Is management handing out excessive discipline for misloads or missorts? Here are some steps you can take to protect yourself and other Teamsters.

UPS has the right to expect employees, in this case preloaders and loaders, to work accurately.

This is just common sense. But management frequently goes overboard from common sense to nonsense.

Beating Unfair Discipline

When challenging discipline for misloads or missorts, stewards should consider several factors including:

• Was the preloader or loader the only person covering the assignment or did a supervisor continue loading when the employee used the bathroom or went on a break?
• Did the preloader or loader come late to work or leave early, leaving someone else working the assignment?
• Did the loader load the truck or sort the packages in question by themselves or did any other person, i.e. a driver, supervisor, or co-worker, do any of the work?

Management will try to use records to show that a member has a longstanding problem with accuracy. But those numbers, while reliable for tracking individual packages, are not reliable for tracking an individual employee's performance for purposes of discipline.

Remember, management’s records on misloads do not go on a rolling nine months and they do not exclude instances when an employee’s assignment was partially worked by someone else.

Filing a Grievance

If management won’t back down from unreasonable discipline, a grievance should be filed.

If a grievance is not filed in a timely manner the discipline stands and any future protest will probably not be allowed.

Cite Article 37 of the national contract: dignity and respect, harassment and intimidation, over-supervision, and a fair day’s pay for a day’s work.

Remember, there is no accuracy standard in the contract except the general “fair days’ work for a fair days pay.”

The company has the right to expect accuracy, but not a specific number and not different levels of accuracy from one employee to the other.

As a final defense, if it is clear the member has a problem with missorts or misloads, it may be appropriate for a steward to suggest training or, in the worst case, reassignment to a different job.

Taking Action Together

Management often makes contradictory demands. They demand maximum production with high numbers of packages loaded per hour in multiple cars—and at the same time they want no missorts or misloads, or near perfect accuracy. If the preloader tries to load too fast, accuracy will suffer. If the preloader goes for 100 percent accuracy at all times then production will drop. What is a worker to do?

The most effective response is a group response. If management is giving out discipline for every misload, they are sending a clear message that accuracy is their top priority.

In such a case, every preloader is well advised to work at a pace where they can achieve zero or near zero misloads. Of course, the supervisors will scream that they want the preloaders to work faster.

Members should calmly point out that they are going as fast as they can to ensure accuracy because they do not want to be disciplined for errors.

Let the supervisor try to discipline workers for low production under these circumstances where they have already issued a pile of warning letters for missorts or misloads. Those very warning letters provide the perfect defense. As a bonus, members should file a pile of harassment letters if the supervisor(s) cross the line and demand more production in the face of all the disciplinary warnings.

Going on Offense

The best defense is a good offense. Supervisors work, they harass, they violate seniority and the list goes on and on. Center management that churns out warning letters and discipline is sending the message that they like paperwork, so give them some more-in the form of grievances.

Wallpaper their offices with every violation possible: supervisors working, safety violations, harassment, seniority violations, over-70 violations, the list goes on and on. The supervisor might not get the message but the center manager will.

May 20, 2015: What to Do When UPS Management Puts a Target on Your Back.

Law360, Los Angeles (April 23, 2015, 8:16 PM ET) -- The Ninth Circuit affirmed a lower court’s punitive damages award of $6.6 million to a former employee of United Parcel Service Inc. who had alleged wrongful termination in connection with a previously filed overtime class action suit, ruling that the evidence was sufficient to support the jury’s verdict.

Former employee Michael Marlo filed suit against UPS in 2008 alleging wrongful termination in retaliation for filing a 2003 class action against the company for unpaid overtime. UPS contends that it fired Marlo because of an abusive confrontation he had with a customer. A jury sided with Marlo in 2012, awarding him $2.2 million in compensatory damages and an additional $16 million in punitive damages, later reduced to $6.6 million.

On appeal, UPS challenged the punitive damages award, saying the evidence was insufficient to support the jury’s finding that Tim Robinson, the vice president and district manager who fired Marlo, was a “managing agent” of UPS.

A three-judge Ninth Circuit panel disagreed, ruling 2-1 in favor of Marlo.

“Viewing the evidence in the light most favorable to Marlo, as we must … we conclude that the evidence was sufficient to support the jury’s verdict,” the panel wrote in the five-page unpublished opinion. “The evidence showed that Robinson was the highest-ranking supervisor in a 7,000-employee district that covered a vast geographic area.”

Robinson viewed part of his role as maintaining company culture, the Ninth Circuit said, and that he had viewed Marlo’s overtime class action as a threat to company culture which also had a negative effect on employee morale.

“The jury could thus reasonably conclude that Robinson’s decision to terminate Marlo was a policymaking decision aimed at protecting the company ‘culture,’” the panel states. “We also conclude that Robinson’s conduct was sufficiently reprehensible to qualify for punitive damages under California law. The award, as reduced by the district court, was not unconstitutionally excessive.”

Thursday’s order makes the case the largest punishment ever upheld on appeal in California in a single-employee wrongful termination case, as stated by UPS in its opening brief to the Ninth Circuit.

In a one-sentence dissenting opinion, U.S. District Judge James G. Carr, sitting by designation, said he was “aware of my lesser familiarity with California law relating to managing agents.”

A UPS spokeswoman told Law360 on Thursday that it was disappointed with the ruling and is currently mulling its options.

“UPS has a strong compliance program that includes professional conduct, anti-harassment and no-retaliation policies,” spokeswoman Susan Rosenberg said.

A representative for Marlo did not immediately respond to a request for comment Thursday.

U.S. Circuit Judges Andrew J. Kleinfeld and Jacqueline H. Nguyen sat on the panel that wrote Thursday’s opinion, along with U.S. District Judge James G. Carr.

Marlo is represented by John Furutani of Furutani & Peters LLP and Mark Christopher Peters of Duckworth Peters Lebowitz Olivier LLP.

UPS is represented by Elena R. Baca of Paul Hastings LLP, Elizabeth A. Brown of Grube Brown & Geidt LLP and Mark A. Perry of Gibson Dunn & Crutcher LLP.

The case is Michael Marlo v. United Parcel Service Inc., case number 12-57170, in the U.S. Court of Appeals for the Ninth Circuit.