International Brotherhood of Teamsters, Local 391 (United Parcel Service)

National Labor Relations Board - Administrative Judge Opinions

Dec 28, 2010

11-CB-004150 (N.L.R.B. Dec. 28, 2010)

JD(ATL)–29–10
Winston-Salem, NC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 391
and CASE 11-CB-04150
BARRY SAWYERS, An Individual
Jasper C. Brown, Jr., Esq.,
for the General Counsel. 1
J. David James, Esq. (Smith, James,
Rowlett & Cohen, LLP),
for the Respondent.2
DECISION
Statement of the Case
WILLIAM N. CATES, Administrative Law Judge. This case was tried in Winston-
Salem, North Carolina, on November 1, 2010. Barry Sawyers (Charging Party or Sawyers) filed
the charge in this matter on February 19, 2010, and the Acting General Counsel (the
Government) issued a complaint on August 27, 2010.
The complaint alleges that International Brotherhood of Teamsters, Local 391 (Union) by
Business Agent Chip Roth, violated Section 8(b)(1)(A) of the National Labor Relations Act (the
Act) on February 4, 2010, by threatening retaliation against Charging Party Sawyers because he
filed an unfair labor practice charge against the Union with the National Labor Relations Board
(the Board).

1 I shall refer to counsel for General Counsel as counsel for the Acting General Counsel or the Government.
2 I shall refer to Counsel for the Respondent as the Union, Teamsters Local 391 or Teamsters.
JD(ATL)–29–10
2
Finding of Fact
I. Jurisdiction
5
The Employer, United Parcel Service, a Delaware corporation (Employer or UPS) is
engaged in intrastate and interstate transportation of freight with a terminal located at Winston-
Salem, North Carolina. During the past 12 months the Employer, in the course of it business
operations, derived in excess of $50,000 in gross revenues from the transportation of items from
the State of North Carolina directly to points outside the State of North Carolina. The Union 10
admits, and I find, the Employer is engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organization within the meaning of Section
2(5) of the Act. It is admitted Business Agent Chip Roth is an agent of the Union within the
meaning of Section 2(2) and 2 (13) of the Act.
15
II. Alleged Unfair Labor Practices
UPS transports and delivers freight through its terminals located in all states of the United
States and around the world to businesses, individuals and/or other customers.
20
Specific to this case, is UPS’s actions related to its transferring of certain feeder driver
jobs from its Winston-Salem facility to its Greensboro facility. At its Greensboro terminal UPS
employs over 200 feeder drivers, approximately 300 package car drivers, along with part-time
package sorters and others for a total work force in excess of 2000. UPS employees
approximately 30 to 35 feeder drivers at its Winston-Salem facility along with approximately 25
200 package car drivers, and with its 50 to 60 part-time employees and others, has a work force
of approximately 325.
Feeder drivers are paid more than the other employees. Feeder drivers operate tractor
trailers, sometimes double trailers, moving freight from one location to another by dropping 30
freight filled trailers and picking up empty ones at terminals or wherever a customer may have
placed a filled trailer. There are also feeder driver cover positions. This classification fills in for
drivers who are on vacation or for drivers that work a 4-day 10-hour week. Package car drivers
operate smaller trucks delivering and picking up packages directly at businesses, private
residences or other drop points. Part-time employees sort packages at terminals.35
Employees at the UPS facilities herein, as well as nation wide, are represented by the
Union for collective-bargaining purposes. The National Master United Parcel Service
Agreement and Atlantic Area Supplemental Agreements are applicable for the employees herein.
The current collective-bargaining agreement expires July 31, 2013. Teamster’s Local 391 40
services the employees herein and Chip Roth serves as their business agent of the Local. Roth is
assisted by, among others, Shop Steward Allen McBride.
Shop Steward McBride was first notified about the change or relocation of feeder drivers
from the Winston-Salem facility to Greensboro facility. UPS Division Feeder Manager David 45
JD(ATL)–29–10
3
Sherman, in the summer of 2009, told Steward McBride at the Greensboro facility that UPS had
come up with a plan to move eight feeder driver runs from the Winston-Salem hub to the
Greensboro hub along with three cover runs and would eliminate one feeder driver run. It
appears UPS actually moved 12 runs from Winston-Salem to Greensboro.
5
On September 1, 2009, UPS posted a required semiannual fall bid list for Winston-Salem
feeder drivers allowing feeder driver positions to be rebid by the drivers based on seniority.
McBride noticed 12 less bid runs compared to the spring, April 1, 2009 bid list. According to
Union Shop Steward McBride, the 12 lost runs were a direct result of work being moved by UPS
from its Winston-Salem hub to its Greensboro hub.10
On September 1, 2009, Union Shop Steward McBride filed a grievance regarding the
runs lost from the Winston-Salem hub. The grievance was signed by all 12 affected feeder
drivers and the remedy sought would allow the 12 drivers “to follow our work to the Greensboro
Hub as laid out in the contract language and have our seniority dovetailed into the Greensboro 15
Feeder Department.”
The Union met with UPS on September 30, 2009, to discuss the transferred jobs
grievance. UPS took the position moving the feeder driver jobs from Winston-Salem to
Greensboro was an intra-feeder department move, namely, UPS was just realigning the runs as 20
opposed to changing its operations. As such, UPS contended it could make the moves without
coming under of the parties’ collective-bargaining agreement that addressed changes in operation
by UPS. The Union took the position feeder drivers should be allowed to follow the jobs to
Greensboro including cover feeder drivers. The Union viewed the matter as urgent because it
displaced the feeder drivers and if they were not allowed to follow the transferred jobs it would 25
take up to a year and half for the matter to work its way through the grievance process to
arbitration. The parties arrived at a settlement of the grievance on that date. The settlement,
which was reduced to writing, called for allowing eight feeder drivers to follow the work to
Greensboro, and have their seniority dovetailed into the Greensboro seniority list. Following
bidding and other exceptions six of the eight feeder drivers would transfer to Greensboro 30
effective October 19, 2009 and the remaining two would be given the option to fill, by seniority,
the next two vacancies at Greensboro. The agreement did not provide transfer relief for four of
the positions. The parties signed the settlement of the grievance on September 30, 2009.
Union Shop Steward McBride discussed the settlement terms with the Winston-Salem 35
feeder drivers and posted a copy of the settlement agreement for the drivers to read. Union
Business Agent Roth noted the vast majority of the drivers accepted the settlement but
acknowledged some drivers wished it had gone differently and had included the cover drivers.
Feeder driver Louis Randall Melvin and certain others discussed their dissatisfaction with the
settlement agreement mainly because it only covered 8 of the 12 jobs transferred from the 40
Winston-Salem hub to the Greensboro hub.
Charging Party Sawyers drafted a grievance, which feeder driver Melvin filed with Shop
Steward McBride on November 12, 2009, addressing the failure of the September 30, 2009,
settlement agreement to cover four of the jobs transferred to Greensboro from Winston-Salem. 45
Sawyers said he did not file the grievance himself because he was not a member of the Union.
JD(ATL)–29–10
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Union Shop Steward McBride filed Melvin’s grievance with UPS. UPS asked the Union to
withdraw the grievance because of the grievance settlement signed off on by the parties on
September 30, 2009. McBride discussed the Union’s position with Union Business Agent Roth.
The Union agreed the matter had been resolved by the September 30, 2009 settlement agreement.
Union Business Agent Roth told Union Shop Steward McBride that the Melvin grievance had no 5
merit and explained it was important for the Union to honor its settlement agreement with UPS
and he withdrew and dismissed the grievance. Union Shop Steward McBride said there was
some “irritation” by Melvin, and perhaps others, over the handling of Melvin’s grievance and the
fact it had not been heard.
10
Thereafter, Union Shop Steward McBride told Sawyers that Union Business Agent Roth
had withdrawn the grievance because the matter had been resolved by the September 30, 2009
settlement agreement. Charging Party Sawyers testified that on about December 23, 2009, he
telephoned Union Business Agent Roth and asked why Melvin’s filed grievance had been
withdrawn. Roth told Sawyers the matter had already been settled. Sawyers told Roth he was 15
glad some of the feeder drivers were able to follow the jobs by the settlement agreement but was
very displeased the Union had not followed the parties’ collective-bargaining agreement and
gotten all of the drivers the right to follow their jobs to Greensboro. Sawyers still wanted Roth
to pursue the grievance. Roth refused. Sawyers testified he told Roth he would file a charge
with the Board. Roth told Sawyers he would be wasting his time on the Board and said he would 20
appreciate it if Sawyers did not waste his time filing charges. Union Business Agent Roth could
not recall any such telephone conversation with Sawyer but said it was entirely possible he did so
because he spoke with a number of Winston-Salem feeder drivers about this and other matters.
Roth did not recall Sawyers telling him he would file a charge with the Board.
25
On December 31, 2009, Charging Party Sawyers filed a charge with the Board regarding
the Union’s failure to continue to process the November 12, 2009 grievance he drafted and
feeder driver Melvin filed. The Regional Office of the Board dismissed Sawyers charge and the
Region’s dismissal was upheld on appeal.
30
February 4, 2010
Roth visits the Winston-Salem and Greensboro hubs several times monthly and positions
himself at the hubs to be seen by the most feeder drivers. It is undisputed Business Agent Roth
visited the Winston-Salem hub during the morning hours of February 4, 2010. 35
Ronald Key, a 35-year Winston-Salem feeder driver spoke with Roth that morning about
his grievance regarding pay for certain holidays. Other feeder drivers were also present at the
time while others passed by without stopping. Charging Party Sawyers came out of an office
area at the hub that morning but did not join those in conversation with Roth. Key testified Roth 40
made reference to Sawyer stating, “that fucking scab” and asked for the feeder drivers help “in
keeping Barry from filing charges because he said it was using the local’s money defending
these charges by that ‘fucking scab.’” Key said Union Business Agent Roth was specifically
referring to the Board charge filed by Sawyers.
45
JD(ATL)–29–10
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Feeder driver Melvin testified he was present when Union Business Agent Roth and
feeder driver Key were discussing Key’s holiday pay grievance. Melvin talked with Roth about
the disposition of his November 12, 2009 grievance. According to Melvin, Roth said, “Now stop
guys. We have a serious problem here in Winston-Salem,” and, continued, “[S]omebody has
filed NLRB charges against the Union.” Roth asked if they had any idea who, and, the feeder 5
drivers guessed Barry Sawyers. Melvin testified Union Business Agent Roth then said, “Yes,
that is the fucking scab.” Roth continued, “the fucking scab needs to be stopped because his
NLRB charges has no merit and would cost the union members— any members paying dues
money to hear this— hear the charges, the NLRB charges.” After Melvin left the meeting with
Roth he told Sawyers Roth had called him a fucking scab and he needed to be stopped because 10
his charges had no merit.
Union Shop Steward McBride testified various grievances were discussed at the February
4, 2010 meeting with Business Agent Roth and the others. According to McBride, Roth brought
up “some frustration over a…complaint that was filed by Barry Sawyers.” McBride observed 15
that Roth, “was frustrated and irritated” over Sawyers’ complaint. McBride testified he did not
want to put words in anyone’s mouth but stated Roth said, “it’s very frustrating that your dues
money, being union paying peop . . . is having to be utilized to defend this complaint.” McBride
said Roth called Sawyers a “f’ing scab” and added there “was maybe just a little more talk about
that.” McBride denied Roth asked for action to be taken against Sawyers or that Sawyers needed 20
to be stopped.
On cross-examination by the Government, McBride acknowledged Roth probably said
the matter with Sawyers was serious and that Sawyers was wrong about filing these charges with
the Board that it was a waste of time. McBride did not hear Roth say Sawyers needed to be 25
stopped but added, “I’m not saying he did not say he needed to be stopped . . . I do not recall
these words being said.”
Engineering mechanic Tim Mays, who is also a shop steward, testified he spoke with
Union Business Agent Roth regarding a minor issue the morning of February 4, 2010, but said30
the subject then changed to the larger issue of the transfer of feeder driver positions and
observed, “no one was happy with the situation.” Mays recalled Roth mentioning, “he just didn’t
like spending union resources on scabs wanting to file grievances with the Labor Board.” Mays
specifically said Roth told them, “I hate spending your money on scabs.” Mays said Roth did
not identify the scab but he knew it was Barry Sawyers.35
Union Business Agent Roth testified the most important issue addressed at the February
4, 2010 meeting with feeder drivers related to feeder drivers being bumped back into the package
car ranks. Roth said he spoke with 20 to 30 drivers that morning including Kevin Patton, Ron
Key, Neal Newsome, Allen McBride, and Randy Melvin. Roth acknowledged he told them, “the 40
Union was encumbered with having to pay for a legal defense of a Labor Board charge that he
[Sawyers] had filed against the Local Union over the settlement of the change of operations issue
with Greensboro.” Roth explained to feeder driver Melvin that Melvin’s November grievance on
the same matter was without a foundation to advance because the Union would honor its
settlement with UPS regarding the feeder driver jobs being transferred to Greensboro from 45
Winston-Salem because he believed it was a good settlement that worked well for the
JD(ATL)–29–10
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membership. Roth said he also explained to Melvin, in Union Shop Steward McBride’s
presence, it was a shame the Union was having to expend dues money to defend the Local Union
on a settlement that worked so well for the membership. When asked to be more specific as to
exactly what he said, Roth testified he told them; “It’s a shame that we have to spend dues
money to defend the Local when a fucking scab takes a shot like -- like being taken at the 5
Union.” Roth added, “I can’t remember the specifics of what I said beyond that, . . . .” Roth
had no memory of saying Sawyers needed to be stopped but added he did not make any kind of
threat against Sawyers. Roth denied saying he needed help from the feeder drivers to stop
Sawyers from filing charges with the Board.
10
Credibility Determinations
In making my credibility resolutions I was greatly impacted by impressions I formed
while watching the witnesses as they testified. Stated somewhat differently the impressions I
gathered were based on a combination of the witnesses’ mannerisms, how they spoke and their 15
overall bearing on the witness stand. I “sized up” the witnesses in deciding whether their
testimony impressed me as candid, fair, and believable. Having said that I certainly am not
unmindful that resolutions of credibility conflicts are often difficult, requiring the weighing of
plausible narrations of testimony by witnesses who appear truthful and no more biased or
prejudice that others testifying differently. Indeed, resolutions by a judge, or a jury in a jury 20
trial, are simply a practical solution, not a mark of absolute truth. I also note that by not
accepting selected portions of a witness’s testimony does not indicate I reject all, or other
portions of, the witness’ testimony.
While not essential to a resolution of what was said at the February 4, 2010 meetings, it is 25
somewhat helpful to decide if a the telephone conversation Charging Party Sawyers testified he
had with Union Business Agent Roth, on or about December 23, 2009, actually took place. I am
persuaded Charging Party Sawyers spoke by telephone with Business Agent Roth on December
23, 2009, to find out why the grievance he, Sawyers, had drafted and feeder driver Melvin had
filed on November 12, 2009, had actually been withdrawn. I credit Sawyers’ testimony. He 30
impressed me as generally a truthful witness although he and Roth do not appear to care too
much for each other. Roth did not specifically deny the conversation with Sawyers, only that he
could not recall such, but, added it was entirely possible he spoke with Sawyers. I find that after
Roth told Sawyers the September 30, 2009 settlement of the first grievance regarding the transfer
of jobs from Winston-Salem to Greensboro would preclude further processing the November 35
grievance, Sawyers still wanted Roth to continue to pursue the November grievance. After Roth
again told Sawyers he would not pursue the grievance I conclude Sawyers told Roth he would
file a charge with the Board over the failure to further process the November 12, 2009 grievance.
I likewise credit Sawyers testimony Business Agent Roth told him he would be wasting his time
filing Board charges and he would appreciate it if Sawyers did not waste Roth’s time filing the 40
charges. It is undisputed Sawyers filed such a charge with the Board on December 31, 2009.
It is undisputed Union Business Agent Roth met with various feeder drivers at the UPS
Winston-Salem hub during the early morning hours of February 4, 2010. It is likewise
established that when Roth spoke with a number of feeder drivers some of the conversations, 45
took place in the presence of Union Shop Steward McBride. It is likewise undisputed the
JD(ATL)–29–10
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transfer of feeder driver jobs from the Winston-Salem hub to the Greensboro hub and the
ramifications of those transfers were still actively being discussed between the feeder drivers and
their union representatives. It is clear that at the time of this meeting Sawyers had already filed a
charge with the Board related to the November 12, 2009 grievance. It is likewise undisputed
Union Business Agent Roth was irritated Sawyers had filed a charge with the Board or that he 5
referred to Sawyers as a “fucking scab. “
It is against this back drop that I must decide what additional comments, if any, Union
Business Agent Roth may have made related to, or about, Sawyers. I credit feeder driver Key’s
testimony Roth stated to him, and other feeder drivers, he needed their help in keeping Charging 10
Party Sawyers from filing charges with the Board because it was using the local’s money to
defend against these charges by that “fucking scab.” Key appeared to be testifying truthfully. I
make this finding in as much as I am persuaded Roth, in his irritation at Sawyers for filing the
charge and for his frustration with Sawyers over carrying out his late December stated intention
to file such a charge, Roth sought help from the others to stop Sawyers even though Roth could15
not recall doing so. Roth’s anger and frustration at Sawyers is also demonstrated by feeder
driver Melvin’s testimony, which I credit, that Roth sought the drivers help to stop Sawyers from
filing charges with the Board. Melvin credibly testified Roth asked if the drivers knew that
someone had filed charges with the Board. The drivers guessed Sawyers. Union Business Agent
Roth already knew who had filed the charges because he had a copy of the charge signed by 20
Sawyers. Likewise, Sawyers had told him in December he was going to file such a charge. It
appears Roth wanted Sawyers to be identified by the other feeder drivers so he could, as testified
to by Melvin, ask them to help him because, “the fucking scab needs to be stopped because his
[Board] charge . . . has no merit and would cost the union members . . . dues money to hear…the
NLRB charges.” Additionally I note, Union Shop Steward McBride acknowledged he was not 25
testifying Roth did not say Sawyers needed to be stopped, only that he did not recall those words
being used.
Having found that Union Business Agent Roth on February 4, 2010, told feeder drivers
they had a serious problem and asked feeder drivers for help to stop the fucking scab, Charging 30
Party Sawyers, from filing a charge or charges with the Board that had no merit and would cost
the members their dues money to defend the charges. I now address whether such comments in
the context herein violates the Act.
Before specifically addressing that issue it is instructive to note the Board’s guidance on 35
this type issue.
First, it is clear Union restraint and coercion of Section 7 rights is regulated under Section
8(b)(1)(A) of the Act. More specifically “Section 8(b)(1)(A)’s proper scope . . . is to proscribe
union conduct…that…impairs access to the Board’s process . . . ” Office Employees Local 251 40
(Sandia National Laboratories) 331 NLRB 1417, 1418 (2000). Threats of physical violence by
union agents against members/employees are coercive within the meaning of Section 8(b)(1)(A)
of the Act. Food & Commercial Workers Local TR (Longmont Foods) 347 NLRB 1016 (2006).
More specifically, threats of physical violence by union agents against members for invoking the
Board’s processes has been found to violate Section 8(b)(1)(A), Oil Workers Local 2-947 (Cotter 45
Corp.) 270 NLRB 1311 (1984), see also Petersburg Associates 239 NLRB 1091, 1104 (9179).
JD(ATL)–29–10
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The issue herein; however, is whether the comments made by Union Business Agent Roth, on
February 4, 2010, constitute a threat of retaliation against Charging Party Sawyers because he
filed an unfair labor practice charge with the Board against the Union. I am fully persuaded
Roth’s comments do not constitute, an implied or actual, threat of any kind. This entire case
grew out of the transfer of feeder drivers from UPS’s Winston-Salem hub to UPS’s Greensboro 5
hub. A grievance was filed and signed by all 12 drivers involved. Charging Party Sawyers job
was not affected by the feeder driver transfers. Union Business Agent Roth negotiated a
settlement with UPS that permitted two thirds of the drivers to follow the transferred work from
Winston-Salem, to Greensboro. Roth believed the settlement was a good one that worked well
for the membership. Sawyers drafts, but does not sign, a grievance regarding the one third of the 10
feeder drivers that were not allowed to follow the transferred work. The Union withdrew that
grievance, as Roth and Shop Steward McBride explained, because the entire matter of the
transfers was resolved by the earlier settlement. Union Business Agent Roth explained to
Charging Party Sawyers, when Sawyers tried to persuade Roth, on December 23, 2009, to still
pursue the grievance related to the 4 jobs that the drivers were not allowed to follow, that the 15
grievance was without a foundation to advance. Roth explained to Sawyers the Union would
honor its negotiated settlement with UPS. Sawyers then told Roth he would file charges with the
Board regarding the Union not processing the grievance any further. Roth did not threaten
Sawyers. Roth simply told Sawyers, as testified to by Sawyers, that he, Sawyers, would be
wasting his time at the Board and he (Roth) would appreciate it if Sawyers did not waste his time 20
filing charges. It is clear at this point that Roth believed the settlement with UPS was a good one
that worked well although it did not resolve the issue to everyone’s complete satisfaction. Roth
did not want any additional grievances filed because he believed such to have no merit. Roth
also did not wish to see charges filed with the Board because he did not believe such would have
merit. Roth expressed his appreciation if Sawyers did not waste time pursuing the matter further 25
at the Board. Sawyers however went ahead and filed such a charge with the Board. Sawyers’
charge was dismissed by the Regional Office of the Board and the Region’s dismissal was up
held on appeal.
On February 4, 2010, Roth told various feeder drivers, in reference to Sawyers that the 30
members had a serious problem in the Winston-Salem hub because, “the fucking scab” needed to
be stopped or kept from filing Board charges, because his charges had no merit and it would cost
the union member’s their dues money to defend against these charges. I am persuaded Roth was
again attempting, with the help of others, to persuade Sawyers not to continue to pursue charges,
even at the Board because the issue already had been settled in final form. I find no threat in 35
Roth’s comments. The fact Roth was frustrated, irritated, and called Sawyers a “fucking scab”
does not elevate his comments to a threat nor require a different result than I reach herein. I note
the Board has held that calling a nonunion member a “scab-ass” was “merely name calling”
Letter Carriers Local 3825 (Postal Service) 333 NLRB 343, 344 (2001). In summary, I am
persuaded the help Roth was seeking was to have Sawyers stop filing meritless charges and 40
nothing more.
The case the Government would rely on to support a finding Roth’s statement constitute a
threat is distinguishable. In Carpenters Local 215 241 NLRB 1043, 1047 (1979). Judge James
T. Youngblood found a threat of unspecified reprisal in violation of Section 8(b)(1)(A) of the Act45
where a union agent stated at a union meeting that included employees Griswold, Fox and Funk,
JD(ATL)–29–10
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“he had been on pins and needles for 2 months, that he was tired of running the Local by the
book and not being able to place men on different jobs, and that he did not want any more
charges from the Board. Mr. Griswold, Mr. Fox, or Mr. Funk.” However in that same
conversation, the union business agent told one of the three individuals involved he should be
brought up on charges for not returning a union membership list he had obtained; and further told 5
the individual, he was making all kinds of mistakes because he did not know the international
union’s laws. While Judge Youngblood seems to limit the evidence he concluded violated
Section 8(b)(1)(A) of the Act to the “pins and needles” comments, he clearly discusses and
considered the other comments about charges and mistakes of an individual involved. Any fair
reading of the Local 215 decision in its entirety reflects more to the case than just a “pins and 10
needles” comment. The isolated comment herein by Business Agent Roth reflects no reference
to any other actions.
Conclusions of Law
15
1. UPS is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
20
3. The Union has not violated the Act in any manner alleged in the complaint
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
25
ORDER
The complaint is dismissed.
Dated Washington, D. C. December 28, 201030
____________________________________
William N. Cates35
Associate Chief Judge
40

3 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the rules, be adopted
by the Board, and all objections to them shall be deemed waived for all purposes.