United Parcel Service, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1982

261 N.L.R.B. 1012 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Parcel Service, Inc. and Robert W. Bowlds
and David E. Perkins. Cases 25-CA-11313 and
25-CA-11313-2
March 21, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On October 30, 1980, Administrative Law Judge
Phil W. Saunders issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed a brief in support of the Administrative
Law Judge's Decision, and Respondent filed a sup-
plemental brief. I
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, find-
ings, 2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.4
i Respondent's unopposed motion to file a supplemental brief is grant-
ed.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative lav' judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc. 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
a In affirming the Administrative I aw Judge's conclusion that Re-
spondent violated Sec. 8(a)(1) of the Act by promulgating, maintaining,
and enforcing an unlawfully broad no-distribution rule, we refer solely to
the implied restrictions against distribution on nonworking time which
Supervisor Mouser communicated to employee Perkins in a February or
March 1979 conversation. We find no need to decide whether Respond-
ent's written no-solicitation, no-distribution rules also violated Sec.
8(a)(1). See I:R. W Bearings Division. a Division of TR.W., Inc. 257
NLRB 442 (1981)
4 The Administrative Law Judge recommended that Respondent cease
and desist from "in any like or related manner" interfering with the em-
ployees' Sec. 7 rights. We find that the issuance of a broad order is war-
ranted inasmuch as Respondent has previously been found to have violat-
ed the Act in certain respects similar to the violations found herein. See
United Parcel Service. Inc., 252 NLRB 1015 (1980). Thus, Respondent has
shown a proclivity to violate the Act and has engaged in such egregious
and widespread misconduct as to demonstrate a general disregard for the
employees' fundamental Sec. 7 rights.
We note that during this proceeding, and during the grievance and ar-
bitration proceedings involving employee Bowlds' suspension on August
28, 1979, and his subsequent discharge, Respondent defended its conduct
by relying in part on a final warning letter it issued to Bowlds on Octo-
ber 3, 1978. In United Parcel Service, Inc., supra, the Board found that the
discipline which resulted in this final warning letter was unlawful. It fol-
lows that this letter was nullified by the Board's decision. Respondent's
use of the letter, in the instant case, as evidence that its discipline of
Bowlds was legitimate is, to the contrary, further proof of Respondent's
unlawful discriminatory motivation.
Apparently through inadvertence the Administrative l.aw Judge failed
to require Respondent to expunge from its records any references to the
261 NLRB No. 134
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, as modi-
fied below, and hereby orders that the Respondent,
United Parcel Service, Inc., Owensboro, Kentucky,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the
Act."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its files any references to the
disciplinary suspension of Bowlds and Perkins
issued on August 28, 1979, and to their subsequent
discharges, and notify them in writing that this has
been done, and that evidence of these unlawful ac-
tions will not be used as a basis for future discipline
against them."
3. Substitute the attached notice for that of the
Administrative Law Judge.
August 28, 1979, suspensions and subsequent discharges of B(owlds and
Perkins We shall modifs the recommended Order accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REL ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WiL.L NOT promulgate, maintain, or en-
force a no-distribution rule prohibiting distri-
1012
UNITED PARCEL SERVICE, INC.
bution of union literature or materials on com-
pany property at any time.
WE WILL NOT discriminate against our em-
ployees because they gave testimony in a
Board proceeding.
WE WILL NOT suspend, discharge, or other-
wise discriminate against employees in viola-
tion of the rights guaranteed them under the
Act.
WE WILL NOT discourage membership in
Teamsters Local 710 or Teamsters Local 89,
or any other labor organization, by discrimi-
nating against our employees in regard to their
hire and tenure of employment or any terms
or conditions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in their
exercise of the rights guaranteed them under
the Act.
WE WILL offer to Robert Bowlds and David
Perkins reinstatement to their former jobs or,
if such jobs no longer exist, to substantially
equivalent jobs, without prejudice to their se-
niority or other rights and privileges previous-
ly enjoyed, and WE WILL make them whole
for any loss of earnings or benefits, plus inter-
est.
WE WILL expunge from our files any refer-
ences to the disciplinary suspensions of Bowlds
and Perkins issued on August 28, 1979, and to
their subsequent discharges, and notify them in
writing that this has been done, and that evi-
dence of these unlawful actions will not be
used as a basis for future discipline against
them.
UNITED PARCEL SERVICE, INC.
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Law Judge: Based
on charges and amended charges filed on certain dates in
September and October 1979, by Robert Bowlds and
David Perkins, a consolidated complaint was issued on
October 24, 1979, against United Parcel Service, Inc.,
herein Respondent or the Company, alleging violations
of Section 8(a)(1), (3), and (4) of the National Labor Re-
lations Act, as amended. Respondent filed an answer to
the complaint denying it had engaged in the alleged
matter. Both the General Counsel and Respondent filed
briefs in this matter.
Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation with an office and
place of business located at Owensboro, Kentucky,
where it is engaged in the interstate transportation and
distribution of parcels and a parcel delivery service.
During the year preceding the hearing herein, Respond-
ent performed services valued in excess of $50,000 in
States other than the Commonwealth of Kentucky.
During the same period it received gross revenues in
excess of $500,000, as a link in the interstate transporta-
tion of goods. It is conceded, and I find, that Respondent
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOL VID
Teamsters Local 710, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and Teamsters Local 89, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
It is alleged that in March 1979 Respondent promul-
gated, and since said date has maintained, the following
rule:
No distribution of UPSurge written material on the
Respondent's property at any time.
It is also alleged that Respondent promulgated the rule
described above in order to discourage its employees
from joining, supporting, or assisting UPSurge, and that
in March 1979 Respondent, by its officer and agent Tom
Mouser, maintained and enforced the rule by prohibiting
its employees from passing out UPSurge materials at any
time while they were on company property.
It is further alleged that on August 31, 1979, Respond-
ent discharged Robert Bowlds and David Perkins, and
that Respondent did so because: (1) said employees filed
charges with the Board and gave testimony under the
Act; (2) said employees joined and assisted Teamsters
Local 710 and Teamsters Local 89; (3) said employees
joined and assisted UPSurge; (4) said employees joined
and assisted PROD; (5) said employees engaged in other
union activity and concerted activities for the purpose of
collective bargaining and mutual aid and protection, in-
cluding participation in filing a civil suit against Re-
spondent, and because Respondent believed they had en-
gaged in such activities or would do so.
Since 1965, Bob Bowlds has been employed by Re-
spondent at its Owensboro, Kentucky, facility as a feeder
driver. During 1979 his scheduled run was from Owens-
boro to Nashville and then a return trip. During the peri-
ods material hereto, David Perkins started his feeder run
at Campbellsville, Kentucky, his home base, drove to
Nashville, and on his way back made a stop at Bowling
Green, Kentucky, and then returned to Campbellsville.
Perkins had driven this run since 1977. The Company
1013
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintains that both drivers were terminated in late
August 1979 for overextending their rest breaks and falsi-
fying their timecards.
It appears that feeder drivers, such as Bowlds and Per-
kins, report each day to their home location, drive a
trailer load of packages to the same destination or termi-
nal for dropoffs, and then return to their origin that same
workday with a new load of packages. A feeder driver is
assigned a specific start time each day to begin his sched-
uled run. After punching the timeclock, a feeder driver
must "pre-trip" his truck before departure from the ter-
minal. This consists of checking oil and water and visual-
ly inspecting the safety equipment on the tractor and
trailer. After completion of the pre-trip inspection the
feeder driver then updates his ICC logbook and time-
card. Each driver is assigned a specific time when he is
scheduled to physically depart his home facility and
begin driving to his destination.
When en route to his destination, the feeder driver is
allowed one 15-minute break on the down leg, provided
the distance to his destination is 100 miles or greater. In
addition to the 15-minute break, the driver is also al-
lowed up to 5 minutes' additional time contiguous with
the rest break for usual safety inspection of his rig and to
update his timecard and logbook, but the time and place
of the 15-minute rest break is left to the discretion of the
driver. However, each feeder driver is scheduled to
arrive at his destination at a precise time. The Company
maintains that punctuality is paramount due to the fact
that each package load is destined for different States,
and the packages must be re-stored at the destination and
then loaded on to other feeders or trucks which are
scheduled to leave at precise times in order to make con-
nections at their destinations.
It also appears that once at his destination (Nashville)
the feeder driver then takes his 30-minute lunch break.
Other duties of the feeder driver at his destination termi-
nal include fueling of tractors, washing trailers, spotting
trailers in the hub yard, and loading or unloading pack-
ages, and each driver, when his return trailer is hooked
up, must complete another pre-trip inspection prior to
departure and update his logbook. Departure for return
to his home terminal is also scheduled on an assigned
time and, on his return, if it exceeds 100 miles, the feeder
driver is again allowed another 15-minute rest break, plus
the 5-minute safety check including the update of his
logbook and timecard. The driver is also assigned a spe-
cific time to return to his home terminal, and upon arriv-
al makes a visual "post-trip" inspection of his equipment,
completes his logbook and timecard, and punches out.
The timecard, which is filled out completely by the
driver, must accurately reflect the amount of time the
feeder driver spent on the road and on breaks and, in
conformity with Government regulations and company
policy, each feeder driver must also note any defects or
problems with his equipment on a "Car Condition
Report."
A. As to Bowlds
For background purposes, it is noted that Bowlds was
terminated twice in 1978. He was first discharged by Re-
spondent on April 24, 1978. Thereafter, on May 24, 1978,
Bowlds received a final warning. This warning, also pur-
suant to the grievance procedure, was rescinded on June
14, 1978. Bowlds was again terminated on August 4,
1978, but again, pursuant to the proceedings and a deci-
sion at the final arbitration step of the grievance proce-
dure, Bowlds was reinstated on or about October 3,
1978. However, in the absence of an award for backpay
by the arbitration panel, Bowlds was not reimbursed for
the aforestated period that he was off work.' There was
also an earlier case before the Board (United Parcel
Service, Inc., Case 25-CA-10318), involving the August
4, 1978, termination of Bowlds alleging that Respondent
unlawfully discharged Bowlds for his union activities-
for his efforts on behalf of PROD and UPSurge, and for
his participation in the filing of a lawsuit in the United
States District Court for the Western District of Ken-
tucky to improve working conditions at Respondent.
This earlier Board case was heard on April 5, May 30,
and September 12, 1979, and Administrative Judge John
P. von Rohr issued his Decision on January 10, 1980. In
this earlier case the issue was similar to the instant one:
did Respondent fire Bowlds for overstaying his 15-
minute break? (Perkins was not involved in this case.)
Administrative Law Judge von Rohr found and conclud-
ed that Bowlds was unlawfully issued a final warning
earlier and then later unlawfully discharged for his union
and protected concerted activities. Administrative Law
Judge von Rohr noted, among other circumstances, that
Bowlds was discharged unlawfully for his activities on
behalf of PROD and UPSurge, as well as Bowlds' par-
ticipation in the class action suit against Respondent in
the U.S. district court, and the Board recently affirmed
this Decision. See United Parcel Service, Inc., 252 NLRB
1015 (1980).
It is noted that UPSurge is an organization of Re-
spondent's employees which is generally critical of the
Teamsters Union, as well as Respondent, in matters per-
taining to labor relations and in matters pertaining to the
employees' wages, hours, and working conditions. This
organization periodically publishes a newspaper and
other pamphlets to express its views. PROD is a related
organization of Respondent's employees, similarly in-
volved. I need not dwell further on the subject, since the
Board has held, and I find, that employee activities on
behalf of these organizations constitute protected con-
certed activity. 2 As relevant background to the instant
case, I further take official notice that the Board, in the
aforecited cases, has found that Respondent has engaged
in various unfair labor practices in connection with its
opposition to employee activities on behalf of the organi-
zations in question.
UPSurge activities among Respondent's employees
began in 1975. From then on, and at all times material
hereto, Bowlds was responsible for distributing UP-
It appears, that at all times material hereto Respondent's employees
were represented by Local No. 89 of the Teamsters Union, and that all
grievance matters, meetings, and awards, as detailed herein, were held
under the grievance procedure of the collective-bargaining agreement be-
tween the parties.
2 United Parcel Service. Inc., 230 NLRB 1147 (1977); United Parcel Serv-
ice, Inc. 234 NLRB 223 (1978); United Parcel Service. Inc., 234 NLRB
483 (1978); enforcement denied 104 LRRM 2615 (6th Cir 1979)
1014
UNITED PARCEL SERVICE, INC.
Surge's newsletter and literature among the 45-50 em-
ployees at the Owensboro terminal in late 1976 or early
1977. Bowlds engaged in similar activities on behalf of
PROD at that facility and distributed the bimonthly
PROD newsletter to the Owensboro employees. Bowlds
specifically testified that when he openly distributed UP-
Surge at the Owensboro Terminal, in 1977, 1978, and
1979, Supervisor Tom Campbell was present on several
occasions while he did so. Bowlds further testified that
when he openly distributed PROD at the Owensboro
terminal, he did so in front of Supervisors Tom Camp-
bell, Herschel Cash, and Mike Worth.
As to the 1977 class action suit against Respondent in
the U.S. district court, Bowlds stated that he assisted in
bringing this suit on behalf of drivers in Kentucky rela-
tive to a state statute prescribing or pertaining to certain
breaktimes, and that he also solicited money for this suit
and later hand-passed and mailed out petitions in con-
junction therewith. He stated that the case is now (April
1980) being reviewed by the Sixth Circuit Court of Ap-
peals.
Respondent produced testimony through their Divi-
sion Manager Bob Jones, who has overall responsibility
for all feeder operations in Kentucky, to the effect that
from the time Bowlds was reinstated on October 3, 1978,
as aforestated, until August 27, 1979, he had received oc-
casional complaints about Bowlds returning late to the
Owensboro Center-that both Owensboro Center Man-
ager Tom Campbell and Western Division Manager Ben
Cissell had reported that Bowlds was still returning
behind schedule. Jones then relayed these complaints to
Darwin Turpin, the feeder manager, and later on to Tur-
pin's successor, George Knoblock.
Respondent also has a policy of running "service
checks" on its drivers from time to time, and on March
14, 1979, Feeder Supervisor Herschel Cash went with
Bowlds and performed a service check of Bowlds from
the Owensboro Center to his destination at Nashville and
back. It appears that the general purpose of the service
check is for a supervisory inspection and evaluation of
driver performance, undertaken every few months for all
feeder drivers. On this occasion Bowlds arrived at Nash-
ville about 4 minutes late. He then departed Nashville on
time and arrived at the Owensboro center about 8 min-
utes late. At the conclusion of the run Supervisor Cash
told Bowlds how he could correct this delay. Bowlds
had taken the proper rest breaks on this run. On May 9,
1979, Supervisor Cash again made a service check on
Bowlds, and again Bowlds complied with the rest break
periods, but was 6 or 7 minutes late in arriving in both
directions. 3
Supervisor Cash receives weekly operation reports
which reflect the actual driving time, turnaround time,
and finish time of all feeder drivers under his supervi-
sion, and Cash testified that between August 1 and
3 It appears that Respondent also has a policy wherein feeder drivers
are followed and monitored by supervisors from time to time in order to
ascertain whether excessive breaks are taken, and that there have been
instances in the past where such violations have been detected and the
driver involved was then terminated or suspended where such a violation
was proven, but it appears that in most instances in the past, the alleged
offense was not proven.
August 27, 1979, Bowlds was consistently returning to
the Owensboro center 15 minutes or more late. He stated
that Bowlds was scheduled to arrive at Owensboro from
Nashville at 6 a.m., yet he was returning at 6:15 a.m. or
later. Moreover, on August 22, 1979, he talked to
Bowlds in Nashville, and again instructed him to have
his trailer coupled, complete his pre-trip inspection, and
be ready to leave the Nashville hub at 2:40 a.m., and to
be "out the gate at 2:45 a.m." Bowlds replied, "Okay."
Cash testified that a feeder driver does have control over
the time he leaves the Nashville terminal, but Bowlds
(and Perkins) testified that there can be several factors
which can and do cause considerable delays from time to
time.
Turning now to the specific events and circumstances
involved in the instant case pertaining to Bowlds: On the
night of August 27-28, 1979, Bowlds came to work
early, at or about 8:10 p.m. and with an assigned starting
time to Nashville of 8:40 p.m. Bowlds was due to leave
the Owensboro terminal at 8:58 p.m., but testified he had
come in prior to his starting time in order to get away
early since he was sleepy, and also he had been asked by
his fellow-driver Don McMahon to leave early so that
McMahon could check out his CB radio en route. As
8:45 p.m. Bowlds started his trip and proceeded down
the road on Kentucky's Green River Parkway, but testi-
fied that near the end of the parkway he was having
trouble staying awake, so around 10:15 p.m. he pulled
over and stopped for less than 10 minutes in order to rest
and relieve himself and to walk around and become
more alert.4
Bowlds testified that his next stop was at the Key
truck stop near Franklin, Kentucky, at or about 11 p.m.,
and at this time he took his allowed 15-minute break-his
timecard shows 11:02 to 11:17 p.m. It appears that on
this occasion Bowlds had a cup of coffee with the night
manager of the truckstop. Night Manager Wilson
"Wimpy" Randolph testified that Bowlds came into the
truckstop cafe almost nightly, and would take from 10 to
15 minutes to have coffee, and the only time that Bowlds
took longer than 15 minutes was when his tractor broke
down. (Respondent accused Bowlds of taking 22 minutes
at this stop.) Bowlds then went on his way to Nashville
and stated that he arrived at Nashville at or about 12:17
a.m.-now August 28-and that he was only I minute
late.
Bowlds testified that he left Nashville on his return leg
at or about 2:55 a.m., and arrived at Owensboro, Ken-
tucky, at 6:16 a.m. on August 28, 1979, and en route
stopped for his 15-minute break at the Amoco service
station in Franklin, Kentucky, at or about 4 a.m. along
with over-the-road driver David Perkins. Tracy Samp-
son, night manager of the Amoco station, also had coffee
with Bowlds and Perkins. Tracy Sampson stated that
both Bowlds and Perkins were there that night at the
Amoco station for only 15 minutes or so, and that
Bowlds looked at his watch from time to time. Accord-
ing to Sampson, Bowlds and Perkins came in together
4 It appears that. when drivers normally stopped for a few minutes to
relieve themselves, such stops were not considered a "break," and there-
fore were not logged or noted.
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and left together; he testified that he has never known
Bowlds or Perkins to stay over 10 or 15 minutes, but
could not remember the exact time on the morning here
in question. (Respondent has accused Bowlds and Per-
kins of taking 32 minutes here.) Bowids maintains he was
back in his truck in 15 minutes and that he left the
Amoco station at 4:15 a.m.
Bowlds testified that he then proceeded toward
Owensboro, but "somewhere up the road" he began to
get a little drowsy so he pulled off the road and relieved
himself, and that this stop would not have been more
than 5 minutes. According to Bowlds, he reached
Owensboro 3 hours and 20 minutes after he left Nash-
ville, the time allotted to him for this run. Bowids ex-
plained that he was supposed to leave Nashville at 2:45
a.m., but on occasions there would be trucks ahead of
him and so the exact departure time would vary a few
minutes. On the date in question, according to Bowlds,
on his return leg he arrived at Owensboro at 6:16 a.m.
after leaving Nashville at 2:55 a.m.-3 hours and 21 min-
utes later, or I minute late. (See Resp. Exh. 6, Bowlds'
timecard for the periods here in question.)
On August 28, 1979, Bowlds was suspended by Super-
visor Ben Cissell for allegedly overextending his breaks
on August 27-28, 1979, and for falsifying his timecard.
At the meeting with management on August 28, Bowlds
asked when all this had taken place and who saw him
overextend his breaktime. Union Steward Jim Weafer at-
tended this meeting with Bowlds, and Bowlds testified
that he also asked to see his personnel file in order to get
information on the accusations, but was merely informed
that it would be made available at a later date.
On August 30, 1979, Bowlds returned to Respondent's
office to see his personnel file, but management did not
have it, and Bowlds then filed a grievance contesting his
August 28 suspension.
On August 31, 1979, Bowlds was called in and met
with Union Steward Jim Weafer and Supervisors Tom
Campbell and Ben Cissell. Cissell told Bowlds that he
was discharged for falsifying his timecard and overex-
tending a break. Supervisor Cissell also asked Bowlds
why he stopped along the Green River Parkway for 24
minutes on the southbound trip on the night of August
27. Bowlds replied he took less than 10 minutes since he
was sleepy and had to relieve himself. Bowlds testified
that on this occasion Cissell also accused him of stopping
for 5 minutes at the Amoco truckstop at Franklin, Ken-
tucky, on his down leg, but he denied that he had
stopped there. Then Cissell asked him why he took 22
minutes at the Key truckstop. Bowids replied that he
took only 15 minutes on his allotted break. Then Cissell,
according to Bowlds, asked him why he took a 32-
minute break at the Amoco truckstop on his northbound
or return leg. Bowlds replied that he only took 15 min-
utes as his break at Amoco. Bowlds stated that he then
inquired who in management saw him overextending his
breaks, and Cissell answered Herschel Cash, and that he
then again asked to see his personnel file, but Cissell re-
plied that it was still in Louisville. Bowlds testified that
during this meeting the facts that he (Bowlds) was the
union steward at Owensboro Terminal and had filed
many grievances, that he had been involved in the distri-
bution of PROD and UPSurge literature at Respondent's
premises in sight of management in the past, that he had
been a witness in his own Board case on May 30, 1979
(Case 25-CA-10318) dealing with earlier events in that
case, and that his involvement in a lawsuit against Re-
spondent in the U. S. district court to get better working
conditions were not brought up.
On September 4, 1979, Respondent mailed Bowlds a
written copy of his discharge, and on September 4, 1979,
Bowlds filed his grievance for his discharge of August
31.
On September 11, 1979, a local joint meeting concern-
ing the grievance filed by Bowlds was held at Owens-
boro with Supervisors Ben Cissell, Tom Campbell, and
Bob Jones representing Respondent, and Thomas Trena-
man of Local 89, Union Steward Jim Weafer, and
Robert Bowlds, all representing the latter. According to
Bowlds, Bob Jones read the charge against him concern-
ing overextending his breaks and falsifying his timecard
for August 27-28, and also the earlier October 3, 1978,
letter to Bowlds from Respondent (Resp. Exh. 5) which
provided an immediate discharge of Bowlds for another
overextension of his breaktime. Union Agent Thomas
Trenaman read the second Bowlds discharge grievance
and it was agreed that the suspension grievance and the
discharge grievance of Bowlds be treated as one. It ap-
pears that Trenaman also questioned management as to
the times of the alleged overextension of Bowld's break-
times, and introduced the written notarized statement of
Tracy Sampson, night manager of the Amoco truckstop,
dealing with the early morning of August 28, and the no-
tarized statement of Don McMahon concerning the fact
that Bowlds had come to work early the night of August
27, and had departed from the Owensboro terminal
early, and that this was not an uncommon practice for
drivers to do. Respondent did not produce the clock
times of Bowld's alleged overextension of his breaks of
August 27-28, and also mentioned that Respondent's ob-
servers of Bowlds' alleged overextensions were Supervi-
sor Herschel Cash along with George Knoblock and
Larry Harris. At this September 11 joint grievance meet-
ing, Bowlds also told his story concerning the events and
circumstances on the night of August 27 and the morn-
ing of August 28, as aforestated, but testified that his in-
volvement with PROD and UPSurge on Respondent's
premises in management's presence, his participating in
the class action lawsuit against Respondent in the U.S.
district court to secure better working conditions for Re-
spondent's Kentucky employees, his being the Union's
job steward at the Owensboro terminal of Respondent,
his filing of many grievances in recent years, and his tes-
tifying in his own behalf in the earlier Board case were
not discussed (except partially read as a grievance) in his
joint meeting. The parties were deadlocked at this Sep-
tember II joint grievance meeting and the case was re-
ferred to the next step in the grievance procedure-the
state panel.
At the Kentucky state level joint grievance meeting
concerning Bowlds' grievance, held at Louisville on Oc-
tober 9, 1979, management representative Bob Jones read
the charges against Bowlds for his alleged overextension
1016
UNITED PARCEL SERVICE, INC.
of his breaks and falsifying his timecard on August 27
and 28, 1979. Jones also read Respondent's October 3,
1978, "final warning" letter to Bowlds and discussed the
times on August 27-28 that Bowlds allegedly overex-
tended his breaks; management then called Respondent
Supervisors Herschel Cash, Larry Harris, and George
Knoblock to testify against Bowlds concerning their ob-
servations on the night and morning here in question.
Bowlds also repeated his story, but again stated that the
class action in the U.S. District Court of Louisville, his
PROD and UPSurge handbill distribution on Respond-
ent's premises in management's presence, his job stew-
ardship and his filing of grievances against Respondent,
his filing of his charge in his earlier case and his giving
testimony in support of it was not discussed except that
Trenaman, in stating Bowld's grievance, did make some
reference thereto by reading the grievance. This October
8, 1979, state level panel was deadlocked.
On October 30, 1979, the joint area conference meet-
ing concerning Bowld's grievance was held in the Shera-
ton Inn at O'Hare Airport in Chicago. Jones again read
the charge against Bowlds, furnished statements from
managements' three witnesses-Herschel Cash, Larry
Harris, and George Knoblock-read the final warning
letter of October 3, 1978, and read the times of the al-
leged overextension of the breaks. Bowlds then spoke
concerning these events and circumstances in the same
way as he had done before, but again the above-men-
tioned union and concerted activities of Bowlds were not
discussed. This JAC joint meeting was also deadlocked.
On November 20, 1979, "a deadlocked JAC" joint
meeting took place in Chicago, and a summary of the
two parties' positions was presented before the judging
panel. Bowlds spoke briefly and either transcripts of the
JAC meeting or affidavits were introduced, but again his
union and concerted activities were not specifically dis-
cussed. Bowlds lost at this level since the panel denied
his grievances, and sustained Respondent's discharge of
Bowlds. It appears that, at each step of the grievance
procedure, Trenaman read Bowlds' grievance in its en-
tirety into the record, and at each level Bowlds was af-
forded the opportunity to submit additional evidence in
support of his grievance.
C. As to Perkins
For the periods involved herein, Perkins started his
feeder run at Campbellsville (his home base), drove to
Nashville, and on his return trip made a stop at Bowling
Green, and then back to Campbellsville. 5 He stated his
employment with Respondent in 1971.
Under normal circumstances Perkins came to work at
9:55 p.m. (punch-in time), and was due to go out of the
Campbellsville terminal at 10:10 p.m. (e.s.t.). Perkins tes-
tified that the Nashville supervisor told him that he was
to be at Nashville at 1:40 a.m., but that his Campbells-
ville supervisor told him he was to be at Nashville at
1:34 a.m. Perkins was also told to leave Nashville at 3:45
a.m. but no later than 4 a.m. and was scheduled to return
at 8:05 a.m. to Campbellsville, but in early 1979 this time
5 Perkins operated on eastern standard time--I hour ahead of Owens-
boro and Nashville.
was changed to 7:55 a.m. However, there was no mile-
age change-only 10 minutes taken off the driving time,
and Perkins stated that, at the time of his change, he ex-
plained to the supervisor that he could not make the run
in 10 minutes less, but the supervisor told Perkins that
this 10-minute cut was based on a national average, and
then told him to do the best he could. Thereafter, Per-
kins would sometimes run late by 10 minutes in getting
into his home base, and in the spring of 1979 his supervi-
sor at Campbellsvile, Tom Mouser, began telling Perkins
that he was getting to the home terminal late. Perkins
testified that he sometimes left Nashville late and other
times got tied up at Bowling Green to sort packages.
Perkins stated that for a while he also noticed the Camp-
bellsville terminal's clock was 10 minutes fast and that he
reported this to management on a number of occasions,
but it was not corrected.
On the night of August 27, 1979, Perkins left Camp-
bellsville at 10:25 p.m. (15 minutes late) and arrived at
Nashville at 1:55 a.m. (EST). According to Perkins, he
left Nashville at 3:55 a.m., arriving back at Campbells-
ville at 8:05 a.m., with a 15-minute break at 12:15 to
12:30 a.m. on the down leg (southbound), and a 15-
minute break with Robert Bowlds at 5:05 to 5:20 a.m.
(e.s.t.) at Franklin, Kentucky-at the Amoco truckstop
on his return. 6 Perkins notes that he actually stopped at
the Amoco truckstop at 4:58 a.m. (e.s.t.) and it was 5
a.m. (EST) by the time he and Bowlds (who had been
driving caravan with Perkins from Nashville) went into
the Amoco truckstop lot. Perkins then updated his log-
book and next went into the Amoco cafe and joined
Bowlds and Amoco Manager Tracy Sampson in a booth.
Perkins stated at this time that they could not sit there
long because he and Bowlds had only 15 minutes to stay
there, and he checked his watch as did Bowlds. Both
drivers then left, and Perkins continued on to Campbells-
ville, but before reaching his destination had to stop 3 or
4 minutes to let his hot engine cool off.
That evening (August 28) Perkins talked with manage-
ment people at Campbellsville. Bob Jones, Neil Mul-
vaney, and George Knoblock, all supervisors of Re-
spondent, spoke with Perkins, in the presence of Steward
Bobby McMahon. Jones told Perkins that he had been
observed overextending his break and falsifying his time-
card, and that he was suspended until further investiga-
tion. Perkins then asked, where and when? Jones replied
that their lawyers had this information.
Two days later, on August 30, Perkins was then called
in by Supervisor George Knoblock, and again Jones,
Knoblock, and Mulvaney were present, and Perkins then
called in McMahon, the union steward. Supervisor Jones
accused Perkins of taking 32 minutes at the Amoco
truckstop on the morning of August 28, saying that he
was terminated. Perkins testified that both he and
McMahon asked for the clock times of this break, but
Jones told them that their lawyers had it, and that Union
Agent Tom Trenaman would later get this information.
Perkins stated that he had testified in the earlier case
involving Bowlds, and that on occasion he had also dis-
6 See G C. Exh II, the timecard of Perkins for the penod herein in
dispute
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tributed UPSurge handbills at the Campbellsville termi-
nal in the presence of Terminal Manager Tom Mouser
(in February or March 1979), and that Mouser had told
him that he preferred that he (Perkins) not do it. Perkins
said that he also distributed PROD at the terminal at
Campbellsville on one occasion. Moreover, Perkins testi-
fied that he also was active in the U.S. district court
class action lawsuit with Bowlds by collecting money
from employees beginning about October 11, 1976, and
thereafter, at the Campbellsville terminal, and that he
further collected signatures for this class action from
Campbellsville drivers and then turned in the signed peti-
tions to Bowlds. Additionally, Perkins filed grievances
including one on February 14, 1979, against Respondent,
and it went through the grievance procedure under the
Teamsters contract with Respondent but Perkins lost this
grievance. 7 Perkins testified that on February 28, 1979,
he told Supervisor Mouser that he needed some addition-
al trousers or pants for his uniform, but Mouser an-
swered, "Perkins, we're trying to figure out a way to fire
your ass anyway. We won't have to get you any."
Bobby Pierce and Eddy O'Banion were in the immediate
area of Mouser at the time. It is noted that both Pierce
and O'Banion were in corroboration of Perkins as to this
incident.
Campbellsville Center Manager Tom Mouser has been
stationed there since February 1978, but Mouser was
absent from the center from July through October 1979,
on special assignment, so he had nothing directly to do
with Perkins' suspension and discharge in late August
1979. However, this record shows that all company driv-
ers are furnished uniforms and are required to wear them
whenever they are on duty-and such requirements are
contained in the bargaining contract. Mouser testified
that sometime in early 1978, it was reported to him that
Perkins had driven that night wearing blue jeans and not
his uniform trousers, and as a result he told Perkins that
if he ever needed uniform trousers to let him know, and
that later in 1978, he took Perkins' uniform to the clean-
ers on several occasions-that in February 1979, Perkins
reported, after he returned from his run, that he needed a
clean pair of pants for that night. Mouser said that he
would get them for him, but Perkins replied, "If you
don't have them ready, I'll wear my blue jeans out of the
center." Mouser testified that he then told Perkins that
he would have a pair of pants there for him and he was
not to leave the center wearing blue jeans, and added
that if Perkins did so he would be terminated. At the
time this conversation occurred, Mouser admittedly was
working the package sort near Bob Pierce and Ed
O'Banion.
T Counsel for Respondent argues that the allegations that Bowlds' and
Perkins' suspensions and discharges resulted from discrimination based on
supposed activities for PROD, UPSurge, the rest break lawsuit, the
grievance filings, and their participation and testimony in the earlier
Board case-are all transparent. Respondent points to Jim Weafer, a
union steward for many years, and the fact that Weafer has filed a
number of grievances and has testified in different matters and yet was
never disciplined, and Weafer was also one of the 13 named plaintiffs in
the rest break class lawsuit. It is also pointed out that Supervisor Mouser
denied seeing Perkins distribute UPSurge, and that Bowlds could not
recall any specific day or month he distributed UPSurge or PROD at the
terminal in Owensboro.
After Perkins was discharged, he filed a grievance on
September 4, 1979, and the grievance was processed. On
September 11, 1979, a joint local hearing was held at
Owensboro and Perkins' grievance was heard at the
local level on the same day that Perkins testified at the
Board's hearing in the prior Board case (Case 25-CA-
10318). At this grievance hearing, Supervisor Bob Jones
accused Perkins of taking a 32-minute break on the
morning of August 28 at the Amoco truckstop, and false-
ly putting down the wrong time on his timecard. Then
Union Agent Tom Trenaman read Perkins' grievance,
and introduced the affidavit of Amoco Manager Tracy
Sampson8 (mentioned above in Bowlds' case), stating
that Bowlds and Perkins were there only about 15 min-
utes. Further, Trenaman presented Jones with the affida-
vit from Pierce9 stating that Mouser had informed Per-
kins in February that Mouser was going to fire Perkins
anyway, as aforestated. At this meeting no one discussed
Perkins' involvement with PROD, with UPSurge, his in-
volvement with the class action lawsuit against Respond-
ent, the filing of his February 1979 grievance, or Perkins'
former testimony in the earlier Bowlds' case (Case 25-
CA-10318).
On October 9, 1979, Perkins attended a state level
joint grievance meeting at Louisville, and again Supervi-
sor Bob Jones presented Respondent's case, reading the
charge that Perkins took a 32-minute break on August
28, from 3:53 to 4:25-Union Agent Tom Trenaman pre-
sented Perkins' case, and offered the above-mentioned af-
fidavits from Sampson and Pierce. Then Respondent's
three witnesses testified at this meeting (Harris, Cash,
and Knoblock). As pointed out, the only new thing that
Jones brought up at this meeting, in addition to the 32-
minute break, was that Perkins was consistently late
coming into Campbellsville. However, the panel decided
that Perkins should go back to his job on the next day,
but without backpay, and Perkins did so on October 10,
1979.
B. Respondent's Case as to Bowlds and Perkins
Respondent presented testimony through their wit-
nesses to the effect that, shortly after George Knoblock
became feeder manager in May 1979, he received several
calls from Campbellsville Center Manager Tom Mouser
about Perkins' late return to Campbellsville and com-
plaints that this was delaying his operation. Knoblock
told Mouser he would send Supervisor Wayne Pruitt to
investigate, and on May 14, 1979, Pruitt service-checked
Perkins, and on the following morning Pruitt called
Knoblock and reported that Perkins had driven satisfac-
torily, but several days later Knoblock talked to Mouser
and told him that if Perkins started returning to Camp-
bellsville late again, he would send Pruitt back.
Manager Knoblock testified that on August 22, 1979,
he was service-checking feeder driver Al Hester on his
run to Nashville, and while at the Nashville hub he
checked on his other Kentucky drivers who hook up in a
line on one side of the Nashville terminal, but he could
" See Resp. Exh 2.
9 See Resp. Exh. 1.
1018
UNITED PARCEL SERVICE, INC
not locate Perkins. Knoblock then checked with the dis-
patcher and learned that Perkins had logged in, and that
later he then saw Perkins coming around the building in
his tractor to back up to his trailer at 3:40 a.m. Knoblock
stated that when Perkins stepped down he had sleep
marks on his face and his eyes were swollen, and by this
time Perkins only had 5 minutes left to safety check his
vehicle and pull out. Knoblock then instructed Perkins,
who had complained that his late arrivals at Campbells-
ville had been caused by delays at Nashville, to safety
check his vehicle and pull out of Nashville by 3:45 a.m.
Turning now to the events and circumstances of
August 27 and 28, 1979, as testified to by witnesses for
Respondent: Manager Knoblock stated that on the morn-
ing of August 27, he telephoned Division Manager Bob
Jones to explain the problem he was having with Per-
kins-that Perkins was continually returning to the
Campbellsville Center late but, whenever he rode with a
supervisor, he performed satisfactorily. Knoblock then
suggested to Jones that he would follow Perkins on his
run and watch him and time his movements. Jones sug-
gested that Knoblock get Loss Prevention Supervisor
Larry Harris or someone in loss prevention to accompa-
ny him during his observance. Later that same morning,
Supervisors Cash and Knoblock were in contact with
one another and Knoblock told Cash he was going to
follow Perkins that night. According to Knoblock, Cash
then remarked that this would also be a good night for
him to follow feeder driver Bob Bowlds, who had been
returning late to Owensboro, and Cash said he would get
Supervisor Hugh Gray to accompany him, but when
Cash called back he said Gray was not available. Knob-
lock then told Cash to meet him at Franklin, Kentucky,
that night and they would get in one car for the Nash-
ville trip. Knoblock also contacted Larry Harris and that
evening they met at the Company's Louisville center and
left together in Knoblock's car for Cave City, Kentucky.
They arrived at 9 p.m., central time, and waited until
10:10 p.m., but never saw Perkins. When they decided
they had missed Perkins, they then went directly to an
Amoco station at Exit 6, but again they did not locate
Perkins so they drove to the Key truckstop at Franklin.
Herschel Cash testified that he arrived in Owensboro on
August 27 about 8 p.m., and drove to the intersection of
U.S. Highway 60 East and 60 Bypass about one-half mile
from the Owensboro terminal, and at 8:45 p.m. he saw
Bowlds drive past this intersection, and that he then
pulled out behind Bowlds and followed him. Cash said
that Bowlds took the Green River Parkway south and
stopped about 100 yards beyond the Bowling Green toll
both at 9:56 p.m., and from the top of the exit ramp he
then observed Bowlds outside his tractor-and that it
was 10:20 p.m. before he pulled away-24 minutes later.
Cash stated that he then followed Bowlds on Interstate
65 south, and about 20-22 miles down 1-65, at Exit 6,
Bowlds pulled into an Amoco truckstop at 10:41 p.m.,
stated that he waited on I-65 a few minutes and then
pulled toward the Amoco Truck Stop and met Bowlds
leaving the truckstop at 10:46 p.m.-that he then turned
around and followed Bowlds to the Key truckstop at
Exit 2. Cash said he drove past Bowlds' unit-which was
then parked in front of the Key truckstop-at 10:54 and
stayed until 11:16 p.m.-22 minutes.
It appears that, when Knoblock and Harris ap-
proached the Key truckstop, they observed a company
tractor trailer parked in front of the restaurant with
Bowlds in the cab, and that this was at 10:55 p.m. At 11
p.m., when they parked their car, they then observed
that the cab of the truck was empty and a few minutes
later Knoblock saw Cash in the parking lot and he then
went over to Cash's car and told him to join them in
Knoblock's car. He stated that the three of them contin-
ued to observe the truck until 11:16 p.m., when Bowlds
drove by in front of them. The three of them then fol-
lowed Bowlds into Nashville where he arrived at 12:16
a.m., on August 28, and shortly thereafter Perkins pulled
into the Nashville hub. Knoblock said that he then tele-
phoned Jones to tell him what had transpired and that
they had not seen Perkins on the down leg.
Witnesses for Respondent testified that at 2:50 a.m.,
central time, on August 28, Perkins left the Nashville ter-
minal followed by Bowlds at 2:51 a.m., and that they
(the three supervisors) followed Bowlds and Perkins one-
half mile back on 1-65 until about 5 miles south of the
Kentucky state line, when they lost track of them, but
when Knoblock, Harris, and Cash reached the Key
truckstop and still did not see Bowlds or Perkins-Cash
got into his car and then both cars proceeded to the
Amoco truckstop at Exit 6. It appears that at this point
Cash went back to the Key truckstop and Knoblock and
Harris went south to the rest area near the state line, and
at this time Knoblock and Harris saw Bowlds and Per-
kins headed north on the other side of the road. Knob-
lock said that he turned around and followed them to the
Amoco truckstop, and that when they arrived at the
Amoco truckstop at 3:45 a.m. they observed Bowlds and
Perkins in the cafe and testified that they remained there
until 4:26 a.m.-32 minutes.
Cash said that he had observed Bowlds' and Perkins'
unit about 2 miles north of the Key truckstop, and stated
that he then turned around and pulled in the Amoco
truckstop at 3:53 a.m. where he observed both Bowlds'
and Perkins' units parked and empty in the back of the
lot, and at 4:24 a.m. he observed Bowlds and Perkins
emerge from the restaurant and, at 4:25 a.m., both
Bowlds and Perkins pulled away.
After Bowids and Perkins pulled away, Knoblock,
Harris, and Cash agreed to follow Bowlds back to
Owensboro, but Cash suggested that, when they reached
the Western Kentucky Parkway, he would call the
Owensboro center manager, Tom Campbell, and ask him
to note the time Bowlds pulled on the lot, to secure his
timecard when he was ready to punch out, and then tell
Bowlds they wanted to talk to him. Knoblock testified
that, when he and Harris continued to follow Bowlds,
they had observed that at 5:31 a.m., about one-fourth
mile north of the toll booth, Bowlds' truck was standing
on the road and at 5:36 a.m. the rig was still parked
when they left and continued into Owensboro.
It appears that around 6 a.m. Knoblock and Harris ar-
rived in Owensboro at the Holiday Inn. Harris then
called the Owensboro center and explained what had
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
happened to Supervisor Buddy Ellis, and Knoblock testi-
fied he then called Bob Jones and explained to him what
had happened, and that Jones then told Knoblock to let
Bowlds punch out and to preserve his timecard, and they
would meet later that day to decide what action would
be taken. Jones also told Knoblock he would have Divi-
sion Manager Jim Hatcher contact Acting Campbellsville
Center Manager Neil Mulvaney with instructions to keep
Perkins' timecard.
Jones testified that, in accordance with the above, he
telephoned Division Manager Jim Hatcher-whose area
included the Campbellsville center-and told him to be
sure to retain Perkins' timecards and log sheet for the
day-that Hatcher left the phone, got Perkins' timecard
and log sheet, and gave the information to Jones on the
telephone-that he then compared what Perkins put on
his timecard and log sheet with the information Knob-
lock supplied, and in so doing realized there was a 17-
minute discrepancy on the return leg rest break. Later
that same day Jones asked Knoblock to meet him at the
Campbellsville center in order to suspend Perkins pend-
ing further investigation, and said that he also called
West Division Manager Ben Cissell and told him to sus-
pend Bowlds that night pending completion of the inves-
tigation.
The subsequent circumstances and events involving
the actual suspensions and discharges, and the grievance
meetings in relation thereto, have been detailed previous-
ly herein. 10
C. Final Conclusions
The answer by Respondent raised as separate defenses
the disposition of the Perkins' and Bowlds' grievances
and requested the Board to defer its processes to these
awards-Respondent argues that, with one exception, the
decision of Spielberg Manufacturing Company, 112 NLRB
180 (1955), is applicable to the grievance awards in these
cases. It is pointed out that since both Bowlds and Per-
kins amended their unfair labor practice charges to in-
clude an 8(a)(4) allegation, there could not be deferral to
any award on that allegation, but Respondent argues this
charge is so obviously specious that it should be dis-
missed, and absent such a charge, the Spielberg doctrine
should be applied to these cases. Respondent then details
the various grievance procedures in the bargaining con-
tract, as aforestated. Moreover, it is pointed out that
Bowlds and Perkins pursued their grievances voluntarily
through the procedures outlined in article 5 of the con-
tract between the parties and the decision of the griev-
ance committee is as binding on Bowlds and Perkins as it
is on Respondent-that by filing their grievances under
the contract, Bowlds and Perkins clearly agreed to the
submission of their cases to the grievance committee and
state panel for decision, and that Bowlds submitted, and
the grievance committee considered, nearly identicial
to Jones testified that, between August 28 and August 30, he personal-
ly reviewed Bowlds' and Perkins' timecards and log sheets for August
27-28, and compared these with the observations of Knoblock, Harris,
and Cash that date, and in so doing was convinced that both men had
falsified their timecards and overextended their breaks so he decided to
discharge both men; he also decided to handle the discharge of Perkins
and directed Division Manager Ben Cissell to handle Bowlds' discharge
issues that are presented in this case-his "union activi-
ties" and his participation in the class action lawsuit-as
the bases of discrimination against him-that Union
Agent Trenaman acknowledged that these issues had
been presented at each level of the grievance procedure
since they were specifically mentioned in Bowlds' writ-
ten grievance, and admittedly Trenaman read the griev-
ance aloud as part of his presentation at each step. I I
Under the Spielberg doctrine, the Board defers to an
arbitration award where "the proceedings appear to have
been fair and regular, all parties had agreed to be bound,
and the decision of the arbitration panel is not clearly re-
pugnant to the Act." In the instant case, the concerted
activities and union activities of Perkins and Bowlds
were not brought up at any of the grievance joint meet-
ings except in making a brief mention by reading refer-
ences to such as part of the grievance language. More-
over, Union Agent Trenaman admitted that he never met
with Bowlds or Perkins before the grievance joint panel
meetings during the various steps of the grievance proce-
dure, never went over their testimony with them, never
introduced any evidence concerning their PROD or UP-
Surge activities, their class action lawsuit (other than a
reference to it in Bowlds' grievance), nor the fact that
they had filed grievances under the grievance procedure,
nor that they had testified in the earlier Board case (Case
25-CA-10318). In the final analysis, the joint grievance
committees and panels here involved did not consider
the relevant facts pertaining to union and concerted ac-
tivities of Bowlds and Perkins; in fact, they were barely
made aware of them. Accordingly, I am not persuaded
that the instant complaint should be dismissed on Spiel-
berg grounds.t 2
It is alleged that in March 1979 Respondent main-
tained a rule prohibiting the distribution of UPSurge ma-
terial on Respondent's property at any time, and that Su-
pervisor Tom Mouser enforced such rule.
Supervisor Tom Mouser, terminal manager at Camp-
bellsville, testified that no such rule has ever been
posted, maintained, or published. However, it is admitted
that Respondent promulgated its no-solicitation and no-
distribution rule appearing on the employees' bulletin
boards both at Campbellsville and at Owensboro, as out-
lined in General's Counsel Exhibit 10.13 The General
I See Resp. Exh 4.
12 In the earlier Board case involving Bowlds (Case 25 CA-10318), as
aforestated, Administrative Law Judge von Rohr, at one stage in the
case, issued an order recommending dismissal of his case on the grounds
that the Board should defer to the arbitrator's ruling under the doctrine
in Spielberg. However, in an interim appeal this order was later reversed
by the Board, and in its recent decision in this case-252 NLRB 1015-
the Board majority outlines in some details their reasons for rejecting
Spielberg and in so doing reaffirms their previous conclusions that this
earlier case was not appropriate for deferral to the arbitration award
13 This rule reads:
No Employee shall solicit or promote support for any cause or or-
ganization during his or her working time or during the working
time of the employee or employees at whom such activity is direct-
ed.
2. No Employee shall distribute or circulate any written or printed
material in work areas at any time, or during his or her working time
or during the working time of the employee or employees at whom
such activity is directed.
Continued
1020
UNITED PARCEL SERVICE, INC.
Counsel argues that the above rule is too confining in its
language, and therefore unlawful.
The reason the Board holds unqualified restrictions
against solicitation "in work areas" improper is because
they leave open the question whether the prohibition ap-
plies as well while employees are not working. In the in-
stant case, there is credible evidence that Perkins was
distributing UPSurge handbills at the terminal in Febru-
ary or March 1979, when Supervisor Mouser inquired of
Perkins if he had been distributing "some papers" around
the Campbellsville Center. Perkins replied in the affirma-
tive and then told Mouser "we had a right to as long as
the man wasn't on the clock working." Mouser an-
swered, "Well, I'd rather you didn't do it." 4 Perkins
then explained there was a notice or rule on the bulletin
board which permitted the distributions of such leaflets.
While Perkins may have been correct in the overall
application or interpretation of the rule in question-per-
mitting the distribution of such material on non work-
time-nevertheless, the rule did create an ambiguous sit-
uation so that employees did not clearly know what was
permitted and what was prohibited, and, of course, Su-
pervisor Mouser did nothing to clear up the matter or to
lead employees to believe that they could distribute ma-
terial on nonworking time, as he informed Perkins that
"I'd rather you didn't do it" after Perkins had stated that
he was distributing on his own time. Moreover, the mere
fact that the tone of the conversation may have been
friendly or conciliatory does not, of course, erase the im-
plied restrictions by Mouser.
I find that, by promulgating, maintaining, and enforc-
ing this rule during February and March 1979, Respond-
ent violated Section 8(a)(1) of the Act.
Counsel for Respondent points out that it should be
emphasized that both Bowlds and Perkins were disci-
plined only because of their excessive breaks and falsified
timecards on August 27-28-that, although both drivers
had been returning to their home terminals consistently
late, this was not the reason for the discharge, that their
habitual late returns and complaints from supervision
alerted management to the fact that these drivers were
extending their breaks or making unscheduled stops,
without authority and without accurately marking their
timecards; that it should also be noted that these two
drivers were being paid for their extended breaks and
unscheduled stops, since only the scheduled 15-minute
rest break and the 30-minute lunch period are unpaid-
3. No employee shall enter or remain in the building and other
work areas for any purpose except to report for, be present during.
or conclude his or her work shift.
14 Mouser denied that such a conversation took place, but I have cred-
ited Perkins, a convincing and straightforward witness, with the more
logical recollection that such an incident did occur based upon back-
ground, general circumstances, and sequence of events Moreover, it
should be noted that all facts found herein are based on the record as a
whole upon my observation of the witnesses. The credibility resolutions
herein have been derived from a review of the entire testimonial record
and exhibits with due regard for the logic and probability, the demeanor
of the witnesses, and the teaching of N.LR.B v Walton Manufacturing
Company, 369 U.S. 404 (1962). As to those witnesses testifying in contra-
diction of the findings herein, their testimony has been discredited, either
as having been in conflict with the testimony of credible witnesses or he-
cause it was in and of itself incredible and unworthy of belief .411A testimo-
ny has been reviewed and weighed in the light of the entire record.
that Bowlds and Perkins were stealing time from the
Company and then falsifying the amounts taken on their
timecards-that by extending their workday, returning
beyond their scheduled return time, they received over-
time payments since overtime is paid after 8 hours per
day, and at the feeder driver rate of $11.61 for straight
time hours, this translates to an overtime rate of $17.41
per hour, and that if Bowlds, for example, averaged 15
minutes late return to the Owensboro center on each of
his 5 workdays per week, that would amount to I hour
and 15 minutes of additional overtime which must be
paid to him-or $21.76 per week,i5 and that the delayed
returns to the terminals not only cost additional overtime
payments to the late-returning feeder driver, but also ad-
ditional overtime payments to the package delivery driv-
ers, who must wait for the feeder driver trailers to be un-
loaded and sorted. Campbellsville Center Manager
Mouser explained the effect when a feeder driver such as
Perkins returns late:
A. Well, it's kind of like a mushroom. If he's
[Perkins] late then the delivery drivers are late get-
ting out of the building, consequently they're late
coming back into the building, and could be--conse-
quently could be late, the feeder runs that leave that
particular night.
What this causes is it causes additional overtime
for all my package drivers, and in fact since Perkins
is not on schedule it causes additional overtime for
him.
It is further pointed out by Respondent that Bowlds
acknowledged on cross-examination that he had been in-
structed to leave the Nashville terminal at 2:45 a.m. and
be in Owensboro at 6 a.m. Bowlds also acknowledged
that he had been aware for some time that his rest break
was not to exceed 15 minutes, and that Bowlds had been
given a warning letter at an earlier time for taking more
than his allotted 15-minute break, and was terminated in
April 1978 for overextending his breaks and falsifying his
timecard, and then reinstated with a suspension-that on
August 4, 1978, he was terminated again for the same
reason and then reinstated at the last step of the griev-
ance procedure with a suspension and final warning.
Respondent also points out that, while Perkins was re-
instated to his job by the state grievance panel without
backpay, he engaged in the same misconduct-that his
testimony was replete with inconsistencies, and his state-
ment that the Campbellsville timeclock was running 10
minutes fast is just one illustration.
Turning now specifically to the late August 1979 sus-
pension and discharge of Bowlds: In essence, manage-
ment is attempting to show that Bowlds stopped 24 miles
on the Green River Parkway on his down leg (south-
bound trip) without noting same on his timecard. How-
ever, Bowlds-a consistent and straightforward wit-
ness-credibly testified that on this occasion he stopped
less than 10 minutes and did so to wake up and to relieve
himself. There is ample evidence in this record to show
that it is a common practice for drivers to stop from time
'S See G C Exhs. 13a
1021
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to time to relieve themselves and to wake up by getting
out of their truck."6 There is also ample evidence in this
record to show that under normal circumstances when
drivers stop for a few minutes to relieve and for wake-up
purposes, they do not make any notations of such on
their timecards or in their logbooks, and Bowlds also tes-
tified that such was the practice when he drove inspec-
tion or service runs with supervisors, as aforestated. 17
In the final analysis, management is adding approxi-
mately 26 minutes to the southbound trip from Owens-
boro to Nashville (14 additional minutes on the Green
River Parkway, 5 minutes at Amoco, and an additional 7
minutes at the Key truckstop), yet Bowlds admittedly ar-
rived at the Nashville terminal at 12:18 a.m. on August
28.
It appears very doubtful to me that Bowlds would
have arrived at Nashville when he did-if one adopts the
observations of management and adds 26 minutes to his
stops and rest breaks. It should be remembered that,
even when Bowlds drove his service checks with super-
visors, and admittedly did not overstay or overextend
any break stops-he was still 6 or 7 minutes late, there-
fore on the occasion here in question, if he overextended
his stops by a total of 26 minutes on the down leg, then,
in all likelihood, he would have been considerably later
on his arrival into Nashville.
On his return leg the Company adds at least 17 min-
utes (the break stop at Amoco with Perkins), yet Bowlds
arrived back at Owensboro at or about 6:16 a.m. Again,
if Bowlds actually extended his stop by 17 minutes, it is
unlikely he would have arrived at Owensboro when he
did, and especially so since, even by stopping the allotted
time when supervisors performed service checks, he was
still several minutes late. Moreover, the timecards for
Bowlds in July and August 1979 reveal that his normal
driving time, for the most part, from Owensboro to
Nashville and return, was 3 hours and 20 minutes (each
way), and on the night and morning here in question
Bowlds was still very close to his normal 3 hours and 20
minutes-which would have been very difficult to
achieve with the additional stops and durations suggested
by management. '
It is also evident to me that Bowlds was singled out as
the subject of rather extraordinary surveillance activity
by Respondent's supervisors at a time when he was
'6 Supervisor George Knoblock was asked if he had seen Bowlds out-
side his truck on the occasion in question, and his replies were as follows:
A. He was outside of the vehicle, yes, sir.
Q. Was he walking around the tractor and trailer, or just standing
there, or what?
A. He was standing.
Q. With regard to that. Are you aware that drivers do stop along
the highway, either to relieve themselves, or wake themselves up, as
a common practice?
A. To relieve themselves, yes.
Q. Uh huh. How about to wake themselves up, meaning if a man
is sleepy in the middle of the night he'll walk around to-
A. He'll-
Q. -get himself awake, or alert?
A. Yes.
17 As noted, I have also credited the testimony of Bowlds as to his
other stops-where he stopped, the frequency of such stops, and the du-
ration of his stops on the night and morning of August 27 and 28.
is I will discuss further aspects of the Amoco stop in the section deal-
ing with Perkins.
known to be engaged in protected concerted activities. 19
In this regard Supervisor Cash decided to follow Bowlds
after Knoblock had informed him that he (Knoblock)
was going to follow Perkins, and then rather extensive
travel plans and arrangements were made in order to
conduct these surveillance exercises, as aforestated. In
any event, I find it difficult to believe that, absent some
outside motion, management would go to such lengths in
following Bowlds without even first having discussed his
alleged late arrivals directly with him, and/or with the
supervisor of the Owensboro facility, Thomas Campbell.
It also appears to me that while the Company makes
considerable attempts to have the feeder drivers arrive at
their destinations on time and that prompt arrivals are
important to them, nevertheless, exact "punctuality" is
not as paramount as it would seem to be. In March and
May 1979, Supervisor Cash performed service checks on
Bowlds, as aforestated, and on these occasions Bowlds
was 4 to 8 minutes late (both directions) but nothing was
said about it nor were any real corrective measures insti-
tuted-Cash merely informed Bowlds that he should go
faster on the down hills. Moreover, punctuality and
exact arriving times also receives another back seat in
Respondent's argument where it is emphasized that ex-
cessive breaks and falsified timecards were the reasons
for the discharges, and late returns or arrivals at termi-
nals merely alerted management that Bowlds was extend-
ing breaks and making unscheduled stops without au-
thority and without accurately marking his timecard.
In summary, the evidence in this record shows that
Respondent built up Bowlds' entitled and authorized
breaks on the night and morning of August 27-28, to 43
additional minutes by announcing nonbreak toilet stops,
by announcing a nonexistent southbound stop at Amoco,
and by alleging overextensions at the coffeehouses (Key
stop and Amoco stop), all contrary to the graveyard
shift managers of the coffeehouses as well as Bowlds'
and Perkins' testimony. Additionally, as also pointed out,
Supervisor Cash testified that Bowlds had a bad late-ar-
rival record at the home terminal at Owensboro, but
when analyzed the record shows that Bowlds had a satis-
factory record-a steady 3 hours and 20 minutes record
of driving, and with only a few minutes extra on occa-
sions where fog or an accident held him up.
Turning now to the suspension and discharge of Per-
kins. His scheduled feeder run required him to leave
Campbellsville at 10:14 p.m., after he started work at
9:55 p.m. His initial designation was the Nashville hub at
1:32 a.m. From that time until 3:25 a.m., when he was
scheduled to depart, he was allowed a 30-minute lunch
break, and then was required to shift cars, hook to a new
trailer, and refuel. On the down leg to Nashville, Perkins
was allowed a 15-minute break plus 5 minutes to safety
check his vehicle and update his logbook. Once the
19 As detailed earlier herein, Bowlds distributed UPSurge and PROD
materials at the terminal in Owensboro, was a union member of Local 89,
and was a union steward handling several grievances each month, up to
the present has not indicated any withdrawal in participation with the
filing of a civil suit against Respondent in a U.S. district court, and has
filed charges with the Board and given testimony in a prior case against
Respondent heard during April, May, and September 1979 (Case 25-CA-
10318).
1022
UNITED PARCEL_ SERVICE, INC.
safety inspection is complete and he leaves his truck, his
15-minute break begins. Perkins was scheduled to leave
the Nashville hub no later than 3:45 a.m. headed toward
Bowling Green, Kentucky, but, before his arrival there,
he was allowed another 15-minute break. It appears that
his normal scheduled arrival at the Bowling Green
Center was 5:36 a.m., where he dropped his Nashville
trailer, hooked up to another trailer, performed a pretrip
safety inspection, and then headed for the Campbellsville
center. His arrival at Campbellsville was 7:41 eastern
time.
Respondent points out and argues that Perkins had
been frequently instructed about the specific schedule
times of his feeder run-that in 1978 Feeder Supervisor
Wayne Pruitt "stressed heavily" to leave the gate at
Nashville no later than 3:45 a.m. It is also pointed out
that the packages which Perkins returns to Campbells-
ville are immediately sorted and preloaded on package
delivery cars which are then dispatched within I hour of
Perkins' return for delivery, and any delay in Perkins'
return to Campbellsville caused a delay in the preload
and dispatch of the package cars.
The only real controversy as to Perkins involves his
stop at the Amoco truckstop on his return trip. Perkins
stated that he was there for 15 minutes on his break,
while the Company maintains he and Bowlds stayed 32
minutes.
Counsel for Respondent points out that in his testimo-
ny Perkins stated that on the morning of August 28 he
arrived at the Amoco truckstop at 3:58 a.m., central
time, because he looked at his watch, but in an affidavit
given to the NLRB on October 3, Perkins stated that he
and Bowlds arrived at the Amoco truckstop at 4 a.m.,
central time; further, that Perkins recited in his affidavit
he knew it was 4 a.m. because he glanced at his watch,
but when confronted with the inconsistency, Perkins se-
lected the 3:58 a.m., central time, he had testified about.
Respondent argues that neither version conforms to
Bowlds' timecard for his August 28 rest break at Amoco
which he indicates started at 3:56 a.m., and thus Bowlds'
timecard reflects that he started his break at least 2 min-
utes before Perkins pulled in the Amoco parking lot.
Moreover, argues Respondent, Bowlds claims that he
and Perkins entered the restaurant and sat together in a
booth for their break until they both left the restaurant at
4:11 a.m (Boulds entered these times on his timecard),
while Perkins testified that they began their break at 4:05
a.m. and finished at 4:20 a.m., central time, and so
marked his timecard. Respondent argues that neither ver-
sion is accurate as both of them overextended their
breaks and falsified the times on their timecards.
While there are some discrepancies in the timecards of
Bowlds and Perkins as to when their breaks actually
started and ended at the Amoco truckstop on the morn-
ing of August 28, nevertheless, it appears to me that such
discrepancies must be deemed of a minor nature when
considering the fact that drivers were permitted a 5-
minute interval or leadway at breaktime to bring their
logbooks up to date which Perkins did, and the recog-
nized fact that watches and clocks will occasionally vary
at least a few minutes one way or another as is evident
with the clock at Campbellsville. However, and more
importantly, the oral testimony given by Perkins (and
Bowlds) on the times they arrived and left the Amoco
truckstop on August 28 are in substantial agreement with
the times noted on their timecards, and this is so even
though their testimony at the hearing before me was
given almost 8 months later.
In consideration of the overall circumstances involving
Perkins, it must also be remembered that his arrival time
back in Campbellsville had been changed in early 1979
from 8:05 to 7:55 a.m., as aforestated, and Perkins ad-
mitted that thereafter, on the average, he was late by 5
to 10 minutes in getting back, but he explained to Super-
visor Tom Mouser this was due to being late getting out
of Bowling Green or Nashville. Moreover, that when
Supervisor George Knoblock talked to him in August
1979 about being late, he then informed Knoblock that
he would "always be late" in getting back to Campbells-
ville as the clock there was running 10 minutes fast. It is
also noted that Respondent had assigned no particular or
specific hardships in their operations even though Per-
kins was running late in his arrivals back at Campbells-
ville. There is no testimony that the packages did not get
out on the connecting trucks or feeders.
It is evidence to me that Perkins was also singled out
as the subject of extraordinary surveillance by supervi-
sors at a time when he was known to be engaged in pro-
tected concerted activities-Perkins had testified in the
earlier case (Case 25-CA-10318) involving Bowlds, he
had distributed UPSurge handbills in early 1979 in the
presence of Supervisor Mouser and had been told not to
do it, he had also at one time distributed PROD at the
terminal in Campbellsville, he had collected money and
signatures at Campbellsville for the class action civil suit,
as aforestated, and Perkins had also filed grievances
against Respondent. In addition to the above, it is again
noted that on or about February 28, 1979, Perkins had
requested of management additional trousers or pants to
complete his uniform, and in reply to this request Super-
visor Mouser told Perkins that they were "trying to
figure out a way to fire your ass anyway. We won't have
to get you any."
In summary, the evidence in this record shows that
Respondent attempted to add on 17 minutes as an over-
extension to Perkins' break stop, but the credited testimo-
ny by Perkins and others reveals that his break at the
Amoco truckstop was within the allotted time, and such
notation on his timecard was substantially corroborated
by his oral testimony.
In the instant case, I have found that the General
Counsel made a prima facie showing sufficient to support
the inference that protected conduct was the motivating
factor in the suspensions and discharges of Bowlds and
Perkins, and in my view Respondent has failed to dem-
onstrate that such actions would have taken place in the
absence of the protected conduct. In accordance there-
with, Respondent is in violation of Section 8(a)(1), (3),
and (4) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
1023
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
suspended and discharged Robert Bowlds and David
Perkins, I shall recommend that Respondent offer them
immediate and full reinstatement to their former or sub-
stantially equivalent position, without prejudice to their
seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered
by reason of the discrimination against them by payment
of a sum of money equal to that which he would have
normally earned from the date of Respondent's discrimi-
nation, less net earnings, during said period. All backpay
provided herein shall be computed with interest on a
quarterly basis, in the manner described by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), and
with interest thereon computed in the manner and
amount prescribed in Florida Steel Corporation, 231
NLRB 651 (1977)20 .
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(l), (3), and (4) of the Act.
Upon the foregoing findings of fact and the entire
record and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 2 1
The Respondent, United Parcel Service, Inc., Ownes-
boro, Kentucky, its officers, agents, successors, and as-
signs, shall:
20 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
21 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.
1. Cease and desist from:
(a) Promulgating, maintaining, and enforcing a no-dis-
tribution rule, prohibiting distribution of union materials
on company property at any time.
(b) Suspending and discharging employees because
they engage in concerted activity for their mutual aid or
protection, and/or because of their testimony in a Board
proceeding.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Robert Bowlds and David Perkins inmediate
and full reinstatement to their former jobs or, if such
jobs no longer exist, to a substantially equivalent posi-
tion, and make them whole for any loss of pay and other
benefits in the manner set forth in the remedy section of
this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its facility in Owensboro and Campbells-
ville, Kentucky, copies of the attached notice marked
"Appendix."2 2 Copies of said notices, on forms to be
provided by the Regional Director for Region 25, 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 conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
22 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1024