Discipline For COD Errors Changes
Teamster Locals in California report that UPS has suspended issuing disciplines for COD errors in response to a recent legal challenge against the UPS repayment policy. Reports have been circulating recently that the widespread practice of requiring employees to indemnify for such losses through forced repayment to the employer (for example; accepting a personal check instead of a cashiers check; accepting a non-negotiable check; or accepting a fraudulent check), may be in violation of California labor regulations.
Union officials in Southern California claim that UPS is expected to issue no disciplines for COD errors in their jurisdiction until the legal dispute is resolved.
CA Supervisors' Class Action For
Overtime/Lunch Breaks Is Dismissed
NEW YORK, Aug. 23, 2005 -- (Bloomberg/Edvard Pettersson) – UPS Supervisors Class Action Lawsuit in California Is Dismissed: United Parcel Service Inc., the world's largest package shipper, had a class action lawsuit brought by supervisors in California dismissed because as managers they don't qualify for overtime pay. U.S. District Judge Dean Pregerson granted UPS's motion for summary judgment. The company had submitted substantial evidence the supervisors ``spend the majority of their time performing exempt managerial tasks,'' the judge said in a ruling filed yesterday in federal court in Los Angeles. The lawsuit, representing a class of about 1,200 current and former supervisors, accused UPS of violating California labor law by not providing overtime pay and meal breaks. UPS showed the supervisors fall under an exemption the law makes for executive and administrative employees because, among other things, they are required to use discretion and independent judgment in ``matters of consequence,'' according to the ruling. John Furutani, an attorney for the plaintiffs with Furutani and Peters in Pasadena, California, didn't immediately return a call to his office after business hours. ``This is a very significant ruling by the court,'' said Peggy Gardner,'' a spokeswoman for Atlanta-based UPS in a telephone interview. ``It underscores our position that our supervisors are an essential part of the management team.''
The case is Michael Marlo v. United Parcel Service, 03-4336, U.S. District Court for the Central District of California. UPDATE 10/31/2005
The California Supervisor's class action lawsuit, summarily dismissed by the District Court for Central California in August 2005 apparently on a jurisdictional technicality, is currently being appealed to the 9th Circuit Court of Appeals. The District Court judge allegedly erred in deferring to federal labor regulations, instead of adhering to the California regulations under which the suit was originally filed. As this ruling would set new precedent in California case law, the lawsuit has received considerable attention and support from legal-rights advocates. The District Court's ruling is widely expected to be reversed on appeal.
ADDED 8/25/05
Fired For A Minute... Awarded $21 Million
A former manager who was terminated for allegedly deducting a minute from an employee's time has been awarded nearly 21 million dollars by a California court . ARTICLE, "Gnesda alleged that in order to generate more income, UPS regularly charged customers additional fees even when those customers had packaged items in accordance with the listed tariffs." This case involved retaliation for reports to management of what Gnesda perceived was an illegal and fraudulent billing scheme. This was not about UPS simply violating its own internal policies or procedures. Court Case UPDATED 8/26/05
Over-Dispatched Drivers Stage a Brown-Out
It was bound to happen. Package Car Drivers had a work action. 18 called in sick. 5 routes left sitting in the building. Supervisors from neighboring centers couldn't get it done. To read more, check out The Brown Cafe. ADDED 8/14/05.
DenverBrown.com Warned That The Website
Is Causing Irreparable Harm To UPS
DenverBrown has received a letter from a law firm representing UPS's intellectual property. According to the letter, the information on the "PAS" page was alledgedly causing BROWN to lose the competitive advantage of its package flow technology. Trade secrets and business information were supposedly disclosed to the general public and the competition. DenverBrown was warned to remove the offending material or face legal action. The PAS page has been taken off the site.
Most of the information posted on the website was available elsewhere on the Internet, including:
- Teamster.net discussion- PAS
NABER questions whether decision makers at FedEx, DHL, or USPS has read DenverBrown or if they want to emulate the success (or lack) of the package flow technology. This is more about managing "bad press" than intellectual property. ADDED 5/4/2005
Are Older UPSers Being Held To A Different Set Of Rules?
Naber has learned of a soon-to-be-filed age discrimination case. A driver who was only 3 years away from retirement was fired for a no damage "roll-away" accident. Roll-aways are a "cardinal" offense, which means termination is possible without warnings or write-ups. But "cardinal" offense terminations have to be administrated equally to all employees.
But this not the case, younger drivers at this facility have had "roll-aways" without termination. This driver was smart, in that, he made sure these other accidents are documented.
He writes:
"Several of the drivers that had roll aways, were in their twenties.They have been reinstated after a roll away accident even though their accident caused a lot more damage.One of the drivers had a roll away twice and he was reinstated after both roll aways. Approximately two weeks ago another driver had a roll away,he was out of his truck walking away from it and the truck rolled down a hill into the
yard, UPS DID NOT TREAT THIS AS A ROLL AWAY ACCIDENT HE WAS IN HIS TWENTIES."
Disipline has to be administrated equally. Members of "protected groups" cannot be given greater punishmentthat others.
Another case of possible age discrim-
ination case of Dan O'Shea. Dan was
terminated for use of a tape recorder.
Use of a tape recorder is not only not
a "cardinal offense", but not against
any written company policy.
More on Dan O'Shea below.
An attorney in the Philadelphia area
is representing a former management
person, who was fired after 27 years.
The attorney "suspect(s) that the company was trying to get rid of him because of his age and tenure with the company."
From Las Vegas another UPSer writes, "I was wondering if you have any knowledge or know of any UPS employees who claim they were recently terminated or discriminated against by UPS management due to their age.".
NY law firm Wolf-Popper LLP is looking to the possibility of a class action age discrimination suit. If you feel that UPS is discriminated against you because of age.
Contact them at::
New York Office
845 Third Avenue
New York, NY 10022
Telephone: (212) 759-4600
Toll Free: (877) 370-7703
Fax: (212) 486-2093
Toll Free Fax: (877) 370-7704
Attorney Emily Demuro -212-451-9600
edemuro@wolfpopper.com
Fired For Tape Recording
With only 2 years left until retirement, Dan O'Shea seemed to be a shoe-in to make it. But not so, management fired Dan because he used a tape recorder at a PCM. No warning, no write-up, no progressive punishment. The union, too, seemed against Dan. They failed to represent him at the panel. Fired on some trumped-up offense and sold out by the folks who were supposed to defend him. Did Dan take it sitting down? NO WAY!! Dan is taking the company and union to federal court.
Is the use of a tape recorder is a cardinal offense? Lots of guys have used them over the years. If you or someone you know used a tape recorder at UPS, Dan O'Shea needs to hear from you. dsoshea@comcast.netFor more about the lawsuit, go to Dan's website. UPDATED 5/5/05
California Class Action - Bonus Pay
Much of California still receives bonus/ incentive pay for drivers based upon production figures. Like the rest of the country, they have seen their production values drop dramatically throughout the past decade, and have specific evidence of arbitrary and capricious adjustments made to production values which, UPS claims, is calculated with an immutable, fixed and fair formula. Why is the formula a secret?
Because, in California, part of drivers' wages (bonus/ incentive) are based upon that formula, outside of the CBA, drivers are provided special protections under the California State Labor Code. To summarize, UPS created a unilateral contract, outside of the CBA, when they offered to pay a non-discretionary bonus, based upon performance, to drivers. UPS agreed to pay an increased wage, based upon formulas the Company has always refused to divulge. It sounds so scientific; some mumbo-jumbo about "SPORH", "Travel Time", "Methods", etc.... but just don't ask for the specific formula used to evaluate each individual driver. In California, a company must divulge the criteria and method with which a wage, or bonus, is calculated. Furthermore, UPS may not change that wage or bonus without proper notification. Driver bonus/ incentive is based upon production values, and when the values are secretly changed, driver bonus/ incentive changes, too. This is an illegal business practice in California. UPS is not exempt from adhering to the California Code.
NABER recognizes "production values" for what they really are--- an unfair and coersive business practice of motivational subterfuge, used to pressure employees to work faster, (often faster than is safe), to prevent retaliation or discipline. It's a tool, one that creates fear and dissent among our members. And it's wrong. And in California, it seems, it's use may also be illegal.
The following suit may be of interest to you drivers. It has potential to spread to other areas, even those which no longer have the bonus/ incentive program.
Production figures, or some other methods of evaluating driver performance, may indeed be needed by UPS. The methodology used, however, must stay within the law and the CBA, and to be credible and fair, must accurately reflect the actual amount of time required for a driver to complete his task. NABER's hope for this litigation is that it forces the Company to adopt an accurate method of performance evaluation, instead of this secret, magical, ever-changing formula for which there is no challenge or recourse. Class Action ADDED 11/7/04
Class Action Lawsuit Filed Against UPS For Violation of
California Wage and Hour Laws
Filed in February, 2003, "The lawsuit was filed on behalf of all current and former California UPS drivers who have over the last three years been subjected to unfair and illegal business practices of UPS, including failure to provide meal and rest periods to drivers, improper combination of meal and rest periods and illegal paycheck deductions. The lawsuit seeks back-pay for hundreds of thousands of hours worked by drivers but not paid by the company." The Dec. 21 L.A. Times reports that Gov. Schwarzenegger's administration withdrew "emergency"rule changes that would have changed the criteria of these kinds of complaints (being deprived of lunch breaks). If the rule change had been implimented, any future lawsuits by UPSers would have been much more difficult. Changes effected on "emergency basis" avoid public hearing. Another ARTICLE reported "He has taken more big corporate special interest money per hour than any governor in California history. So now he's trying to take away a law that's already on the books to help Wal-Mart and other large businesses that could be on the hook for millions of dollars in legal damages for cheating their employees out of meals and rest breaks."
F.Y.I.- UPS gave more than $42,000 to California Republicans in 2004 according to FollowTheMoney.orgIn an unrelated action, Gov. Schwarzenegger is seeking to eliminate the Workers’ Comp Appeals Board, the Occupational Safety and Health Appeals Board, and the Commission on Health and Safety and Workers’ Compensation ARTICLE UPDATED 1/9/05
Letter From Jim Norby, President of the NRLN to Sen. Grassley
Dear Mr. Chairman:
On behalf of the more than two million retirees represented by the National Retiree Legislative Network (“NLRN”), I want to commend you on your strong leadership in preparing the “Pension Security and Transparency Act of 2005” for consideration on the Senate floor. I know that reconciling the Senate Finance Committee bill with the HELP Committee bill required an enormous amount of time and effort and the NRLN greatly appreciates all your hard work.
The issues addressed in this bill are very complex and the NRLN recognizes that compromises must be made in fairness to all of the interested parties. We believe that the bill generally contains provisions which offer better defined benefit pension security to America’s retirees, a recognition on your part that defined pensions are earned benefit obligations. We particularly applaud the bill’s prospective protections against “wearaway,” in the context of cash balance conversions, as well as the bill’s stricter and more realistic rules for valuing plan assets and liabilities (i.e. the “yield curve”discount rate and current market valuation of assets). Nevertheless, there are some issues that I would like to raise that would strengthen the bill in several important ways.
First, we applaud the effort to provide for transparency of plan activity through the greater availability of certain plan documents for plan participants. While these provisions are an improvement from current law, the NRLN believes that the bill should go further to provide for the disclosure (on request) of all relevant and updated documents that participants and retirees need to ascertain a fuller picture of the plan’s financial status. In particular, we believe participants should be able to request plan documents and plan PBGC filings related to the plan’s financial health, asset allocation and its investment and proxy voting guidelines. Under current law, although ERISA requires fiduciaries to manage plan assets in the sole interest of plan participants, retirees have no clear right to obtain copies of their plan’s updated asset allocation or its investment policy guidelines. We would also support provisions that ensure reasonable compensation to plan administrators who provide this additional information (see attachment).
We also strongly urge you to amend the bill to provide transparency with respect to an underfunded plan’s section 4010 filing the PBGC. The effective hiding of the important (but nonproprietary) disclosures concerning the financial situation of the plan and its sponsor runs counter to the otherwise admirable purposes of this legislation. The barebones and contingent section 4011 notice to participants is not an adequate substitute for making the 4010 filing available on request.
We believe that the addition of these provisions would make the bill much more meaningful in furthering your goals of ensuring transparency in the administration of pension plans. I ask that you give the attached amendments described above every possible consideration.
Another important issue of great concern to the NLRN is cash balance plans. The NRLN appreciates your efforts to assure that older workers are protected when any new conversions of defined benefit plans to cash balance or other hybrid plans occur. We strongly support the Senate provisions eliminating wear-away for normal or early retirement and are particularly pleased that you have included a provision that allows currently filed lawsuits challenging cash-balance plan conversions to go forward. It is extremely important that these retirees have their day in court. That is their due. To that end, I respectfully request that you do everything in your power to oppose any amendments which would strip all such protections for these retirees. In addition, the NLRN strongly urge you to oppose any and all efforts to retroactively legalize cash balance plan conversions. The legal risks associated with conversion of defined benefit plans to cash balance plans were well-known to employers when they undertook these conversions and yet they were more than willing to move forward anyway. Please do not reward these employers for illegal activity by retroactively blessing what they have done. I know you feel very strongly about these provisions and are confident that you will protect retirees in every way possible.
In advance of the bill going to the floor, I want to thank you and your staff for all of your hard work. I realize that this is a monumental and difficult effort and we are extremely grateful for what you have done to help participants and retirees.
Sincerely,
A.J. (Jim) Norby
President
The Senate's Version Of Pension Protection S. 219
National Retiree Legislative Network Position Whitepaper
After 6 months of lobbying and prodding with the theme that "defined pensions and
benefits are earned and are not welfare benefits," we are seeing a small change in Congressional attitude. The National Employee Savings and Trust Equity Guarantee (NESTEG) Act bill S.219 has represented the work of the Senate Finance Committee under the leadership of Chairman Chuck Grassley (R-IA) and Ranking Democrat Max Baucus (D-MT).
The July 26 bi-partisan approval of S. 219 by the Senate Finance Committee is a significant step toward the much-needed new rules and regulations to provide workers and retirees with greater retirement security. S. 219 would require companies with underfunded pension plans to reach 100 percent funding within seven years. The troubled airline companies would be given 14 years to fully fund their pension plans. And companies with poor credit ratings would impose stricter funding requirements.
The cash balance provisions in S. 219 recognize that older employees must be protected in a company’s conversion to cash balance or hybrid pensions. Prohibiting the wear-away of normal and early retirement benefits is an important element of the bill.
As (S. 219) moves through the legislative process in the Senate and House, the NRLN wants additional pension disclosure requirements to inform workers and retirees about the funding status and the investment policies of their pension plan. And it should be made clear that the stricter discount rate calculations of current liabilities apply not only to lump sum pensions put also to defined pension plans.
Another significant fact about S. 219 is that Senator Grassley was able to get Senators Ted Kennedy (D-MA), John McCain (R-AZ) and Mike Enzi (R-WY) to sign on so the bill has some bi-partisan support (at least it appears that way). ADDED 8/4/05 MORE
The Pension Protection Act Of 2005
UPS is for it. The Teamsters are for it. Should you be for it? Karen Ferguson of the Pension Rights Center says, "Our understanding is that these provisions were primarily aimed at Central States Teamsters plan. The provisions of particular concern would, among other things, allow the Trustees to eliminate the subsidized early retirement pensions of any plan participant who is either work or has been retired less than a year if a plan goes into "reorganization". It would also make it more likely that plan is considered to be in reorganization. As you may know, reorganization is when a plan is significantly underfunded but is not yet 'insolvent'... There is a possibility that these provisions could be added to a Senate Finance Committee bill (called NESTEG)"
To better understand this piece of legislation Ms. Ferguson emailed NABER 2 helpful files:
Now is the time to tell your Senators to keep retroactive language out of any ERISA (PENSION REFORM) Legislation.
A Senate panel has approved its own version of the Pension Reform (S.219).
Teamster-UPS 401K Plan Changes
UPSers in the 401k plan should be receiving a Summary of Material Modifications (SMM). The SMM should be read and understood by particpants. Your 401k is a retirement plan that you control and you ultimately reap the benefits. If you mismanage your 401k you pay the extra taxes or penalities.
The high points of the new SMM include:
Retired particpants can request a partial distribution on the Plan website or by phone for a $10 fee.
Particpants can chage beneficiaries on the Plan website.
Participants can use their employee number instead of their SSN to access the Plan website.
Participant with less than $1000 when they retire or leave UPS will have their balance distributed.
The Magallan fund is no longer part of the plan.The Bright Horizon Fund will mature on July 31, 2005 but will remain in the plan as the Bright Horizon Income Fund (85% fixed income, 15% equities). A new fund Bright Horizon 2045 Fund will be added as the most aggressive fund. Added 7/17/05
Misinformation about Teamster Pensions
Last year John McDevitt, UPS senior vice president, testified before the U.S. Congress and lied about our pensions. Management and an anti-Teamster group of UPS employees continue to spread the same material.
In his prepared testimony a year ago, McDevitt stated that if UPS had contributed to a 401(k) instead of a union pension plan, and “assuming a conservative 7.5 percent rate of return the employee would have a nest egg of $827,000 after 30 years.” And this money could be converted to a pension of $5,833 a month. McDevitt stated this should be “today’s reality” but instead a Teamster would only get about $3,000 a month from a Teamster plan.
Figures Greatly Inflated
UPS management had to know that this was false. His figures assume that the current negotiated pension contribution rate of about $5 per hour has been in place for 30 years.
But thirty years ago UPS was only contributing about 48 cents per hour to the pension. Twenty years ago it was $1.37. Ten years ago it was $2.50. So his figures were greatly inflated. He told Congress that UPS could have provided a $5,833 monthly pension with the same money, and that was totally false.
The Truth
By using the actual amounts UPS paid into the pension fund each year since 1974 for a full timer who worked every day, calculations demonstrate that this Teamster would get, under management’s system, only $2,394 per month after 30 years! This is less than any Teamster fund provides. (We used management’s figure of 7.5% annual rate of return and their conversion formula from lump sum to a monthly pension. TDU can provide the calculations to interested members.)
Moreover, many Teamster pension plans (Washington D.C., Baltimore, Upstate New York, and the Western Region) today provide benefits over $3,000 per month. Some even pay close to $5,000 per month with thirty years of service. TDU ARTICLE. ADDED 5/16/05.
EEOC Cannot Exempt Retiree Healthcare Plans
From Age Discrimination
A Federal Judge has ruled that companies cannot decrease healthcare benefits of retirees when they become medicare eligible. In other words, a company (such as UPS) or a union would have to maintain the same benefit level for those retirees over 65 year old that they do for those retirees under 65. Article.
Added 4/4/05
