Object Lesson of the day

[Mugarolla]

Is slander and/or libel the issue? FOIA issues (public) should be protected?
Or will this augment the scope of 17i issues? (Damaging/devaluation of the "brand" even in proven cases?) Where will this stop?
There will be a lot of litigation hoops to jump thru for that to stick imo.

Finally finished. Here is the issue. Even though it is public record, I did not show his name.

This is from the Administrative law judge who ruled on the case.

There is no dispute that UPS maintains an Anti-Harassment policy that prohibits
harassment of any person or group of persons on the basis of race, sex, national origin, disability,
sexual orientation, gender identity, veteran/military status, pregnancy, age or religion. The Anti-
Harassment policy also states that UPS will not tolerate derogatory or other inappropriate
remarks, slurs, threats or jokes. Consistent with that language, UPS has a track record of
immediately discharging employees who violate its Anti-Harassment policy. The Division Manager
testified, without rebuttal, that the accused's May 9, 2015 posting violated UPS’s Anti-Harassment
policy and would have led to his immediate discharge.

Based on the evidentiary record concerning the accused's May 9, 2015 remarks about his Center
and Division Managers, I find that reinstatement is not an appropriate remedy because Respondent has
demonstrated that, under its Anti-Harassment policy, it would have discharged any employee for
making remarks like the accused. I also find that the accused is not entitled to full backpay.
However, since Respondent did not present evidence about when it first learned of the accused's
May 9, 2015 remarks, I will set June 21, 2016 (the day that UPS presented evidence at trial
about the accused's May 9, 2015 remarks – see Tr. 378–383), as the cutoff date for the accused's
backpay award.

 

[Mugarolla]

The sad part is that he would have been reinstated with full backpay if he had not been so stupid as to post those remarks on Facebook.

His discharges were overturned by the judge, but his remarks are what did him in.

 

[Inthegame]

Finally finished. Here is the issue. Even though it is public record, I did not show his name.

This is from the Administrative law judge who ruled on the case.

There is no dispute that UPS maintains an Anti-Harassment policy that prohibits
harassment of any person or group of persons on the basis of race, sex, national origin, disability,
sexual orientation, gender identity, veteran/military status, pregnancy, age or religion. The Anti-
Harassment policy also states that UPS will not tolerate derogatory or other inappropriate
remarks, slurs, threats or jokes. Consistent with that language, UPS has a track record of
immediately discharging employees who violate its Anti-Harassment policy. The Division Manager
testified, without rebuttal, that the accused's May 9, 2015 posting violated UPS’s Anti-Harassment
policy and would have led to his immediate discharge.

Based on the evidentiary record concerning the accused's May 9, 2015 remarks about his Center
and Division Managers, I find that reinstatement is not an appropriate remedy because Respondent has
demonstrated that, under its Anti-Harassment policy, it would have discharged any employee for
making remarks like the accused. I also find that the accused is not entitled to full backpay.
However, since Respondent did not present evidence about when it first learned of the accused's
May 9, 2015 remarks, I will set June 21, 2016 (the day that UPS presented evidence at trial
about the accused's May 9, 2015 remarks – see Tr. 378–383), as the cutoff date for the accused's
backpay award.

While I agree the postings were indeed stupid, I also question the objectivity of this ALJ's findings.

First oddity is the ALJ appling UPS's policy that specifically states; "In order to remain a positive work environment, all employees must treat each other with courtesy..." to a non-employee? RA was not an employee of UPS in May of 2015 (when the Facebook postings took place), as the panel upheld his termination and ruled against him in Jan 2015, and yet the ALJ treats him as if he were.

Also disturbing is the ALJ's initial statement (first page of Decision) "that based on evidence of misconduct by RA that Respondent (UPS) acquired after RA's discharge, I have also found that RA is not entitled to reinstatement..."
So now RA, who is not an employee of UPS in May of 2015, remains under UPS's very subjectively enforced misconduct policy?

Additionally from the ALJ's initial statement (first page of Decision) "...On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, Charging Party and Respondent, I make the following..."
In the legal world, how does the ALJ allow demeanor to trump evidence?

This case needs to be appealed.

 

[Mugarolla]

While I agree the postings were indeed stupid, I also question the objectivity of this ALJ's findings.

First oddity is the ALJ appling UPS's policy that specifically states; "In order to remain a positive work environment, all employees must treat each other with courtesy..." to a non-employee? RA was not an employee of UPS in May of 2015 (when the Facebook postings took place), as the panel upheld his termination and ruled against him in Jan 2015, and yet the ALJ treats him as if he were.

You have a good point and it was brought up before that he was not an employee when he made those comments.

Also disturbing is the ALJ's initial statement (first page of Decision) "that based on evidence of misconduct by RA that Respondent (UPS) acquired after RA's discharge, I have also found that RA is not entitled to reinstatement..."
So now RA, who is not an employee of UPS in May of 2015, remains under UPS's very subjectively enforced misconduct policy?

Another good point.

Additionally from the ALJ's initial statement (first page of Decision) "...On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, Charging Party and Respondent, I make the following..."
In the legal world, how does the ALJ allow demeanor to trump evidence?

Here is some good reading on the subject of demeanor.

http://scholarship.law.edu/cgi/viewcontent.cgi?article=1388&context=lawreview

 

[Inthegame]

Additionally from the ALJ's initial statement (first page of Decision) "...On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, Charging Party and Respondent, I make the following..."
In the legal world, how does the ALJ allow demeanor to trump evidence?

Here is some good reading on the subject of demeanor.

http://scholarship.law.edu/cgi/viewcontent.cgi?article=1388&context=lawreview

Thanks for the link. Before I read it though, I know "demeanor" plays out in many arbitrations. We had a slam dunk case (white paper contract) that went down in flames because our grievant was a complete SOB.
The surprise to me was this ALJ admitted it.

 

[10 point]

There's case law applied here. If that is incorrectly applied the factors on the driver's side have more weight and the complexion of this whole deal changes.

Comments allegedly posted after termination doesn't overshadow documented aggression from management that was not dealt in like manner. Using the company's Anti-harrassment policy (and the NLRB version they throw in as well) the hypocrisy is blatant and acute but discipline is not applied unilaterally with prejudice.

Another classic high-minded and abusive issue is made even more visible and I hope this cleans house on both sides of the fence as soon as possible.

 

[Bubblehead]

I would appreciate your thoughts.

ITG summed it up perfectly below.

While I agree the postings were indeed stupid, I also question the objectivity of this ALJ's findings.

First oddity is the ALJ appling UPS's policy that specifically states; "In order to remain a positive work environment, all employees must treat each other with courtesy..." to a non-employee? RA was not an employee of UPS in May of 2015 (when the Facebook postings took place), as the panel upheld his termination and ruled against him in Jan 2015, and yet the ALJ treats him as if he were.

Also disturbing is the ALJ's initial statement (first page of Decision) "that based on evidence of misconduct by RA that Respondent (UPS) acquired after RA's discharge, I have also found that RA is not entitled to reinstatement..."
So now RA, who is not an employee of UPS in May of 2015, remains under UPS's very subjectively enforced misconduct policy?

Additionally from the ALJ's initial statement (first page of Decision) "...On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, Charging Party and Respondent, I make the following..."
In the legal world, how does the ALJ allow demeanor to trump evidence?

This case needs to be appealed.

What I would like to add is what I have already posted, but would now like to expound upon.

This guy has represented himself as a martyr....
.....and now we'll see if he's "the real deal"???

Whether he likes it or not, this case now affects more than just himself and his family.
This decision could very likely set precedence if left to stand and may effect many others going forward.

He chose to be "up front" in the National Election when it was "sexy" and convenient, but will he stay the course when UPS waives some money around?

We'll soon see if he's the "pioneer" he represented himself to be....???

 

[Coldworld]

ITG summed it up perfectly below.


What I would like to add is what I have already posted, but would now like to expound upon.

This guy has represented himself as a martyr....
.....and now we'll see if he's "the real deal"???

Whether he likes it or not, this case now affects more than just himself and his family.
This decision could very likely set precedence if left to stand and may effect many others going forward.

He chose to be "up front" in the National Election when it was "sexy" and convenient, but will he stay the course when UPS waives some money around?

We'll soon see if he's the "pioneer" he represented himself to be....???

So what you are saying is this case isn't exactly "over"?????

 

[What'dyabringmetoday???]

What is an "object" lesson?

 

[Coldworld]

Wonder if this case could see the Supreme Court.... Could be a precedent for corporations and social media issues

 

[Mugarolla]

Wonder if this case could see the Supreme Court.... Could be a precedent for corporations and social media issues

An administrative law judge's decision is not binding legal precedent in other cases unless it has been adopted by the Board on review of exceptions.

This case has not, at least as of now.

 

[Coldworld]

An administrative law judge's decision is not binding legal precedent in other cases unless it has been adopted by the Board on review of exceptions.

This case has not, at least as of now.

So what are you trying to say.... Just a stupid backup feeder driver who only worries are where the next truck stop is so I can take a wiz and fill up my 44 oz coffee "mug"....lmao

 

[UpstateNYUPSer(Ret)]

So what are you trying to say.... Just a stupid backup feeder driver who only worries are where the next truck stop is so I can take a wiz and fill up my 44 oz coffee "mug"....lmao

If you didn't do the latter you wouldn't have to worry about the former.

 

[Coldworld]

The sad part is that he would have been reinstated with full backpay if he had not been so stupid as to post those remarks on Facebook.

His discharges were overturned by the judge, but his remarks are what did him in.

Do you feel those remarks were warranted harassment?? They seemed more childish backlash than anything else....we have had sups make derogatory on the fence statements against blacks and all that was done to them was they moved them to a different shift.... Wtf ???? With issues happening like that you can see why people(hourly) get so damn upset...

 

[Coldworld]

If you didn't do the latter you wouldn't have to worry about the former.

At least I'm not toting around the 100 oz "super soaker" coffee keg that I see some gypos carry into the truck stops.... Absolutely ridiculous and I don't feel like taking a piss every 50 miles....besides can't do that anyway since my bladder is so screwed up from the years of holding it in package.... Never pisswd in a bottle unless I absolutely couldn't hold it and was going to pee all over...tmi I know, we're all family here ... Right??

 

[UpstateNYUPSer(Ret)]

At least I'm not toting around the 100 oz "super soaker" coffee keg that I see some gypos carry into the truck stops.... Absolutely ridiculous and I don't feel like taking a piss every 50 miles....besides can't do that anyway since my bladder is so screwed up from the years of holding it in package.... Never pisswd in a bottle unless I absolutely couldn't hold it and was going to pee all over...tmi I know, we're all family here ... Right??

My helper has the bladder of an 80 year old.

 

[Mugarolla]

Do you feel those remarks were warranted harassment??

Me personally, maybe, maybe not. It is very borderline. But I don't think it went so far as to warrant discharge.

we have had sups make derogatory on the fence statements against blacks and all that was done to them was they moved them to a different shift

I covered that in a previous post. They will move them to try and get the issue to go away. If the employee would pursue it, the outcome may be different.

With issues happening like that you can see why people(hourly) get so damn upset...

Agreed.

 

[Mugarolla]

So what are you trying to say....

Just what I said. There is no precedent set on this decision. I was responding to the following.

Could be a precedent for corporations and social media issues

Just a stupid

Not me..

backup feeder driver

Not me.

who only worries are where the next truck stop is

Never been to a truck stop.

so I can take a wiz

I only wiz at UPS buildings.

fill up my 44 oz coffee "mug"

I do have a 16 oz "mug"

lmao

rotflmoa.

 

[UpstateNYUPSer(Ret)]

Me personally, maybe, maybe not. It is very borderline. But I don't think it went so far as to warrant discharge.

He wasn't fired for those comments.

He was denied reinstatement.

 

[Mugarolla]

He wasn't fired for those comments.

He was denied reinstatement.

Yes, you are correct.

But the ALJ did not reinstate him because he agreed that UPS would have discharged him for those comments had he still been an employee at the time he made the comments.