On November 21, 2023, Teamster member Rob Atkinson won a major victory at the National Labor Relations Board (or “NLRB”). His case strengthened the protections of union dissidents against retaliation, and AUD’s work was important to that victory.

In 2014, Atkinson was a 27-year delivery driver at UPS in Western Pennsylvania and a 20-year steward at Teamsters Local 538. He helped spearhead a “Vote No” campaign against a weak five-year, national UPS contract. One tactic that particularly annoyed UPS was that when top national managers came to visit Atkinson’s garage, all the employees put “Vote No” signs in the windshields of their cars. The Vote No campaign was so successful that the International Brotherhood of Teamsters (then lead by James P. Hoffa) gave up on winning the ratification vote in Atkinson’s area. Hoffa then used a loophole to impose the contract without a vote, effectively overriding the result of the vote in Western Pennsylvania.

Next, in response to Atkinson’s leadership of the campaign, UPS started coming up with every excuse they could to discipline him. Atkinson later learned (through an NLRB subpoena) that the head of his Local, Betty Fischer, was sending UPS reports on Atkinson’s activities and even hinted to UPS that they should fire him. When UPS did fire Atkinson for failing to download data onto a handheld device, Fischer took charge of “representing” him in the grievance process. Perhaps unsurprisingly, a joint panel of two union and two company representatives— all of whom had helped bargain the contract Atkinson challenged — ruled that the company had not retaliated.

But while the grievance process unfolded, Atkinson also started another challenge to his termination. He filed Unfair Labor Practice charges (“ULPs”) at the NLRB.
The National Labor Relations Act (or “NLRA”) gives most workers a right to engage in “concerted activity,” which includes organizing with other coworkers about most issues in the workplace and in their union. The NLRA prohibits employers from retaliating against workers who run for union office, support an insurgent slate in an election, oppose ratification of a contract, or just voice their opinion about union affairs.1 A worker who believes their rights have been violated can file a ULP charge against the employer at the NLRB.

However, in order to move forward with his ULP case, Atkinson had to overcome something called “deferral.” Deferral is an NLRB policy of putting cases on hold when there is a grievance process pending. Usually at the end of the grievance process, the NLRB just adopts the result of the grievance in the ULP case too. The idea behind deferral is that the NLRB doesn’t want to give workers “two bites at the apple.” If an arbitrator or grievance panel has already decided that an employer had a legitimate reason to fire a worker, why should the NLRB put scarce resources into re-litigating the same question?

That logic makes sense in most retaliation cases where the union is highly motivated to protect its activist through the grievance process. But when the activist is a dissident, then the logic falls apart. For this reason, the NLRB also has a policy that it will not defer to the grievance process if there is a conflict of interest between the worker and the union officials who represent the worker in the grievance process. The legal phrasing for this policy is that the NLRB will only defer to a grievance process that is “fair and regular.”

Atkinson argued there was a conflict of interest in his case because he had run for office against Fischer and helped defeat a contract she helped negotiate. Also, all of the members of the joint panel that decided his grievance helped negotiate the contract, and there was no neutral arbitrator.

In 2019, the NLRB ruled against Atkinson. It held that his conflict of interest argument was “unfounded speculation.”

Atkinson appealed this loss to the United States Court of Appeals for the Third Circuit. The Third Circuit said the NLRB hadn’t analyzed the conflict of interest evidence carefully enough. It sent the case back so the NLRB could try again.

By the time the case was back at the NLRB, the NLRB had new members. On November 21, 2023 the new members ruled there was a conflict of interest. One thing that makes their ruling so useful is that it had a very detailed analysis. They held that when a joint panel without a neutral arbitrator rules on a dissident’s case, the NLRB should take a “particularly searching look” at whether the grievance ruling was fair. The NLRB decision also gave many examples of facts that might create a conflict of interest. A conflict is possible when the grievant has run for office against incumbent leadership, publicly criticized the leadership, and/or opposed a contract negotiated by the members of a joint panel. Finally, the NLRB explained that a worker doesn’t have to show how a conflict of interest changed the outcome of a grievance to defeat deferral (although it certainly helps). The worker just has to show a reason to doubt the decision-makers were fair. The NLRB ordered UPS to reinstate Atkinson and pay him lost wages.

The NLRB emphasized that every fact situation is unique, and what matters is all the facts taken together. So future unionists fighting deferral can’t just point to one way their case is like Atkinson’s and assume they’ll beat deferral. But they can point to the NLRB’s detailed analysis and argue the same logic applies in their case too2.

AUD’s support was critical for this victory. AUD and Teamsters for a Democratic Union wrote multiple amicus briefs supporting Atkinson at the NLRB and Third Circuit. The briefs were not just written by top-notch lawyers; they also offered insight from decades of hands-on union democracy experience. The NLRB’s final decision was clearly influenced by AUD’s arguments.

Meanwhile, Atkinson did not sit on his hands during the ten years it took to win his case. He stayed active in his union and fought for new leadership at the Teamsters. He was part of the successful campaign in 2021 to elect Sean O’Brien General President of the International. In 2022, O’Brien appointed Atkinson to lead member mobilization for the next UPS contract. So thanks to members standing together, UPS management had to sit across the bargaining table from Atkinson even before the NLRB ordered UPS to reinstate him.

2The case’s official citation is United Parcel Service, Inc., 372 NLRB No. 158 (2023). You can download a copy by visiting nlrb.gov and entering 372 and 158 into the boxes under “Quick Decisions.”