegation. At a
minimum, a motion made at the hearing would have put the
Respondent’s counsel on notice what exactly was being
claimed by the General Counsel and she could have tailored her
examination to address that. Under these circumstances, I can-
not find that the allegations were fully and fairly litigated. Ac-
cordingly, I shall deny General Counsel’s posthearing motion
to amend the complaint.
2. Threat of job loss
My decision to credit Echeverria’s testimony also disposes
of the other allegation arising out of the July 17 meeting, i.e.,
that he threatened employees with job loss and plant closure if
they selected the Union to represent them. Again, the only evi-
dence to support this allegation is Osorio’s uncorroborated
testimony. As with the above allegation, there is nothing in the
printed text of this PCM that remotely resembles a threat of job
loss and plant closure. Although the text does describe the eco-
nomic uncertainty within which the Respondent operates and
the Respondent’s efforts to attract and keep business to ensure
its employees have jobs, there is no linkage between these ef-
forts and the Union in the text of Echeverria’s speech. To find a
violation here, I would have to find that he deviated from the
text. As noted above, without some corroboration, I find it
doubtful that a savvy manager like Echeverria would have done
so in order to make such a baldfaced unlawful threat. Accord-
UPS SUPPLY CHAIN SOLUTIONS, INC.

1305
ingly, I shall also recommend that this allegation be dis-
missed.15
In addition to the testimony of Osorio regarding the July 17
PCM with Echeverria, counsel for the General Counsel cites
language in several of the PCM scripts as conveying a message
to the employees that unionization would lead to job loss. Spe-
cifically, counsel cites the following excerpts from the PCM
scripts in evidence:

The July 15 PCM entitled “We are committed to working with
you!”16
UPS has announced several initiatives this year to en-
sure that we remain a strong and financially sound compa-
ny that is able to continue:
Securing non-union jobs by proactively managing
costs and aggressively growing the business.
For non-union employees, we have been able to secure
their job by creating opportunities for areas where they are
needed.

. . . .

Providing the UPS Retirement Plan for all non-union
employees.

. . . .

We are proud to be one of the very few companies as
large as ours to have not had to announce lay-offs.

(Emphasis supplied by the General Counsel.) The General
Counsel omits the portions of the PCM in which the Respond-
ent discusses business results since the first of the year and the
specific steps the Respondent has taken to increase work oppor-
tunities for employees.

July 17 PCM, discussed above, entitled “Questions from em-
ployees regarding Unionization
Why is a union trying to organize us—is it because of
the uncertainty in the economy and that employees are
concerned about their jobs?

The PCM indicates that this is a question that had been asked
by employees. The General Counsel omits the response, in
which the Respondent factually describes the efforts it had
made to provide job security to the employees at this facility.

July 20 PCM entitled “Our SCS Customers”
A union environment will impose limitations that could pre-
vent us from meeting our customers’ expectations.
. . . .

15 I have noted, as General Counsel argues, that Osorio, as a current
employee was testifying against his economic interest and have
weighted this factor in assessing credibility. However, I also noted the
poor state of his memory and the absence of any corroborating testimo-
ny, which makes this testimony unreliable. I do not believe that Osorio
fabricated the testimony. On the contrary, I believe his memory was
simply mistaken and he may have been testifying as to the message he
carried away from the meeting, rather than what was actually said.
16 This PCM makes no reference to the Union’s organizing cam-
paign.
In a unionized environment, there is an expected rise
in the time and resources required, in addition to running a
day-to-day business, which will put the company at a
competitive disadvantage.

Customer confidence may suffer.

Our entire business at SCS, the jobs we provide, and the
growth here at 25th street, depends on our ability to be flexi-
ble and to provide quality, uninterrupted service to our cus-
tomers.

(Emphasis in original.) Again, these statements are taken out of
context. The entire script is a specific explanation of the impact
unionization may have on the Respondent’s ability to satisfy its
customers’ requirements.

July 20 PCM “Re: Job Security”

Job security is very important to all of us . .. through all of the
economic challenges thrown at us so far, we have had zero
layoffs in this operation. Others have not been so fortunate.

. . . .

Again, the link between customers and job security is strong.
That has been demonstrated here in this workgroup, hasn’t it?
Zero layoffs.

As with the above quotes, the General Counsel has selected
these two statements out of a two-page document that describes
in detail the Respondent’s position regarding the issue of job
security.

July 31 PCM entitled “Our Customers and You.”

Our ability to retain our customers and grow the business is
directly related to the operational flexibility a union free envi-
ronment provides.

This one sentence is taken out of a longer presentation full of
specifics regarding the Respondent’s position on the issue of
unions and operational flexibility and how that impacts cus-
tomer service.
Contrary to General Counsel’s suggestion, I find that none of
the Respondent’s written PCMs, either individually or consid-
ered as a whole, conveys a threat of job loss if the employees
select the Union to represent them. It is well established that an
employer is free to communicate to employees its views regard-
ing the effects the employer believes unionization will have on
the business, as long as such statements are “carefully phrased
on the basis of objective fact to convey an employer’s belief as
to demonstrably probable consequences of unionization beyond
his control.” Only if there is an implication that the employer
may or may not take action solely on his own initiative for
reasons unrelated to economic necessities and known only to
the employer, does the statement become a threat of retaliation.
NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). The
statements quoted by the General Counsel here do not cross the
line between protected and unlawful speech by an employer.
The only witness for the General Counsel, other than Osorio,
to testify regarding any alleged threats of job loss was discrimi-
natee Puig, who recalled such threats being made by his super-
visor, Pedro Garcia, during a PCM, and by Polanco-Guzman,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1306
during the meeting at which “Little Card Big Trouble” was
shown.17 Puig testified that he attended approximately 15 meet-
ings, including the one with Polanco-Guzman, at which the
Respondent’s supervisors talked about the Union. He recalled
that these meetings occurred during the period from early July
until the date he was discharged. According to Puig, the discus-
sion of the Union took place during PCMs that were conducted
by Garcia. In the beginning, Garcia held such meetings every
day, but later the frequency diminished to two or three times a
week. Puig recalled that Echeverria was present for these meet-
ings on two or three different occasions. All of the meetings
conducted by Garcia were conducted within his department.
Puig testified that Garcia spoke in Spanish at these meetings.
Puig testified that Garcia said essentially the same thing at
all 14 or 15 meetings he attended. When asked specifically
what Garcia said at these meetings, Puig testified as follows:

He was saying that—there’s more, but he was saying that the
unions were good [sic], that there would be consequences,
that the clients would take away the accounts because they
would be uneasy about strikes forming, and that there would
be loss of jobs. He also talked about a fee that had to be given
to the Union, between 200 and 300 dollars. And then you had
to pay a monthly quota, to ask them in writing for the promis-
es that they were making and not to trust the Union, and as a
consequence we could lose our job because the clients would
be afraid that there would be strikes.18

Puig also testified that Garcia always asked, at the conclusion
of his presentation, if there were any questions. According to
Puig, he spoke up at several meetings, including one time when
he challenged Garcia’s assertion that the Respondent would
lose customers if the Union were selected. Puig testified that he
questioned why the customers would be unhappy since UPS
already had a union with the drivers and some of the warehouse
workers and “why hadn’t the clients left that operation.” Puig
did not testify as to Garcia’s response, if any. Garcia testified
that he also raised personal issues that he had with the Re-
spondent in the past and that he had never received a written
response to concerns he submitted in writing. According to
Puig, these PCMs lasted about 20–30 minutes and discussion
generated by his remarks typically consumed 5 to 7 minutes.
Although Puig recalled that another employee, Avellino Herre-
ra also spoke up at these meetings, Puig did not relate what
Herrera said.
Garcia was called to testify by the Respondent and, as Gen-
eral Counsel points out, his denial of this allegation was elicited
by leading questions. However, Garcia also testified that, at the
PCMs he conducted regarding the Union’s campaign, he mere-
ly read the script provided by the Respondent and did not devi-
ate from it. Avellino Herrera, an employee called to testify by
Respondent, corroborated Garcia.19 A review of the written
PCMs in evidence reveals that a theme of the Respondent’s

17 The allegation regarding Polanco-Guzman will be discussed later
in connection with other allegations related to the showing of the video.
18 This is the English translation of what Puig testified in Spanish.
19 On cross-examination, Puig acknowledged that Garcia read from a
folder at these PCMs.
campaign was the importance of customer satisfaction to ensur-
ing job security. However, none of the written PCM’s makes an
explicit threat that the Respondent will lose customers if em-
ployees become unionized, or that jobs will be lost because of
the Union. This may have been how Puig interpreted Garcia’s
statements, but it is not in the written documents. To find a
violation based on Puig’s testimony, I would have to find that
Garcia deviated from the text to make the statements attributed
to him.
Having considered the evidence in the record, I cannot find
that General Counsel has met his burden of proving that Garcia
threatened employees with job loss if they selected the Union
as their bargaining representative. The only evidence offered in
support of this allegation is Puig’s uncorroborated testimony. I
credit Herrera and Garcia that Garcia merely read the written
text of the PCM. As noted above, none of the written PCMs
contains even an implicit threat of job loss. On the contrary,
they are lawful expressions of the Respondent’s views of the
effect of unionization on its business based on objective facts.
In reaching this conclusion, I also note that Puig’s testimony
was vague as to exactly when such a threat was made and he
failed to identify any other employees, other than Herrera, who
were present when the threat was made. Accordingly, I shall
recommend that this allegation be dismissed as well.
3. Advising employees not to sign union authorization cards
without speaking to the Respondent’s supervisors
The complaint also alleges that employees were told not to
sign union authorization cards unless they spoke with the Re-
spondent’s supervisors. The complaint, although vague as to
time, specifically attributes these statements to Belkis Cruz, a
human resources supervisor, and Eduardo Diaz. In his posthear-
ing brief, counsel for the General Counsel seeks to add Polan-
co-Guzman to the list of supervisors making this statement,
based on former employee Villaroel’s testimony. 20 Counsel for
General Counsel also implicitly amended the allegation in his
brief by arguing that the Respondent’s supervisors violated the
Act by simply telling employees not to sign union cards. This
was apparently based on the failure of General Counsel’s wit-
nesses to establish that employees were told to speak with their
supervisors before signing a card.
Current employees Osorio and Millett testified regarding the
allegation involving Diaz. Osorio recalled that after the meeting
with Echeverria on July 17 Diaz held PCMs in the department
almost daily for 2 weeks at which the Union was discussed.
According to Osorio, all of the employees in his department,
about 9 or 10 including Millett, were present for these PCMs.
When asked what Diaz told employees at the meetings, Osorio
testified that Diaz said, at several meetings, that it was not good
to sign the union card, that the Company helped employees to
enjoy the benefit of bringing money home in an honorable fash-
ion, and to just think it over carefully before joining a union
because that was not good. When asked specifically what Diaz

20 As previously discussed, counsel for the General Counsel moved,
in his posthearing brief, to amend the complaint to add Sam Rios as
another supervisor who made this statement to employees, based on
Villaroel’s testimony. I have already denied this motion.
UPS SUPPLY CHAIN SOLUTIONS, INC.

1307
said about authorization cards, Osorio testified that Diaz told
the employees that the Company would not permit the signing
of cards within the building under no circumstances.21
Millett testified that Diaz told employees at a PCM that be-
fore signing a union card to be sure about what they were sign-
ing, “to see if we were for it or against it.” In response to sever-
al leading questions from counsel for the General Counsel,
Millett recalled that employees were told “to check and be sure
of what we were signing before signing the card.” When asked
by General Counsel who employees were to check with, Millett
finally recalled that Diaz said the office, meaning human re-
sources. Millett’s memory about these meetings was generally
poor.22
Diaz recalled giving 6 to 10 PCMs on the subject of the Un-
ion. He recalled that they were prepared by management and he
was given English and Spanish versions to read to the employ-
ees. Although he specifically denied other allegations attributed
to him, in response to leading questions, he did not specifically
deny this allegation. Although several of the written PCMs in
evidence urge employees to think carefully about what they
were doing in signing a union authorization card, none explicit-
ly requests employees to check with a supervisor or human
resources before doing so.
The General Counsel cites one case in support of this allega-
tion. In Modern Mfg. Co., 261 NLRB 534 (1982), enfd. 723
F.2d 902 (4th Cir. 1983), an administrative law judge found
that an employer’s “advising employees not to sign Union
cards” amounted to restraint and coercion within the meaning
of Section 8(a)(1) of the Act. In that case, the “advice” occurred
in the context of pervasive unfair labor practices which resulted
in the issuance of a bargaining order remedy. That case is thus
distinguishable from the present one.
I find that General Counsel has failed to meet his burden of
proving that Respondent, through Diaz, told employees to
speak with a supervisor before signing a union authorization
card, as alleged in the complaint. Only Millett testified to any-
thing approaching such a statement. His testimony was not
corroborated by Osorio, who worked in the same department
and attended the same PCMs as Millett. In addition, General
Counsel was only able to elicit this testimony though a series of
leading questions because of Millett’s generally poor recollec-
tion of the meetings. In addition, the PCMs in evidence show
that the Respondent merely advised employees to carefully
consider what they were doing before signing a union card and
to make sure this is what they wanted. That is consistent with
Osorio’s testimony that Diaz told the employees to think care-
fully about it and to be sure they knew what they were signing.
Such “advice” is not unlawful. Accordingly, I shall recommend
that this allegation be dismissed.23

21 This may have been a reference to the overly broad no-solicitation
rule contained in one of the PCMs, as noted above.
22 Both Osorio and Millett testified in Spanish with the aid of an in-
terpreter.
23 As noted, counsel for the General Counsel sought to broaden the
allegation to cover any statement in which a supervisor told an employ-
ee not to sign a card. Even assuming such an explicit instruction was
given, I find that this “amended” allegation has not been fully and fairly
litigated.
The allegation that Belkis Cruz told employees not to sign a
union authorization card unless they spoke to a supervisor is
based solely on the testimony of Ricardo Arriaza, the second
lead employee organizer who was fired on July 21. Arriaza
testified that this statement was made during a meeting with
about 20 employees held in the conference room at the begin-
ning of July. According to Arriaza, Cruz showed the employees
a video and explained that the union authorization card was a
legal document and not to sign the cards because it was a legal
document. Arriaza recalled that the video showed people trying
to get other people to join the union, portraying the way the
Union acted to get people to sign. Arriaza testified that they
said that the Union was not good for the Company because
there was no guarantee that they could give the employees what
they wanted. After the video ended, according to Arriaza, Cruz
again told employees not to sign the union card without first
speaking to management. On cross-examination, Arriaza
acknowledged that in his affidavit he stated that this meeting
occurred in the mid-June. Although Cruz was called as a wit-
ness by the Respondent, she was not asked any questions about
this allegation.
Ordinarily, uncontradicted testimony would be sufficient to
establish that a statement was made. However, in this case, the
testimony is of doubtful reliability. There is no other evidence
in the record to support the testimony that such a meeting oc-
curred in early July, or in the mid-June, as Arriaza claimed in
his testimony and affidavit, respectively. Nor is there any other
evidence that Belkis Cruz was involved in showing any videos
to employees as part of the Respondent’s campaign. Moreover,
I note that the evidence in the record indicates that the Re-
spondent did not even become aware of the Union’s organizing
campaign until the mid-July, shortly before Lopez and Arriaza
were terminated, and did not begin its “antiunion” campaign
until July 17. The attendance sheets in evidence also show that
the earliest showing of the video, presented by Polanco-
Guzman, occurred on July 23, after Arriaza was terminated.
Based on the above, I do not credit Arriaza’s testimony that
Belkis Cruz told employees not to sign union authorization
cards unless they spoke with Respondent’s supervisors. I shall
recommend dismissal of this allegation of the complaint.
The new allegation regarding Polanco-Guzman was based
solely on the testimony of former employee Villaroel. Villaroel
testified that, before he was terminated, he attended a meeting
with about 8 to 10 employees at which Polanco-Guzman
showed a video depicting how an employee would approach
another employee to sign a card. After the video, Polanco-
Guzman asked if there were any questions and there were none.
According to Villaroel, Polanco-Guzman then gave a brief
explanation about what was in the video and told employees
not to sign cards, that they were legal documents, not just cards.
He recalled she also said that signing the card did not mean the
Union was going to come in, that it would only lead to an elec-
tion. During cross-examination, Villaroel acknowledged that, in
his pretrial affidavit, he stated that he “did not recall them say-
ing that you shouldn’t sign an authorization card unless we
spoke with them first.” Polanco-Guzman, in response to a lead-
ing question from the Respondent’s counsel denied telling em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1308
ployees that they had to check with management or human
resources before signing a union authorization card.
I find that Villaroel’s testimony, if credited, fails to establish
that Polanco-Guzman told employees not to sign a union card
unless they speak with a supervisor. On the contrary, Villaroel
denied she said this. At most, crediting Villaroel, General
Counsel has established that, in the context of the video presen-
tation, to be discussed later, and while describing the legal sig-
nificance of signing a card, Polanco-Guzman told employees
not to sign. Such a statement contains no threat of reprisal,
implicit or explicit. Accordingly, I shall recommend dismissal
of this newly added allegation as well.
C. “Little Card Big Trouble”
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act, on various dates in July and August, through
a video entitled “Little Card Big Trouble,” by threatening em-
ployees with plant closure and job loss if they selected the Un-
ion as their collective-bargaining representative, and by advis-
ing employees to report the union activities of other employees
to the Respondent. There is no dispute that the Respondent
showed employees the video “Little Card Big Trouble” as part
of its response to the Union’s campaign. The video was shown
at a series of 13–14 meetings, conducted by Polanco-Guzman,
on July 23, 24, 27, and 29 and August 3. The attendance sheets
showing which employees attended these meetings are in evi-
dence. All but three or four of the meetings were in Spanish.
Polanco-Guzman had an English and a Spanish version of the
video to show to the employees. Although there is only one
Spanish version, there are two English versions, one from 1997
and another from 2000. The parties have stipulated to the writ-
ten transcripts of all three versions of the video.
The General Counsel’s complaint allegations are based on
the following two statements from the 1997 English version:

NARRATOR:

So if you’re harassed or threatened by Union supporters; if
they try to make you do something you’re not willing to do,
or if you see acts of vandalism or sabotage, report it to your
management immediately. The Union’s rights do not include
infringing on other people’s rights.

Shortly after this statement, which appears about midway
through the video, another scene has employees talking with a
union organizer. One of the employees makes the following
statement:

Some [employees] are saying they don’t want to lose their
jobs if the company closes down or moves; and they think a
Union might cause that.

General Counsel concedes that these two statements are not
contained in the 2000 English version or the Spanish version of
the video. Thus, it is crucial that General Counsel establish that
the 1997 English version was shown to at least some of the
Respondent’s employees.24

24 In Flying Foods, 345 NLRB 101, 105 (2005), a majority of the
Board found that it was not unlawful for an employer to show the 2000
version of “Little Card Big Trouble” to employees. See also Sodexho
There is no dispute that, at the time the video was shown, the
Respondent had in its possession both the 1997 and 2000 Eng-
lish language versions of “Little Card Big Trouble.” There is
also no dispute that, during the General Counsel’s investigation
of the unfair labor practice charges, the Respondent’s counsel
submitted the 1997 version in response to a request from the
General Counsel’s investigating agent to see the video that was
shown to the employees. The Respondent contended at the
hearing that this was an inadvertent error that was corrected a
within a couple months when counsel sent the 2000 version and
informed the General Counsel’s office of the error.
None of the witnesses called by the General Counsel saw the
English language version of the video. The only evidence as to
which version was shown is the testimony of the Respondent’s
Human Resources Supervisor, Polanco-Guzman, who was as-
signed the task of showing the video to employees by Regional
Human Resources Director David Cole, who also testified for
the Respondent. According to Polanco-Guzman, Cole gave her
two videocassettes to show to the employees, one in English
and one in Spanish. She testified that she was the only man-
agement representative involved in showing the video to the
employees and that she kept both versions of the video in her
possession during the period in which she showed the videos.
At the conclusion of this task, she returned both copies to Cole.
Polanco-Guzman testified with certainty that the only English
language version she showed was the 2000 edition. She did not
know how it came to be that counsel sent the earlier version to
the General Counsel’s office because she was not involved in
responding to that request. Cole, for his part, testified that he
had three copies of the video in his possession, two in English
and one in Spanish. He admitted that he was not aware that the
two English language versions were different until it was
brought to his attention during the investigation. He did not
testify specifically regarding which version he gave Polanco-
Guzman when he assigned her the task of showing the video to
the employees. He did testify that, when the issue was brought
to his attention, he asked Polanco-Guzman which version she
showed and she responded that she showed the 2000 version.
The General Counsel argues that the Respondent’s October
submission of the 1997 version of the video to the General
Counsel’s office, with the representation that this was the video
shown to the employees, constitutes an admission that should
be credited over the testimony of Polanco-Guzman that she
showed only the later 2000 version, of the video. Counsel for
General Counsel notes, correctly, that Cole did not corroborate
Polanco-Guzman’s testimony because he never testified pre-
cisely which version of the video he gave her to show to the
employees. In fact, it is doubtful Cole could testify with any
certainty as to which version he gave Polanco-Guzman because
he admittedly did not realize there was any difference between
the two English language videos until months later. Polanco-
Guzman did testify that she knew she was given the 2000 Eng-
lish version of the video because it was in the same white con-

Marriott Services, 335 NLRB 538, 547, 555 (2001), in which an ad-
ministrative law judge reached the same conclusion as to the 1997
version. Because no exceptions were filed to that portion of his deci-
sion, it is of no precedential value.
UPS SUPPLY CHAIN SOLUTIONS, INC.

1309
tainer with the title and a picture as the Spanish language ver-
sion. The packaging for the 1997 English version is markedly
different and would be noticeable. This testimony rebuts the
General Counsel’s assertion that Polanco-Guzman could not
have differentiated the two English language versions of the
video because their content is so similar.
After having carefully considered the matter, and despite
some reservations, I find that Polanco-Guzman’s testimony that
she showed the 2000 English language version of “Little Card
Big Trouble” is credible. The representation made by Respond-
ent’s counsel when it submitted the earlier version to the Gen-
eral Counsel’s office is troubling, but I accept the representa-
tions of counsel and the witnesses that this was done in error
due to Cole’s mistake in providing counsel with the wrong
version of the videotape. Neither counsel for the Respondent,
nor Cole, showed the video to the employees. Only Polanco-
Guzman did and her testimony was not contradicted by any
witness for the General Counsel. In fact, the General Counsel
made no effort to call any English speaking employee who
would have been shown the video to testify as to what was
shown. While such a witness may not have been able to testify
as to the date of the video, such an employee might have re-
called hearing the statements upon which the General Counsel
relies to prove a violation. Absent such evidence, I am reluctant
to find an unfair labor practice based on what may very well
have been an inadvertent error by Respondent in gathering
evidence to respond to the investigation. Were a violation to be
found based solely on the October submission by counsel, it is
likely that employer’s would not wish to cooperate during an
investigation by the General Counsel in the future. Such a result
would essentially lead to issuance of complaints based on a
one-sided presentation of evidence and create more litigation
like that involved here.
Having found that the Respondent showed its employees the
2000 English language and the Spanish language versions of
“Little Card Big Trouble video, and noting the absence of any
allegation that these versions contain unlawful statements, I
shall recommend dismissal of the complaint allegations related
to the video.25
D. Discharge of Irving Puig
Irving Puig, a native of Cuba, was 69 years old when he tes-
tified at the hearing. He had been employed at this facility since
1997. Prior to 2002, the facility was operated by Fritz Compa-
nies, Inc., which was acquired by the Respondent. Puig contin-
ued his employment with the Respondent until he was dis-
charge on August 6. Although Puig appeared to speak and un-
derstand English, he testified through a translator. As previous-
ly noted, uncontradicted testimony in the record indicates that
Puig gave Lopez the Union’s phone number so that Lopez
could initiate the organizing campaign. Puig also became the
lead employee organizer around July 20, after both Lopez and
Arriaza had been terminated. Puig organized the August 1

25 The complaint alleges that the Respondent violated the Act,
through Polanco-Guzman, during one of these meetings by threatening
employees with job loss. As this allegation is based on the testimony of
Puig, I shall address it in the next section of the decision.
meeting at Tropical Park, introduced the employees there to
Union Organizer Valero, and solicited about five union authori-
zation cards before his discharge. Puig signed a card himself on
July 13. As previously noted, there is no evidence that the Re-
spondent was aware of this activity before Puig’s termination.
There is also evidence that Puig was involved in at least one
earlier organizing attempt, but there is no evidence that the
Respondent had knowledge of this earlier activity.
As demonstrated by the Respondent’s evidence, and detailed
in counsel’s brief, Puig’s employment with the Respondent was
marked by a series of conflicts. Puig could be characterized as
the proverbial squeaky wheel, frequently complaining about
perceived injustices and demanding a response from the Com-
pany’s managers, including the CEO. His complaints were
expressed verbally at PCMs conducted by his immediate super-
visors, and in writing to managers and human resources repre-
sentatives. Although his complaints would often be couched as
general complaints of unfair treatment of employees, they in-
variably arose out of a personal concern Puig had about the
Respondent’s conduct toward him. There is no dispute that, in
early 2008, Echeverria fired Puig when Puig was overheard
him loudly disparaging the employer to employees in the lunch
room and office area over a pay dispute. Echeverria’s decision
was reversed by his boss, Alina Fernandez, the Respondent’s
divisional operations manager responsible for, inter alia, the
Miami warehouse involved in this proceeding. Fernandez testi-
fied, credibly, regarding her efforts over the years to placate
Puig, working with him and her supervisors and mangers to try
to resolve his many complaints. In fact, it is clear from the tes-
timony in the record that the Respondent’s supervisors and
managers bent over backward for Puig, perhaps out of respect
for his age. Puig, in his testimony, did not really contradict
Respondent’s evidence regarding his employment history. In-
stead, he and the General Counsel attempted to show that all of
his complaints had merit and that he frequently caught the Re-
spondent’s supervisors violating company policies. I need not
recite here all of the evidence in the record regarding this histo-
ry. Suffice it to say that Puig was a “thorn in the side” of man-
agement and an employee the Respondent’s managers would be
happy to see gone. However, aside from the incident with Ech-
everria, Respondent had essentially tolerated his behavior for
years, without issuing him any discipline, giving him favorable
employee evaluations and raises, and failing to document all of
the incidents relied on by the Respondent’s witnesses. The
record before me shows clearly that the tipping point for the
Respondent, and what led to Puig’s discharge, was his conduct
at the July 23 presentation of the “Little Card Big Trouble”
video by Polanco-Guzman.
The sign-in sheets for Polanco-Guzman’s meetings show that
Puig attended the first meeting she conducted, on July 23 at 11
a.m. Three other names appear on the sheet for this meeting,
including Avellino Herrera, who testified for the Respondent.26
The sign-in sheets also show that Polanco-Guzman’s next
meeting was at 11:30 a.m. The parties stipulated that the Span-

26 Although Puig testified there were five or six employees at this
meeting, he conceded he did not remember exactly how many were
there.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1310
ish language version of “Little Card Big Trouble” that was
shown at the meeting lasts 20 minutes. After the video was
shown, Polanco-Guzman asked the employees if there were any
questions. It is undisputed that, as was his custom, Puig spoke
up at the meeting. The only language spoken at the meeting
was Spanish. Based on the sign-in sheet, Puig’s exchange with
Polanco-Guzman, which is at the heart of this case, and any
other discussion between her and the employees lasted no more
than 10 minutes.
Puig testified that, after showing the video, Polanco-Guzman
told the employees to think about what they were going to do
because the Union didn’t always keep the promises it made.
According to Puig, she also said that, if a union was formed, the
clients could be unhappy and jobs could be lost, that if the Re-
spondent lost accounts, employees would lose their jobs and be
out in the street.27 After concluding her remarks, which Puig
estimated lasted about 5 minutes, she asked if there were any
questions. Puig responded to this invitation by saying that if
there were rumors about a union, it would be because the em-
ployees were unhappy. He continued by saying that the compa-
ny would need to see what was happening and give answers to
the employees’ unhappiness and uneasiness because “I, for one,
had presented some concerns that I had in writing and never
received a response.” Puig did not testify regarding any re-
sponse to his comments. He estimated that his comments lasted
about 2 or 3 minutes. According to Puig, none of the other em-
ployees at the meeting appeared uncomfortable when he spoke
and none complained to him afterward about his conduct at the
meeting. He specifically denied that he told Polanco-Guzman at
this meeting that he did not personally support the Union, a
claim made by Polanco-Guzman in her written report of the
meeting.
Polanco-Guzman testified twice regarding this meeting, first
as an adverse witness called by the General Counsel under FRE
611(c) and later as one of the Respondent’s witnesses. She
testified that the meeting lasted 30–40 minutes and that the
video presentation consumed only 10 minutes of this time.
According to Polanco-Guzman, Puig was the only employee to
respond to her requests for questions or comments and his re-
sponse dominated the meeting and extended it beyond the time
it should have taken. As shown above, this testimony was con-
tradicted by the sign-in sheets in evidence.
With respect to the alleged threat of job loss, Polanco-
Guzman denied making such a threat but admitted that, in re-
sponse to one of Puig’s comments, she told the employees that
she was aware, from her experience in 2005, that the Respond-
ent had some customers whose contracts with the Respondent
stipulated that the Respondent maintain its nonunion status. On
cross-examination, while claiming that she was not familiar
with the details because she no longer worked in operations,
she testified that she was aware, at the time of the campaign, of
at least one major customer, Proctor & Gamble, whose contract
contained such language. Had Polanco-Guzman merely cited
this fact, as she claimed, her statement would not be a violation
because an employer is free to inform employees of the demon-

27 The complaint alleges that this statement by Polanco-Guzman vio-
lated Sec. 8(a)(1).
strably probable consequences of unionization base on objec-
tive facts. See NLRB v. Gissel Packing Co., supra. Crediting
Puig, I find that Polanco-Guzman went further and told the
employees that they could lose their jobs if they formed a union
because the Respondent could lose customers. While close to
crossing the line, I nevertheless find that even this version of
Polanco-Guzman’s statement was lawful because she never
told, or implied to, the employees that the Respondent would
terminate the employees on its own simply because they chose
the Union, without regard to business necessity. Rather, her
statement, or prediction, of possible job loss was couched in
terms of the effect of unionization on the Respondent’s custom-
ers, a factor outside the Respondent’s control. Accordingly, I
shall recommend dismissal of this allegation.
Polanco-Guzman initially testified that Puig expressed his
disagreement with the contents of the video and with company
procedures. Although she testified that he provided examples of
his disagreements, she did not elaborate until she was cross-
examined later by the General Counsel. The complaints he
voiced at the meeting, as described by Polanco-Guzman, were
the same he had repeatedly raised with the Respondent’s man-
agement over the years. She admitted that he said that these
types of concerns might be a reason employees would support a
union. Polanco-Guzman characterized Puig’s demeanor at the
meeting as agitated, and disruptive, not allowing her or anyone
else to speak, According to Polanco-Guzman, Puig became
more agitated as the discussion continued, resisting her efforts
to re-direct the conversation and save his complaints for anoth-
er time. At one point, he raised his voice and started shaking.
Polanco-Guzman claimed she became concerned for his physi-
cal well being. She also testified that she observed that other
employees appeared uncomfortable as the meeting progressed
and Puig became more agitated. She claimed that two employ-
ees, Herrera and Gonzalo Alvarez, complained to her after the
meeting that the meeting was unnecessarily long because of
Puig’s rehashing his old complaints. She admitted that, despite
her concerns about Puig’s conduct, she never felt threatened by
him.
Herrera was the only one of the two employees who com-
plained to Polanco-Guzman to testify at the hearing. According
to Herrera, when Polanco-Guzman asked the employees if they
had any questions or comments, Puig spoke up. Herrera testi-
fied that Puig got “real agitated and real nervous and he started
shaking and getting all worked up.” When Polanco-Guzman
asked Puig to calm down and wait until after the meeting to
discuss his concerns, Puig persisted and did not stop until Po-
lanco-Guzman finally told him that they had to move on. Herre-
ra’s estimation that the meeting lasted 45 minutes to an hour is
contradicted by the sign-in sheets and was clearly an exaggera-
tion. Herrera did confirm that he complained to Polanco-
Guzman after the meeting about Puig’s behavior at this and
other meetings. On cross-examination, Herrera denied feeling
intimidated or threatened by Puig’s conduct. He merely felt
“concerned” about Puig’s reaction to the video. Only on re-
direct examination, and in response to a leading question, did
Herrera say that Puig raised his voice during the meeting.
Polanco-Guzman testified that, after the meeting, she ex-
pressed her concerns about Puig’s behavior to Alina Fernandez.
UPS SUPPLY CHAIN SOLUTIONS, INC.

1311
She told Fernandez that Puig “had been very disruptive, very
disrespectful in his comments about management and the com-
pany overall, and that [she] felt he should be disciplined.” Fer-
nandez asked Polanco-Guzman to write up what had happened
at the meeting, which she did. The written report in evidence is
not entirely consistent with Polanco-Guzman’s testimony at the
hearing. In her later testimony, during Respondent’s presenta-
tion of the case, Polanco-Guzman testified that she also ex-
pressed her concerns about Puig to Divisional Human Re-
sources Director Cole. As a result of her report, Cole conducted
an investigation that led to the decision to discharge Puig. Cole
testified that he reviewed Puig’s employment history with the
company, including whatever documentation the Respondent
had concerning the issues Puig had raised in the past and man-
agements efforts to resolve them, and then discussed the matter
with Charnley Conway, the Respondent’s vice president for
human resources for the America Regions. Cole recommended
that Puig be terminated. This conversation occurred over the
phone. Conway testified that he relied solely on the information
provided by Cole and agreed with his recommendation. Signifi-
cantly, Operations Manager Echeverria, whose displeasure with
Puig was palpable on the witness stand, was on vacation and
absent from the warehouse for 2 weeks beginning July 23. He
returned in time to carry out the decision to discharge Puig on
August 6.28
On August 6, Echeverria and Polanco-Guzman met with
Puig to inform him of the termination. This is the first notice
Puig had that his job was in jeopardy. According to Puig, Eche-
verria said that Polanco-Guzman had complained that Puig
spoke badly about the company at her meeting and that other
employees had complained about what he said and that this
could not be permitted. Puig responded that he had been asked
for an opinion at the meeting and it was not his fault if his opin-
ion was not in accord with theirs. Puig also told Echeverria that
no one had complained to him at the meeting or afterward that
he was bothering them. Puig recalled further that Echeverria
said they were tired of him and that they were not going to put
up any longer with his speaking up “and things like that.” Puig
was then terminated and escorted out of the building. When
asked by the General Counsel if Echeverria gave him a reason
he was being fired, Puig testified that Echeverria said that Puig
was a person who caused conflict in the company, that he was a
“bad influence.”
Echeverria testified that he told Puig on August 6 that he was
being fired because of his outburst at the July 23 meeting and
because of his long history of insubordination. Echeverria
claimed that, when informed of the decision, Puig was “very
quiet” as if he was expecting it. This testimony is contradicted
by Polanco-Guzman, who was also present, who testified that
Puig was upset and expressed the opinion that the Respondent
was wrongfully terminating him. In addition, a written report of
this meeting, apparently prepared by Polanco-Guzman, corrob-
orates Puig’s testimony regarding his response to being in-

28 Although Echeverria claimed not to be involved in making the de-
cision to terminate Puig, he acknowledged being consulted about it,
after the decision had been made by Conway, and that he agreed with
the decision.
formed of his discharge. Polanco-Guzman also confirmed this
on cross-examination.
Despite the Respondent’s efforts to portray the decision to
discharge Puig as one based on a history of insubordination and
unprofessional conduct, all of the Respondent’s witnesses,
when pressed on cross-examination, conceded that it was his
conduct at the July 23 meeting that was the motivating factor in
the decision, or as Echeverria acknowledged, “the straw that
broke the camel’s back.” Employees who speak up at group
meetings conducted by their employer are generally protected
by Section 7 of the Act. Chromalloy Gas Turbine Corp., 331
NLRB 858, 863 (2000), enfd. 262 F.3d 184 (2d Cir. 2001);
Whittaker Corp., 289 NLRB 933 (1988). The Board has histor-
ically permitted some leeway for impulsive behavior when
employees are engaged in such activity. Tampa Tribune, 351
NLRB 1324 (2007), enf. denied 560 F.3d 181 (4th Cir. 2009);
See also CKS Tool & Engineering, Inc. of Bad Axe, 332 NLRB
1578, 1585–1586 (2000). The issue here is whether Puig
crossed the line between protected and unprotected activity
during the July 23 meeting.
Contrary to the Respondent’s assertions, the fact that the
concerns raised by Puig at the meeting may have originated as
personal issues he had with the Company over the years, does
not mean his conduct was not “concerted.” His grievances were
cited as reasons employees might be unhappy and desire union
representation. Moreover, his comments were made immediate-
ly after the Respondent had shown employees a video warning
of the dangers of signing a union authorization card and were a
direct response to Polanco-Guzman invitation to address the
issues raised by the video. Accordingly, I find that Puig’s “out-
burst” at the July 23 meeting was concerted activity within the
meaning of the Act.
In Atlantic Steel, 245 NLRB 814 (1979), the Board set forth
a four-factor analysis for determining whether an employee’s
conduct in the course of Section 7 activity is so opprobrious as
to lose the Act’s protection. Under that analysis, the Board
considers (1) the place of the discussion; (2) the subject matter
of the discussion; (3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by an em-
ployer’s unfair labor practice. Id. at 816. Applying this analysis
to the facts here, I conclude that Puig’s conduct, while it may
have been “unprofessional” under the Respondent’s policies,
was not so outrageous as to lose the Act’s protection.
Puig’s “outburst” occurred in a conference room where he
and three other employees were being shown a video as part of
the Respondent’s campaign to dissuade employees from sign-
ing a union authorization card. The only management repre-
sentative present was Human Resources Supervisor Polanco-
Guzman. The subject matter of the discussion was the reasons
an employee might choose to sign a card, despite the warnings
contained in the video. In relaying his personal experiences
dealing with the Respondent, Puig did not use any profanities,
did not verbally attack Polanco-Guzman personally, made no
threats toward her or the Company, and did not become physi-
cally intimidating toward anyone in the room. Moreover, he did
not disrupt the showing of the video and only spoke when he
was invited to do so during the question and answer session
after the video. Finally, although I have not found that any un-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1312
fair labor practices were committed during this meeting or as a
result of the video presentations generally, Puig’s outburst was
provoked by the Respondent’s campaign opposing union repre-
sentation among its employees.
Having found that the Respondent discharged Puig because
of his conduct at the July 23 meeting that was protected by the
Act, I must find that the discharge violated Section 8(a)(1) and
(3) of the Act. See Network Dynamics Cabling, 351 NLRB
1423, 1429 (2007); CKS Tool & Engineering, Inc. of Bad Axe,
supra, and cases cited therein.29 Because I have found that pro-
tected activity was the sole motivating factor in the Respond-
ent’s decision to discharge Puig, it is unnecessary to apply the
Wright Line30 analysis applicable to mixed motive cases.31 Be-
cause Echeverria told Puig during the meeting that he was be-
ing discharged for activity that was protected by the Act, I find
further that this statement constituted an independent violation
of Section 8(a)(1) of the Act, as alleged in the complaint.
CONCLUSIONS OF LAW
1. By announcing an overly broad no-solicitation rule on or
about July 17, 2009, and by threatening employees with dis-
charge for engaging in union and protected concerted activities
on August 6, 2009, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
2. By discharging Irving Puig on August 6, 2009, because of
his protected conduct at a meeting on July 23, 2009, the Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and Sec-
tion 2(6) and (7) of the Act.
3. Respondent has not violated the Act in any other manner
alleged in the complaint.
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. To remedy the overly broad no solic-
itation rule announced as part of the July 17 PCM, I shall rec-
ommend that the Respondent rescind the rule and notify em-
ployees that it has done so.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest to be com-
pounded daily in accordance with the Board’s decision in Ken-
tucky River Medical Center, 356 NLRB 6, 9–10 (2010).

29 The discharge violated Sec. 8(a)(3) as well as Sec. 8(a)(1) because
Puig’s conduct at the meeting was supportive of the Union.
30 251 NLRB 1083 (1980).
31 I am not unsympathetic to the Respondent’s sense of exasperation
in dealing with an employee like Puig. However, the Respondent had
ample opportunity to address the situation before the onset of union
activity. It was only after Puig undermined the Respondent’s campaign
by speaking up at Polanco-Guzman’s meeting that the Respondent
decided it had had enough.
Because the majority of the Respondent’s employees speak
Spanish as their primary language, I shall recommend that the
notice be posted in English and Spanish. Although there is no
evidence in the record before me that the Respondent customar-
ily communicates with its employees electronically, I shall
recommend that the attached notice be distributed electronically
if, at the compliance stage, it is determined that the Respondent
utilizes that means of communicating with its employees. See J.
Picini Flooring, 356 NLRB 11, 13–14 (2010).
[Recommended Order omitted from publication.]
APPENDIX A
ORDER RECEIVING EXHIBITS AND
ACCEPTING TRANSLATIONS OF EXHIBITS
ALREADY ADMITTED
During the hearing in the above-captioned case, the parties
offered into evidence various documents that were in Spanish.
The undersigned directed the parties to have such documents
translated into English so that any reader of the record who was
not fluent in Spanish could consider them in making findings of
fact or otherwise disposing of issues in the case. By separate
motions dated April 22, 2010, counsel for the General Counsel
and the Respondent have submitted agreed-upon translations of
the following exhibits that are already in evidence:

R. Exh. 43 February 19, 2009 PCM1
R. Exh. 44 July 15, 2009 PCM
R. Exh. 45 July 17, 2009 PCM
R. Exh. 46 July 22, 2009 PCM
R. Exh. 47 July 27, 2009 PCM
R. Exh. 48 July 31, 2009 PCM
R. Exh. 49 May 3, 2008 letter from Irving Puig to Alina Fer-
nandez.
R. Exh. 50 December 13, 2006 letter from Puig to Belkis
Cruz.
Having considered the matter and noting the agreement of
the parties, I shall receive the proffered translations as Joint
Exhibits 1–8, respectively.2

APPENDIX B

PROTECTIVE ORDER

The unfair labor practice hearing in the above-captioned case
closed on April 8, 2010. By motion dated April 22, 2010,
Counsel for the General Counsel has requested that copies of
three versions of a videotape entitled “Little Card, Big Trou-
ble,” that were received in evidence as General Counsel Exhib-
its 28, 29, and 30, be received under seal and subject to a pro-
tective order to protect the copyright of the producer of the
videos.1 Respondent does not oppose this motion. Having con-

1 PCM refers to pre-work communication meeting.
2 Counsel for the General Counsel proffered two of the translations
as GC Exhs. 34 and 35, while Respondent’s counsel attached all of the
translations to her motion as Composite Exh. A. I have decided that
marking them as joint exhibits will make for a cleaner record.
1 When the videos were received in evidence at the hearing, General
Counsel was given permission to withdraw them for the purpose of
making sufficient copies for the record and for the parties.
UPS SUPPLY CHAIN SOLUTIONS, INC.

1313
sidered the matter and noting the absence of any objection, I
shall grant General Counsel’s motion and issue the following
ORDER

The following exhibits received into evidence as General
Counsel Exhibits 28, 29, and 30 shall be placed under seal

GC Exh. 28: Little Card, Big Trouble (1997 edition in
English)
GC Exh. 29: Little Card, Big Trouble (2001 edition in
English)
GC Exh. 30: Little Card, Big Trouble (2000 edition in
Spanish)

Counsel for General Counsel may only make additional cop-
ies of these videos sufficient for the record and to provide a
copy to the Respondent, and for use in connection with the
litigation of Diaz v. UPS Supply Chain Solutions, Inc., Case
No. 1:10-cv-21038-JEM in the U.S. District Court for the
Southern District of Florida.
No other copies shall be made or retained by the General
Counsel without the authorization of the undersigned or the
District Court, or by permission of the holder of the copyright
to the videos.