NLRB Advice Memoranda, Teamsters Local 41 (United Parcel Service)., National Labor Relations Board, (Feb 21, 2020)

The Region submitted this case for advice as to whether the Union violated its duty of fair representation by entering a “handshake” deal with the Employer to temporarily raise pay rates for certain new employees; then when the Employer reneged on the deal, telling employees the Union had no knowledge of the deal; and finally, withdrawing the Charging Party's grievances over the issue after finding “no contract violation.”

Briefly, the Employer needed drivers for its overnight sleeper teams but had trouble attracting applicants. To encourage new hires, the Employer instituted a temporary Market Rate Adjustment (MRA) to raise wages for new hires. MRAs are instituted entirely at the Employer's discretion and are not negotiated with the Union. The Employer held several meetings for applicants at which Union officials were present. During these meetings, the Employer promised the applicants $30 per hour for driving, then, if a layoff occurred, $25 per hour for light work in the hub. The contractual rate for hub work was $15. None of the applicants was told that these jobs would transition to overnight shifts following the peak season.

Once the peak season ended, the drivers faced layoff unless they accepted overnight sleeper shifts or worked in the hub. The Charging Party reported to the hub for work and learned he would only be paid the $15 hourly contractual rate, not the promised $25. He first confronted a Union official and asked to see the MRA. The Union agent replied that it was a handshake deal not reduced to writing. The Charging Party then filed two grievances: that the MRA was an improper, unwritten side agreement, and that the new hires did not receive the promised $25 per hour for hub work. At a Union meeting at which the Charging Party and other affected drivers were present, Union officials emphatically stated they had never heard the Employer promise $25 for hub work. Nevertheless, the Union processed the Charging Party's grievances and scheduled them for discussion by the parties' joint grievance committee. The committee postponed the grievances twice before the Union withdrew them after determining there was no contract violation.

We conclude there is no violation on this record. In this case, the Employer reneged on a verbal commitment to deviate from the contractual wage rate for a group of employees performing work in the UPS hub. However, there is no charge against the Employer, and the Union was under no obligation either to refuse to consent to the modification in the first instance or, even after consenting, to enforce that commitment, irrespective of the Employer's motives in making it. Initially, given that the agreement was not reduced to writing, it is understandable that the Union would be reticent to file a grievance where the likelihood of success was slim. Further, despite that oral agreements to modify a collective bargaining agreement, as occurred here, could be enforced pursuant to Section 8(d), the Union is not under an obligation to do so. Put another way, the Union does not commit a violation by failing or refusing to file a ULP charge.

This email closes the case in Advice. Please feel free to contact us with any questions or concerns. Thanks very much.

Amy Dodds

Deputy Branch Chief Regional Advice Branch

202 273-3852