Roadway Express, Inc.

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roadway Express, Inc. and Clay Donald Ferguson. Case 11-CA-4888 April 2, 1975 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 25, 1973, the National Labor Relations Board issued its Decision and Order' in this case adopting the Decision of Administrative Law Judge John M. Dyer, deferring to an arbitration award and dismissing the complaint herein in its entirety. On August 14, 1974, the United States Court of Appeals for the District of Columbia Circuit remanded this case to the Board, with instructions that deferral to the arbitration award not being appropriate in this proceeding, the Board should proceed to a considera- tion of the unfair labor practice issues in a manner not inconsistent with the court's opinion.' Thereafter, the General Counsel and the Charging Party filed briefs, and the Respondent filed a statement of position and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record, the briefs, and the opinion of the court in this case and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consist- ent herewith. We agree with the Administrative Law Judge that Driver Supervisor C. B. Crim's remark to Clay D. Ferguson was not in violation of Section 8(a)(1) of the Act. Contrary to the Administrative Law Judge, we find that Respondent's discharge of Ferguson on March 20, 1972,3 was in violation of Section 8(a)(1). Clay Ferguson started to work for Respondent as an over-the-road driver in August 1963. On March 20, 1972, he was assigned tractor 5777 for a run from Nashville, Tennessee, to Columbia, South Carolina. After inspection of the tractor around 10 a.m., he com- plained about a loose seat and something being wrong with the transmission. A mechanic fixed the seat, and reported that there was nothing wrong with the trans- mission. Upon leaving, Ferguson stated Respondent would probably have to come after him since on a previous occasion he had a tractor whose gears felt like that, and it had broken down on the road. After driving the tractor a short distance, Ferguson noticed that there was some slack in the fifth wheel (the 1 203 NLRB 157 2 Sub nom. Banyard v. N.LR B., 505 F 2d 342. 3 Unless otherwise stated all the events herein occurred during 1972. coupling connection between the tractor and the trailer), which caused a jerking motion when the gears were changed or the brakes applied. According to Fer- guson, after he got on Interstate 40 and drove the truck 5 or 6 miles, there was jerking and twisting in the tractor cab, and he had trouble holding the truck on the road. Feeling that the truck was unsafe, he stopped. Ferguson then flagged down another of Respon- dent's drivers, Potts, and requested that Potts drive the truck awhile and see what if anything was wrong with it. After driving a short distance, Potts pulled over; told Ferguson there was something wrong with the tractor in the way it was jerking around and that he didn't feel it was "safe; and advised Ferguson to take it back to Nashville. Ferguson then drove to Hageman's, a nearby truckstop, and called Respondent's dispatcher who instructed him to have Hageman's mechanic in- spect the truck. The mechanic road-tested the truck and found that it could barely hold the road. When Ferguson again called the Nashville dispatcher, Hage- man's mechanic told the dispatcher that it appeared to him that the front end was out of line, that the right front tire was cupped, and that he couldn't make the repairs. The dispatcher then instructed Ferguson to drive carefully to Respondent's "tire bank" approxi- mately 50 miles away where the tire could be changed and where they could possibly align the front end. Fer- guson refused, and told the dispatcher the tractor wasn't safe to drive. Ferguson then called Respondent's main office in Winston-Salem, North Carolina, and told them some- thing was wrong with the tractor and he wouldn't drive it. Respondent then sent one of its safety supervisors, Williams, along with a mechanic, Caudill, to check the tractor. After conferring with Hageman's mechanic and Ferguson, Caudill and Williams road-tested the truck. They found that there was some vibration in the front end at around 40 to 42 miles per hour, but that it diminished above or below that speed. They advised Ferguson that they considered the vehicle safe. Fergu- son again refused to drive the tractor and contacted Safety Inspector Gatlin of the Department of Trans- portation. Meanwhile Respondent had sent a replace- ment truckdriver, Roberts, to Hageman's to drive the truck the rest of the way to Columbia. Upon Gatlin's arrival at Hageman's he visually checked the truck and asked Roberts to road-test it and tell him what if any- thing was wrong with it. Roberts drove the truck 10 to 15 miles and reported to Gatlin and Ferguson that there was a wobble or shimmy in the front right wheel and some slack in the fifth wheel, but that he felt it was safe to drive. After making this report, Roberts safely drove the tractor approximately 400 miles to Columbia, South Carolina, and thereafter wrote in his vehicle report that 217 NLRB No. 49 ROADWAY EXPRESS, INC. there was some slack in the fifth wheel and some shim- mying in the right front wheel. Ferguson was given a bus ticket and left for Winston- Salem. On the following day he received a letter from Respondent stating that based on his actions of March 20, his seniority was terminated. From Columbia, South Carolina, Logan, another of Respondent's drivers, drove the tractor to Charleston, South Carolina, and then the next day to Winston- Salem, North Carolina. According to Logan he too considered the vehicle safe. On March 22, Respondent's maintenance shop fore- man, Bennett, gave Ray, one of Respondent's mechan- ics, a work order on tractor 5777 to repair the clutch which was hard to push, check the fifth wheel for slack, and check the steering and front end. After checking the fifth wheel, Ray indicated on the work order that it had been checked and no repairs or adjustments were necessary; he also found that the clutch operated nor- mally. However, in checking the steering, Ray found that the rear springs and hangers were excessively worn and, in his opinion, needed replacement. He showed the worn condition to Foreman Bennett and Fleet Manager Healy. A short time later Bennett told Ray to put the vehicle on the ready line, rating it as servicea- ble, and not to replace any parts. Thereafter, Bennett added to the work order "rear pins and hangers" and "road test ok," and then indicated by a code number that no repairs or adjustments were necessary to these. In fact the tractor had not been road-tested and was only driven by mechanics around the yard. The tractor was then sent out for another trip. Ferguson filed a grievance concerning his discharge which came before the Carolina Joint Bi-State Griev- ance Committee on April 11. Following presentation of the evidence by the parties, the Committee ruled that Ferguson's discharge was proper. The General Counsel alleged that Respondent's dis- charge of Ferguson was in violation of Section 8(a)(1), contending that Respondent's actions were in retalia- tion for Ferguson's activities on behalf of PROD, a driver organization; that Respondent disparately treated employees who made complaints concerning safety; and that Ferguson was discharged for asserting his Section 7 rights, and insisting on performance of the union contract. For the reasons given by the Adminis- trative Law Judge, we agree with his findings that there is no showing that Respondent attempted any retalia- tion for any activities by employees on behalf of PROD, or that employees who made complaints concerning safety were treated in a disparate manner. We do find, however, that Ferguson was discharged for asserting his Section 7 rights and insisting on performance of the contract, and that such discharge was in violation of Section 8(a)(1) of the Act. 279 Respondent is a party to the National Master Freight Agreement with the Carolina Freight Council and with the Teamsters . Article l6 of this agreement provides in part as follows: The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety appliances prescribed by law . It - shall not be a violation of this Agreement where em- ployees refuse to operate such equipment unless such refusal is unjustified. All equipment which is refused because not mechanically sound or prop- erly equipped, shall be appropriately tagged so that it cannot be used by other drivers until the maintenance department has adjusted the com- plaint. After equipment is repaired, the Employer shall place on such equipment an "OK" in a con- spicuous place so the driver can see the same. Under no circumstances will an employee be re- quired or assigned to engage in any activity involv- ing dangerous conditions of work or danger to person or property or in violation of any applica- ble 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. Upon reconsideration of the evidence before us in this case, we find that Ferguson was in fact insisting on his contract rights when he refused to drive tractor 5777 on to Columbia. The contract clearly indicates that the Employer shall not require employees to drive an unsafe vehicle, and that employees have a right to refuse to drive such a vehicle. Although Ferguson acted alone in his refusal to drive the tractor, and he did not at the time of his refusal specifically refer to the con- tract as granting him this right, the nature of his com- plaint has significance and relevance under the contract to the interests of all'of Respondent's employees whose employment is governed under the contract. We have held in the past that when an employee makes complaints concerning safety matters which are embodied in a contract, he is acting not only in his own- interest, but is attempting to enforce such contract pro- visions in the interest of all the employees covered un- der that contract. Such activity we have found to be concerted and protected under the Act, and the dis- charge of an individual for engaging in such activity to be in violation of Section 8(a)(1).` As the discharge of Ferguson was caused by his refusal to drive what he believed to be an unsafe tractor, 4 C & I. Air Conditioning, Inc., 193 NLRB 911 (1971), set aside 486 F.2d 977 (C A. 9, 1973); Interboro Contractors, Inc., 157 NLRB 1295 (1966), cf Erie Strayer Company, 213 NLRB No. 45 (1974). 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and as such refusal was an attempt to compel adher- ence to the provisions-of the contract, we find that his discharge was in violation of Section 8(a)(1) of the Act. The court of appeals opined in this case that the Board should consider whether Ferguson's refusal to work fell under the protection of Section 502 of the Act,' and suggested that in determining this the Board might consider whether Ferguson's belief that the tractor was unsafe was amply supported by "ascer- tainable, objective evidence."6 Accepting this as the law of the case, we find that Ferguson's belief that the tractor was unsafe was sup- ported by such objective evidence, and that his refusal to drive the tractor was thus protected under Section 502. Ferguson's observation of the jerking and twisting of the tractor on the road and his opinion that it was unsafe to drive were based on his years of experience in driving such trucks, and were not the unfounded fear one might find in a person driving a tractor-trailer rig for the first time. It also was not a solitary opinion. Another of Respondent's drivers, Potts, and Hage- man's mechanic, Buckliew, both test-drove the truck and told Ferguson that they felt it was unsafe. Such evidence, we believe, is objective enough to lead a per- son to reasonably determine that he should not drive such a truck. We do not believe that the contrary opin- ions of others of Respondent's drivers, and of Caudill and Williams, that the truck was safe, diminish the reasonableness of Ferguson's belief under the circum- stances. Nor do we deem relevant in considering the reasonableness of Ferguson's- activity the fact that the truck was subsequently driven safely for several hun- dred miles without repairs having been made. Remedy Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent will be ordered to offer Clay Donald Ferguson immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of pay suffered as a result of his unlawful discharge, with backpay com- puted as prescribed in F W. Woolworth Company, 90 5 Sec. 502 of the Act provides, in relevant part [N]or shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this Act. 6 Citing Gateway Coal Co v United Mine Workers ofAmerica, et at, 414 US 368 (1974) NLRB 289 (1950), and with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Roadway Express, Inc., Kernersville, North Carolina, its offic- ers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because they engage in concerted activity. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Clay Donald Ferguson 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 and privileges. (b) Make Clay Donald Ferguson whole for any loss of pay he may have suffered as a result of his unlawful discharge in the manner set forth in the Remedy sec- tion of this Supplemental Decision and Order. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business and office at Kerners- ville, North Carolina, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are, customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, -within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ROADWAY EXPRESS , INC. 281 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has or- dered us to post this notice. WE WILL NOT discharge employees because they engage in protected concerted activity. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce employees in the ex- ercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL offer Clay Donald Ferguson immedi- ate and full reinstatement to his former job or, if that job no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges. WE WILL make Clay Donald Ferguson whole for any loss of pay he may have suffered as a result of the discrimination against him. ROADWAY EXPRESS, INC