Teamsters Chauffeurs, Warehousemen and Helpers, Local Union No. 542 International Brotherhood of Tea

National Labor Relations Board - Board Decisions

Dec 16, 2019

368 N.L.R.B. 140 (N.L.R.B. 2019)

368 NLRB No. 140
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 542, International Brotherhood
of Teamsters (United Parcel Service) and Derek
Correia. Case 21–CB–233544
December 16, 2019
DECISION AND ORDER
CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On July 17, 2019, Administrative Law Judge Gerald
M. Etchingham issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The National Labor Relations Board orders that
the Respondent, Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local Union No. 542, In-
ternational Brotherhood of Teamsters, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Threatening employees with loss of employ-
ment for engaging in union activities, including
handbilling.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We do not rely on the judge’s discussion of NLRB v. Servette, Inc.,
377 U.S. 46, 48 (1964), an inapposite case involving secondary activity
that has no application to the leafleting in this case. In any event, nei-
ther party disputes the judge’s finding that employee Derek Correia’s
handbilling was activity protected by Sec. 7 of the Act. Accordingly,
the Respondent violated Sec. 8(b)(1)(A) of the Act by threatening Cor-
reia with job loss for engaging in that activity. See Carpenters Local
180 (Condiotti Enterprises), 328 NLRB 947, 949-950 (1999).
2 We shall modify the recommended Order to conform to the
Board’s standard remedial language. We shall substitute a new notice
to conform to the Order as modified.
(b) In any like or related matter restraining or co-
ercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region,
post at its San Diego, California facility copies of
the attached notice marked “Appendix.”3 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 21, after being signed by the Re-
spondent’s authorized representative, shall be post-
ed by the Respondent and maintained for 60 con-
secutive days in conspicuous places, including all
places where notices to employees and members are
customarily posted. In addition to physical posting
of paper notices, notices shall be distributed elec-
tronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its
members by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other
material.
(b) Within 14 days after service by the Region,
deliver to the Regional Director for Region 21
signed copies of the notice in sufficient number for
posting by the Employer at its San Diego, Califor-
nia facility, if it wishes, in all places where notices
to employees are customarily posted.
(c) Within 21 days after service by the Region,
file with the Regional Director for Region 21 a
sworn certification of a responsible official on a
form provided by the Region attesting to the steps
that the Respondent has taken to comply.
Dated, Washington, D.C. December 16, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member

3 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your 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 threaten you with discharge if you en-
gage in union activities, including handbilling.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS, LOCAL UNION NO. 542,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
The Board’s decision can be found at
http://www.nlrb.gov/case/21-CB-233544 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1015 Half Street S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Robert MacKay, Esq. and Winkfield F. Twyman, Jr., Esq., for
the General Counsel.
Fern M. Steiner (Smith, Steiner, Vanderpool, APC), for the
Respondent.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, ADMINISTRATIVE LAW JUDGE.
This case was tried in San Diego, California, on May 13, 2019.
The complaint, based on timely filed charges by Derek Correia
(Charging Party or Correia), alleges that Teamsters, Chauf-
feurs, Warehousemen and Helpers, Local Union No. 542, In-
ternational Brotherhood of Teamsters (Union or Respondent)
violated Section 8(b)(1)(A) of the National Labor Relations Act
(the Act)1 on December 14, 2018,2 when an agent of the Union,
Paul Samson (Samson), threatened the Charging Party with loss
of employment with the Charging Party’s employer United
Parcel Services, Inc. (Employer or UPS) as a result of the
Charging Party engaging in protected activities for the Union.
The Respondent denies these allegations and argues that in
any event a threat from Samson does not violate the Act be-
cause Samson could not affect the Charging Party’s employ-
ment in any way.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent on June 17, 2019, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The parties stipulate, and I find, that the Employer is an Ohio
corporation with a facility in San Diego, California, that during
the year ending on December 31, the Employer derived gross
revenues in excess of $50,000 for the transportation of freight
from the State of California to points directly outside the State
of California, and that at all material times, the Employer has
been an employer engaged in commerce within the meaning of
Sections 2(2), (6), and (7) of the Act. (Jt. Exh. 1.)3 The Re-
spondent admits, and I find, that it is a labor organization with-
in the meaning of Section 2(5) of the Act and that Samson is an
agent of the Respondent within the meaning of Section 2(13) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
This case turns on the disputed testimony by four witnesses
about the December 14 threat that Samson, a union official,
gave to the Charging Party, an employee of the Employer and a
union member. I summarize below my credibility determina-

1 29 U.S.C. §§ 151-169.
2 All dates are in 2018 unless otherwise specified.
3 Abbreviations are used in this decision are as follows: “Tr.” for the
transcript; “GC Exh.” for the General Counsel’s Exhibit; “GC Br.” for
the General Counsel’s brief; “R. Exh.” for the Respondent’s exhibit;
“R. Br.” for the Respondent’s brief; and “Jt. Exh.” for the joint exhibits
of the parties. On June 5, 2019, the General Counsel filed an unop-
posed motion to correct transcript errors at ten citations for Mr.
Vivanco’s testimony. I grant the unopposed motion as my notes from
hearing are the same as the proposed corrections. Although I have
included several citations to the record to highlight particular testimony
or exhibits, my findings and conclusions are based not solely on the
evidence specifically cited, but rather on my review and consideration
of the entire record.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 542, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS (UNITED PARCEL SERVICE)
3
tions of the witnesses and the resolution of the conflicting tes-
timony.
A. Removal Petition and Samson’s Reaction
Although the conversation at the center of this case occurred
on December 14, the story here begins with the Charging Par-
ty’s December 2017 handbilling and a subsequent petition to
remove Samson as the business agent the following summer.
Samson operates as a business agent for the Union at the Em-
ployer’s San Diego and Chula Vista facilities. (Tr. 23, 96.)
Section 2 of the National Master United Parcel Service Agree-
ment describes the composition of this Union:
Section 2. Employees Covered
Employees covered by this Agreement shall be construed to
mean, where already recognized, feeder drivers, package
drivers, sorters, loaders, unloaders, porters, office clerical,
clerks, mechanics, maintenance personnel (building mainte-
nance), car washers, United Parcel Service employees in the
Employer's air operation, and to the extent allowed by law,
employees in the export and import operations performing
load and unload duties, and other employees of the Employer
for whom a signatory Local Union is or may become the bar-
gaining representative. Employees of CSI and UPS Latin
America, Inc. are also covered by this Agreement as specified
in the P&D Supplement and the Challenge Air Cargo Sup-
plement, respectively.
In addition, effective August 1, 1987, the Employer recog-
nized as bargaining unit members clerks who are assigned to
package center operations, hub center operations, and/or air
hub operations whose assignment involves the handling and
progressing of merchandise, after it has been tendered to
United Parcel Service to effectuate delivery. These jobs cover:
package return clerks, bad address clerks, post card room
clerks, damage clerks, rewrap clerks, and hub and air hub re-
turn clerks. This Agreement also governs the classifications
covered in Article 39 - Trailer Repair Shop. Effective no later
than February 1, 2003 the Employer recognizes as bargaining
unit members FDC/ODC clerks, international auditors, "smart
label" clerks and revenue auditors who work in the operations
facilities.
(Jt. Exh. 2.) Samson’s responsibilities include policing the
Union’s collective bargaining agreements (“CBA”) with Em-
ployer, directing work to union members based on seniority,
answering questions, representing members in meetings, pro-
cessing grievances, making telephone calls on behalf of the
members, and performing site visits. (Tr. 98.) While Samson
had no involvement in the hiring or firing the Charging Party or
any other witness employee of the Employer, Samson in his
role as union business representative was involved under the
union contract in allocating work amongst union members. (Tr.
121.) Samson is also responsible for monitoring the Union’s
CBA with Employer to raise issues with UPS involving em-
ployees’ terms and conditions of employment so if UPS insists
that its Union employees work more hours than safe under the
U.S. Department of Transportation (DOT) regulations or the
terms of the CBA, Samson is the Union’s business representa-
tive whose duties include pointing out to UPS any divergence
by UPS from the terms and conditions of the CBA or DOT
regulations.
A number of union members became dissatisfied with Sam-
son and did not believe he was representing them adequately
from December 2017 through the summer of 2018. (Tr. 46, 65–
66; R. Exhs. 8 and 9.) During the first half of 2018, over 400
union members at the Chula Vista and San Diego facilities
signed a petition to remove Samson as the business agent (the
“petition”). (Tr. 113; R. Exh. 8, 9.)
At a June 2 union meeting also discussing the union contract,
Samson addressed his feelings about the petition. He told his
side of the story and said that the writer of the petition was
unethical. (Tr. 120–121, 126.) According to Samson’s ac-
count, the creator of the petition circulated it because the crea-
tor was unhappy that Samson followed the union contract in
allocating work. (Tr. 121.) Samson also said that the creator
circulated the petition for personal gain and that “we need to
get rid of people like” the creator.4 (Tr. 131.) Samson then
said that his children knew about the petition and pointed out
his wife, who sat at the back of the meeting. (Tr. 132, 133.)
He also called up the various shop stewards and said, “When
you take a shot at me, you take a shot at them,” while gesturing
to the shop stewards. (Tr. 132.)
Despite Samson’s own and Rhett Dillard’s account of Sam-
son’s emotional display, Samson repeatedly insisted that he did
not take the filing of the petition against him personally and
that the filing of the petition did not bother or upset him. (Tr.
114, 115, 122.) I observed Samson’s testimony at hearing re-
garding his alleged indifference to the filing of the petition as
being completely unbelievable. Even though Samson testified
about his own emotional statements and Dillard corroborated
that testimony, Samson contradicted his own testimony. This
diminishes his credibility, and to the extent that Samson’s tes-
timony disagrees with that of others, Samson’s willingness to
lie on the stand calls his pronouncements on other issues into
doubt.
B. Correia’s December 14 Handbilling
Starting around 7 a.m. on December 14, the Charging Party
came to the San Diego facility while not scheduled to work to
hand out flyers informing the Employer’s drivers of their rights.
(Tr. 30.) The Charging Party did so because he heard many
reports of people being scheduled to work shifts up to six days
and seventy hours a week. (Tr. 26–27, 29.)
Samson’s response was that the employees can call into
work and take a sick day, if necessary. (Tr. 26–27, 102.) Fel-
low union members, John Tunnell and Samuel Vivanco, joined
the Charging Party to hand out flyers that morning. (Tr. 30, 61,
72–73, 85, 105.) Vivanco joined “because he [Vivanco] said
the Union would never respond to any telephone calls or ques-
tions because they are never around.” (Tr. 30–31.) Tunnell,
who corroborated these events, left before Samson arrived at
the facility and conversed with the Charging Party. (Tr. 73.)
The flyer the Charging Party handed out in December 2018

4 This statement comes from the testimony of union member Rhett
Dillard, who attended the June 2 meeting. No other witness contradict-
ed this testimony, and I find Dillard’s testimony regarding this state-
ment to be credible.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
is almost identical to one he handed out the prior December
2017 and has the following text:
KNOW YOUR RIGHTS!!!!
 DOT Regulations—11 on road hours and 14 to-
tal is the DOT limit. The 14 hours per day are
on duty time which includes lunches, but does
not mean 14 total hours worked.
 Western Regional Supplemental Agreement—
Article 20 sec. 2(a)
Regular scheduled work week shall consist of
(5) consecutive (8) hour days Monday through
Friday or Tuesday through Saturday.
(b) No employee with a seniority date prior to
2011 will be forced on to a Tuesday through
Saturday unless mutually agreed to or unless the
employee bid such work week in accordance
with the bidding procedures.
(c) Start times shall be posted on the Friday of
the week for which the starting times shall be
effective.
 Article 23—MAINTENANCE OF
STANDARDS—The employer agrees that all
conditions of employment in his individual op-
eration relating to wages, guaranteed hours of
work, overtime differentials and general work-
ing conditions shall be maintained at not less
than the highest standards.
 Southwest Package Rider—Section 10 (subsec-
tion 2)—Same rules as Article 20 sec. 2 in the
Western Region Supplemental.
 Western Region Supplemental Agreement—
Preamble—Any lesser conditions contained in
any rider or Addendum shall be superseded by
the conditions created in this Agreement.
 National Master Agreement—Article 18—
Under no circumstances will an employee be
required or assigned to engage in any activity
involving dangerous conditions of work or dan-
ger to a person or property in violation of a gov-
ernment regulation relating to safety.
(Tr. 24–34; GC Exh. 2.) This flyer quotes language from De-
partment of Transportation regulations and language from the
Union CBA with Employer. (Tr. 24–34, 41–43.)
Correia gave this same flyer to workers in December 2017.
(Tr. 26.) Correia and other union members passed this flyer out
after receiving complaints and phone calls from employees
stating that management at the Respondent was requiring them
“to work six days a week and up to seventy hours a week.” (Tr.
26.) This conduct violated the collective-bargaining agreement
and, more importantly, Department of Transportation regula-
tions. (Tr. 24–34; GC Exh. 2.) Samson passed out the same
flyer because the Respondent repeated this conduct in both the
2017 and 2018 winter shipping seasons. (Tr. 29.)
On December 14, Samson arrived at the San Diego facility
near 9 a.m. after a conversation between the Charging Party
and the San Diego facility shop steward Rob Moreno (Moreno).
(Tr. 105.) Evidently this conversation was heated, given that
the Charging Party later texted coworkers that “[Rob Moreno]
and I are no longer friends.” (GC Exh. 3.) The account of what
happened once Samson arrived at UPS on December 14 is
heavily disputed. I recount the four versions of the events be-
low.
C. Correia’s Version of the Conversation
Correia is a package driver at the UPS facility in San Diego
and is a Union member. (Tr. 22.) Correia also engages in sig-
nificant union activity, including handing out flyers to the
members, educating and informing them about contractual
issues, attending monthly meetings, speaking to members on a
daily basis, and reading up on by-laws. (Tr. 24.) Even though
Correia was out on disability leave from November 20, 2016, to
September 28, he engaged in union activities, including hand-
billing, throughout. (Tr. 25–28.)
When Samson arrived between 8:15 and 9 a.m., Correia said
that Samson “got right in [Correia’s] face.” (Tr. 31–32, 43.)
The following exchange happened:
Samson: Give me that flyer.
Correia: Absolutely not.
Samson: Well let me look at it.
Correia: No.
Samson: What are you doing here?
Correia: I’m doing my due diligence.
Samson: Due diligence, huh? You know what your
problem is? You have no integrity.
Correia: Integrity? You have no integrity. You never
inform the [union] members.
Samson: You don’t know shit anyway. You’ve been
out so long with your injury, you don’t know what’s going on.
Correia: That’s why we’re out here. We’re informing
and educating the members, because you never come here.
Samson: (After walking away then turning around)
You know what, man? Your days at this company are num-
bered. You’re done. You’re finished.
Correia: Yeah, you’re finished too.
Samson: Do me that favor.
(Tr. 32–33.) Correia said he did not give Samson the flyer
because Samson often took credit for Correia’s suggestions and
solutions to problems in the past. (Tr. 33, 43.)
After the altercation, Correia texted several coworkers a de-
scription of the events at 9:06 a.m. (Tr. 53–54.) The text is
reproduced below:
I just finished up handing out flyers at the UPS SD bldg. I
was approached by their shop steward Rob Moreno and need-
less to say he and I are no longer friends He ran and
called Samson who then arrived at the bldg. shortly afterward.
Samson asked me for a flyer and I refused to give him one.
Needless to say, it ended in a shouting match in front of all the
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 542, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS (UNITED PARCEL SERVICE)
5
drivers coming in at the guard shack. He told me that he’ll
make sure I’m out of UPS and I also promised him the same
fate. He said I don’t know shit cus [siq.] I was away for too
long with my injury. Poor bastard doesn’t realize I was hit-
ting all the bldgs while I was out injured.
(GC Exh. 3.) This description of the events mirrors Correia’s
testimony.
D. Vivanco’s Version of the Conversation
Samuel Vivanco is also a package driver at the UPS facility
in San Diego and is a member of the Union. (Tr. 59.) He testi-
fied that on December 14, Samson approached around 8:20
a.m. (Tr. 62.) Samson apparently got “approximately
[Vivanco’s] arm length” away from Correia before the conver-
sation happened. (Tr. 63.) During this whole time, Vivanco
was next to Correia on his left side. (Tr. 63.) Vivanco testified
to the following conversation:
Samson: Can I have one of those?
Correia: No, you cannot.
Samson: Why not?
Correia: Because we did this for our members and you
didn’t.
Samson: What are you doing here?
Correia: I’m here doing my due diligence because it
will help the members with any information.
Samson: You have no authority.
(Tr. 63 (verbal filler eliminated).)
After walking about ten feet away from Correia, Vivanco
testified that Samson turned around, told Correia that he had no
integrity, and told Correia that he was no longer with the com-
pany and that he was done. (Tr. 63–64.) Correia replied that
Samson’s days were over. (Tr. 64.)
E. Samson’s Version of the Conversation
Samson testified that he went to the San Diego facility on
December 14 after receiving a call from Moreno regarding an
argument he had with people passing out flyers. (Tr. 105.)
Samson said he approached Correia and had the following con-
versation after arriving:
Samson: Can I have a copy?
Correia: No.
Samson: Why not?
Correia: Because you don’t do shit for the [union]
members.
Samson: How do you know when you haven’t been
around for a year and a half?
Correia: You’ve seen me out here. I’ve been passing
out.
Samson: Where’s your integrity?
Correia: (As Samson was walking away)
You’re not going to be here very long.
Samson: You going to do me a favor?
(Tr. 106.) Samson said Chris Turner was going through securi-
ty at the guard shack as Samson walked up to the guard shack.
(Tr. 106.)
F. Chris Turner’s Version of the Conversation
Chris Turner is another package driver at the Chula Vista fa-
cility for the Employer and he is also a Union member. (Tr.
83.) He worked at the San Diego building on December 14 and
thus saw people handing out flyers there. (Tr. 84–85.) Turner
stated that after he got out of a car and followed Samson in
from about two to three feet behind him, Turner heard someone
yelling aggressively at Samson. (Tr. 86.) I observed Turner
testify in an uncomfortable and fidgety manner that Samson did
not engage with the person and acted professionally the entire
time. (Tr. 86–87.) Turner said that Samson maintained this
demeanor even after the person told Samson that his days were
numbered. (Tr. 87).
Turner provided a subsequent statement on January 24,
2019. (Tr. 92–94.) It is reproduced below:
On the 14th of December I witnessed a guy passing out flyers
being aggressive toward Paul Samson. The guy was telling
Paul that his (Paul’s) days were numbered. In my opinion
Paul did nothing wrong and was completely professional
about the whole situation.
/s/ Chris Turner
(R. Exh. 7.) Turner did not sign this statement under the penal-
ty of perjury. Id.
G. My Findings of the Conversation
As a preliminary matter, I reject Chris Turner’s testimony
regarding the December 14 events. He testified that no conver-
sations took place, but that directly conflicts with all other tes-
timony about the conversation. Even Samson testified about
the contents of his conversation with Correia that happened.
Accordingly, I find that Samson had a conversation with Cor-
reia upon arriving to the San Diego facility.
Neither Correia nor Vivanco nor Samson dispute that Sam-
son asked Correia for a flyer and Correia declined to give him
one. What happened next is murkier. Samson clearly told
Correia that he did not know anything about the facilities due to
Correia’s absence, and Samson clearly told Correia that he had
no integrity. There are two disputed facts. First, whether Sam-
son told Correia that he “doesn’t know shit” or the other way
around. Second, whether Samson threatened Correia with a
loss of employment.
Correia and Vivanco testify to remarkably similar statements
of the events. Samson contradicts them on this matter. Sam-
son, however, did not testify that he did not make a threat. In
his recollection of the conversation, he jumped from asking
whether Correia has any integrity to Correia saying that Sam-
son was going to be gone from the Union. There is thus no
actual conflict between the testimonies of Samson, Correia, and
Vivanco regarding whether the threat was made.
To the extent that there is any conflict, however, Samson’s
willingness to lie regarding his being bothered or upset about
the petition to remove him makes his other testimony less cred-
ible. Since I observed that Correia and Vivanco confidently
recalled the events on December 14 at hearing without pause, I
find there are no credibility issues for Correia and Vivanco, I
credit their testimony over Samson’s and find: first, that Sam-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
son told Correia that Correia “doesn’t know shit”; and second,
that Samson threatened Correia with a loss of employment.
Legal Analysis
The General Counsel alleges that the Union violated Section
8(b)(1)(A) of the Act by way of its agent, Samson, threatening
the Charging Party with loss of employment for engaging in the
protected activity of handbilling. The Respondent denies these
allegations and avers that the threat does not constitute a viola-
tion of Section 8(b)(1)(A) because Samson did not have any
authority to carry out the threat.
Section 8(b)(1)(A) states that “it shall be an unfair labor
practice for a labor organization or its agents . . . to restrain or
coerce . . . employees in the exercise of their rights guaranteed”
in Section 7 of the Act. 29 U.S.C. § 158(b)(1)(A). Handbilling
is a protected activity so long as it does not encourage employ-
ees to refuse to engage in their employment. See NLRB v. Ser-
vette, Inc., 377 U.S. 46, 48 (1964). Neither party alleges that
the Charging Party attempted to encourage employees not to
participate in their employment. Instead, the Charging Party
simply informed other employees of their rights under Depart-
ment of Transportation regulations and under the applicable
collective bargaining agreements. (GC Exh. 2.) Thus, I find
that Correia’s handbilling on December 14 is protected activity.
A union agent commits an unfair labor practice when he
threatens an employee with loss of employment. See Carpen-
ters Union Local 180, 328 NLRB 947, 948 (1999) (finding a
violation when a union agent told a unit member that he was
“going to lose all of [his employment] benefits” for leaving the
union but staying with the company). The fact “[t]hat the actu-
al loss or diminution of benefits results from actions taken by
third parties [here the Employer] is not an exculpatory factor
under these circumstances.” Id. at 950. See also Bay Cities
Metal Trade Council, 306 NLRB 983, 985–986 (1992), enfd.
15 F.3d 1099 (9th Cir. 1993) (same)5. The test for whether this
threat is an unfair labor practice is whether the threat would
reasonably coerce the unit member into preventing him from
exercising his protected activities. Longshoremen ILA Local
333 (ITO Corp.), 267 NLRB 1320, 1321 (1983).
Here, I find that the threat Samson made would reasonably
coerce Correia from exercising his protected right of handbill-
ing. By making the threat, Samson clearly intended to stop
Correia from actively participating in the Union. Thus, under
the reasoning in Carpenters Union Local 180, Samson’s De-
cember 14 threat to Correia constitutes a Section 8(b)(1)(A)
violation.
The Respondent cites several cases arguing that Samson
could not violate Section 8(b)(1)(A) because he had no power
to exercise his threats. Each case the Respondent cites is dis-
tinguishable on the facts. The first case, International Long-
shoremen’s Association, Local 28 (Ceres Gulf, Inc.), 367
NLRB No. 128, slip op. 2–11 (2019), involved allegations of

5 “I have considered that the threatened loss of employment benefits
involved conduct which Respondent attributed to a third party, the
Employer. Nonetheless, I am persuaded the threat is ‘coercive’ within
the meaning of Section 8(b)(1)(A), inasmuch as it is a threat of the loss
of existing employment benefits which was expressed to the employees
by the labor organization.”
violating the duty of fair representation and discriminatory
treatment within the union. Id. There, the General Counsel
failed to prove that the union acted with animus toward the
alleged discriminatee on the basis of sex or engaging in pro-
tected activity. Id. Moreover, unlike here, in International
Longshoremen’s Association, the alleged discriminatee en-
gaged in no protected activities. Id. Even further, the judge in
International Longshoremen’s Association found that no one
from the union made a threat to the alleged discriminatee. Id.
Thus, although the Respondent seeks to use this case to argue
that Samson had to have the power to carry out his threat to
violate Section 8(b)(1)(A), the fact that this case involved no
protected activity and thus no retaliation means it is totally
inapposite to the analysis here.
The second case, Wenner Ford Tractor Rentals, Inc., 315
NLRB 964 (1994), involved a situation where the union agent
caused the employer to remove the employee engaging in pro-
tected activities. Ibid. There, the union caused the employer to
replace the discriminatee as the master mechanic. Id. at 965.
Nothing in this opinion, however, disputes the reasoning in
Carpenters Union Local 180. Although the Respondent cites to
the Wenner Ford Tractor Rentals, Inc. case for the proposition
that Samson had to have the power to carry out the threat to
violate Section 8(b)(1)(A), Wenner Ford contains no such
proposition. It merely holds that a union causing an employer
to fire a discriminatee due to the discriminatee’s protected ac-
tivities violates the Act—nothing more. Ibid. Thus, the Re-
spondent finds no support for its contention in this case, either.
The third case is Motion Picture Studio Mechanics, Local 52
(Michael Levee Productions, Ltd.), 238 NLRB 9 (1978), where
the union acted to prevent an employer from hiring a non-union
employee. Ibid. There, the union refused to allow the employ-
er to hire an otherwise qualified sound-mixer due to him not
having membership in the union. Id. at 20. Here, unlike in
Motion Picture Studio Mechanics, Local 52, Samson threatened
Correia with loss of employment rather than preventing Correia
from gaining employment in the first place. Furthermore, Sam-
son threatened Correia because of Correia’s union activities and
active union participation; Motion Picture Studio Mechanics,
Local 52 presents the exact opposite scenario. Thus, the Re-
spondent’s citation to this case provides it no recourse.
The Respondent cites no case that allows it to overcome the
controlling holding in Carpenters Union Local 180.6 Accord-

6 The Respondent cites a fourth case, Local 594, International Un-
ion, United Auto, etc. v. NLRB, 776 F.2d 1310 (6th Cir. 1985). This
case involves a union forcing discriminatees to withdraw an unfair
labor practice charge and causing employees not to receive payment for
the nonunion work they did. Id. at 1311. Moreover, the holding here
agrees with the Board’s later statement in Carpenters Union Local 180.
Id. at 1314 (The Union violates Section 8(b)(2) and (1)(A) of the Act . .
. by attempting to cause an employer to discriminate in terms and con-
ditions of employment against an employee in order to retaliate against
that employee for protesting the Union's policies, questioning the offi-
cial conduct of Union agents, or incurring the personal hostility of a
Union official.). Thus, this case does not even support the Respond-
ent’s proposition. Even if it did, I would have to disregard it, as I must
follow and apply Board precedent, notwithstanding contrary decisions
by courts of appeal, unless and until the Board precedent is overruled
by the Supreme Court or the Board itself. See NLRB Division of Judges
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 542, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS (UNITED PARCEL SERVICE)
7
ingly, I find that the Union, through Paul Samson’s threat, vio-
lated Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. United Parcel Service, Inc., is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent, Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 542 is a labor organization within the
meaning of Section 2(5) of the Act.
3. Paul Samson is an agent of the Respondent within the
meaning of Section 2(13) of the Act.
4. Respondent violated Section 8(b)(1)(A) of the Act by
threatening Derek Correia with a loss of employment for en-
gaging in the protected activity of handbilling.
REMEDY
The appropriate remedy for the 8(b)(1)(A) violation that I
have found is an Order requiring the Respondent to cease and
desist from such conduct and take certain affirmative actions
consistent with the policies and purposes of the Act.
Specifically, to the extent that the Respondent has not al-
ready done so, the Respondent shall cease and desist from
threatening or in any manner retaliating against Correia or any
other employee for handbilling.
The Respondent shall also cease and desist, in any other
manner, from interfering with, restraining or coercing employ-
ees in the exercise of rights guaranteed by Section 7 of the Act.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted at the Respondent’s business office or wherever the
notices to members or registrants of the hall are regularly post-
ed for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notic-
es shall be distributed electronically, such as by email, posting
on an intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its members
and registrants by such means. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current members and registrants and
former members or registrants of the Union. When the notice is
issued to the Respondent, it shall sign it or otherwise notify the
Region 21 Regional Director what action it will take with re-
spect to this decision.
Accordingly, based on the foregoing findings of fact and
conclusions of law, and on the entire record, I issue the follow-
ing recommended7

Bench Book (Wedekind 2019ed.) at Section 13–100 citing Western Cab
Co., 365 NLRB No. 78, slip op. at 1 fn. 4 (2017); and Pathmark Stores,
Inc., 342 NLRB 378 fn. 1 (2004).
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ORDER
That Respondent, Teamsters, Chauffeurs, Warehousemen
and Helpers, Local 542, International Brotherhood of Team-
sters, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with a loss of employment be-
cause they engaged in union and protected concerted activities.
(b) In any like or related matter restraining or coercing em-
ployee in the exercise of rights guaranteed to them by Section 7
of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its of-
fices and meeting halls copies of appropriate Notice to Em-
ployers and Members. Copies of the Notice, on forms provided
by the Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days there-
after in conspicuous places, including all places where notices
to members are customarily posted. In addition to physical
posting of paper notices, the notices shall be distributed elec-
tronically, such as by email, posting on an intranet or internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its members by such means. Reasona-
ble steps shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(b) Sign and return to the Regional Director sufficient copies
of the notice for posting by United Parcel Service, Inc. at its
facility located at 7925 Ronson Road, San Diego, California, if
the Employer is willing, at all places where notices to employ-
ees are customarily posted.
(c) Notify the Regional Director for Region 21, in writing,
within 20 days from the date of the Administrative Law Judge’s
Order, what steps have been taken to comply with the order.
Dated, San Francisco, California, July 17, 2019
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
In recognition of these rights, we hereby notify employees that:
WE WILL NOT do anything to prevent you from exercising
the above rights.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
WE WILL NOT threaten employees with loss of employment
because they engaged in union and protected concerted activi-
ties.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed to you by Sec-
tion 7 of the Act.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS, LOCAL UNION NO. 542, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS (UNITED PARCEL
SERVICE)
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21-CB-233544 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.