McLean Trucking Co.

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McLean Trucking Company and James Banyard. Case 8-CA-5706 March 23, 1973 DECISION AND ORDER On July 23, 1970, Administrative Law Judge Harry H. Kuskin i issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting' brief. On December 22, 1971, the Respondent filed a motion to reopen the record herein, a supporting brief, a supporting affidavit, and certain exhibits thereto On April 4, 1972, the National Labor Relations Board issued a Notice To Show Cause that unless cause be shown to the contrary the Board would grant the motion to reopen, admit the affidavit and documents into evidence, and take such further action as is warranted. On May 2, 1972, the General Counsel filed a memorandum in response to the notice and a supporting brief. On May 8, 1972, the Respondent filed a reply to the General Counsel's memorandum. The National Labor Relations Board has consid- ered the record and the attached Decision in light of the Respondent's exceptions and brief, the motion to reopen the record and supporting brief, the General Counsel's memorandum and brief, and the Respon- dent's reply to the General Counsel's memorandum, and has decided, for the reason set forth below, to dismiss the complaint in its entirety. 1. The Respondent moved to reopen the record to admit evidence that, subsequent to the hearing before the Administrative Law Judge, a grievance involving the Charging Party herein was denied by the National Grievance Committee, the final step in the grievance procedure contained in the applicable collective-bargaining agreement. Included in the documents submitted by the Respondent in support of its motion were the grievance award of the National Grievance Committee and the transcript of the grievance proceeding taken at a meeting of the Central Conference of the Joint Area Committee, an earlier stage in the applicable grievance procedure. In its response to the Board's Notice To Show Cause, the General Counsel specifically did not oppose the admission into the record of the two named documents. Accordingly, the Respondent's motion to reopen the record is granted in part, the record is reopened, and the two named documents are hereby received into evidence. 2. The Respondent, which operates a truck The title "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 terminal , has had since 1966 a policy of requiring its drivers to carry overloads in company vehicles. In 1966, Banyard had protested the hauling of over- loads, had refused to do so on two occasions, was discharged after each refusal, and was subsequently reinstated after filing grievances. That year Banyard also filed a grievance seeking an interpretation of a provision of the collective-bargaining agreement that no employee shall be required to engage in any activity involving dangerous conditions of work. A point grievance committee left the interpretation of the provision to be determined by negotiation between the contracting parties. The 1967-70 agree- ment continued the particular provision without change. In the fall of 1969, after a lapse of nearly 3 years during which time he drove overloads, Banyard informed Respondent that he would no longer pull overloads, claiming doing so would be dangerous and contrary to the collective-bargaining agreement. On October 6 he was ordered to pull an overload and refused. The next morning he was discharged. Banyard grieved his discharge, and the grievance was considered, in turn, by the Joint Local Area Committee, the Joint State Committee, and the Joint Area Committee, each of which was deadlocked. Subsequent to the hearing herein, Banyard's griev- ance was referred to the National Grievance Com- mittee which met and issued the following award: Please be advised that the National Grievance Committee on December 2, 1971, adopted a motion, that based on the transcript, the claim of the Union be denied. Article 43 of the applicable collective-bargaining agreement states, "The Unions and the Employers agree that there shall be no strike, lockout, tie-up, or legal proceedings without first using all possible means of settlement , as provided for in this Agree- ment, and in the National Agreement, if applicable, of any controversy which might arise." Article 43 further provides for the processing of grievances through several stages: (1) the employer and local union involved, (2) the Joint Local Area Committee, (3) the Joint State Committee, and (4) the Joint Area Committee The various committees are composed of an equal number of management and labor repre- sentatives with no neutral third party present. A majority decision at any stage is final and binding, and a deadlock provides for appeal to a higher stage. Article 8 of the National Agreement sets forth the manner of processing all grievances or questions of interpretation arising under the national or supple- mental agreements and provides for two stages-the Multi-Conference Committee and the National Grievance Committee. A majority decision at either 202 NLRB No. 102 McLEAN TRUCKING CO. 711 level is final and binding, and a deadlock at the Multi-Conference level is referred to the national level. If the National Committee is deadlocked, "then either party shall be entitled to all lawful and economic recourse to support its position in the matter." In its exceptions to the Administrative Law Judge's Decision, the Respondent contended, inter aka, that the Administrative Law Judge erred by refusing to defer to the grievance procedure contained in the applicable collective-bargaining agreement. In its brief and reply, filed subsequent to the award of the grievance committee, the Respondent contends that the Board should defer to the committee's award and dismiss the complaint herein. We agree. Banyard was present at the Joint Area Committee hearing on his grievance and testified at length. The transcript of that proceeding reveals that in all material respects the information presented to the grievance committee was the same as the evidence brought out at the unfair labor practice hearing in this case. Included in the evidence presented to the committee were (1) the history of Banyard's griev- ances contending that the collective-bargaining agreement prohibited employers from requiring drivers to haul overloads because doing so would be dangerous; (2) a description of the vehicle which Banyard had been told to, but refused to, drive and that it was overloaded in violation of state law; (3) Banyard's claim that, if he hauled the overload, he could be subject to criminal negligence; (4) Ban- yard's statement that the most important reason he was there concerned the Employer's not wanting to uphold the contract; and (5) Banyard's following statement of position: I am also not so naive to think you people will sit in good conscious [sic] knowingly [sic] that this company is violating the law, by their own admission violating the law, spending your time and spending my time going through this same thing over and over. Now it's gone through here three times. We are not getting anywhere with it. And you taking the thing to Washington. They have testified here that they haven't any problems with any other driver but Jim Banyeard [sic]. Now Jim Banyeard [sic] 2 Our dissenting colleagues would apparently resolve the issues submit- ted to the National Grievance Committee in a different manner They have seemingly concluded not only that the alleged overweight was a hazard to the safety of the driver (without examining whether limits may be established more with a view to protecting the longevity of state or local highways) but that the order of the Employer would also have forced the driver to commit a crime (despite record evidence that points are not even assessed against the operator's chauffeur's license as a result of overloads which occur through no fault of the driver) They also conclude that the driver is legally entitled to refuse a load, rather than to file a grievance, a matter which is much less clear to the parties The parties here did not find any of the issues as simple as do our colleagues The record demonstrates that the matter of driving loads which exceed the legally specified limits has happens to be the union steward. I am the oldest man there. They would be more than happy to get rid of me. I know this and I'm very well aware of it. Furthermore, members of the grievance committee are involved in and have an intimate knowledge of the trucking industry. This is illustrated by the following colloquy between the chairman of the committee and the person appearing for the Compa- ny, occurring after a description of the vehicle but with no description of the weight the vehicle could properly haul: CHAIRMAN RANNEY: Would it be overloaded with 40,000 pounds on it? I mean, was this rig overloaded? MR. ALFRED: To answer your question,when it was returned the vehicle was weighed and weighed 17,500 on the drive, weighed 35,800 on the tanden. CHAIRMAN RANNEY: Which is overweight. From the foregoing, it is clear that the issues raised, repeatedly in different ways, before the grievance committee encompassed the issue presented in the unfair labor practice complaint; namely, was Ban- yard discharged because he engaged in protected concerted activity? This is especially so here since the unfair labor practice issue is so entwined with the contract question as to be virtually inseparable. The award of the National Grievance Committee is brief, but it states that it is based on the transcript, namely, the transcript taken before the Joint Area Committee. Although Banyard was not present at the meeting of the National Committee, half of that committee consisted of union representatives, and the Union, by its pursuit of the grievance through its lengthy course, indicated its interest in the,successful prosecution of Banyard's grievance. For these reasons, we are satisfied that the National Grievance Committee, in denying the grievance, fully consid- ered the issues involved in this case.2 In the circumstances of this case, none of the factors cited by the General Counsel or the Adminis- trative Law Judge furnish sufficient basis for depart- ing from the Board's established policy of giving binding effect to arbitral determinations made in been a matter of discussion between the parties for some time , that the contract itself contains provisions which contemplate at least occasional hauling of overloads (pay for time lost due to overloads or certificate violations) and that the Central States Joint Area Committee, a group of truly knowledgeable persons in the industry, found in 1966 that the subject was worthy of further negotiation and "in the meantime , Companies will operate on the same basis as in the past and not be in violation of the contract " We are not persuaded that the issues are either as simple or dramatic as our colleagues assert , and are thus less anxious than they to rush to substitute our judgment for that of an experienced Committee, composed of experienced union and management representatives, or to accuse that Committee of sanctioning the creation of safety hazards 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceedings to which all parties have acquiesced, where the proceedings are fair and regular on their face, and where the results are not clearly repugnant to the purposes and policies of the Act.3 The Board has held that joint grievance committees of the type here involved, though operating without neutral arbitrators, meet the Spielberg standards of fairness.4 In fact Terminal Transport is similar to the instant case. In that case the Board deferred to a joint committee award which set up a test of the discharged employee's ability as a mechanic. The employee was not present at the grievance hearing, but the person appearing on behalf of the union read into the record a letter from the employee which claimed, inter aha, that he was discharged in reprisal for his activity in connection with an earlier grievance, the issue raised in the unfair labor practice hearing. In the circumstances of this case, we do not view the time it took to reach a decision on the grievance to be of significance. What is significant is that the National Grievance Committee decided the griev- ance. Nor do we find that the result reached is clearly repugnant to the Act, as claimed by the General Counsel. Although the grievance committee reached a result contrary to the decision of the Administra- tive Law Judge, that decision was not a final decision of the Board since timely exceptions had been filed. For these reasons, we find that the award herein of the National Grievance Committee is not repugnant to the policies of the Act, is, on its face, fair and regular, and was reached by a procedure to which the parties have agreed to be bound.5 Accordingly, we conclude that it will effectuate the policies of the Act to give conclusive effect to the grievance award and, on that basis, we shall dismiss the complaint in its entirety.6 ' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint herein be, and it hereby is dismissed in its entirety. MEMBERS FANNING AND JENKINS, dissenting: Respondent admittedly had a practice of requiring its drivers to operate overloaded trucks, in violation of state laws. This practice also, as the Admmistra- 3 Spielberg Manufacturing Co, 112 NLRB 1080. 1082 a Denver-Chicago Trucking Company, Inc, 132 NLRB 1416, Roadway Express, Inc, 145 NLRB 513, Terminal Transport Company, inc, 185 NLRB 672 5 That employees, as well as the Employer and the Union, are bound by the bargaining agreement is fundamental to collective bargaining 6 Our colleagues' dissent is, for the most part, a compendium of recent Board decisions in the Collyer and Spielberg areas, together with commenta- ries thereupon Our disinclination to take issue with our colleagues' characterization of individual cases, or with the implications they draw therefrom, should not be taken for agreement The decisions speak for tive Law Judge found, created safety hazards for the drivers and others. Banyard, a union steward, on behalf of the drivers, had sought, with no success, to have the practice corrected through the grievance procedure and by protests to Respondent. Finally, he himself refused to drive an admittedly overloaded truck. For this refusal he was discharged. His grievance over the discharge was denied at the arbitration, and he now asserts his discharge violated Section 8(a)(1) and (3) of the Act. Our colleagues find the arbitration procedure fair and regular,7 and its outcome "not repugnant to the Act." In our opinion, however, the arbitrator's award, permitting Banyard's discharge to go unremedied, is clearly repugnant to this Act and should be disre- garded by this Board. No contract provision or arbitration award can permit an employer to require his employees to violate state laws or to create safety hazards for themselves or others. Such a contract provision or employer practice is void, and any effort to force employees to conform to it is unlawful under this Act. Other contract provisions or employer practices can be hypothesized, such as requiring drivers to meet schedules which necessitate exceed- ing speed limits consistently by 20 miles an hour, or requiring drivers to force a competitor's truck off the road once a month; but none of them is worse in principle, and perhaps in practice, than requiring drivers to operate severely overloaded trucks and thereby to commit crimes and endanger themselves and the public. Employees who protest the imposition of such unlawful hazardous conditions, and who refuse to accept them are protected by Section 8(a)(1) of the Act, and if they do so by union activity, are protected also by Section 8(a)(3). No arbitration award -whether by a neutral tribunal, whether purporting to decide the statutory issue, or whether based solely on an interpretation of the unlawful contract provision-can validate the employer's imposition of such unlawful terms and conditions of employment, nor remove the protection of the Act from the employees when they concertedly protest and reject such conditions. Simply put, they cannot be fired for such protest and rejection, regardless of what an arbitrator or this Board says. This is what the statute themselves 7 Member Jenkins , as he stated in dissenting in Terminal Transport Company Inc, 185 NLRB 672, regards an arbitration tribunal which has no neutral member as lacking in fairness in his view, the majority 's assumption that the tribunal is neutral because the particular employer and local union involved in the dispute are excluded from sitting on the tribunal is unfounded The employers and local unions who do sit on the tribunal are bound by the same contract as the disputants , and their participation in decisions which govern their own rights and duties is the classic example of conflict of interest MCLEAN TRUCKING CO. 713 requires, and is precisely the purpose for which it was enacted. It is this protection which the majority now eliminates.8 We have repeatedly noted our dismay at the rapid reduction in statutory protection as the majority has expanded its Collyer principle. To say, as does the majority, that this arbitration award is not repugnant to the Act is to reduce the statute to nothing but an arbitration clause in a contract. Where an arbitration clause exists, little or nothing is left of the protection afforded by Section 8(a)(1) and (3) after this decision. Our majority colleagues, in their eagerness to defer cases to arbitration, either before arbitration has been sought as in Collyer Insulated Wire, 192 NLRB No. 150, or after an award has been made and is evaluated under Spielberg Manufacturing Co., 112 NLRB 1080, as here, have indicated a willingness to allow arbitrators to decide that there has been no wrong committed in cases in which there is a plain violation of the Act. The Collyer principle, initially limited to cases in which interpretation of a contract provision was necessary or germane to determining whether a violation of the Act had occurred, has rapidly expanded far beyond this area, and in doing so has eliminated most of the protection of Section 8(a) of the Act, and a substantial part of Section 8(b). A brief survey of some of the cases applying the principle will make this plain. Under Collyer, an employer's unilateral revocation of a substantial employee benefit, parking privileges, was deferred to arbitration on the ground that a contract clause providing that "working conditions shall be maintained" at not less than existing standards, plus an arbitration clause, removed the issue from the statutory prohibition of unilateral change contained in Section 8(a)(5) and Section 8(d), and reduced it to a question of contract interpreta- tion. Thus a contract clause designed to reinforce the statutory protection by adding contractual protec- tion ends up eliminating the statutory protection Section 8(a)(5) had previously afforded against such unilateral changes, and removes the existing benefit from the field of mandatory bargaining by the employer, leaving the arbitrator free to find that such unilateral change was valid rather than unlawful.9 Great Coastal Express, Inc., 196 NLRB No. 129. Likewise, a union's unilateral termination of what the majority describes as "for more than twenty years a practice" of route drivers making cash collections from customers was deferred to arbitration on the ground a contract interpretation was invoked be- cause a clause in the contract provided "All past practices . . . shall remain in full force and effect." Thus a contract clause designed to protect against unilateral changes and clearly so stating becomes the instrument by which an arbitrator is given authority to validate such a change.10 In this way the protection which Section 8(b)(3) previously gave an employer is eliminated. The fact that either party could block the arbitration, so that the tribunal did not in fact exist, did not deter the majority. Thus the sufficient fact seems to be the appearance of the word "arbitration" in the contract, and nothing more. National Biscuit Company, 198 NLRB No. 4 Similarly, the Collyer principle has permitted an employer to disrupt or abrogate the agreed-upon seniority system by unilaterally assigning part-time employees to jobs theretofore reserved to full-time employees if they so elected. By deferring this issue to an arbitrator who might validate the employer's action, the majority opened the door to destruction, without bargaining, of the seniority system which is one of the principal subjects of bargaining. South- eastern Bell Telephone Company, 198 NLRB No. 6. The majority identified no contract provision which required interpretation by an arbitrator, thus indicat- ing that a question of contract interpretation was not prerequisite to the Board's refusal to determine whether a violation of the Act had occurred. That there was no need for any contract interpreta- tion to be submitted to an arbitratior in order for the Board to refuse to decide whether the Act had been 8 In in 2 , above, our colleagues make several assertions (a) They speculate that the establishment of truck load limits by state law may be directed to the preservation and longevity of highways , assert that points are not assessed against a driver for overloads compelled by his employer , and infer from this that safety is not an objective of the state law The suggestion that overloads are not related to safety of the driver and others on the highway, despite the greater difficulty of braking and control, defies reason , and damage to highway surfaces , shoulders, and bridges can hardly be unrelated to safety The provision in the contract for pay during the time a driver's license is suspended for overloads , which the majority cites to support its view , seems to us to indicate the state regards overloads as dangerous and the contract contemplates that the drivers commit a crime The Administrative Law Judge's explicit findings (6 ALJD 11-34) on the safety issue and his citation of the record evidence (which our colleagues do not question) seems to us to be dispositive The fact that points are not assessed against a driver if his employer forced the overloading , and that the employer rather than the driver is fined , appears to show, contrary to the majority, that safety of person and property is involved and the state is simply seeking to reach the true culprit (b) Our colleagues reject our conclusion that the driver is legally entitled to refuse an overload rather than file a grievance they do so apparently because the employer and union tolerated overloading and even permitted it by contract in certain occasions This is, of course, contrary to N L R B v Washington Aluminum Company, Inc, 370 U S 9, which gives employees the right to refuse, without penalty, to work in unsafe conditions Sec 8(a)(1) and (3) protects the employees' rights in this respect, not the rights of unions or employers, and unions and employers cannot agree otherwise The majority's view that an arbitrator can allow these employee rights to be cut down by contract illustrates the undermining of the statute by deferring to arbitration , and the basic fallacy in Collyer 9 If the Board's reservation of jurisdiction in Collyer means that the Board will disregard any award which reaches this result, there is nothing to arbitrate, for the outcome can go only one way, and the Board would do better to make that determination now instead of after a costly and lengthy arbitration proceeding 10 See In 2, above 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated, and to allow an arbitrator to decide it instead, became explicit in Peerless Pressed Metal Corporation, 198 NLRB No. 5, in which the Collyer proponents conceded that no contract interpretation was involved, yet deferred to arbitration the employ- er's unilateral institution of incentive wages. And in Urban N. Patman, Inc., 197 NLRB No. 150, the majority deferred to arbitration the employer's unilateral change of wage rates in one department even though the contract provided that "no contro- versy regarding hours of wages shall be subject to arbitration hereunder." The majority avoided this prohibition by stating that the "dispute is arguably one over whether the contract covers the precooked food department employees, and not one of wages," in the face of the employer's admission that the contract applied to these employees. In overriding both the contract prohibition of arbitration and the employer's admission the contract applied, the majority has extended Collyer to mean that, in any case in which the contract contains an arbitration provision, unilateral change violations must be arbitrated and the Board will not enforce Section 8(a)(5) and 8(b)(3). Even after arbitration is complet- ed and the arbitrator finds facts showing an unfair labor practice of a unilateral change not involving any contract interpretation-as the case of increasing employee work assignments after bypassing the union and bargaining individually with the employ- ees, a clear violation of Section 8(a)(5) without regard to any contract provision-but issues an award unenforceable in the courts because it finds only that the employer "violated the contract," the Board will refuse to remedy the violation, contrary to those court decisions" which require that, where a violation is found, a remedy must be issued. Malrite of Wisconsin, Inc., 198 NLRB No. 3. By allowing arbitrators to decide that a unilateral change in terms and conditions of employment does not violate the Act, and particularly by opening the door to such a decision where no contract interpreta- tion issue exists, the Board has eliminated the protection against unilateral changes in or repudia- tion of the bargained contract hitherto afforded the parties by Section 8(a)(5) and (b)(3). In so doing, it has undermined the effectiveness and stability of collective bargaining which it is the purpose of the Act to foster. Collyer has also effectively eliminated the protec- tion by which Section 8(a)(3) and (b)(2) previously sheltered employees against discrimination. The majority, in deferring such cases to arbitration, held that an arbitrator's decision that "good cause" 11 International Woodworkers of America, Local 3-10 (Long Lake Lumber Co) v N L R B, 380 F 2d 628, 630, 631 (C A D C , 1967), see also Eichleay Corporation v N L R B, 206 F 2d 799, 805 (C A 3, 1953), International existed for the discharge meant that there was no discrimination. National Radio Company, Inc., 198 NLRB No. 1; Terminal Transport Company, 185 NLRB 672. Thus Collyer forecloses an examination of whether the "good cause" was the real reason or a pretext for the discharge-usually the principal inquiry, in discrimination cases. And in Joseph T. Ryerson & Sons, Inc., 199 NLRB No. 44, Collyer was held to mean that inclusion in a contract of a clause incorporating much or most of the 8(a)(3H2) prohibitions of discrimination made a discriminatory discharge a contract question for an arbitrator to determine. Thus in any case where "good cause" exists for a firing-and it does, or can be created, in every case and the finding of it by an arbitrator will not be reviewed by the Board-a discriminatory discharge will go unremedied. Thereby the Board has effectively deprived employees of protection against discrimination by the employer or union. It has gone further and permitted a union and employer, by writing Section 8(a)(1) and (3) into their contract, to contract employee rights out from under the statute if an arbitrator finds-as in Banyard's case before us-that the contract permitted the discharge even though the statutory violation is plain. From these areas the Collyer rule has expanded so as to defer to arbitration principles of law having no connection with any contract interpretation issue. Thus, Collyer has allowed an arbitrator to determine that a "zipper" clause constituted a waiver of all matters not mentioned specifically in the contract, in the face of Board and court decisions holding uniformly to the contrary. Radioear Corporation, 199 NLRB No. 137. Collyer has also relegated to arbitration the legal issue of what constitutes employer condonation of employee misconduct in concerted activities, and has thereby allowed the arbitrator to reach a result the Board would not reach on this legal issue. Tyee Construction Co., 202 NLRB No. 34. Similarly, in Norfolk Portsmouth Wholesale Beer Distributors Association, 196 NLRB No. 165, where the employer refused to honor checkoff authorizations after determining unilateral- ly that they were invalid, plainly a legal issue dependent on principles other than the checkoff clause in the contract, the majority deferred to arbitration even though they stated "whether the authorizations were valid will determine the ultimate question . . . whether Respondents did or did not violate the agreement." Thus Collyer has empowered an arbitrator to hold the employer's action lawful, even though no contract interpretation is involved and even though the legal principles established by Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UA W) v N L R B, 427 F 2d 1330, 1332-33 (C A 6, 1970) McLEAN TRUCKING CO. 715 the Board and courts might indicate the action was clearly unlawful. In this case, the only relation of the contract to the alleged violation of the Act was to create the condition of employment; the unilateral action thereafter which constituted the alleged violation arose out of separate and independent unilateral actions governed by clear legal principles not involving any interpretation of the contract. Collyer has now removed the protection heretofore afforded by those principles. If a legal issue is deferable to an arbitrator merely because a contract creates or establishes the condition of employment which is changed unilaterally, every such change becomes a contract issue, for all employment conditions are established or recognized by contract, and Sections 8(a)(5), 8(b)(3), and 9(d) are rendered meaningless. Indeed, the contract at this point, under the ministrations of Collyer, becomes a license for the employer (or perhaps the union) to violate the statute. Thus discharges under a contract clause giving the employer the right to discharge employees engaged in an "unauthorized" strike was deferred to arbitration, despite the fact that the strike might have been protected under the Act and might even have been an unfair labor practice strike as to which a no- strike clause is inapplicable. National Tea Company, 198 NLRB No. 62. To allow an arbitrator to determine that such discharges are valid, as does the Collyer principle in that case, allows the employer to commit with impunity actions which in the absence of the contract clause would be plain violations of the Act.12 Collyer's reduction of statutory protection to a contract right has also impaired the protection previously afforded the employer by Section 8(b)(l)(B), prohibiting union interference with his relations with his own supervisors. In Houston Chronicle Publishing Company, 199 NLRB No. 69, a union's fine of a supervisor for acting within his supervisory authority in selecting an employee to work overtime, alleged to have violated Section 8(b)(l)(B), was deferred to arbitration as a question of contract interpretation because the contract contained a provision substantially the same as Section 8(b)(1)(B). The reason, said the majority, is that "Nothing in the statutory scheme prohibits an employer from voluntarily resolving . . . how this broadly stated legislative policy should function . . . . Thus was the statutory protection of Section 8(b)(1)(B) converted into a contract issue merely because the contract repeated Section 8(b)(1)(B). Subsequently, in A. S. Abel! Company, 201 NLRB No. 5, with substantially the same contract embodi- ment of Section 8(b)(1)(B), Collyer was extended further to defer to arbitration the unlawful fine a union imposed on a supervisor because he worked during a period the employer required him to work, instead of yeilding to the union's demand that a more senior employee be given the work. Because the union's demand raised only a contract issue resolva- ble elsewhere and was not a part of the alleged violation, it was simply the statutory issue of the violation of Section 8(b)(1)(B) which the majority deferred to arbitration, without even the color of any connection with contract interpretation. Thus Collyer has effectively removed the 8(b)(1)(B) protection from those parties who agree to an arbitration clause. And it matters not that the incorporation of Section 8(b)(1)(B) into the contract was for the purpose of adding contract remedies to statutory protection. Extension of the Collyer principle to those cases above where no contract interpretation issue exists permits, and indeed requires, the arbitrator to write a new contract for the parties, contrary to Porter v. N.L.R.B., 397 U.S. 99. Collyer thus means that an arbitration clause alone, without any dispute over the meaning of any contract term, suffices to prevent the Board's determination of an alleged and even plain violation of the statute. Also, Collyer imposes compulsory arbitration on the parties even in those cases, such as Great Coastal and National Biscuit, supra, where the contract expressly prohibits unilater- al changes of the type made, or even, as in Patman, expressly excludes the subject from arbitration. For those unions which would have the employees they represent continue to be protected by Section 8(a), and for those employers who want for themselves and their employees the continued protection of Section 8(b), Collyer offers them only two choices, under existing Board law: (1) delete arbitration from the contract, or (2) give either party the power to block arbitration.13 We fail to see how either course will serve the asserted goal of Collyer, to further the use of arbitration to settle disputes. When Congress thought it desirable that the Board defer its statutory duties to arbitration, it knew how to say so clearly, and did so in Section 10(k) of the Act, dealing with jurisdictional disputes. But even in this instance of an explicit prescription of arbitration, the Board's attempt to remit jurisdictional disputes to private tribunals by refusing to decide, as it is now 12 N L R B v Mastro Plastics Corp, 350 U S 270, San Juan Lumber from being deferred , on the ground it was a dispute over whether the Company, 154 NLRB 1153 contract applied to that group of employees If it did apply, it is difficult to 13 Indeed, giving either side the right to prevent arbitration may not save see how the contract could permit arbitration in the face of that clause, if it the question from arbitration In Putman, supra, a provision excluding wage did not apply, there is no contract interpretation involved and nothing to disputes from arbitration did not suffice to prevent a contested wage change arbitrate 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doing in Collyer, was cut short by the Supreme Court. N.L.R.B. v. Radio Engineers Union (CBS), 364 U.S. 573. Thus it seems obvious that Congress wanted no deferral of matters arising under other sections of the Act, and that such deferral has been foreclosed. This conclusion is reinforced by the observation of the Supreme Court in N.L.R.B. v. Strong, 393 U.S. 353, 360, that the Board's authority to remedy unfair labor practices "is not `affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise . . . ."'Plainly, the Collyer rule is directly at odds with the principle and purpose of the preemp- tion doctrine of Building Trades Council v. Garmon, 359 U.S. 236, and related cases, to secure the paramount- cy of the Act and uniformity in its application. For these reasons, and for those set out in our dissents in the cases cited, we would not defer this case to arbitration. As the Chairman has proclaimed, Collyer has indeed "grown up." 14 It has overgrown and smothered most of the protection afforded by Section 8(a) of the Act, and much of that afforded by Section 8(b). Its overturn is overdue. Accordingly, we would affirm the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Banyard. It is particularly ironic that it was Ban- yard's efforts to use the grievance-arbitration process which has led to his undoing by that selfsame process. 14 Remarks of Chairman Miller before Industrial Relations Research Associates, Oakland , California, September 12, 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Trial Examiner: This case was heard at Cleveland, Ohio, on May 21, 1970. The complaint issued herein on February 11, 1970, based on a charge filed on January 2, 1970. The complaint alleges that Respondent has violated Section 8(a)(1) and (3) of the Act by discharging employee James Banyard on or about October 7, 1969, and by thereafter failing and refusing to reinstate him. Respondent's answer denies that it has violated the Act in any respect alleged herein, contending that the discharge was for cause; it also contends as a separate defense that the grievance procedure of the existing bargaining agreement between it and International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 407, herein called Local 407 or the Union, which agreement is applicable to Banyard, has been invoked but not exhausted and that it "will be bound by the decision of the committee established by contract grievance procedure." Upon the entire record, including my observation of the 1 Respondent rested its case without summoning any witnesses in its own behalf witnesses, including their demeanor while on the witness stand,' and after due consideration of the briefs of the General Counsel and Respondent, I make the following: FINDINGS OF FACT2 1. THE BUSINESS OF RESPONDENT The complaint alleges, and Respondent adnuts, that it is a North Carolina corporation with headquarters and principal offices in Winston-Salem, North Carolina, where it is engaged in interstate transportation of goods by truck; and that at its Cleveland, Ohio, terminal, which alone is involved herein, Respondent receives gross revenues annually in excess of $50,000 from the interstate transpor- tation of goods by truck . I find upon the foregoing, as Respondent also admits , that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent also admits, and I find , that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 407, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. The Applicable Provisions of the Contractual Relationship Respondent's city drivers have been represented by Local 407 at all times material herein, and Respondent and Local 407 have entered into successive collective -bargain- ing contracts as to these employees . At the time of Banyard's discharge on October 7, 1969 , there was in effect between Respondent and Local 407 the National Master Freight Agreement and the Central States Area Local Cartage Supplemental Agreement, covering the period from April 1, 1967, to March 31, 1970. The prior contractual relationship was also for a 3-year period and expired on March 31, 1967. Article 16 of the National Master Freight Agreement of the recent agreement, like the prior agreement , provides, in relevant part, as follows: Under no circumstances will an employee be required or assigned to engage in any activity involving dangerous conditions of work or danger to person or property or in violation of any applicable statute or court order, or in violation of a government regulation relating to safety of person or equipment. The term `dangerous conditions of work' does not relate to the type of cargo which is hauled or handled. Section 2 of article 36 of the recent National Master Freight Agreement provides that, if an employee has his chauffeur's license suspended or revoked because of size and weight penalties, while complying with his employer's instructions to him, such employer "shall provide employ- ment for such employee at no less than his regular earnings at the time of such suspension for the entire period thereof, 2 The findings hereinafter are, in all instances, based on uncontroveried testimony, which I credit MCLEAN TRUCKING CO 717 subject however, to the seniority and lay-off provisions applicable to him at the time of such suspension." Article 42 of the recent supplemental agreement sets forth the composition of the grievance machinery commit- tees and provides in each instance for an equal number of committeemen "appointed by the Employers and the Unions." Article 43 provides for the processing of grievances through the following stages : ( 1) the employer involved and the local union, (2) the Joint Local Area Committee, (3) the Joint State Cartage Committee , and (4) the Joint Area Cartage Committee . It also provides, in substance, that if a dispute is settled by a majority vote of any of the above committees, no appeal will lie therefrom and the decision of that committee will be final and binding on both parties. Additionally, it provides that the Joint State Cartage Committee or the Joint Area Cartage Committee, if it is deadlocked after considering the grievance, may submit the matter for "umpire handling," if a majority of that committee so determines. Article 8 of the National Master Freight Agreement sets forth the manner of processing all grievances or questions of interpretation arising under the master agreement or supplemental agreement. It provides, in part: If such Supplemental Agreements provide for arbitra- tion of discharges, such procedure shall be continued. If upon the completion of such Supplemental grievance procedure, the matter is deadlocked and, as a result, a work stoppage is threatened, which could involve more than one Conference Area, the matter shall be submitted to a Multi-Conference Committee composed of two employer representatives and two union representatives from each Conference Area involved. In the instance of a deadlocked factual grievance or interpretation arising under a Supplemental Agreement or a deadlocked factual grievance arising under the National Master Agreement , the decision of the Multi- Conference Committee shall be based solely upon the provisions of the applicable Supplemental Agreement or the National Master Agreement, whichever is applicable If the Multi-Conference Committee resolves the dis- pute by a majority vote of those present and voting, such decision shall be final and binding upon the parties. If the Multi-Conference Committee is dead- locked on the disposition of the dispute, the dispute shall be referred to the National Grievance Committee .. . which shall be composed of five members designated by the' Employers and five members designated by the union. If the National Grievance Committee resolves the dispute by a majority of those present and voting, such decision shall be final and binding upon the parties. If the National Grievance Committee is deadlocked on the disposition of the dispute then either party shall be entitled to all lawful recourse to support its position in the manner. Any provision in the grievance procedure of any Supplement hereto which would require deadlocked disputes to be determined by any arbitration process shall be null and void as to any agreements involving interpretation of the Supplemental Agreement or this National Master Agreement. The decision of the National Grievance Committee as to whether a grievance involves an interpretation which is subject to this procedure shall be final and conclusive. B. Some Background Data With Respect to Banyard's Employment History Banyard began working at the Cleveland , Ohio, terminal involved herein as a city driver about 1947 . As a city driver he operated his vehicle on local and interstate highways in the Cleveland area. During the period antedating about 1966, he was employed in that capacity by Hayes Freight Lines; thereafter Respondent purchased the terminal from the latter and continued his employment . For the last 14 years or so, Banyard has been a member of Local 407. He was appointed a steward by the executive board of Local 407 about 14 years ago and continued in that union office until his discharge on October 7, 1969 . Among his duties as steward were the checking of dues books; providing grievance forms to, and helping , anyone who wishes to file a grievance ; and attending committee hearings under the grievance procedure with representatives of Local 407 in the absence of the grievant. Among the grievance matters handled by him were those relating to wages and to overloading. According to Kalnicki, the president of Local 407, grievance committee meetings are held each month and Banyard has been in attendance at about eight of these during the last 3 or 4 years It is apparent from the record that, during the period of his employment by Respondent , a bone of contention between Respondent and Banyard has been the matter of driving overloaded tractor-trailers. The first situation of this type revealed by the record occurred on March 1, 1966. On that day, Banyard was in the yard of Respon- dent's terminal when one Eddie Schrecengost , a city driver for Respondent , arrived with a loaded 40-foot road trailer pulled by a tractor, which was damaged. After observing the relative positions of the front and rear of the trailer, Banyard inquired from Schrecengost and learned that his trailer was then carrying a load of 45,000 pounds . At this, Banyard approached Charles Mise, Respondent's terminal manager and an admitted supervisor . Present at the time was a Mr Lether, the immediate supervisor of Mise. Banyard then asked Mise why he had Schrecengost pick up 45,000 pounds, as this was violative of article 16 of the collective-bargaining agreement with Local 407. To this, Mise replied that "it wasn't any of [Banyard's] business whatever he did . . . that when he tells [Banyard ] to pick up an overload or an excess heavy load or-whatever you want to call it-that [he, Banyard ] would either do it or [he] would have to find a new job." Whereupon , Banyard filed a grievance as to this matter in his own name. Nothing came of this grievance , although it reached the third level of the grievance procedure, because Schrecen- gost had not signed the grievance himself. Thereafter, also during 1966, Banyard filed four griev- ances against Respondent , namely, in March or April, in June or July, in September, and on November 1. The first grievance involved an overloading by the customer after Banyard was dispatched to make the pickup . As soon as 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Banyard returned to the terminal, the excess weight was removed. The claim was apparently denied at the third step of the grievance procedure. In the second instance, Banyard was directed by Frank McGruder, a dispatcher, to pick up a load of 41,000 pounds of welding rods from Lincoln Electric Company, one of Respondent's custom- ers Thereafter, Banyard telephoned McGruder from the pickup point and asked for permission to reduce the load by leaving two pallets of welding rods, each weighing 2,500 pounds, for the peddle man to pick up.3 Although McGruder granted the request, it was countermanded during that telephone call by Mise, who broke in on Banyard's conversation with McGruder. Mise ordered Banyard to load the 41,000 pounds and not argue about it. Banyard, in turn, offered either to load 37,000 pounds on his trailer and bring in the merchandise or to load 41,000 pounds and drop the trailer at the pickup point. Mise' reply was that he wanted the 41,000 pounds loaded on the trailer. Banyard followed these instructions and then called Mise on the telephone and informed him that the trailer was loaded . Mise's instructions were again to bring the load in, but Banyard said that he could not do so because the load was too heavy. Whereupon, Mise directed Banyard to drop the trailer and return the tractor to the yard of the terminal. Banyard complied. Shortly thereafter on the same day, Mise discharged Banyard. The grievance, which Banyard filed shortly thereafter, was resolved at the third step of the grievance procedure described above. Banyard was reinstated without any backpay but with full seniority and backpayment by Respondent for him into the health and welfare fund for a 3-week period. In the third instance, which occurred in September, shortly after Banyard's return to work upon resolution of the last-mentioned grievance, Banyard again refused to pull a trailer because it was overloaded and he was discharged. This grievance also reached the third step. In response to instructions from the Joint State Cartage Committee to Respondent and Ban- yard to endeavor to settle the matter, a compromise was reached that Banyard be reinstated with full seniority and full backpayment into the health and welfare fund, but with backpay of $500 in lieu of the $800 in lost earnings. The last grievance requested an interpretation of article 16 and article 6 of the 1964-7 agreement "in regard to driver being forced to pull overloads," the complaint being that "the Company claims you must or you will be voluntarily quiting [sic] your job." The grievance stated as a frame of reference the Schrecengost grievance filed by Banyard, and Banyard's own grievance of June or July and of Septem- ber. The grievance reached the fourth step, where the Joint Area Cartage Committee recommended that "this be a subject for negotiations to determine by interpretation the meaning of this particular Article 16; in the meantime, Companies will operate on the same basis as in the past and not be in violation of the contract, pending clarifica- tion of Art. 16 in coming negotiations ." So far as appears such negotiations as took place thereafter for the 1967-70 agreement referred to above did not result in any 3 A peddle man makes a series of pickups and deliveries on a small city trailer 4 See reference in text supra to sec 2 of art 36 1 Posante named McGruder and could not remember the other interpretation of article 16, and article 16 was carried over into this agreement without change. Some provision was, however, made in article 36 of this agreement for company responsibility to provide employment to a driver at no less than his regular earnings in case his chauffeur's license is suspended or revoked because of size and weight penalties while complying with his employer's instructions to him.4 Since 1966, Banyard has pulled overloads , on occasion, as have other city drivers of Respondent. According to Banyard, he pulled overloads "because at the time [he] wasn't sure what the union's position was above the local level," and because without pulling overloads he had to work 6 days a week in order to earn what other drivers earned in 5 days. According to employee Philip A . Posante, he drove the overloads without complaining because Banyard's experiences in 1966 when Banyard refused to pull overloads "had [him] kind of scared" and [he] didn't want to lose [his] job." C. Respondent 's Practice With Respect to Overloading and the Attendant Risks Deriving Therefrom That there was a practice by Respondent of overloading its trailers is apparent not only from the testimony of Banyard, but also from that of other city drivers. Thus, employee Luther Hawk testified that he had discussions with Mise regarding picking up and delivering overloaded vehicles and, at one time in 1969, Mise told him to pull the load and not get caught ; and that McGruder and Hagen, dispatchers at the terminal, told him to pull such loads, after he had called the matter of the overload to their attention. In this connection, Hawk recalled complaining to Hagen about a load which scaled 26,000 pounds on the drive axle. In addition, Posante recalled being told by two dispatchers5 of Respondent over a period of years to pick up an overload, and that as recently as a month before the instant hearing he wasp told by one of Respondent's dispatchers, named Toy, to pick up an overload. He also recalled picking up overloads from the Lincoln Electric Company "on several occasions," and that one of the loads, picked up in 1969, weighed over 40,000 pounds. Finally, employee Harold N. Crable testified that he, too, has been told to pull overloads. He recalled pulling one overload of about 44,000 pounds in 1969 on a trip from Chicago to Cleveland and of pulling a couple of overloads of 40,000 pounds during 1969 out of the Specialty Products Company plant in Cleveland. As to the attendant risks in driving an overload , Posante testified (1) that he had trouble trying to keep up with the traffic "on the Interstate," explaining "it wasn't the speed you just couldn't pull;"6 and (2) that if there was too much weight on the front or drive axle (i .e. where the tractor and trailer are conjoined), "if an emergency arose [he ] wouldn't have a chance," as the equipment would not brake that load to a stop as it would with a legal load. In this connection, Crable testified that the effect of an overload is dispatcher's name 6 At another point, Posante testified that the equipment , namely, the single-axle tractor and 40-foot trailer attached "is too light for the load " All references herein are to this type of tractor-trailer McLEAN TRUCKING CO 719 that "it is pretty rough to stop." And Banyard testified that an overloaded vehicle puts excess strain on the tires 7 and braking mechanism, with the result that it is "hard to stop an overloaded vehicle or to control it as far as maneuvera- bility goes." He testified further that, whether you load the front end heavy or the back end heavy, the vehicle is unsafe to operate; and that overloading the drive axle makes the vehicle harder to maneuver, while overloading the back affects the steering of the front end and may cause swaying back and forth. It is apparent from all the foregoing, and I find, that Respondent has, at all relevant times, had a practice of requiring its city drivers to pull overloads, notwithstanding the fact that such overloading rendered the vehicle involved (a) more difficult to bung to a stop by braking it, and (b) more difficult to steer and maneuver than a properly loaded vehicle, creating thereby an unsafe condition for the driver involved, the vehicle and its contents, and the persons and property of others in and near the highways over which the vehicle traveled. D. Banyard's Discharge on October 7, and an Incident Prior Thereto The record shows that Banyard again refused to pull an overload on October 6, 1969, and was discharged therefor the next day. It is apparent that Banyard reached a decision at the end of September or early in October not to pull any more overloads after having pulled an overloaded trailer weighing about 42,000 pounds from the Glidden Company into Respondent's terminal. Thus, Banyard testified that the morning after, at about 8 o'clock, he brought the matter to the attention of the day dispatcher, Bastian, in front of four or five other drivers. Banyard then said that "as far as [he] was concerned [he] didn't intend to pull any more overloads for McLean Trucking Company." To this, Bastian replied, "We will cross the bridge when we get to it." As to the discharge incident itself, Banyard testified as follows- After he emptied his trailer by delivering a load from Respondent's terminal to a point in Cleveland, Ohio, he inquired by telephone from Bastian as to his next assignment Bastian instructed him to go to the Specialty Products Company and pick up 40,000 pounds which was going to a point in New England. Although he replied that a 40,000-pound load would be too big for the equipment he was driving, Bastian said "to go and pick up the load and bring it in." Upon reaching the premises of Specialty Products Company, he learned from the manifest fur- nished him by a man in the general office8 that the load he was to pick up consisted of 800 bags of 50 pounds each, containing some kind of breading. He alerted this individual to the overloading problem and suggested cutting the load back to 720 bags. He was told, in turn, that this would be all right if agreeable to Respondent, since 7 According to Banyard, the warranty on each tire is 5,000 pounds, so, technically speaking, you can load 20,000 pounds on the drive axle which has four tires, and 40,000 pounds on the back of the trailer which has eight tires " This individual is not identified in the record The bags contained 50 pounds of breading and the bags themselves weighed one pound each, the net weight was thus 40,000 pounds, and the Respondent's drivers had hauled loads like the present one before. Whereupon, he called Bastian and informed him of this conversation. Bastian refused to cut back the load, however, and instructed him "to load the front end light and the back end heavy and to bring it in." He protested, saying that the load would then be too heavy and that he was not going to bring the load in. Bastian's final orders were, "You just load the trailer." He complied with these orders, loading the front end light and the back end heavy. He also marked the bill of lading 40,800 pounds9 and 2,900 pounds overloaded. When he telephoned the terminal again to advise that the trailer was loaded as per instructions, he spoke to Hayden, the dispatcher on the next shift after that of Bastian. Hayden called Mise to the telephone. During his conversation with Mise, Mise told him, after being informed of developments on this shipment, to "bring it in," but he refused to do so. Whereupon, Mise directed him to "drop the trailer and bobtail in." 10 He thereupon returned the tractor to the terminal around 5:30 p in., and was told to check out. And upon inquiry as to when to report for work the next morning, he was told to report at 8 a.m., which is his regular starting time. In regard to the claim of Banyard that the October 6 shipment was overweight, the parties stipulated that the equipment driven by Banyard on that date would be overweight in accordance with Ohio law if the drive axle weight exceeded 19,000 pounds plus 3-percent tolerance and/or the trailer axle weight exceeded 32,000 pounds plus 3-percent tolerance.ii It is further apparent from the testimony of Banyard that the foregoing figures would mean that "the most you can scale out" is under 38,000 pounds. Banyard also explained, in effect, that with the back of the trailer loaded heavy, Respondent could then, after he arrived at the terminal, take 3,000 pounds off the back of the trailer, thereby leaving the front and back ends of the trailer legal and reducing the scaling out figure to an allowable weight under 38,000 pounds. It is thus apparent, and I find, that the October 6 shipment was in excess of the lawful weight under Ohio law and that Banyard did, in fact, refuse to pull an overload on that date. On the morning of October 7, Banyard reported for work a few minutes before 8 Although drivers were dispatched on the basis of seniority, and about seven drivers were dispatched by 9 o'clock, Banyard's seniority was not recognized and he received no assignment. Upon inquiring from the dispatcher, Banyard was told to repair to the basement of the terminal and await the arrival of a union business agent summoned by Respondent At about 10 o'clock, John Kalnicki, the president of Local 407 and its business representative, arrived at the terminal. After Kalnicki spoke with Banyard, both of them went to Mise's office. According to the mutually corroborative testimony of Kalnicki and Banyard, Mise then informed them that Banyard had been discharged for refusing to follow gross weight was 40,800 pounds 10 Bobtailing is a term for separating the trailer from the tractor and then returning to the terminal with the tractor I i The parties also stipulated, in this connection, that under Ohio law no penalties would be assessed against a driver's license but that any overweight was the obligation of the owner of the company involved 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructions; and their efforts to get into a discussion of the matter with Mise was foreclosed by Mise's insistence that his mind was made up. Mise also declared the case deadlocked. Whereupon, it was taken to the grievance procedure under the contract. As of the date of the hearing, the grievance was still unresolved. The gnevance had been considered by the Joint Local Area Committee, the Joint State Cartage Committee, and the Joint Area Cartage Committee, and each committee, bipartisan in structure, deadlocked on the matter; it was then referred to the Multi-Conference Committee, but no meeting had as yet been scheduled. E. Discussion and Concluding Findings I have heretofore found, in substance, (1) that since 1966, Respondent has had a policy of requiring its city drivers to carry overloads in company vehicles; (2) that the carrying of overloads is fraught with danger to the safety of the driver, his cargo, and to other persons and property; (3) that, in 1966, Banyard challenged Respondent's position on overloads by protesting an overload situation involving another driver and by twice refusing on his own to carry overloads; (4) that Banyard's refusal resulted in discharges in each instance, but he was subsequently reinstated with full seniority as the result of his filing and the processing of a grievance under existing grievance procedures, (5) that Banyard saw Respondent's position on overloads as a violation of his and other city drivers' rights under article 16 of the 1964-67 National Master Freight Agreement between Respondent and Local 407, and he filed a grievance in November 1966 seeking an interpretation of that clause as it applied to the three overload situations dust described, but this matter was not resolved as the committee handling the grievance at the state level decided to leave the interpretation of article 16 to be determined by negotiation between the contracting parties; (6) that the ensuing 1967-70 master agreement continued article 16 without change and without the parties having negotiated any interpretation thereof, 12 (7) that Banyard, after a lapse of almost 3 years, during which period he did pull overloads,13 warned Respondent at about the end of September or early October 1969, that he would not pull overloads any more, and then shortly thereafter, on October 6, refused to carry out an assignment of pulling an overload, for which he was again discharged; and (8) that the grievance procedure of the current agreement was invoked and the grievance has reached the Multi-Confer- ence Committee level and is still pending and unresolved. Respondent's initial contention in its brief is, in effect, that because the matter of Banyard's discharge has proceeded through various stages of the grievance proce- dure to the Multi-Conference Committee level and Banyard has not withdrawn his grievance and it is still pending, the Board should defer to the grievance-arbitra- tion procedure under the collective-bargaining agreement 12 Indeed, although sec 2 was added this time to art 36 thereof and related to overloads, it provided, in substance, only that an employee who lost his license because he carved an assigned overload would be saved by his employer harmless from any loss of earnings occasioned by his being disabled from driving 13 Banyard explained, as already found, that he pulled the overloads And then addressing itself to the merits of the allegations of the complaint, Respondent contends, in substance, that (1) Banyard was neither engaged in concerted or union activity when he refused to follow instructions to pull the overload and (2) in taking unilateral action in refusing to obey instructions, instead of completing his assignment and then filing a grievance, Banyard exceeded his authority under the bargaining agreement, and his consequent discharge was thus for cause. I shall first treat with the latter two contentions. The Board has held that where an employee files a grievance in which he attempts to enforce or implement an agreement which is applicable to him as well as to other employees, he is engaging in protected concerted activity which is but an extension of the concerted activities that gave rise to that agreement. 14 It is evident from all that transpired in 1966 and thereafter, and I find, that when Banyard refused to pull an overload in 1969, he was again asserting his position that by requiring city drivers to pull overloads, Respondent was violating its agreement with Local 407. He was, in this connection, relying on article 16 of the National Master Freight Agreement of 1967-70, which was identical to the same numbered article of the 1964-67 agreement involved in his challenges in 1966. As dust noted, however, Respondent contends, in effect, that by first refusing to obey instructions to pull the overload, instead of completing his assignment and then following the grievance route, Banyard exceeded his authority under the bargaining agreement and rendered himself vulnerable to discharge and lost the Act's protection. In assessing Respondent's position, it is important to note (1) that Banyard was being ordered by Respondent, over his protests, to perform an illegal act, since to operate the overloaded vehicle would be to violate an Ohio statute respecting allowable weights on this type of vehicle, and (2) that the unchallenged credible testimony herein establishes that an overloaded vehicle, as here, creates problems as to its proper braking and maneuverability, and creates unsafe conditions for the driver, as well as for his cargo and for persons and property on the highways. And it is not a sufficient answer to say that Respondent has, in section 2 of article 36 of the 1967-70 National Master Freight Agreement, committed itself to save harmless from loss of wages any city driver who suffers a loss or suspension of his chauffeur's license in the course of operating an overloaded vehicle pursuant to its instructions, for this would not thereby save such city driver harmless from all the consequences, physical and otherwise, which might flow from an accident occurring in the course of such operation. In these circumstances, and since it would contravene sound public policy for the Board so to interpret the Act as to force a driver, if ordered by his employer, to drive an unsafe overloaded vehicle on the highways and to violate state law in the course thereof as a prerequisite to asserting his Section 7 rights to attempt via the grievance route to enforce or implement an applicable because he did not know the position of his union above the local level on overloads and that, without pulling overloads, he had to work 6 days a week in order to earn what other drivers earned in 5 days i4 See A S Hubbs d/b/a Hubbs Contracting et a!, 163 NLRB 292. 296, and cases cited therein See also The John K/ann Moving and Trucking Company, 170 NLRB 1207, and Harlnell Company, Inc, 169 NLRB 412 MCLEAN TRUCKING CO. 721 bargaining agreement relating to overloading , I conclude, and find , that Respondent's defense is lacking in merit. Accordingly, since Banyard did not forfeit his aforemen- tioned Section 7 rights by refusing to obey Respondent's order to drive the overloaded vehicle on October 6, 1969, I find that Respondent's discharge of Banyard for such refusal to obey interfered with his rights to engage in protected concerted activity , in violation of Section 8(a)(1). And this is so whether or not Banyard was acting in his capacity as steward in challenging Respondent 's position on overloads.15 I turn now to the contention that the Board should withhold its processes and defer this matter to the grievance and arbitration procedure under the collective- bargaining agreements . It is true that the Board has exercised its discretion in the past in recognizing an arbitration award which appears to have been conducted pursuant to fair and regular proceedings , with all parties agreeing to be bound and where the decision is not clearly repugnant to the Act.16 However, that is not the situation here. There is no arbitration award at hand for the Board to recognize . In the latter connection , the Board recently pointed out in the case of Eastern Illinois Gas and Securities Company, 175 NLRB 639, that while it has at times deferred to an arbitration proceeding which has not reached the point of arbitration , 17 it would not do so in that case The Board there said , "Our decision to entertain this complaint does not turn on the fact that the parties invoked but then failed to exhaust the grievance procedure, as the Trial Examiner implies. Although, in appropriate circumstances, the Board has discretion to defer to the grievance arbitration procedure , we do not regard the controversy before us as one which falls within the special competence of an arbitrator to determine . Rather, we find that the dispute is primarily one which calls for resolution under the provisions of the statute which we are charged with enforcing (See Hoerner-Waldorf Paper Products Co, 163 NLRB [772]; Pontiac Motors Division, General Motors Corp., 132 NLRB 413, 415)." In the instant case, it is patent that the issue raised by the allegations of the complaint, namely, whether Banyard has been discharged by Respon- dent because of his concerted or union activity, is not one which falls within the special competence of an arbitrator, but is primarily one for resolution under the provisions of the Act which the Board has been mandated by Congress to enforce . Moreover, resolution of the grievance by arbitration is not a likelihood in this case . As already indicated, Respondent and Local 407 have deadlocked at all steps of the grievance procedure available under the supplemental agreement. And subsequent steps of the grievance procedure, including the Multi-Conference Committee step, where the grievance is now pending, are governed by article 8 of the National Master Agreement which would preclude the submission to arbitration of Banyard's grievance insofar as it would involve the interpretation of article 16 and any other article of the National Master Agreement. In all these circumstances, I conclude, and find, that the availability of the contractual grievance procedure and the fact that Banyard's grievance as to his discharge has already been through various steps of that procedure do not warrant the withholding by the Board of its processes in this case. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 407 is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging James Banyard on October 7, 1969, because he engaged in concerted activity protected by the Act, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged, and is engaging, in unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, as set forth below, including the posting of an appropriate notice, all of which are designed to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged James Banyard, I shall recommend that Respondent remedy such unlawful discrimination by offering him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, privileges, or working conditions, and make him whole for all earnings lost by reason of the discrimina- tion against him, by paying to him a sum of money equal to the amount he would have earned from October 7, 1969, the date of his discharge, to the date of a proper offer of reinstatement, less his net earnings during such period. Backpay, with interest at the rate of 6 percent per annum, shall be computed in the manner set forth in F. W Woolworth Company, 90 NLRB 289; and Isis Plumbing & Heating Co., 138 NLRB 716. [Recommended Order omitted from publication.] 15 As the remedy would in any event be the same, I find it unnecessary to decide whether the discharge also violated Sec 8(a)(3) of the Act 16 See Spielberg Manufacturing Company, 112 NLRB 1080, 1082 17 See, in this connection , Dubo Manufacturing Corporation , 142 NLRB 431