Greedy Bastards
Times really must be tough for Big Brown…only $873 Million in
profits in the 2nd Quarter right after $906 Million in the 1st
Quarter! Let’s not forget that on August 1, they received another break: they
only had to give us an extra $.35 / hr whereas on August 1 of
2007 we received $1! My heart bleeds for them.
But I guess you have to have a
heart in order for it to bleed. These greedy bastards are not content
with all they are raking in! They need to squeeze more out of us, the workers
who toil, sweat and bleed for their profits. We get “rewarded” with a
disrespectful $.35
Management bitches and moans
about “loss of volume” and high gas prices. But every company is feeling this
economic recession. Even Fedex actually lost $214 Million in
their last Quarter! Plus, Brown will be making $1 Billion every year for the
next 10 years with this new deal with the ailing DHL.
It’s Summer. The heat is up
as well as the stop counts. Yet management is turning up the
heat on us: riding drivers for production, cutting loads, tormenting us
all with “safety” talk, trying to take our radios out of our trucks,
complaining about our top shirt buttons not being buttoned, etc. Is
inflicting Corporate Fascism management’s answer to “loss of volume”
and high gas prices? Sending us all out with just 8 hrs would be the more
common sense, more decent answer until volume picks up.
Brothers and sisters, Brown
is on the offensive, especially in my building. Management is firing hard
working union members whose “offenses” seem to be making UPS numbers look
better than they are (sort of what most managers do anyway…). Just last week,
two drivers were walked out of our facility on the same day : both for
“falsifying records”- one for delivering NDA’s after 10:30 and the other for
mislabeling packages as “not in” instead of “closed”.
According to Huntington Center
shop steward Alex Monaco, the facts are that both drivers were acting
as they had been instructed under previous supervisors, managers and District
Managers (Our present DM has been here less than 2 months!) There is plenty
of proof of this.
In addition look at the
offenses. These guys weren’t stealing stuff. They were basically
trying to make UPS look better while being over dispatched with NDA’s or over
dispatched with too much work in their truck
Why these guys would
jeopardize their jobs to save UPS’s reputation as the company that “makes
an attempt on every package” is beyond me. How many times do you hear your
shop stewards telling you not to do any favors for these guys? And now look
how they overreact to these minor offenses.
Management could have issued
verbal warnings or placed them on “72”. They even looked back over the past
month or two to expose this evil “pattern”. Yet they reacted by firing
these guys
Hopefully this will wake some of
you up to the realization that this is a full frontal attack: No one is
safe. They are not only going after the “troublemakers”; they are going
after the quiet ones who even past managers had described as “one of
the best drivers in the center” who would “do whatever was asked of him”.
So isn’t it time we do
something about this! Our union officials don’t seem that concerned. A
matter of fact at our emergency station meeting 2 weeks ago, a member spoke
up: “Where’s the union on this? Where’s our BA?” Good question. Even
as a show of solidarity, our entire Executive Board could have come to
the Melville Facility to stand with us! Didn’t happen!
So if our union officials won’t
help us, it is the rank-and-file who must fight back; it is time
to make UPS feel it:
-if you have off routes…do them yourself
-if you have been “starting early” on
Mondays…don’t
-if you have short cuts to doing your
routes…stop doing them
-if you see management working…file a grievance
-if they call your cell…don’t answer it
-if they say they are “over”…stay around and get
report pay
-if you feel overworked or overstressed…use your
sick time
-until Brown starts doing the right thing…no
more “sales leads”
We have made things too smooth
for UPS for too long; it is time we make some waves! Take action.
Work smart. Be careful and mindful of all you do while on the
clock. Be accountable out there; don‘t do things that you cannot
easily explain.
Document everything:
order those “daily log books” to record your numbers, etc to cover your ass
(order from www.TDU.org for $3 a book). These greed heads are
looking for anything to nail you! So stop making it easy for them!
Report Pay
On July
31, seven drivers in the Huntington Center in Melville received “Report
Pay” in their paychecks. “Report Pay” is paid when union workers show up
for work and it is stated by management that “there is no work” for them to do
and the company has to pay them 4 hours just for
showing up!
The Huntington shop steward, Alex Monaco, told me that
even our BA commented that he “never seen ‘report pay’ in all his years”.
For weeks management had been sending drivers home or
calling them at home (unbelievable) telling them to “stay
home”. Meanwhile, they were cutting loads and drivers
were going out with heavy, abusive loads with no one around to help out
later! All this in order to please some upper management’s numbers quota
…at our expense as well as our families’ expense too (“Daddy, why can’t you
come to my game tonight?”) as we get home at 8-830 pm.
According to the Huntington shop steward, Alex Monaco, with 20
years of experience at UPS, on this particular day, management seemed adamant
about getting him out of the building really quick. He immediately saw what
they were up to: management wanted to send 7 drivers home (unpaid day off)
while they were cutting loads!
Monaco responded by writing down the 7 names and waiting for
all the loads to go out while making sure that the 7
did not go home.
He announced : “Everyone who shows up to work is going to
get paid!” Furthermore, Monaco dug deeper. The next day he found the
previous day’s sheets and filed a grievance because for 4 of the 7
drivers, their seniority was not used when they were told to go home
while 4 drivers with less seniority worked.
In addition, the other 3 drivers filed a grievance for 4
hours pay because they were told to go home while 3
supervisors worked that day!
So not only did all 7 drivers get 4 hours “Report Pay”, but
they are grieving for another 4 hours pay!
When the
center manager got wind of all this, he threatened to put up a “lay
off list”. Monaco called his bluff and dared him to do it saying:
“That’s what I want, go ahead and put up the list!” He knew that with a “lay
off list” in place and management cutting loads, if a supervisor even
touched a package (and not just in our center and not just our building,
but in Nassau and Farmingville too!), any laid off driver would receive 8
hours pay!
In the end, management backed down. The list was never
posted!
With our present Executive Board not showing real leadership,
it is up to stewards like Alex Monaco and others throughout this Local to
lead the way with bold and innovative actions like this one, as
well as making sure all his drivers and loaders etc under their leadership
works by the UPS “methods”. By doing this, we can accomplish two things:
make Brown scream and make some $ out of it!
Commentary on Brown
Since
I’ve started this newsletter and accompanying website (www.localagitator.org),
I have received much feedback from the rank-and-file offering their
views and ideas, sharing their stories and problems in dealing with Brown. It
is amazing how similar our problems are throughout this very large local.
What follows is a compilation of problems, grievances and remedies ailing 804
members everyday at UPS.
The
Safety Dance
Let’s face it, when management talks “safety”, it is only a
corporate talking point. What they are really trying to “save” is the bottom
line-profit over people. If they truly cared about our “safety”,
management would say what needs to be said: SLOW DOWN! But you won’t
be hearing that from this group.
Instead, what we do get is words and slogans and cute
acronyms for us to memorize like a bunch of 3rd graders
learning the multiplication table, as though “learning” these slogans will
make our day safer.
To management, safety means insurance claims -case
numbers- which equates to loss of profits. To us, safety is our knees,
ankles, shoulders, backs, etc. There is one remedy, which we repeat
daily and they ignore: Lighten our loads, let us do our jobs, and get
off our backs!
Then of course they give us “safety week”, “safety month” and
the ever so popular “Don’t report your injury til next week Fridays”. And
let’s not forget all those wonderful “incentives” to work safe
(breakfasts, gifts and other taxable items). In translation: “incentives” to
subliminally stop or delay you from reporting injuries.
It’s a good corporate slogan used to demonstrate to
Wall Street investors: Look at us, we’re the “safe” package delivery
company…your investment is “safe” with UPS.
Maybe we should give incentives to management: Lighten our
loads and create more loads, and you will receive less injuries. Instead of
them asking us to do something (like memorize slogans) to help their
safety numbers, it’s time they start “shouldering” the responsibility:
Who increased the weight of packages? Who sends us out with abusive loads? Who
doesn’t send us help? This problem is self-induced.
Furthermore, God forbid we do get injured. We get back to the
building and they interrogate us as though we committed a crime!
Again, it is up to management to fix this obvious problem.
Otherwise, all this safety talk is just that: TALK! Take the work off
our trucks and onto your shoulders; keep your $ and “incentives”; stop
breeding new hires for speed (see Big Brown, Belmont Stakes). Have some
compassion about the repercussions to our bodies after 25 years of abusive
loads!
Abusive
Loads
Now let’s talk about the fallacy of the “min/max”
multi-colored graphics we encounter each morning where yellow= “your light”;
gray = “your good”; red = “your heavy”. This too I believe is a subliminal
tactic employed to make us think that up is down and night is day.
It’s a joke!
It wouldn’t be bad if there was any consistency to it.
However, one day your max is 140 and the next it is 170! Each day they
move the goal posts on us to serve “their plan”. Do they think our bodies
can withstand more abuse on certain days more than others? Do they think they
are astrologers? In reality, your min should be 8 hours and
your max should be max 9.5 hrs.
The fact is most of us want to be in much earlier! We want to
be home and eating dinner with our families at a decent time! Memo to
management: Eating dinner at 8PM or later on a consistent basis is abusive
and will not be tolerated by the union membership!
It is time to meet our needs, our quality of life. We make
billions in profits for this company. Is it too much to ask for us to be
home by 6-7:00PM? This is not the military. We signed up to deliver your
packages and go home to our families. Management sold its soul to Brown; but
we didn’t!
We are sick and tired of missing our children’s games and
school events during the week because Brown could not “manage” to send us out
with a decent load!
Even some of our customers are so surprised and concerned that
we are still out there working at 7-8 PM, knocking on their doors. They say
it is “unfair” and “abusive” of UPS too!
If you suggest to management that they increase the number of
loads or hire more drivers, they shift the blame to the District
Manager or Atlanta. That’s a cop out!
All we want is about 8 and a half hours a day (for those who
need more overtime, it should be on a request basis). Our breaking point is
when we get injured. Our families’ breaking point will be when you see
them demonstrating outside UPS facilities, demanding that Brown end its
“unfair labor practices” hurting working families, and talking to the media.
Something has to change!
Old and
“New” Management
It seems that the daily goal of
management is to somehow “manage” to get through that day at any cost, without
even a thought about tomorrow or the next. In general, they appear to be a
dysfunctional family: A group of mostly like-minded, frustrated under
achievers, competing for the few crumbs upper management throws them.
Basically, they are a bunch of individuals, flailing about,
trying to make their own “numbers” look good, while at the same time
undermining each other. If I didn’t enjoy watching it so much, it would
be sad: “It’s not our problem, that’s the preload’s problem!” or “My shift is
over. Now it’s your day supervisor’s job…bye!”
Most, but certainly not all, are actually clueless
about the work we do out there. To them, it is theoretical…what a
computer screen tells them about our job. They cut and paste routes together
and apart as though it is something they pulled off the Internet.
Then comes regime change (“under new management“) along with
a new corporate campaign. In reality, they change or switch a few faces, but
frankly, the policies do not. It is basically the same old tired product
, sold to us by a new corporate spokesman.
For instance in my building, we have a new District Manager.
As usual he is here to “straighten us out”: ride the “difficult”
drivers, implement more surveillance, squeeze us harder, fire uncooperative
workers, etc. All this is implemented to improve the building’s “numbers”
like never before in order to write himself a ticket to upper management in
Atlanta.
Instead of thanking us for all our hard work enabling
them to live the good life (they drive in to work in their BMWs, Mercedes
Benz, Lexus, etc), they “crack down” on us! If they want to escalate
tensions, it will only lead to a massive reaction by the union workforce.
The choice is theirs!
What is
to be done?
Brown is on the attack. They are literally coming after us.
So it is time to fight back! Here are a few ways to accomplish that:
-Keep a
copy of the contract with you at all times; read it and use it when
necessary.
-Punish
them with their own rules; do your routes according to the UPS methods;
it will slow you down; it means more money in your pockets.
-Do not
run yours or anyone else’s route. If you need to be
in early, request an 8 hr day or get help.
-Stay out
of your trucks before your start time.
-Do not
let them send you home; there is always work to be done somewhere.
-Work
smart by not cutting corners; they will burn you for it; don’t do them any
favors.
-Listen
to your shop stewards. You have heard this stuff before but some of you
continue to defy your stewards who are looking out
for your best interests everyday
-When you
see management working, document it and file a grievance; filing a
strong grievance can mean $ in your pocket as well as taking back our
workplace
Solidarity
Granted, working by the book and
grieving everything might cause some tension. But remember, it is they
who have you in the office at the drop of the hat for bullshit; it is they
who are out there spying on us; it is they who while on their way home,
harass drivers who are not even in their own center or building. As Howie
Redmond constantly reminds us: “These guys are not your fuckin’
friends!” He is absolutely right.
But when we stick together and show true solidarity, it
really pisses Brown off. Learn and live the word solidarity. For when we are
fragmented and factionalized, we are vulnerable to being played
against each other: PTers vs. FTers, drivers vs. loaders, new hires vs.
seniority drivers. If a driver has a problem with his/her load, do not
immediately complain to management. Speak directly to the loader or their
shop steward; stop undermining each other.
Sticking together will empower us all much better than
any “deal” you may make with management. If we stick together and watch each
other’s backs, in the long run we will be stronger and healthier.
In the end it is up to us, the rank-and-file. With our
present union leadership ineffectual as it is and Brown breathing down our
necks, we are fighting a two front battle. But working collectively
can empower us all. We have the ability to make UPS scream if we choose to.
That’s power! That’s solidarity!
Last month, the Local 804 fund was required by law to have an actuary
certify the plan’s status to tell the government if our fund is in the Green
Zone, the Yellow Zone (Endangered) or the Red Zone (Critical Status).
Local 804 leaders have known what zone our plan is in since at least
March 31. But the membership, as usual, is being kept in the Twilight
Zone—with no information about our fund’s status and future.
The membership should be getting some news soon. The Pension Protection
Act requires that our fund’s trustees send us a notice by April 30. At the
last general membership meeting, Howie Redmond said this notice would be on
its way. He did not give any more details.
In the Yellow Zone?
Based on the limited financial documents that our fund has made available
to us, it is most likely that our fund is in the Yellow Zone—which means
that it is less than 80 percent funded.
To fall into the Red Zone, the fund would have to be less than 65 percent
funded AND project a situation in the next five to seven years in which
employer contributions and expected investment returns would not be enough
to cover benefits and to amortize future benefits.
All funds that are in the Yellow Zone must adopt a Funding Improvement
Plan—an official plan to improve funding levels over a specified number of
years (usually 10 years or more).
During last year’s contract votes, the company claimed that it would be
illegal for our fund to increase benefits for as long as our fund is in the
Yellow Zone. But that is not true.
Our pension fund can increase benefits as long as those benefit
improvements are paid for over and above the Funding Improvement Plan.
Will Record Contributions Mean a Benefit Increase?
The good news is that the 2008 contract includes record contributions
into our pension fund. (This was what was used to sell all the givebacks,
remember?)
Under the national agreement, our pension contributions will rise by 65
cents a year or $3.25 per hour over the life of the contract.
In Local 804, this figure will be 70 cents, not 65 cents, at least in the
first year. (That will leave 30 cents to go into our health and welfare
fund, instead of the 35 cents that other health funds will get).
We also won an extra $1.55 bump in our pension contributions this
year—bringing the total first-year increase in pension contributions to
$2.25 an hour.
In all, hourly contributions to our plan will climb by more than 40
percent by 2013.
This is good news for our fund. But what will it mean for Local 804
members? Our pensions are set at the same level as they were in 2002. Many
other UPS Teamsters now get superior benefits to ours—especially for 30 and
out.
Will the contract’s record increases in pension contributions mean that
our benefits will be increased?
Members Deserve More Information
Local 804 members aren’t looking for magic solutions or benefit increases
that our fund can’t afford. We all want our pension fund to be managed
responsibly—something that apparently has not been happening in recent
years.
What members do expect—and deserve—is straight talk and real information.
We deserve an honest recounting of what happened to our pension plan and
how it developed a $388 million shortfall.
Most importantly, we deserve a thorough report on where the plan stands
now, and what our union’s plan is for strengthening our fund and improving
our benefits as we move forward.
(Courtesy of www.804membersunited.org)
UPS 1st
Quarter Profits Rise
On
April 23, UPS announced its profits rose 7.5% in the first quarter of this
year (January-March). It said it earned $906 million compared to a
profit of $843 million in the first quarter of last year.
More importantly, Brown announced it plans to freeze
hiring for domestic operations in order “to cut costs after a sluggish 1st
quarter.”
I wonder how they are going to abide by the 2002
Contract of creating new Full Time jobs? In other words, a 7.5 % increase
in profits (not too shabby in my book) is just not enough for Big
Brown-yet there will be no new hires this year.
Translation: don’t expect to get help if they send you
out heavy because there won‘t be any split drivers, don’t expect to get
that OPH because there won’t be anyone to cover your route, don’t
expect to get out of the building early in the A.M. because there won’t be
enough Part-Time pre-loaders to load out your truck, etc.
It looks like us, the
union membership will pay the price for UPS Corporate’s decision to put
a freeze on new hires. I bet UPS CEO Scott Davis’ salary will not be
taking a hit this year!
Brown will expect us to go above and beyond to deal
with these coming “tough times.” I could hear their sob story already. But
with almost $1 Billion in profits while
the economy was already slowing? My heart bleeds.
UPS Posts Quarterly Loss—But Don’t Cry for the
Company Just Yet
January 30, 2008: UPS reported a quarterly
loss on
Wednesday due to its
$6.1 billion one-time payment to the Central
States Pension fund.
Brown reported a fourth-quarter net loss of $2.58
billion, or $2.46 a share, compared with a net profit of $1.13 billion, or
$1.04 a share, a year earlier.
But the picture is rosier than it sounds—for UPS stockholders at
least.
Excluding the payment to Central States, UPS earned $1.13 per share—an
increase over the previous quarter. Reuters reports that revenue rose
to $13.4 billion from $12.6 billion, topping analysts' expectations of
$13.23 billion.
UPS’s $6.1 billion payoff to Central States was required under
the law to let UPS break out of the Central States Pension Fund. It will
pave the way to for UPS to save billions through lower benefit
costs under its new pension plan covering Teamsters in the Carolinas and
the Central and Southern Regions.
The 44,000 Teamsters covered by the new UPS pension plan will
receive the lowest pension benefits of any UPS Teamsters.
By the end of the contract many UPS Teamsters will get 30 & Out
pensions of $4,000 and $5,000 or more per month. Teamsters under the UPS
plan will be locked into a $3,000 a month benefit for 30 and out.
UPS’s fourth quarter loss will be paid for—and then some—by UPS
Teamsters who will be getting lower pensions.
No wonder UPS shares rose 55 cents—after the loss was announced—to
$71.47 at midday on the New York Stock Exchange.
(Courtesy of Convoydispatch
at tdu.org)
First Big Contract Test UPS Takes Aim at Package Car Jobs
UPS has launched a new contract-busting program to use air
drivers to pick up ground packages at a substandard rate of pay.
This is the first big test of the new UPS contract. Our International Union
must answer the call and stop the company from undermining high-paid,
full-time jobs at UPS.
UPS announced on Feb. 15 that it now accepts ground packages in its drop
boxes and that Air Drivers will pick up these ground packages at their regular
pay rate.
In a management memo obtained by Teamsters for a Democratic Union,
UPS claims it has the green light from the International Union for this scheme
which directly violates the contract.
To read the rest of this article ,
click here.
Chicago UPS Teamsters Win Showdown Over Sups
Working
UPS agrees to create more jobs
Chicago
Local 705 has won a major showdown with UPS over supervisors working.
By threatening the company with a strike, Local 705 forced UPS to create more
than 200 package car and part-time jobs and to curb future supervisors working
violations.
The victory is the culmination of a multi-year campaign by Local 705 to
take on supervisors working violations.
Over the last three years, business agents and shop stewards won a total of
4,000 to 5,000 grievances—including 700-plus grievance settlements where
the company agreed to cease and desist from having supervisors work.
To read the rest of
this article, click here.
Strike Commemorative
On August 4 of this year,
an impressive group of active and curious 804 rank-and-file members met in
Long Island City to commemerate and celebrate the 10 year anniversary of the
1997 Teamster Strike against UPS.
To read the rest of the
article, click here.
Parcel Association Loses at UPS Freight by 3-1
August 8, 2007: The Association of Parcel Workers of America (APWA) lost
an organizing election at the big Kansas City terminal of UPS Freight by a
margin of 3-1. The vote was 66 for the APWA, 202 for No Union.
To read the rest
of the article, click here.
UPS Unveils New Technology to Spy on Drivers
Riding Shotgun: Big Brother
UPS is preparing to implement new technology that will monitor drivers like
never before. With their new gadgets, the company won't have to send a
supervisor on your route to spy on your methods. Their new technology amounts
to an electronic OJS.
To read the rest of
the article, click here.
Time For The Truth On PAS
UPS originally began developing the Preload Assist
System back in 1997 to make the preload job easier. Preloading had always been
a tough job requiring a strong back and a tremendous amount of memorization.
Couple that with low pay and you get a high turnover rate and poor
performance. So to remedy this problem, UPS spent $600 million dollars to make
the job so simple that any fool could do it with 5 minutes training. Maybe
they should have spent the $600 million on wages and benefits for loaders and
improved the quality that way, because the truth is: the preload is no better
today then it was before PAS.
To read the rest of the
article, click here.
Immigration crackdown at UPS plants nets
51 workers By Lornet
Turnbull
They think we are all "dumb truck drivers". The Long Island District
Manager is concerned about the whole "pension plan" vote. He writes "it
has come to my attention" blah blah blah... as though he and the other Corporate
suits didn't know about this until only recently. BULLSHIT! The
Letter was nothing but UPS Corporate spin sent out to us all to placate
us during peak so that all their fat profits will continue to roll in as
expected without a hitch.
In an historic win, our union has organized two FedEx Ground stations near
Boston. Workers voted 22-8 for Teamster Local 25 at the two small stations.
There are rumors that in a 5-3 vote, UPS and the machinist union voted to cut
our pensions. The exact details are still fuzzy and it wouldn't go into effect
for another 2 years. But it seems... someone screwed us.
UPS is now the largest corporate PAC(Political Action Committee) in the
country: larger than AT&T, General Electric, Lockheed Martin, Pfizer, Walmart,
etc. In the 2004 Presidential elections they handed out more than $3 million to
federal candidates while in 2006, UPS doled out over $2 million on the mid-term
elections . 70% of these "donations" (legalized bribes) went to Republicans
(pro-business, anti-union conservatives) and 30% went to Democrats(pro-labor,
pro-union )to hedge their bets just in case. (Go to opensecrets.org or
congressionalquarterly.com)
What does this all means to us workers ? It means that UPSPAC, as it is
called , has a very anti-worker agenda. It is sold to us as trying to get more
work from the competition, but in reality, UPS sends large sums of PAC $ to
pro-corporate, anti-union , anti-environmental groups like Citizens for a Sound
Economy . UPS supports the anti-labor World Trade Organization (WTO). UPS
lobbied for the Multi Employer Pension Security Act of 2003 which would have
killed multi-employer pension plans LIKE OURS. UPS fought the OSHA ergonomics
standards that would have improved workplace safety.
In 2005, Michael L Eskew, CEO of UPS Inc., raked in $3,374,447 in total
compensation including stock options granted from UPS. (Go to aflcio.org/paywatch
for a more detailed list of UPS executive salaries)
Moreover, UPS has also spent more than $16 million on lobbying since 1998-
with over $2.8 million just in the last election cycle! Go to the website Center
for Public Integrity.org and check out all the different agencies UPS lobbies;
all the different issues they lobby for or against; which large firms and
individual lobbyists are on UPS’ payroll.
What do they do with all this money? They buy influence , if not actual
legislation, that weakens regulations, hurts unions, and lowers their corporate
tax burden(while passing that burden onto working families). (For all the charts
and lists on UPS go to localagitator.org)
This summer in California, UPS tried to enlist Teamsters in their effort to
undermine litigation over the company’s practice of forcing employees to work
off the clock.
Faced with a major lawsuit involving violations of California wage and hours
laws, UPS got the legislature to pass a bill giving unionized transportation
companies an exemption from laws requiring lunch breaks during specified times
in work shifts. A law designed for UPS!
In an effort to get the governor to sign the bill, management not only asked
members to write support letters, they also instructed Teamsters to give them
back to supervisors in unsealed envelopes! UPS could use copies of such letters
in court to show that some drivers did not support the case, which involves
millions of dollars in pay UPS owes for overtime worked through lunch periods.
The bill was opposed by other industry groups, including the California
Manufacturers and Technology Association. Other businesses probably would have
welcomed the deal, but not a special deal for UPS. Governor Schwarzenegger
vetoed the bill in September.
A federal appeals court ruled Tuesday that United Parcel Service Inc.
illegally discriminated against hundreds of deaf employees by barring them from
driving delivery vans.
The ruling could prompt employers to review their hiring policies and job
requirements to make sure none of them exclude broad groups of people without a
justifiable reason. Companies that fail to take such steps could find themselves
vulnerable to similar suits from disabled employees.
its decision, the San Francisco-based U.S. 9th Circuit Court of Appeals upheld a
2004 lower-court ruling that the parcel delivery company's policy of denying
driving jobs to hearing-impaired employees violated the Americans with
Disabilities Act.
The appeals panel held that employers must justify policies or job requirements
that automatically exclude a group of disabled people.
"If you want to use a physical criteria to exclude a whole class of people from
a job, you need to be able to prove that substantially all the people with that
criteria can't do the job safely," said Lawrence Gartner, a partner with Baker &
Hostetler in Los Angeles who represents management in employment law cases.
UPS said it disagreed with the court's ruling and would consider an appeal.
"We believe this case is about safety, and it has nothing to do with disability
or discrimination," said Laurie Mallis, a spokeswoman for the company.
Deaf UPS employees said the ruling raised their hopes that they would one day be
allowed to drive for the company.
"I have been waiting for this opportunity ever since I started working at UPS,"
said Barbaranti Oloyede, a UPS employee for 15 years.
"It has been my dream to drive a UPS package van. I can't wait to sign up for a
promotion," Oloyede said.
The fact that other delivery companies use deaf drivers made UPS' blanket
exclusion a difficult policy to justify under a straightforward reading of the
Americans with Disabilities Act, said Stanford University law professor Mark
Kelman.
The disability act "generally demands highly individualized findings, and UPS
wasn't permitting very much individual analysis" of any deaf applicant's
qualifications for the job, he said. "They were just rejecting the
hearing-impaired employees."
The ruling puts employers in a "damned if they do and damned if they don't"
situation, said Joe Beachboard, a Los Angeles lawyer who represents employers.
If UPS doesn't employ deaf workers as drivers, it can be sued under the
disability act, he said. But if a deaf UPS driver has a serious accident, the
company also could be sued.
"That's the tension that employers face in these kinds of cases," Beachboard
said.
Tuesday's ruling stems from a class-action lawsuit filed against UPS by hundreds
of hearing-impaired would-be drivers.
Atlanta-based UPS had contended that deaf drivers posed a safety problem because
of their inability to hear other vehicles.
U.S. Circuit Judge Marsha Berzon noted that UPS offered anecdotes of drivers
avoiding collisions because they heard a warning.
But, she wrote, UPS "failed to show that those accidents would not also have
been avoided by a deaf driver who has compensated for his or her loss of hearing
by, for example, adapting modified driving techniques or using compensatory
devices such as backing cameras or additional mirrors."
The class-action plaintiffs persuaded the trial court and appellate panel with
studies and analyses that showed "hearing is not an essential component of being
a safe driver," said Larry Paradis, a lawyer with the Berkeley-based Disability
Rights Advocates, a nonprofit law firm, who represented the plaintiffs. That is
why deaf people nationwide may be licensed to drive passenger cars, he said.
"UPS was just asserting an old stereotype," Paradis said. "UPS adopted this
policy without ever investigating whether it was necessary."
The ruling sends the classaction case back to federal district court for a
series of individual trials over compensation, which could include giving
hearing-impaired employees priority for promotions into driving jobs, as well as
lost wages and punitive damages.
The appeals panel took up the case after U.S. District Judge Thelton Henderson
ruled against the company in 2004 and issued an injunction ordering it to stop
requiring applicants to pass an examination, which included a hearing test and
effectively kept deaf workers out of driving jobs.
That order was put on hold while UPS appealed.
Federal rules require drivers of vehicles weighing 10,000 pounds or more to meet
certain vision and hearing standards. The rules let companies determine the
qualifications for drivers of lighter vehicles.
