LOS ANGELES – UPS is asking a judge to vacate a $5.45 million award given to one of its former drivers in his whistleblower retaliation suit, arguing the case should have been decided by the National Labor Relations Board instead of the courts.
A Los Angeles Superior Court jury deliberated for only a matter of hours before finding in favor of Richard Galvan on March 6. In court papers filed Wednesday ahead of a June 20 hearing, UPS attorneys maintain the issues in Galvan’s case should have been addressed by the NLRB instead of in a California state court.
“The court here lacks subject matter jurisdiction over this action, which actually or arguably involves issues that may be heard only by the National Labor Relations Board,” UPS lawyers argue in their court papers. “Galvan knows it. His counsel tried to avoid this fatal defect by proposing an improper instruction, which required the jury to improperly assume his claim is not based on his union activity even though Galvan unequivocally testified that his termination resulted from his history of union activism and position in union contract negotiations.”
When Galvan realized that he should have brought an unfair labor practice charge before the NLRB rather than file a lawsuit in state court, he “tried to tapdance his way to a viable claim by asserting, in a total departure from his prior sworn testimony and discovery answers, that his claim was based on activities he characterizes as peripheral to the NLRB…,” UPS attorneys further argue in their court papers.
To get around the preemption obstacle, Galvan sought a jury instruction “reimaging his claim in an attempt to sequester union activity,” according to the UPS attorneys’ court papers.
According to Galvan’s suit, he was hired at UPS in October 1986 and throughout his employment was a member of Teamsters Local 396, serving as union steward starting in 2000, the suit stated. Galvan was fired in January 2017 and was a big-rig driver at the time.
Galvan, now in his mid-50s, alleged that UPS cut back his hours and discriminated against him because of an injury and due to his age. He maintained that younger workers with less seniority were taking some of his shifts as of August 2016 and that when he filed a grievance, the discrimination increased.
Galvan also maintained he was assaulted by a co-worker with a known history of violence while the plaintiff was participating in workers’ rights activism in an employee parking lot. The assailant was never disciplined, according to the suit filed in April 2018.
In their court papers, UPS attorneys denied Galvan was subjected to retaliation.
“Indeed, the evidence shows that Galvan raised hundreds of concerns throughout his 30-plus years of employment with UPS and was never subjected to any forms of retaliation for making such complaints,” the UPS lawyers argued in their court papers.
Galvan was fired because he was found to have “engaged in proven dishonesty” after an internal investigation and the decision was upheld by a neutral arbitrator in a union grievance hearing where several witnesses testified, including the plaintiff, according to the UPS attorneys’ court papers.
UPS did not authorize the co-worker’s alleged attack on Galvan, the UPS lawyers further state in their court papers.