            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 05a0412n.06
                         Filed: May 18, 2005

                                 Nos. 04-1049, 04-1246

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT




UNITED PARCEL SERVICE,


      Plaintiff-Appellant/Cross-Appellee,

v.                                                     ON APPEAL FROM
                                                       A DECISION OF THE
                                                       NATIONAL LABOR
NATIONAL LABOR RELATIONS BOARD,                        RELATIONS BOARD

      Defendant-Appellee/Cross-Appellant.
__________________________________________/

BEFORE:      MARTIN and GILMAN, Circuit Judges; and COHN, District Judge.*

AVERN COHN, District Judge. This is an action for review of an order by the National

Labor Relations Board (“NLRB” or “Board”) finding that Plaintiff-Appellant United

Parcel Service (“UPS”) violated sections 8(a)(1) and 8(a)(3)1 of the National Labor

Relations Act (“NLRA”) in terminating the employment of the charging party, Paul

Stimpson (“Stimpson”). The Board found that Stimpson was terminated for engaging in


      *
       The Honorable Avern Cohn, United States District Judge for the Eastern District
of Michigan, sitting by designation.
      1
       The Board also charged a violation of section 8(a)(4) of the NLRA, which was
denied and is not contested on appeal.
protected concerted activity. We find substantial evidence that Stimpson was terminated

in retaliation for his grievance activity. As such, the NLRB’s decision is AFFIRMED and

the Court GRANTS enforcement of its order.

            I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

                          A. Stimpson’s Employment History

       Stimpson began his employment with UPS in 1991 as a part-time sorter. Stimpson

was a member of Local 243 of the International Brotherhood of Teamsters, AFL-CIO

(“Local 243" or “the union”), and the terms and conditions of his employment were

governed by a collective bargaining agreement (“CBA”) between Local 243 and UPS.

During all relevant times, Stimpson was supervised by, among others, UPS Operations

Manager Ken Wilson (“Wilson”). Davis Staiger (“Staiger”) was the Union Steward who

processed many of the grievances filed by Stimpson.

              B. Stimpson’s Employment History and Grievance Activity

       Over the course of his employment, Stimpson was involved in grievance activity

on both a collective and individual basis as well as subjected to discipline.

       In July 1995, Stimpson was terminated for allegedly using vulgar language and

making racial remarks. Stimpson grieved his termination. After a hearing, his

termination was reduced to a suspension with a final warning against the use of such

language.

       In July 1996, Stimpson and eighteen other employees in his unit filed a grievance

protesting the supervisors’ performance of unit work in violation of the CBA. After

                                              2
Staiger presented the grievance to Wilson, Wilson held a meeting with the signatories to

the grievance. According to Staiger, Wilson warned that those with attendance problems

“should watch what they’re signing and be careful what they’re signing.”

       On June 26, 1997 Stimpson filed a grievance protesting a June 23, 1997 letter from

Wilson which stated that because Stimpson had suffered thirteen on-the-job injuries to

date, he would “leave the Company no alternative but to take disciplinary action up to and

including discharge,” if he continued to suffer such injuries.

       About a month later, on July 11, 1997, Stimpson filed another grievance alleging

sexual harassment in the workplace over UPS’s failure to stop a rumor. Apparently,

Stimpson complained to Wilson that a co-worker started a rumor that Stimpson slept with

prostitutes and abused his girlfriend. When Stimpson asked Wilson to speak with the co-

worker, Wilson allegedly refused, stating that he rumor was “probably true.” At the

hearing regarding the grievance, UPS management agreed to speak to the co-worker and

provide Stimpson with a follow-up. According to Stimpson, he never received a follow-

up and further says that UPS management “chuckled” while reading the grievance.

Stimpson later confronted the co-worker directly about the rumor, an argument ensued,

and Stimpson was suspended over the incident.

       On July 14, 1997, Stimpson filed another grievance alleging that UPS had

disregarded the seniority list by assigning preferential “extra” work to an employee with

less seniority than Stimpson.

       On July 28, 1997, Stimpson filed a grievance over his suspension stemming from

                                              3
the argument with his co-worker regarding the rumor discussed above.

       About three months later, on October 6, 1997, Stimpson filed a grievance over

another supervisor’s response to Stimpson’s complaint about extra work being assigned

to individuals with less seniority. The supervisor allegedly remarked that Stimpson was

“stupid or unable to perform the extra work.”

       On November 13, 1997, Staiger presented Wilson with another grievance

concerning safety problems in the sorting area which allegedly placed employees at risk

of injury or death. Eleven unit employees signed the grievance. The grievance contains

an illegible signature that may have been Stimpson’s, although this was never verified.

Upon receipt of the grievance, Wilson, according to Staiger, said that he would be

watching anyone who had signed the grievance and would write them up if they were

missorting packages.

       Three months later, on February 13, 1998, Stimpson received a written warning for

missorting packages. On February 24, 1998, Stimpson filed a grievance regarding the

warning. He noted that he had previously complained to management, including Wilson,

about other employees missorting packages, but that no action was taken against them.

       In March 1998, Stimpson met with Wilson and Union Steward Althea Streeter

(“Streeter”) to discuss a grievance matter. Wilson held a copy of the unfair labor practice

charge, discussed below, that Stimpson has filed against UPS. Wilson asked Stimpson

“Why are you filing these bull shit charges against us?”

       Thereafter, sometime in the Spring of 1998, Wilson, according to Stimpson, called

                                             4
him a “troublemaker” in reference to the number of grievances he filed.

         C. Stimpson’s On-The-Job Injuries and Related Grievance Activity

       As stated above, Stimpson received a letter regarding his thirteen on-the-job

injuries in June 1997. On November 18, 1997, Stimpson suffered another injury. He

injured his wrist when some large packages he was sorting toppled. Stimpson was treated

at a UPS-run clinic and was advised not to lift more than five pounds while his wrist

healed. Stimpson informed his supervisor, Vince Marino (“Marino”), of his restriction

and requested to be assigned to light duty work. Marino refused and Stimpson re-injured

his wrist.

       On December 7, 1997, a meeting was held between UPS management, Stimpson,

and a union representative. UPS management noted that Stimpson has been injured a

total of fourteen times and, according to Stimpson, stated that UPS did not want

employees like Stimpson working for it.

       Two days later, on December 9, 1997, Stimpson received a letter from UPS,

referring to the June 1997 letter, and “officially” warning him that he had too many on-

the-job injuries. It further stated that additional injuries could result in disciplinary

action, including termination.

       On December 14, 1997, Stimpson filed a grievance protesting the job-related

injury warnings. On December 15, 1997, Stimpson requested from Wilson information

on job-related injuries. By February 24, 1998, UPS still had not provided Stimpson with

the requested information and Stimpson, through the union, filed an unfair labor practice

                                               5
charge as a result. At a subsequent hearing, the grievance was resolved by reducing the

written warning to a verbal notice and expunging all warnings about job-related injuries

from Stimpson’s employment record.

                   D. Incidents Leading to Stimpson’s Termination

      On August 17, 1998, while Stimpson and his co-worker Kevin Gunnery

(“Gunnery”) were sorting packages, some packages became stuck on a conveyer belt.

Gunnery stepped onto the belt to dislodge the packages, a task which under the CBA is to

be performed only by a supervisor. Stimpson told Gunnery “I thought you were pulling

bulk today, I didn’t think you were a manager or a supervisor.” Gunnery became upset at

the remark, yelled obscenities at Stimpson, and threatened to “beat his ass.” Stimpson

motioned that he accepted the challenge and called Gunnery a “kiss ass.” Gunnery

complained to Wilson, who called both men into his office and warned them that they

would both be terminated if such an incident occurred again.

      On October 1, 1998, while driving a bulk train, Stimpson accidentally hit a cart.

His co-worker, Ernie Rodriguez (“Rodriguez”), saw the incident and said that Stimpson

should take lessons from, and learn to drive, like Gunnery. Stimpson jokingly responded

that “I don’t want to learn how to be a suck dick.”2 Rodriguez, Stimpson, and another co-

worker, Timothy Lee (“Lee’), were the only ones who heard the exchange, and all

laughed at Stimpson’s remark. Stimpson then drove off and left for the day at the end of


      2
      According to Stimpson, Gunnery had a reputation of playing the role of a
management favorite.

                                            6
his shift.

        Moments later, Gunnery drove his bulk train into the area and asked Lee what had

been said. After Lee told him, Gunnery complained to Wilson that Stimpson had called

him a “cocksucker.” Wilson obtained written statements from Lee, Rodriguez, and

Gunnery. After consulting his supervisor, Wilson suspended Stimpson. Stimpson was

later discharged. The reasons were explained in an October 6, 1998 letter which stated

that his “comments directed towards another employee were totally inappropriate,

intimidating, antagonistic and offensive [and] could be construed as sexual harassment

towards a fellow employee.”

                      E. Events Following Stimpson’s Termination

        Stimpson grieved his termination. A joint arbitration panel conducted a hearing

and issued a decision on March 18, 1999 denying the grievance and upholding

Stimpson’s termination.

        On February 9, 1999, Stimpson filed the instant unfair labor practice charge with

the Board. A hearing was held before an Administrative Law Judge (“ALJ”) where the

following individuals testified: Stimpson, Wilson, Lee, Staiger, and Streeter. The ALJ

concluded that Stimpson established a prima facie case of retaliatory discharge and that

UPS failed to carry its burden of showing that Stimpson’s discharge was unrelated to his

protected activity. The ALJ also determined that no deference was owed to the joint

arbitration panel’s decision because the panel did not consider Stimpson’s protected

activity in relation to his discharge.

                                             7
       Upon review of the ALJ’s decision, a panel of the Board agreed with the ALJ that

Stimpson was discharged in violation of the NLRA and affirmed the ALJ’s order to,

among other things, offer reinstatement to Stimpson.3 One panel member dissented,

concluding that UPS rebutted Stimpson’s prima facie case by showing that it would have

discharged Stimpson even absent his protected activity.

       UPS appeals the order. The NLRB cross appeals for enforcement. Stimpson has

intervened.

                                     II. ANALYSIS

       A. Whether the Board’s Decision is Supported by Substantial Evidence

                                 1. Standard of Review

       “We review the [NLRB's] conclusions of law de novo ... If the [NLRB] errs in

determining the proper legal standard, we may refuse enforcement on the grounds that the

order has no reasonable basis in law.” N.L.R.B. v. Good Shepherd Home, 145 F.3d 814,

816 (6th Cir. 1998) (quoting N.L.R.B. v. Pentre Elec., 998 F.2d 363, 368 (6th Cir. 1993)).

We review the NLRB's factual findings under a deferential standard. “The findings of the

Board with respect to questions of fact if supported by substantial evidence on the record

considered as a whole shall be conclusive.” NLRA § 10(e), 29 U.S.C. § 160(e);

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 493 (1951); N.L.R.B. v. St. Francis

Healthcare Ctr., 212 F.3d 945, 951-52 (6th Cir. 2000). “Evidence is substantial when it



       3
        The Board modified the ALJ’s order in manners not relevant to the instant appeal.

                                             8
is adequate, in a reasonable mind, to uphold the [NLRB's] decision.” St. Francis, 212

F.3d at 952 (internal quotation marks omitted). However, even when reviewing factual

questions, we will not serve “as a mere rubber stamp for the administrative agency.”

N.L.R.B. v. Cook Family Foods, 47 F.3d 809, 816 (6th Cir. 1995) (quoting YHA, Inc. v.

N.L.R.B., 2 F.3d 168, 172 (6th Cir. 1993)).

                                   2. Legal Framework

       Section 7 of the NLRA guarantees employees “the right to self-organization, to

form, join, or assist labor organizations ... and to engage in other concerted activities for

the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

Section 8(a)(1) makes it an unfair labor practice “to interfere with, restrain, or coerce

employees in the exercise of [those] rights....” 29 U.S.C. § 158(a)(1). Section 8(a)(3)

proscribes employer “discrimination in regard to hire or tenure of employment ... to

encourage or discourage membership in any labor organization....” 29 U.S.C. §

158(a)(3). “It is settled that if an employer discharges ‘an employee for having engaged

in union activities and has no other basis for the discharge, or if the reasons that he

proffers are pretextual,’ the employer violates section 8(a)(3) and (1) of the Act.”

N.L.R.B. v. E.I. DuPont de Nemours, 750 F.2d 524, 528-29 (citing N.L.R.B. v. Transp.

Mgmt. Corp., 462 U.S. 393, 398 (1983)). Thus, a violation of section 8(a)(3) constitutes a

derivative violation of section 8(a)(1). The General Counsel bears the burden of proving

a violation. See id.

       In Transportation Management, supra, the Supreme Court approved the Board's

                                               9
approach, established in Wright Line, 251 N.L.R.B. 1083, 1980 WL 12312 (1980), to

analyzing cases “involving charges of employment actions motivated by anti-union

animus and employer protestations of legitimate reasons for the actions.” W.F. Bolin Co.

v. N.L.R.B., 70 F.3d 863, 870 (6th Cir. 1995) (quoting Birch Run Welding & Fabricating

Inc. v. N.L.R.B., 761 F.2d 1175, 1179 (6th Cir. 1985)). First, the General Counsel must

establish by a preponderance of the evidence a prima facie case that anti-union animus

motivated or contributed, at least in part, to an employment action. See Transp. Mgmt.,

462 U.S. at 400. A prima facie case contains the following elements: (1) the employee

engaged in protected activity, (2) the employer knew of the activity, and (3) the employer

demonstrated hostility towards the protected activity, and (4) adverse action taken against

the employee. See Wright Line. Once a prima facie case is established, the employer can

avoid being held in violation of sections 8(a)(1) and 8(a)(3) if it proves, also by a

preponderance of the evidence, that the employment action “rested on the employee's

unprotected conduct as well and that the employee would have lost his job in any event.”

Transp. Mgmt., 462 U.S. at 400. This latter showing is regarded as an affirmative

defense, and if the proffered business justification is deemed pretextual, the defense fails.

See W.F. Bolin Co., 70 F.3d at 873.

                                       3. Application

       UPS argues that the Board erred in finding that the General Counsel had

established a prima facie case and takes particular issue with the finding that Stimpson’s



                                              10
termination was motivated by protected-activity animus.4 Although UPS frames the issue

as the Board misapplying the Wright Line test, UPS essentially argues that the record

does not contain sufficient evidence of animus towards Stimpson’s grievance activity and

is instead based on Stimpson’s vague beliefs and on statements from Wilson made well

before Stimpson’s termination. The General Counsel and Stimpson argue that the record

contains sufficient evidence of UPS’s hostility towards Stimpson’s grievance activity.

       Upon review of the record, we conclude that the Board’s finding of evidence of

employer animus is substantially supported. Wilson told Stimpson in the Spring of 1998

that he was a “troublemaker” because of his involvement in filing grievances. This

statement was made only six months before his termination and at a time when Stimpson

was engaged in filing numerous grievances. Moreover, Wilson responded to Stimpson’s

filing of an unfair labor practice charge regarding his request for information of job-

related injuries by asking him why he was filing “bull shit” charges against UPS. Such

statements can constitute evidence of animus. See Dayton Typographical, Inc. v.

N.L.R.B., 778 F.2d 1188, 1193 (6th Cir. 1985) (employer’s statement that employee had a

“bad attitude and created friction” by pressing for resolution of problem created inference

that employee was terminated for engaging in protected activity). See also James Julian

Inc. of Delaware, 325 N.L.R.B. 1109, 1111 (1998) (employer’s reference to a union

steward who filed numerous grievances as a “troublemaker” constituted evidence of


       4
       UPS does not dispute that Stimpson engaged in protected activity, that UPS was
aware of such activity, or that Stimpson suffered an adverse action.

                                             11
union animus).

       There is also evidence that Stimpson was threatened with termination if he

suffered another job-related injury. Wilson also warned employees in July 1996, in

response to filing a grievance to which Stimpson was a signatory, to be careful about

what they sign. In 1997, in response to another collective grievance, Wilson stated he

would write anyone up who was missorting packages. Although it is not clear that

Stimpson signed that grievance, it is noted that Stimpson was written up for missorting

just three months later and Stimpson grieved that discipline. While UPS makes much of

the fact that Wilson’s statements in 1996 and 1997 were well before Stimpson’s

termination, we agree with the Board that although remote in time, they are nonetheless

persuasive “because Wilson, the same supervisor involved in Stimpson’s discharge ...

made the earlier statements expressing the same hostility towards the filing of

grievances.” Thus, we find that General Counsel established a prima facie case of a

violation of sections 8(a)(1) and (3).

       UPS next argues that the Board erred in finding that UPS failed to establish that it

would have discharged Stimpson regardless of his protected activity. UPS says the Board

ignored Wilson’s testimony regarding why he terminated Stimpson -- for using

inappropriate language towards a co-worker after being warned against it. UPS also says

the Board ignored Streeter’s testimony regarding the use of such language in the

workplace, and testimony that UPS was not given notice of similar acts of misconduct

such that Stimpson could claim selective discriminatory treatment.

                                            12
       Contrary to UPS’s argument, the record is replete with evidence, as the Board

noted, that vulgarities such as those made by Stimpson on October 1, 1998 were common

in the workplace. Such remarks were often met with laughter, as was Stimpson’s. For

instance, Lee testified that “everyone,” including Gunnery, used profanities and no one

reported to management because it was not taken seriously. Lee also testified that he was

never disciplined for using profanity and that he thought Stimpson’s remark was funny.

Sraiger confirmed this testimony. While UPS relies on Streeter’s testimony that use of

profanity or vulgarities is grounds for verbal or written warnings, this does not support a

finding that UPS would have terminated Stimpson because she also testified that she had

no knowledge of a written rule prohibiting profanity or that anyone was ever discharged

for using profanity. Also notable is the fact that UPS introduced no evidence that it

terminated other employees for using profanity or vulgarity in the workplace. In short,

there is substantial evidence in the record to support the Board’s finding that UPS failed

in its burden of showing it would not have terminated Stimpson because of his choice of

language on October 1, 1998.

       We further note that UPS’s reason for termination is made more problematic when

the October 1, 1997 incident is carefully considered. Stimpson made the remark to a third

person, Rodriguez, in the presence of another co-worker, Lee. Gunnery only heard about

the remark through Lee. Gunnery then reported it, somewhat inaccurately, to Wilson.

During his investigation, Wilson did not ask for a statement or explanation from

Stimpson. We agree with the Board majority that this incident is completely different

                                             13
from the August 17, 1998 direct confrontation between Gunnery and Stimpson, both in

terms of the nature of the language exchanged and the circumstances of the exchange.

Stimpson’s remark about Gunnery on October 1, 1998 amounted to nothing more than

common workplace banter.

       As to the dissenting member’s opinion, his reliance on Wilson’s testimony that

Stimpson’s termination was not based on his grievance activity was misplaced. Wilson’s

testimony that he considered Stimpson a threat to the workplace by “stirring stuff up” and

“causing trouble” are similar to Wilson’s “troublemaker” comment and actually further

support that Wilson harbored animus towards Stimpson. At the very least, these

statements undermine his testimony as to the motive for termination and are evidence of

pretext. Moreover, the Board does not have to credit self-serving declarations of motive.

See W.F. Bolin Co., supra, at 874. The dissenting member’s conclusion that UPS would

have terminated Stimpson independent of his protected activity in order to maintain

civility in the workplace is belied by the record evidence of extensive use of profanities in

the workplace and by the fact that UPS offered no evidence that it terminated another

employee for use of profanity. In short, there is substantial evidence in the record to

support the Board’s finding that Stimpson was terminated in violation of sections 8(a)(1)

and (3).

               B. Whether the Board Erred in Declining to Defer to the
                        Joint Arbitration Panel’s Decision

                                  1. Standard of Review


                                             14
       This Court reviews the NLRB's decisions on deference for abuse of discretion,

NLRB v. Magnetics Int’l, Inc., 699 F.2d 806, 812 n.5 (6th Cir. 1983).

                                    2. Legal Framework

       The NLRB’s deferral to the factual findings of an arbitral decision or a joint

grievance panel decision is governed by the standards set forth in Spielberg Mfg. Co., 112

N.L.R.B. 1080 (1955), and in Olin Corp., 268 N.L.R.B. No. 86 (1984). Deferral is

appropriate where (1) the contractual issue is factually parallel to the unfair labor practice

issue, and (2) the arbiter was presented generally with the facts relevant to resolving the

unfair labor practice. Olin Corp., 268 N.L.R.B. at 574.

                                           3. Application

       Here, the ALJ determined that deferral to the joint panel’s decision upholding

Stimpson’s termination was not warranted because “the decision by the panel was based

on its consideration of Stimpson’s misconduct without any reference to his protected

activity.” The Board did not address the issue.

       Although the issue of Stimpson’s termination was before the joint panel, a review

of its decision confirms that it was confined to examining Stimpson’s conduct on October

1, 1998. There is no reference in the decision to Stimpson’s protected activity. The

panel’s decision states in its entirety:

       Statement of Facts:
       On 10-1-98 I was driving bulk, I inadvertently hit a push cart in front of line 8, an
       employee said, “You should learn how to drive from Kevin,” referring to Kevin
       Gunnery and [sic] employee I had differences with in the past. I make an off color
       remark about Kevin I regret, to Ernie and Tim. It wasn’t intended to be cruel or

                                                15
       demeaning just part of the normal slang that exists at UPS. I hope Kevin and I
       can work past any hard feelings. I want to return to work and close this issue. I
       understand that certain words are offensive and I will watch out for them in the
       future. I made a slip of the tongue.
       Decision:
       Based on the facts presented and the evidence presented by the grievant, the claim
       of the Union is denied.

       There is no evidence in the record that the joint panel considered evidence of

Stimpson’s grievance activity in its decision. Although four days before the hearing

before the joint panel, Stimpson filed an amended charge against UPS alleging a

retaliatory discharge, the record simply fails to show that the joint panel was presented

with evidence of Stimpson’s grievance activity as a motivation for his termination.

Indeed, Stimpson testified before the ALJ that he did not mention his “union activity” to

the joint panel. A transcript of the hearing is not in the record. Under these

circumstances, there was no abuse of discretion in failing to give any effect to the joint

panel’s decision.

                                   III. CONCLUSION

       For the reasons stated above, the NLRB’s decision is AFFIRMED and the Court

GRANTS enforcement of its order.




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