United Parcel Service, Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 10, 1976223 N.L.R.B. 1381 (N.L.R.B. 1976) Copy Citation UNITED PARCEL SERVICE, INC. 1381 United Parcel Service, Inc. and Teamsters Local Unions Nos . 70, 78, 87, 137, 150, 241 , 278, 287, 315, 431,439, 490, 576, 624, 665, 684, 856, 890, 912, 980, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Case 20-CA-10475 May 10, 1976 DECISION AND ORDER By MEMBERS JENKINS , PENELLO, AND WALTHER On February 10, 1976, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. a charge filed September 26 by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union. The com- plaint alleges that United Parcel Service, Inc., hereinafter referred to as Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, hereinafter referred to as the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross- examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is now, and at all times material herein has been, an Ohio corporation engaged in the operation of a parcel delivery service in 36 States, including California. During the past year, Respondent, in the course and con- duct of its business operations, received gross revenues in excess of $50,000 earned in the interstate transportation of parcels. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, United Parcel Service, Inc., Northern California and Sparks, Nevada, its of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board 's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F .2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS , Administrative Law Judge: This matter was heard at San Francisco, California, on January 8, 1976.' The complaint,2 issued September 30, is based on 1 All dates hereinafter are in 1975 unless stated to be otherwise. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent operates an extensive transportation system for delivery of parcels. The parcels are sorted and assem- bled for delivery at delivery centers manned by sorters, truckdrivers, clerks, and managers. Roy Hebebrand is dis- trict manager for Northern California, with responsibility for 10 or 11 divisions which administer 39 delivery centers. Managers of the division report to Hebebrand. The parties to this controversy are parties to a collective- bargaining agreement ° effective July 1, 1973, to March 31, 1976. The agreement provides that all regular drivers shall be offered not less than 5 days (8 hours each) of employ- 2 As amended at hearing to add the name of Charles Buckridge to par. 5. 3 On January 23, 1976, General Counsel filed a motion to reopen the record and to permit introduction of G.C. Exh. 3 for identification , inadver- tently not offered into evidence at hearing . Said motion states that a copy thereof was served upon Respondent . No opposition having been filed to the motion, and good cause appearing therefor, said motion hereby is grant- ed and said exhibit is admitted into evidence. 4 G.C. Exh. 2. 223 NLRB No. 208 1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment in any I scheduled week , and also provides for over- time pay. The agreement includes a section that lists straight time hourly rates for all employees in the bargain- ing unit. The Company has determined normal production fig- ures for parcel sorters and drivers . Each driver run is com- puted to require , under normal circumstances , a given peri- od of time . As the contract has been administered in the past by the parties , if a driver completes an 8-hour route in less than 8 hours, the Company can require that he work out his 8-hour shift on another route , or it can release the driver for the rest of the day. If the driver is released, the Company is required by the contract to pay him for the full 8 hours of the shift . If a driver requires more than 8 hours to complete a route , he is paid overtime for all hours worked in excess of the 8-hour shift. On May 27 Respondent unilaterally instituted a pay plan 5 which was intended to provide an incentive for in- creased driver production.' The Union was not notified that the plan was going to be introduced, nor was it noti- fied by Respondent after it was introduced . The pay plan was instituted at all delivery centers on May 27, at 6 cen- ters on June 22, and at various other centers in June, July, September , October, and November . Under the pay plan, if a driver completes an 8-hour route in 6 hours and works on another route for the remaining 2 hours of the shift, he is paid for 10 hours of work . If the driver wants to go home after completing an 8-hour run in 6 hours , he may do so and he will receive pay for 8 hours . However, Respondent retains the right to send the driver on another route for the remaining 2 hours, if such is necessary. spokesman for Respondent was Charlie Campillo and that Campillo proposed a method of computing wages on other than a straight-pay-per-hour basis . Chapman said Jerry Beatty, chief spokesman for the Union, replied with strong and obscene language and stated "We don't want that kind of thing like they have down in Los Angeles." Frank Del- lari testified that he participated in all negotiations prior to execution of the collective -bargaining agreement and took notes of all meetings . He stated that he recalled no discus- sion such as that related by Chapman and further stated that Beatty is a religious person who seldom swears. Based on observation of the witnesses and their demeanor, Del- lari is credited. It is found that the subject of the pay plan was not mentioned during the aforesaid negotiation ses- sions. Hebebrand acknowledged that, in early June, he was in- formed by some delivery center managers that the Union posted on bulletin boards notices to employees instructing them not to honor the pay plan. He said he probably saw the notices, and he testified that he instructed the delivery center managers to take the notices off the boards . On June I 1 Joe Conley, president of Local 439, addressed a letter 7 to Hebebrand in which the Union protested the pay plan as a violation of the collective-bargaining agreement. Del- lari testfied that he received the letter and that no action was taken relative thereto. Dellari said he believed a griev- ance about the pay plan was filed pursuant to the contract, but later was withdrawn . Bernard Zarry credibly testified that he attended a Teamsters conference in Vancouver on June 19, 1975, at which Charles Buckridge, Respondent's national labor relations manager, was present. Zarry stat- ed: B. The Issue Respondent acknowledges that it did not discuss institu- tion of the pay plan with the Union. It contends that insti- tution of the plan is not a subject concerning which it is required to bargain , and that the pay plan is not subject to the grievance procedure of the contract between the par- ties. C. Discussion Respondent agrees that the pay plan gives drivers a bo- nus or paid-time off if the employee completes a certain amount of work in less than the time assigned for that work by the Company. William Chapman testified that as secretary -treasurer of Local 278 he participated in all of the 15 or 20 negotiations that resulted in the bargaining agreement between the par- ties. He stated that, during the negotiations, the chief 3 The pay plan had been in effect a number of years prior to May 27 at locations not involved in this controversy. 6 A somewhat similar plan was tried several months ago for sorters, but was discontinued . Based on the principles discussed below, that introduc- tion possibly may have been a violation of Sec. 8 (a)(5) of the Act. However, the matter was not pleaded or litigated as a violation of the Act, and there appears to be some question as to whether the matter was discussed with the Union . In any event, the Order recommended for the violation found below is adequate to remedy any possible violation inherent in the experimental pay plan for sorters. The main purpose of the meeting was called to find out if United Parcel Service headquarters knew what was happening here in Northern California as far as the pay plan was concerned. Zarry testified "Everybody was more or less up at arms," and that a strike was threatened . He said Buckridge told him he would look into the matter . Dellari testified he talked about the matter with Buckridge , but received no instructions relative thereto . Hebebrand testified that, to his knowledge, the Teamsters never agreed to implementa- tion of the pay plan.8 In view of the record thus made it is clear , and found, that the Union did not expressly waive any right to object to the pay plan nor had it, as stated by Respondent in its brief, "slept on such right" or failed to pursue its objective "with due diligence ." Even had the Union remained silent, which as shown above it did not, such silence would not constitute a waiver of its contractual rights. Waiver can be shown only on the basis of specific expression of a clear and unmistakable nature' Nor is there any testimony or evidence on which to base an implied waiver. t G.C. Exh. 4. s The Union filed an unfair labor practice charge herein on July 30. ' Wisconsin Aluminum Foundry Co., Inc.. 173 NLRB 1160 (1968). enfd. 440 F .2d 393 (C.A. 7, 1971); Federal Compress & Warehouse Company, 166 NLRB 664 (1967 ), enfd. in relevant part 398 F .2d 631 (C.A. 6, 1968); Per- kins Machine Company, 141 NLRB 98 (1963); The Jacobs Manufacturing Company. 94 NLRB 1214 ( 1951); Timken Roller Bearing Company, 138 NLRB 15 (1962), enfd . 325 F .2d 746 (C.A. 6. 1963). UNITED PARCEL SERVICE, INC. 1383 So far as the pay plan itself is concerned, it is without question, as acknowledged by Hebebrand, in the nature of "a bonus or paid time off if the employee completes a cer- tain amount of work in less than the time assigned for that work.... " Respondent argues that ". . . the pay pro- gram was merely the extension of the daily guarantee con- cept in the contract. . . ." That argument is without merit, for several reasons: (a) Hebebrand agreed that the plan constituted a "bonus" or "paid time off"; (b) the Union did not like the plan, and said so in strong and certain terms; (c) Respondent, and admittedly Hebebrand, knew the Union did not like the plan; (d) if the plan was no different from, or only an "extension," of the contractual provision, there would be no necessity for treating it as an innovation, as Respondent clearly did; and (e) Hebebrand acknowledged that the purpose of the plan was to provide an incentive for greater production. Under such circum- stances, it is clear, and found, that the pay plan differed from the wage provisions of the contract between the par- ties and was a subject that required bargaining with the Union.10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with the operations of Re- spondent as set forth in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. I shall also recommend that Respondent, upon request, shall rescind the pay plan and shall cease and desist from instituting changes in the wages, hours, and other terms and conditions of employment of its employees during the effective term of the collective-bargaining agreement cov- ering said employees without first reaching agreement with the Union concerning such changes. Upon the basis of the foregoing findings of fact, and upon the entire record, I hereby make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All package drivers, pickup and parcel delivery help- 10 C & S Industries , Inc., 158 NLRB 454 (1966); C & C Plywood Corp., 385 U.S. 421 (1967). ers, delivery center positioners, servicemen, center clerks, central sorters, way billers, belt workers, fork lift drivers, tractor drivers and hostlers, hub employees, hub sorters, delivery center employees, tire service persons, parts per- sons, assistant parts managers, warehouse persons, file clerks, mail clerks, typist, telephone receptionist, teletypist, records clerks, supply clerks, customer service clerks, per- sonnel clerks, automotive clerks, accounts payable clerks, accounts receivable clerks, payroll clerks, center clerks, de- livery information clerks, and air department clerks em- ployed by Respondent in its Northern California and Sparks, Nevada locations; excluding confidential employ- ees, professional employees, guards and supervisors as de- fined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the Union has been, and is, the exclusive representative of all employees within said appropriate unit for the purposes of collective bargaining. 5. By unilaterally instituting an incentive pay plan, Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce, within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER II Respondent, United Parcel Service, Inc., Northern Cali- fornia and Sparks, Nevada, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the above- named labor organization as the exclusive representative of its employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All package drivers, pickup and parcel delivery helpers, delivery center positioners, servicemen, center clerks, central sorters, way billers, belt workers, fork lift drivers, tractor drivers and hostlers, hub employ- ees, hub sorters, delivery center employees, tire service persons, parts persons, assistant parts manager, ware- house persons, file clerks, mail clerks, typist, telephone receptionist, teletypist, records clerks, supply clerks, customer service clerks, personnel clerks, automotive clerks, accounts payable clerks, accounts receivable clerks, payroll clerks, center clerks, delivery informa- tion clerks, and air department clerks employed by Respondent in its Northern California and Sparks, Nevada locations; excluding confidential employees, 11 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD professional employees , guards and supervisors as de- fined in the Act. (b) Making unilateral changes in wages, rates of pay, or other terms and conditions of employment of its employees in the above-described appropriate unit during the term of the contract without first reaching agreement with the above-named Union concerning such changes. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Upon request of the above-named Union, rescind any pay plan which Respondent may have unilaterally in- stituted. (b) Post at all its delivery centers in Northern California and Sparks, Nevada , copies of the attached notice marked "Appendix" 12 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent 's representative , shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in con- spicuous places , including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. 12 In the event the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclu- sive representative of the employees in the following bargaining unit: All package drivers, pickup and parcel delivery helpers, delivery center positioners, servicemen, center clerks, central sorters, way billers, belt work- ers, fork lift drivers, tractor drivers and hostlers, hub employees, hub sorters, delivery center employees, tire service persons, parts persons, assistant parts managers, warehouse persons, file clerks, mail clerks, typist, telephone receptionist, teletypist, rec- ords clerks, supply clerks, customer service clerks, personnel clerks, automotive clerks, accounts paya- ble clerks, accounts receivable clerks, payroll clerks, center clerks, delivery information clerks, and air department clerks employed by Respondent in its Northern California and Sparks, Nevada locations; excluding confidential employees, professional em- ployees, guards and supervisors as defined in the Act. WE WILL NOT unilaterally institute changes in wages, hours, or other terms and conditions of employment of the employees in the bargaining unit described above during the term of any collective-bargaining agreement covering said employees, without first con- sulting with and bargaining with the Union concern- ing such changes and reaching agreement on any modification of the terms of the contract. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union as the exclusive representative of all the employees in the bargaining unit described above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such an under- standing in a signed agreement. WE WILL revoke the incentive pay plan for our em- ployees which we unilaterally instituted on or about May 27, 1975. UNITED PARCEL SERVICE, INC. Copy with citationCopy as parenthetical citation