United Parcel Service, Inc. v. N.L.R.B.

Decision Date18 April 1983
Docket NumberNo. 82-3318,82-3318
Citation706 F.2d 972
Parties113 L.R.R.M. (BNA) 2174, 97 Lab.Cas. P 10,047 UNITED PARCEL SERVICE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Third Circuit

James D. Crawford (argued), Bernard G. Segal, Martin Wald, Frank C. Sabatino, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for petitioner; Matthew R. Westfall, Baird, Kirven, Westfall & Talbott, Louisville, Ky., of counsel.

Joseph A. Oertel (argued), William A. Lubbers, General Counsel, John E. Higgin, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, Elliott Moore, Deputy Assoc. General Counsel, N.L.R.B., Washington, D.C., for respondent.

Before GIBBONS, HUNTER and ROSENN, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

On May 21, 1982, the National Labor Relations Board ("Board") issued a decision and order holding that United Parcel Service, Inc. ("UPS") had committed certain unfair labor practices under the National Labor Relations Act, 29 U.S.C. Secs. 151-169 (1976 & Supp. V 1981) ("Act"). The Board held that UPS had violated section 8(a)(1) of the Act, 29 U.S.C. Sec. 158(a)(1) (1976), by promulgating, maintaining, and enforcing an unlawfully broad no-distribution of literature rule. It also held that UPS had violated sections 8(a)(1), 8(a)(3), and 8(a)(4) of the Act, 29 U.S.C. Sec. 158(a)(1), (a)(3), (a)(4) (1976), by unlawfully discharging Robert W. Bowlds and David E. Perkins, two UPS employees.

This action is a petition for review and a cross-application for enforcement of that order. For the reasons stated herein we will enforce in part, and we will remand in part.

I
A. Driver Robert Bowlds

Bowlds was originally hired by UPS in 1965. For the six or seven years prior to the instant unfair labor proceeding, he worked as a "feeder driver" out of UPS's Owensboro, Kentucky facility. 1 Bowlds also served as the Teamsters Local 89 steward at the Owensboro terminal. 2 In his position as steward Bowlds filed grievances, participated in grievance hearings, and assisted the Professional Drivers Council ("PROD"), a Teamsters' organization. Since 1975 Bowlds had also been a member of "UPSurge," a nationwide organization of UPS employees dedicated to improving their wages, hours, and working conditions. Bowlds testified that he had been openly involved with both UPSurge and PROD at the Owensboro terminal 3 and had distributed their literature in the presence of UPS supervisors. App. at 413a-15a, 419a-23a. 4

Bowlds had a running history of disputes with UPS. On April 24, 1978, UPS discharged Bowlds, assertedly because he falsified his timecard and overextended his rest breaks. 5 On May 8, 1978, as a result of a contractual grievance proceeding, Bowlds was reinstated, and the discharge was converted into a suspension. On May 24, 1978, Bowlds was issued a "final warning" for taking excessive time on his breaks. That warning was rescinded on June 14, 1978, also after a grievance proceeding. On August 4, 1978, UPS discharged Bowlds for a second time, again asserting that he had overextended his breaks and falsified his timecard. On October 3, 1978, a grievance panel reduced the discharge to a "Disciplinary Suspension and Final Warning."

Both the May 24, 1978 final warning letter and the August 4, 1978 discharge were the subject of an unfair labor practice proceeding brought by the General Counsel against UPS. The Board held that those actions violated sections 8(a)(1) and 8(a)(3) of the Act. United Parcel Service, Inc., 252 N.L.R.B. 1015, 1019 (1980), enforced, 677 F.2d 421 (6th Cir.1982) ("United Parcel Service I"). 6 The Board issued a cease and desist order, awarded Bowlds back pay, and ordered the May 24, 1978 warning letter expunged from his file. United Parcel Service I, 252 N.L.R.B. at 1016, 1023.

UPS claims that in July and August of 1979 it again became concerned about Bowlds' consistent late arrival at the Owensboro Center. The Company decided to observe Bowlds on the night of August 27-28 during one of his normally scheduled runs. 7 According to the supervisors who trailed him, Bowlds overstayed his allotted rest periods on that run by forty-three minutes. On the next night the Company suspended Bowlds allegedly for overextending his breaks and falsifying his timecard. Three days later UPS informed Bowlds that he was discharged.

B. Driver David Perkins

Perkins has been employed at UPS's Campbellsville, Kentucky facility as a feeder driver since 1971 and, like Bowlds, has actively been involved with union activity. He testified that he had openly distributed UPSurge and PROD material at Campbellsville several times, and that he had collected money and solicited signatures for the class action suit brought by Bowlds against UPS.

On February 14, 1979, Perkins filed a grievance protesting UPS's alleged failure to assign him sufficient work. That grievance was resolved against him. App. at 90a; 648a-50a. Perkins testified that two weeks later he had a conversation with Tom Mouser, the Campbellsville Terminal Manager, about obtaining some work pants. According to Perkins, Mouser stated: "Perkins, we're trying to figure out a way to fire your ass anyway. We won't have to get you any." App. at 652a. That statement was made in front of two other employees, Bobby Pierce and Eddy O'Banion, who both corroborated Perkins' version of events. App. at 150a; 224a-25a, 234a-35a, 652a-53a.

Perkins also stated that in February or March of 1979, Mouser approached him at the Campbellsville facility and brought up the subject of UPSurge. He testified:

[Mouser] asked me if I had been distributing some papers around Campbellsville, and I said yes. And I told him we had the right to as long as the man wasn't on the clock working.

And he responded, "Well, I'd rather you didn't do it."

App. at 643a. At the time Mouser made his statement, Perkins was not distributing literature. Perkins testified that despite Mouser's statement, he continued to distribute UPSurge material at least two more times over the next few months. App. at 644a-45a.

UPS contends that throughout the summer of 1979, Perkins habitually returned late to Campbellsville after completing his regularly scheduled route. In conjunction with its observation of Bowlds, UPS decided to observe Perkins on the night of August 27-28. Company supervisors testified that they followed Perkins to a rest stop where they observed him overstay his rest break. On the next evening Perkins' supervisor told him that he was suspended for overextending his rest break and falsifying his timecard. On August 30, 1979, Perkins was formally told that he was being discharged.

C. The Grievance Proceedings

Both Bowlds and Perkins filed grievances over their discharges under the grievance procedures in their union contract. An initial meeting was held on Bowlds' grievance on September 11, 1979. Bowlds' grievance was read into the record, 8 and Bowlds stated that he was innocent of the UPS's charges. UPS presented testimony supporting its claim that Bowlds had overextended his breaks and falsified his timecard. The panel deadlocked, and the grievance was referred to the state level. The grievance was heard before the state panel on October 9, 1979, but the parties again deadlocked. On October 30, 1979, the Joint Area Conference heard Bowlds' grievance but the parties again were unable to resolve the dispute. Finally on November 20, 1979, the grievance was placed on the Joint Area Conference's "Deadlocked Agenda," and after a hearing Bowlds' discharge was upheld.

Perkins' grievance was also initially heard on September 11, 1979. A UPS supervisor testified that Perkins had been observed taking a thirty-two minute break although his timecard only reflected a fifteen minute break. Perkins' grievance was read, 9 and two affidavits were submitted in his defense. The hearing was deadlocked, and Perkins' grievance was referred to the state level. After a hearing before the state panel, Perkins was granted immediate reinstatement without backpay.

II

Following their discharges both Bowlds and Perkins filed charges with the Board's Regional Director claiming that UPS had unlawfully discriminated against them because of their protected activities. On October 24, 1979, the Regional Director issued a consolidated complaint charging UPS with unfair labor practices. The complaint alleged that UPS had violated section 8(a)(1) of the Act by unlawfully promulgating and enforcing a rule prohibiting distribution of UPSurge's written material on UPS property. 10 Order Consolidating Cases, Consolidated Complaint and Notice of Hearing p 5, 9, 11, app. at 3a, 4a. It also alleged that UPS had violated sections 8(a)(1), 8(a)(3), and 8(a)(4) of the Act by unlawfully discharging Bowlds and Perkins. Id. at p 6, 7, 8, 9, 11, app. at 3a, 4a.

An Administrative Law Judge held hearings and issued a decision on October 3, 1980. He initially determined that the General Counsel's complaint should not be dismissed on Spielberg deferral grounds. 11 Turning to the merits he found that in February and March of 1979, UPS had promulgated, maintained, and enforced an "ambiguous" written rule prohibiting distribution of literature on UPS property at any time. The ALJ found that Mouser enforced this rule, pointing specifically to Mouser's statement of "I'd rather you didn't do it," made to Perkins concerning the distribution of UPSurge material. App. at 156a-57a. 12 Based on these facts the ALJ held that UPS had violated section 8(a)(1) of the Act.

Turning to the discharges of Bowlds and Perkins, the ALJ found not credible the supervisors' testimony that Bowlds and Perkins had overextended their breaks. App. at 160a, 162a. He determined that, as a general matter, late returns by Bowlds and Perkins were due to delays in getting out of other terminals. Id. The ALJ also found that Bowlds and Perkins had...

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