325 NLRB 1
United Parcel Service
1
325 NLRB No. 11
UNITED PARCEL SERVICE
1 In light of our determination to remand this proceeding, we defer
ruling on the remaining issues presented in the exceptions and brief
which do not require remand.
2 ‘‘Tr.’’ refers to the page and line of the transcript of the hearing
that was held before the judge in this proceeding.
3 Our dissenting colleague assumes that the judge used the phrase
‘‘no record evidence’’ to mean ‘‘no credible evidence.’’ We are un-
willing to make the same assumption.
United Parcel Service and David Dunning. Cases 7–
CA–33137, 7–CA–33981(2), 7–CA–34605, and
7–CA–34903
November 7, 1997
ORDER REMANDING
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On July 8, 1997, Administrative Law Judge Judith
Ann Dowd issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to remand this proceeding
to the judge for further credibility determinations and,
if appropriate, new Conclusions of Law and rec-
ommendations.1
The judge found that the Respondent violated Sec-
tion 8(a)(4) and (1) by discharging David Dunning be-
cause he filed an unfair labor practice with the Board.
She rejected the Respondent’s contention that it dis-
charged Dunning because he continued to sexually har-
ass Erin Kelley, an employee of the Respondent, after
his suspension for sexually harassing Kelley. In so
doing, the judge concluded, ‘‘There is no record evi-
dence to support the allegation that Dunning ‘contin-
ued to sexually harass Kelley,’ that he violated the Re-
spondent’s confidentiality mandate, that he acted in re-
taliation for [Kelley presumably] filing a sexual harass-
ment complaint, or that he engaged in conduct which
had the effect of creating a hostile work environment’’
(sec. II,C,2) (brackets in original).
In the Respondent’s exceptions to the judge’s find-
ing of a violation of Section 8(a)(4) and (1), it chal-
lenges the judge’s finding that there is no record evi-
dence that Dunning engaged in any misconduct toward
Kelley in the period between his suspension and dis-
charge. The Respondent points to testimony of the Re-
spondent’s manager, William Soumis, that at a Decem-
ber 28, 1992 meeting where he, Manager Jennifer
Shroeger, and Dunning were present, Dunning told
them ‘‘it was his responsibility as a union steward to
expose Erin for what she really was; that he was inter-
viewing people; and that he was going to prove to us
that she was not the sweet angel, or a comment to that
effect, that we thought she was; that, in fact, he could
prove that she was a homosexual.’’ (Tr. 337:22–
328:2.)2
Our review of the record shows that the Respondent
accurately recounted Soumis’ testimony. Our review of
the record also shows, however, that Dunning’s testi-
mony about what he said at the December 28 meeting
conflicts with Soumis’ testimony. In answer to the
question whether he discussed his rights as a union
steward with Managers Soumis and Shroeger at the
December 28 meeting, Dunning stated: ‘‘I’m sure I
did. I’m sure I told them that I had a right to talk to
other members about the reasons that I was suspended.
If I needed to investigate my suspension, I, as a stew-
ard, am allowed to investigate.’’ (Tr. 114:17–21.) In
answer to the question if he had been discussing his
suspension with other employees, Dunning testified,
‘‘If employees ask me why I was suspended, I would
tell them why I was suspended. . . . I told them I was
suspended for my union activities and for sexual har-
assment.’’ (Tr. 113:14–18.) In contrast to Soumis’ tes-
timony, Dunning’s testimony made no reference to an
attempt to expose Kelley’s alleged homosexuality.
There is, therefore, conflicting testimony about
Dunning’s conduct in the period between his suspen-
sion and discharge which was not addressed by the
judge. Contrary to our dissenting colleague, we are un-
able to find that the judge implicitly credited Dunning
and discredited Soumis by asserting in her statement of
the facts of the December 28 meeting that, ‘‘Dunning
said that he had a right to investigate his own suspen-
sion and talk to other employees about it.’’ (Sec. II,C.)
While the judge referred to the content of Dunning’s
testimony in her statement of facts, she made no ref-
erence anywhere in her decision to the content of
Soumis’ testimony about the December 28 meeting.
Further, in making her legal conclusions, she stated
that there is ‘‘no record evidence’’ that Dunning en-
gaged in any conduct concerning Kelley after his sus-
pension. It thus appears that the judge overlooked
Soumis’ testimony rather than implicitly discrediting
it.3 In these circumstances, we find it necessary to re-
mand this proceeding to the judge for an explicit credi-
bility determination concerning the above-described
testimony of Dunning and Soumis and for an analysis
under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), of the Dunning discharge in light of that deter-
mination.
ORDER
It is ordered that this proceeding is remanded to
Chief Administrative Law Judge Robert A. Giannasi
for appropriate action.
CHAIRMAN GOULD, dissenting in part.
Contrary to my colleagues, I find it unnecessary to
remand the issue of whether the Respondent violated
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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The majority states that they are ‘‘unwilling’’ to make this as-
sumption. Obviously, the majority opinion rests on its own assump-
tion. Regrettably, that assumption will consume unnecessary time
and expense to the parties and taxpayers in yet another administra-
tive proceeding.
1 Although the Respondent admitted the above-stated facts in its
answer, it also raised lack of jurisdiction as a defense, claiming that
Respondent is a Railway Labor Act employer and, as such, is not
subject to the jurisdiction of the Board. The Respondent’s jurisdic-
tional contention is without merit. See United Parcel Service v.
NLRB, 92 F.3d 1221 (D.C. Cir. 1996), affg. the Board’s decision in
United Parcel Service, 318 NLRB 778 (1995).
2 I credit the testimony of the General Counsel’s witnesses that
such distributions regularly occurred in the check-in areas. Respond-
ent’s witnesses, all of whom were supervisors, admitted that drivers
regularly read newspapers and magazines in the check-in areas but
Section 8(a)(4) and (1) by discharging David Dunning
because he filed an unfair labor practice with the
Board. The majority agrees with the Respondent that
there is conflicting testimony about Dunning’s conduct
in the period between his suspension and discharge
which was not addressed by the administrative law
judge and requires an explicit credibility determination.
I disagree. In setting forth the facts of the December
28 meeting, the judge stated, ‘‘Dunning said that he
had a right to investigate his own suspension and to
talk to other employees about it.’’ (Sec. II,C.) The
judge implicitly credited Dunning and discredited the
testimony of Soumis relied on by the Respondent.
Thus, when the judge stated, there was ‘‘no record evi-
dence’’ (sec. II,C) regarding the accusations made
against Dunning, she clearly was referring to the fact
that there was no credible evidence on this matter.1
Accordingly, I dissent from the remand on this issue
and would adopt the judge’s finding that the Respond-
ent unlawfully discharged Dunning because he filed
unfair labor practices with the Board.
Richard F. Czubaj, Esq., for the General Counsel.
Carey A. De Witt, Esq. (Butzel Long), of Detroit, Michigan,
for the Respondent.
Barbara Harvey, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JUDITH ANN DOWD, Administrative Law Judge. This case
was heard in Detroit, Michigan, on September 18 and 23,
1996. Charges were filed by David Dunning (the Charging
Party) in this proceeding on April 9 and December 3, 1992,
and on May 24 and August 19, 1993. On May 16, 1994, the
Acting Regional Director for Region 7 of the National Labor
Relations Board (the Board) issued an order setting aside set-
tlement agreement and reinstating complaint, order consoli-
dating cases, second amended consolidated complaint and
notice of hearing (complaint). The complaint alleges that
United Parcel Service (the Respondent or UPS) violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act) by
enforcing its written no-distribution rule in a nonwork area,
by disparately enforcing its rule against David Dunning (the
Charging Party or Dunning) through oral warnings on Feb-
ruary 14 and March 12, 1992, and a written warning on
March 23, 1992, and by, on or about July 7, 1993, selec-
tively and discriminatorily removing literature from a union
bulletin board. The complaint also alleges that the Respond-
ent violated Section 8(a)(3) and (1) and Section 8(a)(4) and
(1) of the Act by disciplining and discharging Dunning be-
cause he engaged in union activities and/or filed charges and
gave testimony under the Act. On June 10, 1994, the Re-
spondent filed an answer to second amended consolidated
complaint and special and/or affirmative defense (answer)
denying the commission of any unfair labor practices, chal-
lenging the Board’s jurisdiction and raising certain affirma-
tive defenses.
At the hearing, all parties were represented by counsel and
were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence. On the
entire record, including my observation of the demeanor of
the witnesses, and after considering the briefs filed by the
General Counsel, the Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
United Parcel Service is a corporation which maintains fa-
cilities throughout the United States, where it is engaged in
the interstate and intrastate transportation of goods for deliv-
ery. Respondent maintains a distribution facility in Saginaw,
Michigan. During each of the calendar years 1991, 1992, and
1993, Respondent, in conducting its business operations, had
gross revenue in excess of $500,000 and derived gross reve-
nue in excess of $50,000 from the transportation of freight
between and among the various States of the United States.
The complaint alleges, the answer admits, and I find that the
Respondent has been engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.1
The complaint alleges, the answer admits, and I find that
at all material times Teamsters Local Union No. 486 (the
Union) has been a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Distribution in the Check-in Areas
1. Factual background
In 1991–1993 Respondent maintained three check-in areas
for package drivers at its Saginaw Center, variously known
as Auburn, Swan Creek, and East Bay. Drivers arrive for
work as early as 7:30 a.m. Some drivers use the locker room
to change into their uniforms. Other drivers go directly to a
check-in area, where they are free to talk, read newspapers
and magazines, or stand around until their assigned starting
time. The prestart period is the only time during the day that
drivers assemble together off the clock. During this prestart
period, from about 7:30 to 8:30 a.m., drivers pass around
such items as entry blanks for a fishing tournament, informa-
tion about a hunting contest, flyers announcing a golf outing,
and sports magazines.2 The drivers’ contractual starting time
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UNITED PARCEL SERVICE
they denied observing the drivers pass around any newspapers, mag-
azines, or other materials. I find the evidence showing that distribu-
tion occurred to be more persuasive than the evidence to the con-
trary. It is difficult to imagine that drivers assembled off the clock
for the only time during their day would not take advantage of the
situation to promote sports tournaments and similar activities among
their fellow drivers or, at the very least, to pass around to each other
newspapers and magazines they admittedly read in the check-in
areas, while they were waiting for the morning meeting to begin.
is 8:30 a.m. At that time the drivers assemble outside of the
check-in area for a morning meeting and then proceed to
their trucks to begin deliveries. Package drivers return to Re-
spondent’s facility anytime between 4:20 p.m. to after 8 p.m.
The Respondent maintains a written no-solicitation rule
which provides, in pertinent part, as follows:
1. No employee shall solicit or promote support for
any cause or organization during his or her working
time or during the working time of the employee or
employees at whom such activity is directed.
2. No employee shall distribute or circulate any writ-
ten 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 activ-
ity is directed.
David Dunning is a delivery driver who has been em-
ployed by the Respondent for over 22 years. Since about
1980, Dunning has also been a steward for the Union. In
February 1992, Dunning distributed copies of a newspaper
called the Convoy Dispatch, a publication of the Teamsters
for a Democratic Union (TDU) in the locker room and
check-in areas of the Saginaw Center. On or about February
14, 1992, Manager Brian Konesko stopped Dunning from
distributing copies of the Convoy Dispatch to drivers in the
East Bay check-in area sometime prior to the drivers’ start
time. Konesko told Dunning that he would check with higher
management to determine whether it was permissible to dis-
tribute in the check-in areas, but he never gave Dunning any
further response. In mid-March 1992, Supervisor Pat Ryan
asked Dunning for a copy of the Convoy Dispatch, as the
latter was distributing the newspaper in a check-in area, prior
to the drivers’ start time. Konesko, who observed the ex-
change, told Dunning to report to his office. In his office,
Konesko instructed Dunning that he could not distribute in
the check-in areas. On March 20, 1992, Dunning was told
to report to the office of one of Respondent’s managers, Bill
Soumis, who handed Dunning a warning letter citing his
‘‘failure to follow management instructions’’ and warning
him that any further disregard of management instructions
would result in more severe disciplinary action.
2. Respondent’s enforcement of its no-distribution rule
in the check-in areas
‘‘The threshold question, in any case which concerns an
employer’s restraint of employee efforts to distribute lit-
erature on the employer’s premises, is whether the distribu-
tion is pertinent to a matter encompassed by Section 7 of the
Act.’’ Transcon Lines, 235 NLRB 1163, 1165 (1978). Ac-
cord: McDonnell Douglas Corp., 210 NLRB 280 (1974). If
the literature is protected, ‘‘the Board applies a general rule
that any restriction on employee . . . distribution during non-
working time in nonworking areas, is presumptively violative
of the Act. This presumption may, however, be overcome if
the employer introduces evidence establishing its special
needs regarding the maintenance of production or discipline
in its facility, which would then justify an exception to the
rule.’’ Times Publishing Co., 240 NLRB 1158, 1159 (1979).
In this case, there is no question that the Convoy Dispatch
newspaper is entitled to the protection of Section 7 of the
Act. The newspaper is distributed by a dissident group within
the Teamsters Union. It primarily contains articles about cur-
rent workplace issues and commentary about the Teamsters’
efforts to represent employees with respect to those issues.
In its brief, the Respondent does not contest the protected
status of the Convoy Dispatch, and I find that the newspaper
is entitled to the protection of Section 7 of the Act.
The Respondent contends that it can lawfully ban distribu-
tion of union-related literature in the check-in areas because
they are work areas. In support of this contention the Re-
spondent cites evidence showing that training, check-in, and
other types of work are performed in the check-in areas by
supervisors and certain classifications of employees, before
and after the drivers assemble there during the prestart pe-
riod. However, the evidence shows that during the prestart
period itself—from about 7:30 to 8:30 a.m.—the package
drivers are not on the clock and they do not perform work.
On the contrary, the drivers openly read, lounge, engage in
social conversation, and generally use the check-in areas as
assembly and waiting rooms. It may be, as the Respondent’s
witnesses contend, that a supervisor will occasionally give
some instructions or supplies to a driver during the prestart
period. The evidence shows that such instances are the ex-
ception and not the rule and it is clear that employees cannot
be required to perform work functions prior to their contrac-
tual start time. I, therefore, find that the check-in areas are
used as nonwork or, at most, mixed use areas between 7:30
a.m. and the drivers’ start time of 8:30 a.m., and that drivers
are in a nonwork status during that period. I further find that
the Respondent violated Section 8(a)(1) of the Act by enforc-
ing its no-distribution rule in the check-in areas during the
prestart period. See Transcon Lines, 235 NLRB 1163, 1165
(1978), affd. in pertinent part NLRB v. Transcon Lines, 599
F.2d 719 (5th Cir. 1979); and Oak Apparel, 218 NLRB 701
(1975).
3. The enforcement of the distribution ban
against Dunning
The next issue is whether the Respondent discriminatorily
enforced its no-solicitation, no-distribution rule against David
Dunning, when it disciplined him for distributing the Convoy
Dispatch in the check-in areas during the prestart period. The
credited evidence shows that drivers routinely distributed
such materials as fishing contest forms, football pool mate-
rial, and information about golf tournaments in the check-in
areas during the prestart period. There is no evidence show-
ing that Respondent’s no-distribution rule was enforced
against these drivers. However, Dunning was given two oral
warnings and a written warning for distributing the Convoy
Dispatch under the same conditions under which the other
material was distributed.
The evidence concerning whether or not management was
aware of the distributions of magazines, contest forms, and
other such materials is less clear. Nevertheless, it is undis-
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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Even crediting the testimony of Respondent’s supervisors that
they dispose of any magazines and newspapers left in the check-in
area at the end of the day, this evidence is, at best, ambiguous. The
discarded publications could as easily be disposed of to avoid un-
sightly clutter as to enforce a no-distribution rule. There is no evi-
dence showing that the Respondent posted any warning notices, gave
verbal warnings, or otherwise informed employees that the news-
papers and magazines were being discarded pursuant to the no-dis-
tribution rule.
4 Respondent also contends that the General Counsel failed to
show that magazines and other reading material were distributed in
1992, the year that Dunning was disciplined for his distribution ac-
tivity, because the only publications offered into evidence were dated
1996. The documents that were received in evidence were offered
and accepted as examples of the kinds of materials that are routinely
passed around in the check-in areas. If such publications were dis-
tributed in the check-in areas in 1996, I have no reason to doubt the
credible testimony of the witnesses for the General Counsel to the
effect that similar materials were distributed in the check-in areas in
1992.
5 Contract Update was a publication issued by the Union to keep
members informed about the progress of the then-current negotiation
over a new collective-bargaining agreement between the Union and
the Respondent.
puted that supervisors routinely mingled with the drivers in
the check-in areas during the prestart period. Since the cred-
ited evidence shows that distributions of magazines and other
materials was done openly and routinely, I infer that super-
visors were aware of these distributions and took no action
to stop them.3 I, therefore, find that the Respondent violated
Section 8(a)(1) of the Act by discriminatorily enforcing its
no-solicitation, no-distribution rule against David Dunning
for distributing a protected publication.4
4. Distribution near the part-time employee break area
In July 1993, at the conclusion of a labor-management
meeting, Dunning was approached by two employees, who
inquired about the status of the ongoing contract negotia-
tions. Dunning asked the employees whether they were on a
break and they stated that they were. Dunning and the two
employees then proceeded toward an unenclosed area con-
taining refreshment vending machines, tables, and chairs.
Somewhere between this break area and the place where the
timeclock for part-time employees is located, Dunning hand-
ed the employees a copy of a Contract Update from the
Union.5 Manager William Soumis, who was on the stairs
coming down from the meeting, observed Dunning hand the
document to the employees. Soumis confronted Dunning and
told him that he could not distribute in the area where he
was standing because it was a work area.
The evidence is in dispute as to exactly where the distribu-
tion occurred. Dunning testified that he and the employees
were within the parameters of the unenclosed break area. Re-
spondent’s witnesses testified that Dunning was closer to the
employee timeclock, which was stipulated by the parties to
be located in a work area. Aside from the hair splitting over
whether the distribution occurred closer to the break area or
to the timeclock, the other circumstantial evidence is clear.
Dunning and the other employees were on nonworking time
and there were no employees in the area who actually were
performing work at the time of the distribution. There is also
no evidence showing that the distribution resulted in any pas-
sageway being blocked or in any disruption of production or
discipline. Under these circumstances, the issue of whether
Dunning was standing a few feet within or outside of an
imaginary line delineating the perimeter of the break area
seems to be elevating form over substance. I find that Dun-
ning distributed union literature in, or near, a nonwork area.
The Respondent’s interference with the distribution therefore
violated Section 8(a)(1) of the Act.
B. The Removal of a Union Posting from the Union
Bulletin Board
On or about July 7, 1993, Dunning posted a copy of the
Union’s Contract Update publication on the bulletin board
set aside for union postings. Manager Terry Dubay read the
posting and concluded that the material was demeaning to
the Respondent. After consulting with other management of-
ficials over the phone, which included reading part of the
posting, Dubay removed the Contract Update from the union
bulletin board.
The Board has stated as follows (Container Corp. of
America, 244 NLRB 318 fn. 2 1979):
[W]hen an employer permits, by formal rule or other-
wise, employees and a union to post personal and offi-
cial notices on its bulletin boards, the employees’ and
the union’s right to use the bulletin boards receives the
protection of the Act to the extent that the employer
may not remove notices which the employer finds dis-
tasteful.
In certain cases the Board has found that ‘‘special cir-
cumstances’’ exist where the interests of the employees in
communicating a union’s message are outweighed by an em-
ployer’s legitimate interest in maintaining discipline, safety,
or efficient production in the workplace. Midstate Telephone
Corp., 262 NLRB 191, 192 (1982). The employer must es-
tablish by objective evidence that its prohibition was nec-
essary to maintain decorum and discipline among its employ-
ees. Id. The Board has found that employee speech retains
the protection of the Act unless the remarks are egregious.
Timpte, Inc., 233 NLRB 1218, 1224 (1977). As noted in
Container Corp. of America, 244 NLRB 318, 321 (1979),
quoting form NLRB v. Cement Transport, Inc., 490 F.2d
1024, 1029 (6th Cir. 1974):
In the context of a struggle to organize a union, ‘‘the
most repulsive speech enjoys immunity provided it falls
short of a deliberate or reckless untruth,’’ so long as the
allegedly offensive actions are directly related to activi-
ties protected by the Act and are not so egregious as
to be considered indefensible.
Certain facts surrounding the bulletin board incident are
undisputed. All parties agree that Dunning posted a copy of
the Union’s Contract Update on the union bulletin board and
that the posting was removed by Manager Terry Dubay. The
evidence is disputed as to exactly which copy of the Contract
Update was removed and why. The General Counsel con-
tends that the leaflet that was removed was an issue of the
Contract Update dated June 25, 1993, a copy of which he
offered in evidence (G.C. Exh. 16). The Respondent con-
tends that the original leaflet that Dubay removed from the
bulletin board could not be located but that its personnel of-
fice retained a photocopy of the original in its files, which
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UNITED PARCEL SERVICE
6 The Respondent contends in its brief that proposed Exh. 16
should have been admitted into evidence. R. Exh. 16 is a series of
photocopied grievance decisions on the subject of postings on union
bulletin boards. Neither the facts underlying the decisions nor the
text of the contract provision they purport to interpret is set out in
full in the exhibit. The exhibit was apparently offered to show the
basis on which Respondent decided to remove the Contract Update
at issue here, from the union bulletin board. However, Respondent’s
witness, Daniel Parks, from whose files this evidence came, could
not testify with any certainty which parts of the exhibit, if any, he
may have reviewed at the time relevant to the decision to remove
the Contract Update. I, therefore, excluded this evidence as irrele-
vant.
it offered into evidence as R. Exh. 15. RX–15 consists of a
photocopy of the Contract Update dated July 2, 1993, with
a handwritten note copied on its face. Respondent’s manager,
Daniel Parks, identified the note as his writing. The note
reads ‘‘this was the posting taken down in Saginaw. Postings
by the union are confined to official business of the union
and on the unions [sic] official letterhead. The union is not
allowed to post information demeaning to the Co.’’
The Respondent contends that it removed the Contract Up-
date because it was not printed on official union letterhead,
which is a contractual requirement for all postings on the
union bulletin board, and because the content of the Contract
Update was demeaning to UPS. The General Counsel essen-
tially contends that it was the content of the posting that led
to its removal and that the Union’s logo was sufficient to
identify it as an official publication.
I find it unnecessary to resolve the dispute over which
copy of the Contract Update was actually removed from the
union bulletin board. With respect to content, both copies of
the Contract Update, G.C. Exh. 16 and R. Exh. 15, contain
rather harsh criticisms of the Respondent and allege that UPS
has been guilty of serious safety violations. However, neither
copy of the publication contains material that is so egregious
as to lose the protection of the Act.
With respect the official union letterhead requirement G.C.
Exh. 16 apparently fulfills the contractual requirement, but
Respondent’s Exhibit 15 contains only a small Teamsters
logo at the top. However, even assuming that RX–15 is a
copy of the actual document that was posted and removed,
I find, in agreement with the General Counsel, that it was
not the absence of official union letterhead that caused the
Respondent’s supervisors to remove the Contract Update.
The Respondent’s own witness, Terry Dubay, testified that
he read the Contract Update posting and found the content
to be anticompany and that he took down the document for
that reason and called Manager Bill Soumis about it. Dubay
remembers reading excerpts of the publication to Soumis
over the phone, but he could not recall any discussion with
Soumis about the lack of official union letterhead. Indeed,
Dubay candidly admitted that he was unsure whether he even
knew about the union letterhead requirement at that time.
Soumis testified that after finishing his conversation with
Dubay, and without ever seeing the posting, he called Daniel
Parks, the Respondent’s labor manager, and the two dis-
cussed the absence of official union letterhead on the post-
ing. Record evidence shows that after talking to Parks,
Soumis called Dubay and instructed him not to return the
Contract Update to the union bulletin board, but to send it
to Parks. Subsequently, Parks received Respondent’s Exhibit
15 and sometime thereafter added the undated, handwritten
note quoted above.
In light of Dubay’s credible testimony that he was un-
aware of the contractual union letterhead requirement, that he
was solely concerned about what he perceived to be the
anticompany content of the posting, and that he only remem-
bered discussing the content of the posting with Soumis, I
decline to credit Soumis’ testimony that he discussed the
lack of union letterhead during his phone call to Parks. Obvi-
ously, Soumis would not know about the absence of official
union letterhead if Dubay did not tell him about it, since
Dubay was the only management official who actually saw
the posting at the time it was removed. I find from the credi-
ble evidence that the Contract Update was removed because
its content was distasteful to management and that the lack
of official union letterhead was an ex post facto justification
added sometime after the posting was removed. In any event,
the evidence shows that the Respondent does not uniformly
enforce the union letterhead requirement. Thus, the General
Counsel introduced a photograph of the union bulletin board
taken around the time of the hearing. The photograph shows
that the bulletin board had several postings on it that con-
tained no union indicia whatsoever. I, therefore, find that the
Respondent violated Section 8(a)(1) of the Act by removing
a protected publication from the union bulletin board because
it was critical of UPS.6
C. The Alleged Discriminatory Discipline
and Discharge
Some years prior to 1992, before Erin Kelley was pro-
moted to a supervisory position, Dunning and Kelley had
some casual, social contact with each other at a bar fre-
quented by Respondent’s employees, near the Saginaw facil-
ity. Kelley may have confided to Dunning at that time that
she was gay. In any event, Dunning formed a belief that
Kelley was homosexual. In 1992, Kelley was a supervisor in
charge of a department which included some employees rep-
resented by the Union. Dunning, as union steward, had regu-
lar business dealings with her about these employees. Some-
time in June 1992, Dunning encountered Kelley in the hall-
way of the Respondent’s facility. Dunning asked Kelley,
‘‘How is your love life?’’ Dunning also asked Kelley if she
was still seeing a particular woman. Kelley replied that she
had not seen her for some time. Dunning then said that if
Kelley was out meeting women and she met any hetero-
sexual women, to send them to him.
In early July 1992, Dunning went to Kelley’s office to dis-
cuss a complaint from employees in her department about the
posting of start times on the bulletin board. When Dunning
came into the office Kelley was talking to another driver.
Dunning said, ‘‘Let me at her she screwed up one too many
times.’’ Kelley asked what she had done. Dunning replied it
was not that bad and that he wanted to talk about manning
requirements. Dunning then told Kelley that start times
should be posted on Thursday rather than Friday. Kelley
asked if that was all, and Dunning responded ‘‘That’s it. It
was painless, wasn’t it?’’ As Dunning was leaving the office
he asked Kelley if she was mad about something.
On July 8, Kelley went to upper management and filed a
written account of the above incidents. Shortly thereafter,
Dunning was called into the office of Division Manager Jen-
nifer Shroeger. Present in her office was Manager Bill
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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 I decline to credit Dunning’s testimony that the Respondent’s su-
pervisor, Kathy Porter, told him that he was being suspended solely
because of the incident in Kelley’s office. Kelley’s written complaint
about Dunning’s conduct gave equal weight to both incidents. More-
over, the Respondent’s letter notifying Dunning of his suspension
specifically states as one of the reasons ‘‘your personal and sexual
harassment of a full time management employee.’’ The Respondent
has used the term ‘‘sexual harassment’’ very loosely in dealing with
Dunning’s conduct toward Kelley and the issue of whether
Dunning’s conduct actually constitutes sexual harassment under Title
Vll, or Respondent’s own written policies, is not before me. Never-
theless, the stated ground for the suspension of ‘‘sexual harassment’’
logically relates more to the hallway incident, where Dunning made
specific sexual remarks, than to the incident in Kelley’s office,
which was devoid of overt sexual comments.
Soumis and a union steward. Shroeger asked Dunning what
he had done to make Erin Kelley so upset. Dunning related
the incident in Kelley’s office and said, ‘‘My job as a union
steward is to try to take care of problems. If I become too
aggressive and a supervisor is intimidated, that is tough
shit.’’ Management officials raised the issue of Dunning’s re-
marks to Kelley in the hallway and asked him questions
about that incident. Dunning essentially admitted the hallway
incident.
By letter dated July 17, Shroeger notified Dunning that he
was suspended for 2 days. The letter detailed the reasons for
the suspension as follows:
1. Your personal and sexual harassment of a full
time management employee in the Saginaw building.
2. Your insubordinate behavior toward the same
management employee.
3. Your actions as a (union steward) which have ex-
ceeded your responsibilities as a steward.
The last line of the letter consisted of a warning that ‘‘the
next step in progressive discipline is more severe—up to and
including discharge.’’
On December 28, Dunning met with Managers Soumis
and Shroeger about an unrelated employee grievance. During
the course of the meeting, Shroeger said that she had heard
Dunning had been talking about his suspension in the locker
room and that the matter was confidential. Dunning said that
he had a right to investigate his own suspension and to talk
to other employees about it.
On January 6, 1993, Dunning was called into a meeting
with Soumis, Shroeger, and a union steward. Management
informed Dunning that he was being discharged. Dunning re-
sponded that his discharge was in retaliation for the NLRB
charges he had filed in early December concerning his sus-
pension. Shroeger told him that he had no right to go to the
Board, that this was a matter of Federal law and not labor
law. Dunning was given a discharge letter which states, in
pertinent part, as follows:
The reason for your termination is in accordance with
Article 17 . . . other offenses of extreme seriousness
. . . of the Central Conference of Teamsters Supple-
mental Agreement. Specifically,
1. Continuance of sexual harassment.
2. Failure to follow management instructions.
3. Retaliation for filing a sexual harassment com-
plaint.
4. Creating a hostile work environment.
Dunning filed grievances concerning both his suspension and
his discharge. The 2-day suspension was upheld and the dis-
charge was reduced to a suspension and final warning. Sub-
sequently, Dunning was reinstated and given partial backpay.
Section 8(a)(3) of the Act makes it an unfair labor practice
‘‘by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or dis-
courage membership in any labor organization.’’ 29 U.S.C.
§ 158(a)(3). Under Section 8(a)(4) of the Act it is unlawful
to ‘‘discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under [the]
Act.’’ 29 U.S.C. § 158(a)(4). The central focus in any case
of alleged discrimination is what the employer’s actual mo-
tive was for taking the adverse employment action. Under
the Board’s decision in Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), the General Counsel has the burden of
showing that protected conduct was a motivating factor in
the employer’s employment action. In order to meet this bur-
den the General Counsel must prove that the employee en-
gaged in union activities, that the employer had knowledge
of these activities, and that the employer undertook an ad-
verse employment action against the employee because of
union animus. As the Board had recently explained, the Gen-
eral Counsel’s burden is one of persuasion and not merely
production. Manno Electric, 321 NLRB 278, 280 fn. 12
(1996). If the General Counsel’s case is established, the bur-
den of persuasion then shifts to the employer to prove its af-
firmative defense that it would have taken the same action
if the employee had not engaged in protected activity. Office
of Workers’ Compensation Programs v. Greenwich Col-
lieries, 114 S.Ct. 2551, 2558 (1994).
The General Counsel established a prima facie case of dis-
crimination by showing the Respondent had knowledge of,
and animus toward, Dunning’s union activities. Dunning was
well known to the Respondent as a union steward who was
aggressive in performing his duties. Union animus can be in-
ferred from the Respondent’s violations of Section 8(a)(1) of
the Act with respect to Dunning’s distribution and other
union informational activities. Accordingly, the burden shifts
to the employer to show that he would have taken the same
action if the employee had not engaged in protected activity.
1. Dunning’s 2-day suspension
Dunning was suspended for two incidents involving Erin
Kelley.7 With respect to the incident in Kelley’s office, Dun-
ning was engaged in the protected activity of discussing an
employee complaint with a department supervisor. While
Dunning’s statements to Kelley in the course of this meeting
appear to be unnecessarily aggressive, they are not so egre-
gious that they lose the protection of the Act. In the hallway
incident, however, Dunning was not performing any union
duties and his remarks to Kelley were gratuitous and highly
offensive. Dunning was being brazenly insubordinate in ask-
ing Kelley, a supervisor, about ‘‘her love life’’ and, in par-
ticular, about a certain woman friend of hers. Dunning ap-
proached Kelley in the hallway of the Saginaw facility where
anyone could have walked by and overheard the conversa-
tion. Indeed, Dunning’s remarks contain the suggestion that
he had no cumpunctions about talking openly about what he
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7
UNITED PARCEL SERVICE
8 I decline the General Counsel’s request that I draw an adverse
inference from the Respondent’s failure to call Kelley at the hearing.
Kelley was no longer employed by the Respondent at the time of
the hearing and she even may have been in an adversarial relation-
ship to the Respondent over her allegations of sexual harassment in
the workplace. In any event, the facts concerning the unprotected
conduct underlying Dunning’s suspension—his remarks to Kelley in
the hallway—are essentially undisputed.
9 The Respondent does not acknowledge that Shroeger made such
a statement, but it failed to call her as a witness, despite the fact
that she made the decision to discharge Dunning. Respondent ac-
knowledged that Shroeger was still employed by UPS, but it offered
no explanation for its failure to call her. Under these circumstances,
I draw the inference that had Shroeger been called, she would have
testified adversely to the Respondent. International Automated Ma-
chine, 285 NLRB 1122, 1123 (1987); Greg Construction Co., 277
NLRB 1411, 1419 (1985); Pur O Sil, Inc., 211 NLRB 333, 337
(1974).
10 The Respondent contends in its brief that R. Exhs. 10, 12, 13,
and 14 properly should have been admitted into evidence. R. Exhs.
10, 12, 13, and 14 are all memos written by Shroeger documenting
interviews she had with Kelley or Dunning about Kelley’s original
complaints of misconduct against Dunning and his subsequent activi-
ties. R. Exhs. 10 and 12 were assertedly offered by counsel for the
Respondent in order to show the basis for the Respondent’s suspen-
sion decision. Since I have found that Dunning’s suspension did not
violate the Act, the exclusion of this evidence did not prejudice the
Respondent. R. Exh. 13 consists of Shroeger’s notes about a meeting
with Dunning which was also attended by Soumis. Soumis testified
fully as to his recollection of the events of the meeting and
Shroeger’s notes are merely cumulative. R. Exh. 14 purports to doc-
ument an interview with Kelly initiated by Shroeger as a followup
to Kelley’s original complaint. Respondent was unable to lay a prop-
er foundation for admission of this evidence under the business
records exception to the hearsay rule. Furthermore, Shroeger was not
a disinterested recordkeeper but the supervisor who made the deci-
sion to discharge Dunning. I, therefore, consider this evidence to be
of questionable reliability. In sum, I decline to reconsider my deci-
sion to exclude R. Exhs. 10, 12, 13, and 14.
11 The complaint alleges that Dunning’s discharge also violated
Sec. 8(a)(3) of the Act, but the General Counsel made no argument
in support of this contention either at the hearing or in his brief. As
found above, Dunning’s discharge violated Sec. 8(a)(4) of the Act
and the remedy is the same for an 8(a)(3) violation. I, therefore,
make no ruling with respect to the allegation that Dunning’s dis-
charge also violated Sec. 8(a)(3) of the Act.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
believed to be Kelley’s sexual preference. I find that the Re-
spondent would have disciplined Dunning for the hallway in-
cident alone, regardless of his union activities. I, therefore,
find that the Respondent’s suspension of Dunning did not
violate Section 8(a)(3) and (1) of the Act.8
2. Dunning’s discharge
In early December, Dunning filed charges with the Board
alleging that his suspension violated Section 8(a)(3) of the
Act. At a meeting with management representatives on De-
cember 28, Dunning was accused of failing to keep the facts
of his suspension confidential and he insisted that he had a
right to investigate the matter. When Dunning was informed
of his discharge by Manager Jennifer Shroeger, she stated in
so many words that Dunning had no right to file a charge
with the Board.9 As far as the record evidence shows, Dun-
ning neither said nor did anything further to Erin Kelley that
would be grounds for discipline, between the time of his sus-
pension and the time of his discharge. All that occurred was
that Dunning filed unfair labor practice charges with the
Board. Furthermore, the stated reasons for Dunning’s dis-
charge do not withstand scrutiny. There is no record evi-
dence to support the allegation that Dunning ‘‘continued to
sexually harass Kelley,’’ that he violated the Respondent’s
confidentiality mandate, that he acted in retaliation for
[Kelley presumably] filing a sexual harassment complaint, or
that he engaged in conduct which had the effect of creating
a hostile work environment. The only remaining reason for
the discharge is retaliation for Dunning having filed an unfair
labor practice charge with the Board concerning his suspen-
sion. I, therefore, find that the Respondent violated Section
8(a)(4) and (1) of the Act by discharging Dunning because
he filed an unfair labor practice charge with the Board.10
CONCLUSIONS OF LAW
1. The Respondent, United Parcel Service, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
enforcing its written no-distribution rule in nonwork or
mixed use areas at a time when employees were in a non-
work status, by disparately enforcing its rule against David
Dunning through oral warnings of February 14 and March
12, 1992, and a written warning on March 23, 1992, and by,
on or about July 7, 1993, selectively and discriminatorily re-
moving literature from a union bulletin board.
3. The Respondent violated Section 8(a)(4) and (1) of the
Act by discharging David Dunning because he filed unfair
labor practice charges with the Board.11
4. The Respondent has not otherwise violated the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommend that the Respondent be
ordered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
The Respondent having discharged employee David Dun-
ning because he filed unfair labor practice charges with the
Board, shall make him whole for any loss of wages and
other benefits, computed on a quarterly basis from the day
of discharge to the date that he was reinstated, less any net
interim earnings as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, United Parcel Service, Saginaw, Michi-
gan, its officers agents, successors, and assigns, shall
1. Cease and desist from
(a) Enforcing its no-distribution rule in the check-in area
prior to the starting time of the package drivers.
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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
(b) Disparately enforcing its no-distribution rule against
employees with respect to their distribution of protected pub-
lications.
(c) Discriminatorily removing union postings from bulletin
boards where union or nonwork-related postings are per-
mitted.
(d) Discharging or otherwise disciplining employees be-
cause they filed charges with the Board.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole David Dunning for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of
this decision.
(b) Preserve and, within 14 day of a request, make avail-
able 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) Within 14 days after service by the Region, post at its
facility in Saginaw, Michigan, copies of the attached notice
marked ‘‘Appendix.’’13 Copies of the notice, on forms pro-
vided by the Regional Director for Region 7, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecu-
tive days in conspicuous placed including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by
the Respondent at any time since April 9, 1992.
(d) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discipline employees
for filing charges with the National Labor Relations Board.
WE WILL NOT enforce our no-distribution rules in the
check-in area prior to the starting time of the package driv-
ers.
WE WILL NOT discriminatorily enforce our no-distribution
rule against employees who are distributing union or other
protected publications.
WE WILL NOT discriminatorily remove union literature or
otherwise disparately enforce our bulletin board policy.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed by Section 7 of the Act.
WE WILL make whole David Dunning for any loss of earn-
ings and other benefits resulting from his discharge, plus in-
terest.
UNITED PARCEL SERVICE
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