City Disposal Systems, Inc.

CITY DISPOSAL SYSTEMS, INC. 451 City Disposal Systems, Inc. and James Brown. Case 7-CA- 16792 June 9, 1981 DECISION AND ORDER On January 15, 1981, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. The Board has considered the record and the attached Decision in light of the exceptions and brief' and has decided to affirm the rulings, findings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, City Disposal Systems, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 5 ' Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties. 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. a We agree with the Administrative Law Judge's conclusion that Brown's refusal to drive a vehicle which he honestly believed to be unsafe constituted concerted protected activity. Although the Court of Appeals for the Sixth Circuit disagreed with the Board in similar circum- stances in Aro, Inc. v. N.LR.B., 596 F2d 713 (1979), denying enforce- ment to 227 NLRB 243 (1976), we respectfully decline to follow the Sixth Circuit's opinion, and we shall continue to adhere to our decision in that case until such time as the Supreme Court may determine the issue. 4 Member Jenkins would provide interest on the backpay award in ac- cordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). 5 We have substituted a new notice which contains language conform- ing to par. I(a) of the Administrative Law Judge's recommended Order APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise disci- pline employees for refusing to drive vehicles which they honestly believe to be unsafe to 256 NLRB No. 73 operate, a right afforded them under the col- lective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in exercising their rights under the Nation- al Labor Relations Act. WE WILL offer James Brown immediate 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 or privileges previously en- joyed, and WE WILL make him whole for any loss of earnings since his discharge on May 14, 1979, with interest. CITY DISPOSAL SYSTEMS, INC. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: Upon a charge filed by James Brown, an Individual; the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued the com- plaint herein on October 19, 1979,' alleging that Re- spondent, City Disposal Systems, Inc., had violated Sec- tion 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C., §151, et seq., herein called the Act, by discharging employee James Brown because he exer- cised his right under Section 7 of the Act2 and the col- lective-bargaining agreement between Respondent and Local 247, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America to operate a truck which he honestly believed to be unsafe. I heard this case at Detroit, Michigan, on April 11, 16, and 17, 1980. Respondent, by its answer to the com- plaint, denied the commission of the alleged unfair labor practice. For the reasons stated hereafter, I find, in agreement with the General Counsel, that Respondent violated Section 8(a)(1) of the Act, as alleged. Upon the entire record, and from my observation of the witnesses as they testified, and after consideration of the briefs filed by Respondent and counsel for the Gen- eral Counsel, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS At all times material to this case, Respondent City Dis- posal Systems, Inc., a Michigan corporation, with its only office and place of business situated in Detroit, Michigan, has been engaged in the hauling and disposal of waste and rubbish. During the calendar year 1978, Re- spondent, in the course and conduct of its business oper- I Unless otherwise stated, all dates refer to 1979. 2 In pertinent part, Sec. 7 of the Act provides: "Employees shall have the right to self-organization, to form, join. or assist labor organizations, to bargain collectively through representatives of their own choosing. and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection City Disposal Systems, Inc. and James Brown. Case C I T Y D I S P O S A L S Y S T E M S , I N C ~ ~~ ~ ~~~~~~~~~~. 4. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ations, enjoyed gross revenues in excess of $500,000 and provided rubbish removal services valued in excess of $50,000 for the city of Detroit, which annually purchases goods valued at more than $100,000, of which goods valued in excess of $50,000 are shipped to it directly from points outside the State of Michigan. Respondent concedes, and I find from the foregoing data, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. The Facts At the time of his discharge on May 14, truckdriver James Brown3 had been in Respondent's employ since November 3, 1975. Brown's normal assignment was to operate a tractor-trailer combination designated as truck number 245, which he drove between Respondent's De- troit facility and a landfill located at Belleville, Michigan, approximately 37 miles distant, hauling refuse in connec- tion with Respondent's service to the city of Detroit. The immediate cause of Brown's discharge was his re- fusal to drive a tractor-trailer combination designated as truck number 244 on May 14. The General Counsel con- tends that, in refusing to drive truck number 244, Brown was asserting a right which Respondent's collective-bar- gaining agreement with Local Union No. 247 provided as follows: ARTICLE XXI EQUIPMENT, ACCIDENTS AND REPORTS Section 1. The Employer shall not require employ- ees to take out on the streets or highways any vehi- cle that is not in safe operating condition or equipped with the safety appliances prescribed by law. It shall not be a violation of the Agreement where employees refuse to operate such equipment unless such refusal is unjustified. On May 12, as Brown drove truck 245 onto the land- fill with his fourth load of refuse, he noticed fellow em- ployee Frank Hamilton driving Respondent's truck 244 immediately behind him. As Brown maneuvered to dump his cargo, he saw that Hamilton was having difficulty stopping his vehicle. To avoid being hit, Brown pulled his truck out of the way. After Hamilton had stopped, Brown got out of his truck and asked for an explanation. Hamilton explained that when he put his foot on the brake pedal to stop his 3 Respondent sought to impeach Brown's credibility by introducing evidence of his conviction on April 30, 1970, of the crime of uttering and publishing for which he was sentenced to incarceration for 2-1/2 to 14 years. As this conviction involved dishonesty and occurred less than 10 years prior to this hearing, I received the proffered evidence under Rule 609(a) and (b) of the Rules and Evidence for United States Courts and Magistrates. In light of that conviction and his evasiveness during cross- examination, I find Brown to be an unreliable witness. Accordingly, I credited his material testimony only to the extent it was corroborated in significant respects and by the circumstances generally. Phillihps Industrial Components, Inc., a wholly-owned subsidiary of Phillips Industries, Inc., 216 NLRB 885, 889, fn. 8 (1975). vehicle, he found his brakes were not working. Hamilton stated that he "almost hit" Brown and then declared "I don't got a sign of brakes on this truck, and especially here in the landfill pulling up hill like this." Hamilton also said he intended to drive the vehicle "back and get it fixed." 4 After completing their tasks at the landfill, the two re- turned to Respondent's Detroit facility, where Hamilton approached Francis Castelono, a mechanic employed by Respondent at its Detroit facility. In the presence of Re- spondent's mechanic, David Ammerman and driver Brown, Hamilton requested Castelono to check or fix the brakes on truck 244. Castelono responded: "Leave it out the back and we'll get it on the weekend." Ammerman joined, saying, "Yes, we'll take care of it.", On Monday, May 14, Brown reported for work at 4 a.m. He checked the oil, water, and tires on truck 245 and then proceeded to the landfill. Later that morning, Brown had difficulty with truck 245, returned to Re- spondent's garage, and advised mechanic Ammerman that 245 was defective. I find from Ammerman's testimo- ny that he told Brown: "The garage is full. I've got trucks backed up. I'm not gone be [gonna] able to get to it today. The truck is gonna be down. So you might as well go home or see Otto [Jasmund] and see if there's another truck." Brown went to the drivers' dispatch room, where he came upon his supervisor, Otto Jasmund. Brown told him that truck 245 was in disrepair and that Ammerman had told him to go home. Brown told Jasmund that "they were supposed to have fixed [245] but it still wasn't fixed." Jasmund responded: "I'll go out and check." Jasmund soon returned and advised Brown that he "might as well punch out and go home because they're not going to do anything for you now." After further discussion, Brown punched out. However, before Brown could leave, Jasmund asked him to remain and drive 244. Brown answered, "No, there's something wrong with that truck." In the ex- change that followed, Brown explained that "something was wrong with the brakes on the truck . . . there was a grease seal or something leaking causing it to be effect- ing the brakes." At this, Jasmund told Brown to go home. Jasmund's suggestion provoked Brown and an ar- gument ensued between Jasmund and Brown. 6 4 My findings of fact regarding the landfill incident are based on Ham- ilton's and Brown's testimony. 5 I have credited Brown's and Hamilton's testimony regarding Hamil- ton's encounters with Castelono and Ammerman on May 12. 6 Employee Walter Davis, who at the time of the hearing was in Re- spondent's employ, testified candidly regarding Brown's confrontation with Jasmund. In contrast., Supervisor Jasmund, who in substance testi- fied that Brown refused to drive truck 244 because it was Hamilton's truck seemed reluctant to testify on cross-examination. This apparent re- luctance gave way to unmitigated hostility under cross-examination about the absence of a repair order for truck 244, dated May 12, and the asser- tion in Respondent's answer to Brown's unfair labor practice charge that the same truck had been repaired and inspected on that date. When thus confronted, Jasmund glared at counsel for the General Counsel and asked, "Who gave you that information?" This outburst persuaded me that Jasmund was more interested in shielding Respondent than in shed- ding light on the circumstances surrounding Brown's refusal to drive truck 244. Accordingly, I have credited Davis' testimony whenever it Continued CITY DISPOSAL SYSTEMS, INC. 453 Hearing the altercation, a second supervisor, Robert Madary, intervened. Madary asked Brown to take truck 244. Brown declined, stating that the truck "has got problems and I don't want to drive it." Madary persist- ed, pointing out that half of Respondent's trucks "have problems," and that if Respondent attempted to deal with each of those trucks it would be unable to perform its services. Madary complained, "We've got all this gar- bage out here to haul and you tell me about you don't want to drive." Brown responded, "Bob, what you going to do, put the garbage ahead of the safety of the men?" Madary scorned Brown's last remark and returned to the supervisor's office. 7 Following his exchange with Madary, Brown went home. Later that same day, Local 247's recording secretary, John Calandra, received word that Respondent had dis- charged Brown. Calandra relayed that information to Brown. That same afternoon, Calandra and Brown went to Respondent's Detroit facility where they met with Su- pervisors Jasmund and Madary, who refused to reinstate Brown.8 On the following day, Respondent issued a notice to Brown asserting that he had voluntarily quit on May 14. The notice also stated that Brown's misconduct on that date consisted of "Disobeying of orders (refused to drive #244)." On May 15, Brown filed a grievance against Respond- ent concerning the previous day's discharge. The current collective-bargaining agreement between Respondent and Local 247 contained provisions for a three-step grievance procedure terminating in reference to a board of arbitration. However, Brown did not receive the benefit of that procedure. The Union found no merit in Brown's grievance and refused to invoke the contractual grievance procedure. Finally, on September 7, Brown filed the unfair labor practice charge which led to the in- stant proceeding. conflicted with Jasmund's testimony, except as to the date of the confron- tation. On cross-examination, Davis testified that it occurred on May 12. However, the testimony of Brown, Jasmund, and Robert Madary estab- lished May 14 as the date of the confrontation. I Madary testified on direct examination that he heard a heated argu- ment between Jasmund and Brown in which, at first, Brown refused to drive truck 245. In the remainder of his version of the Brown-Jasmund encounter, Madary testified that Brown refused to drive truck 244 be- cause driver Hamilton was coming to work. In rejecting Madary's version and accepting Brown's account of their conversation, I have taken note of the latter's conviction for uttering an publishing. However, there is cause for doubting the reliability of Ma- dary's testimony. Thus, Madary's version of the initial discussion between Jasmund and Brown contradicts Jasmund's corroborated testimony show- ing that there was no disagreement regarding 245. Further. Madary's tes- timony contradicts the credited testimony of employee Davis regarding the balance of the exchange between Brown and Jasmund. Unlike Davis who gave his testimony in a full and forthright manner both on cross- and direct examination, Madary's responses during cross-examination were frequently evasive. I also noted that in large part Madary's testimo- ny on direct examination was in response to leading questions. Further, in light of Brown's experience at the landfill on May 12, and given Davis' credited version of Brown's exchange with Jasmund regarding the prob- lem with truck 244, 1 find it likely that when confronted with a similar request by Madary, Brown responded, as he had previously, that truck 244 had problems with its brakes. 8 I based my findings regarding Calandra's knowledge of Brown's dis- charge, Calandra's imparting of that information to Brown, and their sub- sequent visit to Respondent's facility upon Calandra's testimony and Brown's corroborated testimony. B. Analysis and Conclusions Respondent contends that the complaint herein must be dismissed because Brown did not exhaust his internal union remedies. In support of this contention, Respond- ent set out in its brief what it represented to be article XIX, section 12(a), (b), (c), and section 13 of the consti- tution of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, which is enti- tled "Exhaustion of Remedies. " However, this proffered evidence is not part of the record of this case. Accord- ingly, it lends no support to Respondent's contention. Even if the quoted language were extracted from the International's constitution those provisions have no ap- plication in the instant case. For clearly, they govern only internal union disputes, and not Brown's grievance. Finally, if Respondent is suggesting that Brown was required to exhaust his remedy under the collective-bar- gaining agreement's arbitration and grievance procedure, such contention is wholly without merit. Under Section 10(a) of the Act, the power of the Board with respect to unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or maybe established by agreement, law or otherwise .... " Consistent with the quoted statutory language, "the Board has never shunned jurisdiction merely be- cause a party had the contractual right to go to arbitra- tion but has never exercised the option. [Citations omit- ted.]" Aerodex, Inc., 149 NLRB 192, 199 (1964). It fol- lows that Brown's failure to seek relief under the arbitra- tion and grievance procedure after the Union had reject- ed his grievance did not oust the Board from its jurisdic- 9 The article reads as follows: EXHAUSTION OF REMEDIES Section 12 (a). Every member. officer, elected Business Agent, Local Union, Joint Council or other subordinate body against whom charges have been preferred and disciplinary action taken as a result thereof, or against whom adverse rulings or decisions have been ren- dered or who claims to be aggrieved, shall be obliged to exhaust all remedies provided for in this Constitution and by the International Union before resorting to any court, tribunal or agency against the International Union, any subordinate body or any officer or employ- ee thereof (b) Where a member, officer, elected Business Agent. Local Union. Joint Council or other subordinate body, before or fol- lowing exhaustion of all remedies provided for within the Interna- tional Union, resorts to a court of law and loses his or its cause therein, all costs and expenses incurred by the International Union may be assessed against such individual, Local Union, Joint Council or other subordinate body, in the nature of a fine, subject to all pen- alties, applicable where fines remain unpaid. Where such court action is by an individual or by a Local Union, Joint Council or other subordinate body against a Local Union, Joint Council or other subordinate body the foregoing provision in respect to the pay- ment of costs and expenses shall be applicable in favor of the Local Union, Joint Council or other surbordinate body proceed against in court. (c) The appeals procedure provided herein is also available to and must be followed by any member who is aggrieved by any deci- sion, ruling, opinion or action of the Local Union, membership, offi- cers or Executive Board, excluding collective bargaining matters. Section 13. All decisions following trials or hearings should be made and rendered within sixty (60) days of the date the hearing or trial commenced, unless otherwise ordered by the General Executive Board This time requirement shall not be mandatory but is only di- rectory. CITY DISPOSAL SYSTEMS INC. 453 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion to process the alleged unfair labor practices in this case. Respondent's reliance upon United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564 (1960), and United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960), and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960), all of which involved actions under Section 301 of the Act to compel arbitration under a contract is misplaced. For none of these cases involved attempts to deprive the Board of its authority under Sec- tion 10 of the Act. Aerodex, Inc., supra at 199. The General Counsel contends that Respondent violat- ed Section 8(a)(1) of the Act by discharging driver James Brown because of his protected concerted activity in refusing to drive truck 244, which Brown believed to be unsafe, and because he attempted to "exercise his con- tractual right to refuse to operate a vehicle not in safe operating condition." (G.C. br. p.3.) Respondent denies the alleged violation, contending instead that Brown's re- fusal to drive truck 244 was unprotected because the equipment was "in good operating condition" and fur- ther that Brown "voluntarily punched out and was given a voluntary quit notice." Contrary to Respondent, I find that Brown was discharged in violation of Section 8(a)(1) of the Act. At the outset, I reject Respondent's assertion that Brown quit his employment. There is no showing that Brown ever said he was quitting his employment. Instead the record shows that Brown refused to drive truck 244 after he had punched his timecard and then left Re- spondent's premises. There is no showing that Brown said anything about terminating his employment with Respondent. That same day, shortly after his departure from Respondent's premises, Brown received notification from John Calandra that Respondent had discharged him for refusing to drive truck 244. Calandra also suggested that Brown seek reinstatement to retrieve his job. The same day, Brown, in company with Calandra asked Re- spondent for reinstatement. Respondent rejected the re- quest. Far from supporting the assertion that Brown vol- untarily quit, these facts strongly suggest that Brown wanted his job and that Respondent discharged him on May 14, and I so find. In Roadway Express, Inc., 217 NLRB 278, 279 (1975), the Board declared: 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 provisions in the interest of all the employ- ees covered under that contract. Such activity we have found to be concerted and protected under the Act, and the discharge of an individual for engaging in such activity to be in violation of Section 8(a)(1). [Footnotes omitted.] In that case, the Board, found a violation of Section 8(a)(l) after finding that the discharge of a driver "was caused by his refusal to drive what he believed to be an unsafe tractor, and that such refusal was an attempt to compel adherence to the provisions of the contract .... " Roadway Express, Inc., supra at 279-280. Operation of the Board's policy as set forth in Road- way Express is not dependant on the merits of the assert- ed contract claim or whether the employee expressly re- ferred to the applicable contract in support of his action or was even aware of the existence of the agreement. John Sexton & Co., a Division of Beatrice Food Co., 217 NLRB 80 (1975). The Board does require, however, that the claimed belief be "honestly held." United Parcel Serv- ice, 241 NLRB 1074 (1979). See also McLean Trucking Company, 252 NLRB 728 (1980). In refusing to operate what he claimed to be an unsafe vehicle, Brown was asserting a right under article XXI of the existing collective-bargaining agreement between Respondent and Local Union No. 247. Further, the as- sertion of this right was based on Brown's honest belief that the brakes on truck 244 were inadequate. The record shows that truck 244 came to Brown's attention on May 12 while operating truck 245, when he took eva- sive action to avoid being hit by 244; that driver Frank Hamilton told Brown on that occasion that he was unable to stop truck 244 because it did not have "a sign of brakes"; and, that upon their return to their Detroit facility Brown heard Hamilton complain about truck 244's brakes and request that they be checked. In these circumstances, Brown's complaint 2 days later regarding truck 244's brakes was warranted. Respondent's failure to show Brown that his complaint was unfounded, by e:ther word or demonstration, provided further basis for Brown's claim that truck 244's brakes were unsound. That another driver subsequently drove truck 244 without incident or that Respondent's record show that truck 244 may have been in good repair are not material to the outcome of this case. For under the principles stated above, I need not decide whether truck 244 was in fact safe at the time of Brown's complaint. I therefore conclude that by discharging Brown for his refusal to operate truck 244, Respondent violated Section 8(a)(1) of the Act. United Parcel Service, supra at 1077. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging James Brown on May 14, 1979, Re- spondent has violated Section 8(a)(l) of the Act, and such violation affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action, including reinstating and making whole employee James Brown. In order to effectuate the policies of the Act, backpay computation shall be in accordance with the formula in F. W. Woolworth Company, 90 NLRB 289 (1950). Payroll and other records in possession of Re- spondent are to be made available to the Board, or its agents, to assist in such computation. Interest on backpay CITY DISPOSAL SYSTEMS, INC. 455 shall be computed in accordance with Florida Steel Cor- poration, 231 NLRB 651 (1977).'10 Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 1" The Respondent, City Disposal Systems, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise disciplining its employees because they refuse to drive vehicles which they honest- ly believe to be unsafe to operate, a right afforded them under the collective-bargaining agreement. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer to James Brown reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or c See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962) '' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order, herein shall as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. other rights and privileges, and make him whole as set forth in The Remedy section, above, for any loss of earnings suffered as a result of his discharge. (b) 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 and the right of reinstatement under the terms of this Order. (c) Post at its facility at Detroit, Michigan, copies of the attached notice marked "Appendix."'2 Copies of said notice on forms provided by the Regional Director for Region 7, shall, after being duly signed by Respondent, be posted by Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 12 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." CITY DISPOSAL SYSTEMS, INC. 455