American Freight System, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Freight System, Inc. and Philip O. McArthur. Case 10-CA-15991 September 27, 1982 DECISION AND ORDER On June 25, 1981, Administrative Law Judge William N. Cates issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and, for the reasons discussed in detail herein, has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 The principal issues before the Administrative Law Judge in this proceeding were whether or not employee Philip McArthur reasonably believed his truck to be unsafe at the time he refused to drive the truck; and, if so, whether the Respondent vio- lated the Act by discharging McArthur for refus- ing to drive the truck. In connection with the reso- lution of these issues, the Administrative Law Judge, in reliance on Spielberg Manufacturing Com- pany, 112 NLRB 1080 (1955), and Suburban Motor Freight, Inc., 247 NLRB 146 (1980), considered a contractual grievance arbitration panel's decision upholding McArthur's discharge, and declined to defer to the decision because, inter alia, it was im- possible to determine from the decision whether the arbitrators considered the statutory issues relat- ed to McArthur's discharge. As detailed by the Administrative Law Judge, on May 29, 1980, McArthur refused to drive a truck which was equipped with steering axle tires which had been declared unsafe for use as steering tires on May 18, 1980, by independent mechanic Burrell. Later on May 29, class A mechanic Fox, an employee of the Respondent, test-drove the truck and concluded that the truck, including the tires, was safe to operate. In view of the conflicting opinions of the two mechanics, McArthur contin- I We herein correct an inadvertent error of the Administrative Law Judge with respect to the date on which Respondent directed certain tire companies to inspect the tires on McArthur's truck. The Administrative Laws Judge incorrectly stated that the date wxas June 30. 1980, rather than May 30. 1980. This inadvertent error does not affect the conclusions reached in this case. 2 In order to more faully remedy Respondent's unfair labor practice, we have modified the Administratise Laws Judge's recommnended Order and notice to require Respondent to expunge from its files any reference to the unlawful discharge of McArthur, and lto notify McArthur. in writing, that this has beenl done and that the unlawful discharge will not be used as a basis for future personnel actions concerning him. We are of the opinion that the policies of the Act will best be effectu- ated if the notice which the Respondent is required to sign and post also includes an introductory paragraph explaining to employees their rights under the Act, and by what process their rights have been upheld. ued to refuse to drive the truck, and also requested that the tires in question be "broken down" and in- spected for inner tire defects. McArthur's request was denied, and the Respondent gave McArthur the choice of either driving the truck or being ter- minated. McArthur persisted in refusing to drive the truck and was immediately terminated. McArthur filed a grievance with respect to his dis- charge, alleging under the collective-bargaining agreement that he had a right to refuse to drive a truck which he reasonably believed was unsafe. 3 The joint grievance committee heard McArthur's grievance on June 24, 1980, and found as follows: "It is the decision of the Committee to deny the claim. Costs to the Union." 4 McArthur, on June 30, 1980, filed the charge in this case alleging that his May 29, 1980, refusal to drive the truck was protected concerted activity, and that the Respondent thereby violated Section 8(a)(1) of the Act by discharging him for engaging in such protected conduct. The Administrative Law Judge found, inter alia, that McArthur was justified in refusing to drive the truck and that his refusal was based on his reasonably held good-faith belief that the truck's tires were unsafe. ' Therefore, McArthur's reasonable concern about the safety of the tires constituted an attempt to enforce the con- tract provisions regarding employee rights not to be compelled to operate unsafe equipment, and, thus, his conduct amounted to protected concerted activity. The discharge of McArthur for engaging in such protected conduct violated Section 8(a)(l) of the Act. In connection with the unfair labor practice find- ing, the Administrative Law Judge, as noted above, declined to defer to the grievance arbitration panel's decision upholding McArthur's discharge, and noted that the highly abbreviated nature of the arbitration decision makes it impossible to tell whether the committee fully considered the statu- tory issue involved in this case (i.e., whether at the time of his refiusal to drive the truck McArthur rea- sonably believed the truck was unsafe). We believe that the Administrative Law Judge was correct in refusing to defer to the committee's decision based on the total lack of any evidence that the statutory issue was resolved or, for that 3 Art 16. sec 1, of the collective-hargailiing agrcemrctr states in perii- nent part: "It shall not be a siolation of this agreement where employees refuse to operate such equipment unless such refusal is unjustified " 4 The Committee set fiorth no findings of fact, no rationale, not anll indication of the basis for its decisiolt " Although the Administrative Laaw Judge did not make a specific finding as to the identity of the tires on McArthur's truck. the record clearly shows that on May 29, 1980, the steering axle tires on McArthur's truck were among those shich had been declared unsafe by mechanic Burrell on May 18. 198(0 264 NLRB No. 18 126 AMERICAN FREIGHT SYSTEM matter, even considered. 6 Our dissenting colleagues believe otherwise and are willing to assume that when, as here, the contractual issue and the statu- tory issue arise out of the same factual situation, the resolution of the former necessarily disposes of the latter. But, in our judgment, this inference is plainly unjustified. The reason for this is that, even when the contractual issue and the statutory issue revolve around the same facts, it does not follow that the standard of proof for the one is the same as that for the other.7 Generally speaking, the standards for establishing the statutory right are less demanding than those which would establish a right under a contract. And that is exactly the situ- ation before us here. In the present case. two distinct standards must be applied to resolve the contractual and statutory issues, one derived from the contract and one de- rived from Section 7 of the Act. To assume with- out the benefit of any evidence, as do our dissent- ing colleagues, that the arbitrators: (1) fully consid- ered the unfair labor practice issue, and (2) applied the correct statutory standard, invites the Board to engage in a type of illogical and blind speculation about what happened during the arbitration hear- ing. For example, in this case, we can presume that, in denying McArthur's claim and upholding the discharge, the arbitrators must have ruled under article 16 of the contract that the tires were in fact not unsafe and, therefore, McArthur's refus- al to drive the truck was "unjustified." However, if the arbitrators applied this "in fact not unsafe" standard in resolving the unfair labor practice issue, then it cannot be said that the statutory issue was resolved by the arbitrators. In order to be protect- ed by Section 7, McArthur's belief that the tires were unsafe need not have been correct, but must only have been reasonable and held in good faith. To condition the protection of the Act on whether or not an employee's reasonable belief about the safety of his truck is later proven to be correct is of little worth to a truckdriver who, without being able to engage in "Monday morning quarterback- ing," is faced with having to decide on the spot whether or not to drive a truck which he reason- ably feels is unsafe. 6 In addition to the reasons stated herein and by the Administrative I as Judge. Menmber Jenkins would not defer to the decision of an arbi- tral panel lacking "neutral members" See his dissenting opinions in Auto- mobile Transport. Inc., 223 NLRB 217 (1976). and Terminal Transport Company, Inc.. 185 NLRB 672 (1970). 7 We note that a case relied on by the dissenters, United Parcel Service. Inc., 232 NLRB 1114 (1977). affd in Bloom v. VL.R.B., 603 F.2d 1015 (D.C. Cir 1979), was decided prior to Suburbon Motor Freight. Inc.. supra, and conscquentl. does not fully discuss the issue of deferral in the context of an arbitration decision which bears no indication that the arbi- trator ruled on the statutory issu,,e ini the calse It is also possible that the arbitrators interpreted the contract to mean that the Respondent's em- ployees are prohibited from engaging in a work stoppage unless the reasons for their concerted ac- tivity are "justified" under the contract. But such contractual standard or rules of what "is a justi- fied" work stoppage cannot override or nullify the employees' Section 7 right to cease work in protest over what they may reasonably deem unsafe work- ing conditions. Thus, in N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 (1962), the Court, in finding that the employer violated Section 7 of the Act by summarily discharging several employees for leaving the plant in protest over the lack of heat reasoned that to allow the employer to en- force the plant rule against leaving the plant with- out permission in the face of the employees' con- certed protest would impermissibly subordinate the employees' statutory rights to the employer's work rules. The same is true in the present case. To sub- ordinate McArthur's Section 7 rights to the arbitra- tors' post hoc determination of whether or not McArthur's refusal to drive the truck was justified under the contract would "place burdens upon em- ployees so great that it would effectively nullify the right to engage in concerted activities. Id. at 14. Therefore, although the contractual and statu- tory issues are factually congruous, it is clear that the legal standards employed to resolve the issues are not identical. It is equally clear that what the arbitrators may have considered "justified" under the contractual standard may have conflicted with the employees' Section 7 rights, and that the award did not resolve this issue. Consequently, to assume that the arbitrators fully considered and applied the proper standards in resolving both issues "goes beyond deferral and approaches abdication." Ban- yard v. N.L.R.B., 505 F.2d 342, 348 (D.C. Cir. 1974). Accordingly, we specifically adopt the Ad- ministrative Law Judge's decision to refuse to defer to the grievance committee's decision. 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, as modi- fied below, and hereby orders that the Respondent, American Freight System, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Insert the following as paragraph 2(b) and re- letter the remaining paragraphs accordingly: 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(b) Expunge from its files any reference to the discharge of Philip McArthur and notify him, in writing, that this has been done and that this un- lawful conduct will not be used as a basis for future personnel actions concerning him." 2. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN VAN DE WATER, dissenting: For the reasons more fully set forth in my dis- sent in Professional Porter & Window Cleaning Co., Division of Propoco, Inc., 263 NLRB 136 (1982), I would defer to the arbitration award of the joint committee upholding the Respondent's discharge of Philip O. McArthur. In my opinion, the award fully meets the standards for deferral set by the Board in Spielberg Manufacturing Company, 112 NLRB 1080 (1955): The proceedings appear to be fair and regular,8 all parties agreed to be bound, and the result is not clearly repugnant to the Act. The immediate event giving rise to McArthur's discharge was his refusal to drive a tractor-trailer to which he was assigned. McArthur complained that the steering tires were unsafe because of the particular brand of tires and contended that they were the same tires which less than 2 weeks earlier had been found unsafe by an independent mechan- ic. The Respondent arranged to have the truck in- spected by a class A mechanic from its Atlanta, Georgia, shop. The mechanic inspected and test- drove the rig and concluded that the truck and the tires were safe. A union steward told McArthur that he could see nothing wrong with the tires and that McArthur should drive the truck. McArthur continued to refuse to drive the truck and was dis- charged. McArthur filed a grievance contending that his discharge violated the contract, which provided in relevant part: The employer shall not require employees to take out on the streets or highways any vehi- cle that is not in safe operating condition ... . It shall not be a violation of this agree- ment where employees refuse to operate such equipment unless such refusal is unjustified. The courts and the Board have repeatedly held that bipartite griev- ance panels of the type involved herein, although operating without neu- tral arbitrators. are equivalent to traditional arbitration. See, e.g., General Drivcrs. Warehousemen & llelpcr., Local LUnion No. 89 v. Riss & Company, Inc., 372 U.S. 517 519 (1963): Nabisco. Inc. v .N L.R.B., 479 F.2d 770 (2d Cir 1973); Bloom v. N.L.R.B.. 603 F.2d 1015 (D.C Cir. 1979); Denver- Chicago Trucking Company. Inc.. 132 NLRB 1416 (1961): Terminal Trans- port Company, Inc, 185 NLRB 672 (1970). r Subsequently the Respondent had the tires inspected by the district service manager of the tire company The manager found that the tires were in good condition and posed no hazards. The record also shows that the truck with the same Front tires was later dispatched on at least 16 over-the-road trips without incident. McArthur's grievance was fully presented to the Southern Multi-State Grievance Committee, a bi- partite committee established by the bargaining agreement, which held, "It is the decision of the Committee to deny the claim. Costs to the Union." The Administrative Law Judge found that "McArthur was justified in refusing to drive the tractor rig in question" and concluded that the Re- spondent unlawfully discharged McArthur for his reasonable and good-faith assertion of the contrac- tual right to refuse to drive an unsafe vehicle. Al- though the Administrative Law Judge found that the issue before him was contained in the grievance and presented to the committee, he did not defer because, citing Suburban Motor Freight, Inc., 247 NLRB 146 (1980), he found, "It is impossible to tell whether or not the issue was fully considered by the Committee in arriving at its Decision." The decision of the Administrative Law Judge not to defer, and the majority's adoption of that de- cision, is, in my opinion, contrary to sound deferral policy. That the Administrative Law Judge and the majority reach a result on de novo review of the evidence contrary to that of the committee does not warrant departure from Spielberg. There is no question in this case that the issue before the Board was fully presented to the grievance committee. The Administrative Law Judge specifically found, "The record herein indicates that the issue before me, that is, the refusal of McArthur to drive a trac- tor that he considered to be unsafe, was contained in a grievance and presented to the Southern Multi-State Grievance Committee." Absent evi- dence to the contrary, the Board should in general be willing to assume that arbitrators have consid- ered the issues presented to them, including unfair labor practice issues. To presume, as does the Ad- ministrative Law Judge, that arbitrators may not have considered issues presented to them evidences such a distrust of the arbitral forum that deferral would never be warranted. This, however, runs counter to the well-established national policy fa- voring the settlement of labor disputes through the grievance and arbitration machinery of the parties' own choosing. In other words, "[I]t should not be assumed that an arbitrator has snubbed the Act any more than that he has exceeded his authority." Douglas Aircraft Company v. N.L.R.B., 609 F.2d 352, 355 (9th Cir. 1979). The principle that the Board should assume that arbitrators, arbitration panels, and joint committees have considered unfair labor practice issues pre- sented to them is especially applicable where, as here, resolution of the contractual issue necessarily resolves the unfair labor practice issue. The con- tractual issue presented to the grievance committee 128 AMERICAN FREIGHT SYSTEM is congruous to the unfair labor practice issue; both involve whether McArthur was justified in his re- fusal to drive the truck. The contractual and statu- tory issue to be decided turns on factual consider- ations about the safety of the tires on the truck and McArthur's contractual rights and obligations with respect thereto, and that issue was fully presented to the grievance committee. Thus, to find that the committee, which was composed of management and union representatives in the trucking industry, may not have considered the unfair labor practice issue would be to find that the committee may not have considered the very issue presented to it. The committee gave no explanation of its award, but that is no reason to find that it failed to consider the issue presented to it. A written decision is not necessary: the key is the evidence presented. Bloom v. N.L.R.B., supra, 603 F.2d at 1020. The commit- tee's resolution of the grievance necessarily re- solves the statutory and contractual issue. For these reasons I would find that the record herein demonstrates that the committee did consider the unfair labor practice issue before it. Accordingly, deferral to the award is required by Spielberg. ° In United Parcel Service, Inc., 232 NLRB 1114 (1977), a case as close to the instant case as any can be to another, the panel majority (Member Jenkins stating he would dismiss the complaint on the merits) deferred to the decision of the joint com- mittee and dismissed the complaint in its entirety. In that case driver Adam Bloom refused to drive his assigned tractor because he concluded that the steering tires were unsafe. Bloom's refusal prompt- ed a tire examination by respondent's maintenance department which found the tires to be in safe op- erating condition. Bloom continued to refuse to drive the tractor and was suspended. He filed a grievance citing a contractual safety provision identical in relevant part to that involved in the in- stant proceeding. The committee upheld Bloom's discharge, finding, "There have been no facts pre- sented to indicate any violation of Article 18 . . . the facts presented indicate that the employee re- fused to work when work was offered . . . [and] 'o I agree with Member Hunter for the reasons stated in his separate dissent that the test for deferral used by the majority is unworkable, To require the grievance panel to treat the unfair labor practice issue as if the panel were an aidminlmsratise la.s. judge. as the majorit) apparently would do, is excecdillgly restricisc. Where as here the standard applied by the grievance panel in the context of the bargaining agreement is suffi- ciently congruous to the standard applied by the Board in the context of an unfair labor practice complaint and the panel has made the necessary determinations of fact, deferral is appropriate and required under Spiel- herg To refuse to defer because the award may be susceptible to an im- permissible interpretation reverses the proper deferral standard that if an arbitral award is arguably susceptible to a permissible interpretation, as is the award hereint deferral is required. Douglas Aircraft Company v ,VL R.B., supra. 60O F 2d at 355; . L R. B. v. Pincus Brothers. Inc.. Max- well. 620 F 2d 367. 377 (3d Cir 190) his continued refusal to work as directed was just cause for his discharge." Based on the foregoing, United Parcel Service is clear precedent for deferral herein. Although the committee in the instant pro- ceeding did not state, even summarily, that its deci- sion was based on the facts, the omission is not critical for it is reasonable to assume that the com- mittee did consider the facts presented to it and un- reasonable to assume that it failed to do so. The Board's decision to defer in United Parcel Service was affirmed by the D.C. Circuit in Bloom v. N.L.R.B., supra. The court, following its deci- sion in Banyard v. N.L.R.B., 505 F.2d 342 (D.C. Cir. 1974), which held in part that deferral is inap- propriate unless the unfair labor practice issue was "clearly decided" by the arbitrator, specifically found that the statutory issue had been clearly de- cided. The court found that the basic question in both the contractual and statutory settings was the same, noted that the question was fully presented to the committee, and concluded, at 1021, "In light of these factors we have no difficulty holding that the requisite congruence between the contractual and statutory issues was present and that the panel clearly resolved the necessary questions." In the in- stant proceeding, the Board should have no diffi- culty in finding that the committee clearly consid- ered and resolved the necessary questions. To hold otherwise, as does the majority herein, is contrary to sound deferral policy and contrary to clear Board and court precedent. For the foregoing reasons, I would defer to the decision of the joint committee upholding the dis- charge of driver McArthur and would accordingly dismiss the complaint in its entirety. MEMBER HUNTER, dissenting: I would defer to the award of the joint commit- tee since I find that the award comports with the standard I set forth in my dissent in Professional Porter & Window Cleaning Co., Division of Propoco, Inc., 263 NLRB 136 (1982). In the instant case the Administrative Law Judge refused to defer to the award because it did not specifically discuss the al- leged unfair labor practice. as apparently now re- quired by Suburban Motor Freight. Inc., 247 NLRB 146 (1980). In Propoco I explained my disagreement with this requirement, and I continue to adhere to my view that such a requirement is contrary to the strong national policy which favors voluntary arbi- tration. Indeed, imposing such a requirement shows little, if any, understanding of the role and authori- ty of arbitrators who are responsible for contract interpretation, not statutory matters. In the instant case, driver Philip McArthur re- fused to drive a tractor-trailer truck to which he 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was assigned because he claimed that the tires were unsafe. He objected to the particular brand of tires, and argued that they were the same tires that an independent mechanic had found unsafe approxi- mately 10 days before. In response to this com- plaint, the Respondent had the tires inspected and test-driven by a class A mechanic who concluded that the tires were safe. When McArthur still re- fused to drive the truck, the Respondent dis- charged him. The collective-bargaining agreement provides in relevant part that: The employer shall not require employees to take out . . . any vehicle that is not in safe op- erating condition .... It shall not be a viola- tion of this agreement where employees refuse to operate such equipment unless such refusal is unjustified. . . Under no circumstances will an employee be required or assigned to engage in any activ- ity involving dangerous conditions of work or danger to personal property or in any viola- tion of any applicable statute or court order, or in violation of a government regulation re- lating to safety of persons or equipment. [Art. 16, secs. 1 and 2.] McArthur grieved his discharge under these sec- tions of the contract, and the transcript of the arbi- tration proceeding reveals that McArthur present- ed his evidence supporting his belief that the tires were unsafe, while the Respondent presented its evidence that the tires were safe. The joint com- mittee, after deliberation, upheld the discharge in a two-sentence award. I would defer to the award because I find that the committee adequately considered the unfair labor practice, and because the award is not repug- nant to the Act. In accordance with Propoco, supra, the first requirement is satisfied because the con- tractual and statutory issues here are factually par- allel and the committee was "presented generally with the facts relevant to the unfair labor prac- tice." It is therefore not necessary that the award explicitly discuss the unfair labor practice, much less apply, as the majority requires, the exact same legal standard used by the Board." I As in Propoco, the majority refuses to defer to the arbitration award because, although the committee was presented with the facts relevant to the unfair labor practice, it did not explicitly apply, nor fully discuss, the legal standard normally used by the Board in cases of this kind. In my view, this test for deferral is unworkable. As I stated in my dissent in Propoco, any differences between the contractual and statutory standards of review my be weighed by the Board as part of our determination of whether the award is "clearly repugnant." As noted. infra, in cases simi- lar to the one herein, we have applied Board law to reach the same result as the committee did. Accordingly, I have concluded that the commit- tee's award is not clearly repugnant. I also find that the award is not clearly repug- nant to the purposes and policies of the Act; that is, it is not "palpably wrong" since it does not fly in the face of well-established and clear Board doc- trine. The Administrative Law Judge did not con- sider this issue since he refused to defer for the rea- sons discussed above. On the merits, however, he found that McArthur's discharge violated Section 8(a)(l) of the Act. He reasoned that McArthur's re- fusal to drive the truck was protected activity since he concluded that McArthur reasonably and hon- estly believed that the truck was unsafe. While the Administrative Law Judge cited cases in support of this result, as the Chairman points out in his dis- senting opinion, the Board has also reached the op- posite result, the outstanding decision being United Parcel Service, Inc., 232 NLRB 1114 (1977), enfd. sub nom. Bloom v. N.L.R.B., 603 F.2d 1015 (D.C. Cir. 1979). This is a case which is virtually identi- cal on its facts to the instant case. Given the Board's decision in United Parcel, I am at a loss to understand how my colleagues can label the joint committee's award "clearly repugnant." Accord- ingly, I dissent. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT discharge or otherwise disci- pline our employees because they refuse to drive vehicles which they reasonably and in good faith believe to be unsafe to operate. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed 130 AMERICAN FREIGHT SYSTEM them in Section 7 of the National Labor Rela- tions Act, as amended. WE Wlt.l offer Philip O. McArthur immedi- ate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to seniority and other rights and privileges, and WE WILt. make him whole for any loss of earnings or other compensation he may have lost because we discriminatorily discharged him, plus inter- est. WE WIll expunge from our files any refer- ence to the discharge of Philip McArthur and notify him, in writing, that this has been done and that this unlawful conduct will not be used as a basis for future personnel actions concerning him. AMERICAN FREIGHT SYSTEM, INC. DECISION SI ATI- M NT OF rHE CASE WII.I.IAM N. CAli'S, Administrative Law Judge: This case was heard in Atlanta, Georgia, on April 13, 1981, pursuant to a charge filed on June 30, 1980, by Philip O. McArthur, an individual. herein McArthur, and a com- plaint and notice of hearing issued on August 14, 1980. The essence of the complaint was that American Freight System. Inc., herein Respondent, terminated McArthur on May 29, 1980, because he engaged in protected con- certed activity by refusing to drive a tractor-trailer al- leged to be defective and unsafe, and that Respondent thereby violated Section 8(a)(1) of the National Labor Relations Act, herein the Act. The issues in this matter were joined by Respondent's answer of August 21, 1980, wherein it denied having vio- lated the Act in any manner. The primary issue involved is whether Respondent violated Section 8(a)(l) of the Act by discriminatorily discharging McArthur because of his protected concert- ed activities. An additional issue raised by Respondent's defense is whether the proceedings under the grievance procedures of the collective-bargaining agreement be- tween Respondent and the Union involving McArthur's discharge preclude a finding of a violation of the Act. Each party was afforded full opportunity to be heard, to call, examine, and cross-examine witnesses, to file briefs, and to submit proposed findings of fact and con- clusions of law. Upon the entire record made in this pro- ceeding, including my observation of each witness who testified herein, and after due consideration of briefs filed by counsel for Respondent and counsel for the General Counsel, I make the following: FINDIN(iS 01 FAC I ANt) CONCI USIONS I. JURISDICTION The Respondent, a Delaware corporation, is engaged in the interstate transportation of freight and commod- ities and, in connection therewith, maintains an office and place of business located in Atlanta, Georgia. During the past calendar year, and at all other times material herein, Respondent received revenue in excess of $50,000 from the interstate transportation of freight and com- modities. The complaint alleges, Respondent admits, and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and I find, that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 728, is a labor organization within the meaning of Section 2(5) of the Act. ill. THE A I.I.EGED UNFAIR LABOR PRACTICES A. Sequence of Events' McArthur, an over-the-road truckdriver, began work- ing for Respondent in September 1967. On May 29, 1980, McArthur was discharged and his separation notice (G.C. Exh. 3) stated, "McArthur refused to pull a load of freight after he was dispatched which was abandoning he [sic] job and his name was removed from [the] senior- ity list." McArthur testified he refused to drive the as- signed tractor-trailer load because of what he considered unsafe tires on the steering axles of the vehicle in ques- tion. McArthur stated his trouble with tires commenced while he was in the process of making an over-the-road assigned run which run took him through Burnsville, Mississippi, on May 18, 1980. McArthur testified he was having trouble with a tire on the steering axle of the unit he was driving and he reported a breakdown of equip- ment from his location in Burnsville, Mississippi, to Re- spondent's shop foreman, Carver, in Atlanta, Georgia. Shop Foreman Carver suggested McArthur have a me- chanic examine the tires. McArthur informed Shop Fore- man Carver that he, Carver, should contact a mechanic himself inasmuch as Carver had a list of mechanics Re- spondent utilized. McArthur testified he also spoke with Line Driver Supervisor Hoyt Pye in Cartersville, Geor- gia, via telephone from Burnsville, Mississippi. Accord- ing to McArthur, Pye inquired if he, McArthur, thought the tires would be of such a condition as to permit him to complete his assigned run into Atlanta. McArthur told Pye he thought the tires were unsafe. Respondent dispatched Bill Burrell, owner of Bill's Garage of Corinth, Mississippi, to examine the tires on the rig that McArthur was driving. According to McArthur, Burrell examined the tires on the pull axles of the rig and indicated that he, Burrell, would not run any of the tandem tires on the steering axle because of dry rot in the tires. Respondent had asked that McArthur and Burrell determine if any of the pull tires could be I I have set forth the sequence of events based on the testimony of the witnesses indicated, each of whom I have concluded told the truth. An} conflicts or inconsistencies in the testimony herein I find to he minor and inconsequential to a disposition of the allegations of the complaint for the reasons that will be explained infra. 131 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD transferred to the steering axle and permit the truck to be brought on to Atlanta. McArthur testified he then re- ported the results of Burrell's check of the tires to Pye in Cartersville, Georgia. McArthur stated Pye asked if he thought the mechanic could be in error, to which McArthur told Pye that Respondent had called the me- chanic and that Respondent ought to live with the me- chanic's decision. A new tire was sent from Memphis, Tennessee, to Burnsville, Mississippi, placed on the left front steering axle of the unit, and McArthur drove the unit, into Atlanta where he was told by the lane man not to do anything to the truck but to pull it into Respond- ent's lot number 6 and shut it down. Bill Burrell, who owns Bill's Garage and Towing Service in Corinth, Mississippi, corroborated McArthur's testimony with respect to the May 18, 1980, incident in Burnsville, Mississippi. 3urrell testified he was called by Respondent at his Corinth, Mississippi, location to make a check of a vehicle's tires of Respondent in Burnsville, Mississippi. Burrell testified he was instructed to take a tire, whichever one was best, off the pull axle of the rig and put it on the drive axle. Burrell stated that he, along with McArthur and a Burnsville city policeman, exam- ined the tires and that he (Burrell) did not think the best tire on the pull axles, based on its looks, was safe. Burrell testified, "I wouldn't drive the truck with it on the front axle." Burrell stated he informed Respondent via tele- phone from Burnsville that he did not think the best tire on the pull axles would be safe enough to place on the front axle and that he would not drive the rig with it on the front axle. McArthur testified the next incident involving what he considered unsafe equipment took place on May 22, 1980. On that date, prior to reporting to work, McArthur testified he received a telephone call from a fellow employee who informed him that Respondent was trying to set him up on a run he was to take to Memphis, Tennessee. McArthur testified that on his assigned run on May 22 the first vehicle he was assigned to take had brake shoes extremely worn with parts of the brake shoes actually missing from the truck. McArthur testified it took three exchanges of equipment before he was able to obtain a truck that was safe to make his scheduled over-the-road run to Memphis, Tennessee, on May 22, 1980. McArthur testified he spoke via telephone in the morning hours of May 29, 1980, with vice president of transportation for Respondent, Conrad Gustavfson, at his office in Overland Park, Kansas. McArthur told Gustavf- son of the brake problems on trailer 29-91201418 and of what he considered to be harassment in the form of com- ments made to him by Maintenance Supervisor Richard W. Childs. Later that same day, May 29, 1980, at approximately 2 p.m., McArthur testified that as he was approaching the parking lot, a fellow employee, Frank Gresham. in- formed him that Respondent was attempting to set him up on tractor G-77034. McArthur proceeded to the dis- patch office and asked dispatcher Butch Yancey if trac- tor G-77005 was a ready-line tractor and if it was, he would like to operate it on that day as he had operated it the night before. The dispatcher informed McArthur that it was a ready-line tractor and he could use it if he wished and then provided him with a "hook out slip" for tractor G-77005.2 McArthur stated he left the dispatcher only to be called back a few moments later and told by the dispatcher that he could not have tractor G-77005, but rather the shop wanted him to have tractor G-77034. McArthur testified that the yard hostler brought the unit (G-77034) to the ready line and he proceeded to make a pretrip inspection of the vehicle. McArthur testi- fied that as he approached the front of the vehicle he looked at the right front tire, and the number on it along with the condition of the tire jogged his memory that he had seen the tire and the tire number someplace else. McArthur testified that the two tires on the steering axle of the ready-line unit (G-77034) in his estimation were the same tires with the same numbers that were repre- sented to him in Burnsville, Mississippi, on May 18, 1980, as being unsafe. McArthur testified that upon observing the two tires in question on the steering axle of the rig he was to drive, he returned to the terminal office and informed Operations Manager Norman Hart of his find- ing. McArthur testified, "I told Mr. Hart I could not drive that unit with those two General tires on the steer- ing axle." According to McArthur, when he informed Hart of his assessment of the rig assigned to him to drive, Hart called W. C. Crane and W. D. Duncan, both employees of Respondent who also were union stewards for the drivers. McArthur informed Union Stewards Duncan and Crane that the tires he had reservations about were the same tires that had been ruled unsafe by Burrell in Burnsville, Mississippi. McArthur testified that he, along with Crane and Duncan, approached the rig to check it out; Maintenance Supervisor Childs approached where they were and, according to McArthur, Crane and Duncan told Childs that the tires had dry rot on them and that the tires on the pull axles were newer and better than those on the steering axle. McArthur testified that Childs sent for Buster Fox, a class A mechanic in Re- spondent's Atlanta, Georgia, shop. Fox test-drove the rig around the block. McArthur and the others returned to the office area. McArthur testified that Childs came into the area and told Operations Manager Hart in McArthur's presence that class A mechanic Fox had ruled the truck including the tires to be safe. McArthur testified that he at that point stated, "I then asked them permission again, as I did in Burnsville, to break the tires off the rim, check the inner sidewalls for vulcanized spots and check the inner tire on the tread line for plugs being stuck through it. They denied me the right to do that, and I said I cannot drive that truck with those two tires on it, because they have been pronounced unsafe already." McArthur asked Operations Manager Hart if he would place him (McArthur) on hold until such time as an investigator could arrive from Respondent's Kansas office.3 Hart in- ' A hook-olut lip simply means that the yard hostler will hook that particular tractor to the appropriate trailer and bring it to the ready line for the driver to depart for his assigned run a McArthur described the situation where a driver was "put on hold" as meaning he could not he dispatched for a trip hilt was not fired until a Continued 132 AMERICAN FREIGHT SYSTEM quired of McArthur if this was what he really wanted, and McArthur told him it definitely was. Hart then in- formed McArthur that he would have to discuss the matter with Terminal Manager James L. Farmer. McArthur testified that Farmer and Hart returned from Farmer's office and Farmer told McArthur that he would either drive the truck or be dismissed. McArthur testified he told Farmer, "You will have to dismiss me: I cannot drive the unit with any doubt as one mechanic conflicting with another, and the tire has already been pronounced unsafe by a noncompany mechanic." Farmer then told McArthur that he had no alternative but to dis- miss him and asked if he would please leave Respond- ent's property as soon as possible. McArthur told Farmer that he would see him in court and then left the prem- ises. 4 McArthur acknowledged on cross-examination that he was told by one of the union shop stewards, either Crane or Duncan, that unless he (McArthur) had some tests that demonstrated that the General tires were unroad- worthy or unsafe, he should drive the unit. McArthur further acknowledged on cross-examination that when he returned the rig to Respondent's location on May 18, 1980, follovwing the tire trouble incident in Burnsville, Mississippi, he did not make any indication on his vehicle inspection and condition report, referred to as a TR7 report, of any dry rot condition with respect to any of the tires. McArthur stated that he did not do so because "a dry rotted tire can and is run very often on a tandem of a tractor because if it blows out, it will have absolute- ly no effect on the steering ability of the tractor or in any way liable to cause you to have an accident." Respondent called Operations Manager Norman H. Hart, who testified it was his job to put together and oversee the operation and at times to act as road driver supervisor. Hart testified that McArthur was a bid driver.5 Hart stated that McArthur on May 29, 1980, was to have taken a bid run to Memphis, Tennessee, with a 2 p.m. departure time from the Atlanta terminal. Hart testified McArthur showed up for his bid 2 p.m. departure run to Memphis. At approximately 15 minutes past 2 p.m., Hart was informed via a telephone call from road dispatcher Yancey that McArthur was refusing to drive the unit he had been assigned to Memphis, Tennes- see. Hart testified he then contacted McArthur and asked him if he was refusing to drive his assigned unit to Mem- phis. McArthur told Hart he was. Hart asked why and, according to Hart, McArthur stated, ". . . because it had decision was reached as to what action needed to be taken with respect to the driver. 4 McArthur testified that at the time he and Union Stewards Crane and Duncan were examining the tires on the unit he was assigned, they further canvassed Respondent's entire truck yard for General brand tires on the steering axle of any vehicles McArthur testified they found a unit undergoing repairs with a General tire on the steering axle along with two tractors that "apparently were on the trade-in line," and one unit on the ready line with General tires on the steering axle s Hart defined a hid driver as one who bid on a particular route by seniority and that as such the driver was to be at the terminal on a select date at a select time to depart the terminal with freight. When Respond- ent determined the) were going to bhid a job. Hart testified it counted the runs to a certain area or destination and then by contractual requirement it offered 75 percent of those runs to its employees by bid based on se- niortly General tires on the steering axle." Hart asked McArthur why he was specifically saying General tires, and McArthur told him "it was a policy of that Company, of our Company, not to run a General tire on the steering axle." Hart testified he knew of no such policy and called Tire Shop Supervisor Medlock and inquired of him whether he was aware of any such policy. Accord- ing to Hart, he was informed there was no such policy. Hart informed McArthur that Respondent had no policy with respect to not utilizing General tires on the steering axle, and asked McArthur to drive the unit to Memphis. McArthur declined. Hart testified that '.hen McArthur declined, he (Hart) told McArthur that he would have to take the matter up with his immediate supervisor, Termi- nal Manager James L. Farmer. 6 Hart testified he consulted with Terminal Manager Farmer who informed him that McArthur had the choice of driving the unit to Memphis or being taken out of service. Hart returned to McArthur and informed him of Farmer's decision. Hart testified. "I knew disciplinary action was into progress so I went at this point and brought the union steward, W. D. Duncan, into my office to witness it from this point." Hart testified that. up to the point that the union steward was brought in, McArthur had insisted he was not driving the vehicle because of General tires. Hart informed Duncan of McArthur's refusal to drive the unit and the reason McArthur had advanced for his refusal. It was at this point, according to Hart, that McArthur protested the unroadworthiness of the tires. Hart testified he informed McArthur that a class A mechanic would make an in- spection of the tires and, if they Hwere found to be road- worthy, he would be given another chance to drive the unit. Hart testified the tires were found to be roadworthy; however, he (Hart) had no further contact with the situ- ation inasmuch as Terminal Manager Farmer handled the matter from that point forward. On examination by the General Counsel, Hart ac- knowledged that McArthur told him in Union Steward Duncan's presence that he (McArthur) felt like the two tires on the steering axle of tractor G-77034 which he was assigned to drive to Memphis on May 29, 1980, were the same identical set of tires that had been on the tractor a week before in Mississippi, with which he had had an incident. Hart also acknowledged that McArthur stated he had refused to allow those same two tires to be placed on the steering axle of the unit he was driving in Burnsville, Mississippi, and that he was refusing to drive the vehicle to Memphis with those two tires on the steer- ing axle. Terminal Manager Farmer testified that about an hour after McArthur refused to drive the unit, on May 29, 1980, he (Farmer) was informed of McArthur's refusal. Farmer spoke with McArthur and asked him to take the unit. Farmer testified that McArthur refused, stating, . . . no, he wouldn't pull it because it had General tires on it and General tires were unsafe." Farmer informed 6 The parties stipulated that James 1. Farmer and Norman It Hart at all times material herein were super'visors and agents lf Respondent within the meaning of Sec 2(1 I) and i 1t1 of the Act - - 133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McArthur that he would have a class A mechanic and a tire man inspect the tires and that he (McArthur) was welcomed to accompany them. According to Farmer, McArthur responded, "[H]e did not care what their deci- sion was on the inspection, that he was not pulling the unit." Farmer had a tire inspection made by Tire Shop Supervisor Medlock, class A mechanic Fox, and Robert Palmer, an employee of Kitchen and Haynie, a local tire and retreading company in the city of Atlanta, Georgia, who did contract work for Respondent. The parties stip- ulated that the report to Farmer by the three individuals indicated above was: Tractor No. G-77034 front axle tires checked for damage, none observed, and tread depth checked. Checked wheel bearings, tie rod ends and steering sector. Checked wheel balance. Checked right front tire, brand no. H94152, General Steel X Radial tread depth 10/32 to 11/32. Air pressure 120. Left front tire, brand no. H94143, General Steel X Radial tread depth 10/32 to 11/32. Air pressure 120. The report was signed by Maintenance Supervisor Richard W. Childs and witnessed by Medlock, Fox, and Palmer. (G.C. Exh. 9.) Steven E. Fox testified that he was a member of the Union and a class A mechanic of Respondent. Fox testi- fied he inspected the front end, all of the electrical equip- ment, the air system, the brakes, and the general condi- tion of tractor No. G-77034 on May 29, 1980, and found the unit to be roadworthy. Fox verified his findings in writing. Fox testified that at the time he was preparing to test unit G-77034, McArthur stated to him, ", . . there is no need checking the tractor .... There is nothing wrong with it. I am just not driving it with damn General tires on the front." Fox stated that at the time McArthur told him he was not going to take the unit with General tires, McArthur was pointing to the front drive axle tires. W. D. Duncan testified that he was a freight checker at Respondent and also the union steward for Local 728 of the Union. Duncan testified he was called into the in- cident involving McArthur on May 29 primarily as a witness to what was said between Operations Manager Hart and McArthur. Duncan testified he was told by Hart that McArthur was refusing to drive a tractor be- cause it had General brand tires on the steering axle. Ac- cording to Duncan, McArthur asked him to read a letter that he had written to the chairman of the board of di- rectors of Respondent, Leon Roberson, which addressed itself primarily to problems of the maintenance shop at the Atlanta terminal. McArthur then told Duncan that he was not going to drive the unit, that Respondent had a policy that they would not run General brand tires on the steering axle. McArthur further informed Duncan that he had difficulty with General tires in Mississippi earlier and that he would not drive the unit with those two General tires on it. Duncan stated that he heard the report read to McArthur with respect to the roadworthi- ness of the tires, which report is set forth supra (G.C. Exh. 9). Duncan testified he did not advise or counsel McArthur with respect to driving the unit because "he told me he had already made up his mind what he-that he was not going to drive it with the General tires on it .... I told him he had made up his mind, there was nothing I could say or anybody else going to change his mind." W. C. Crane testified that he was a freight checker for Respondent and a job steward for Local 728 of the Union. Crane testified he was called by Duncan into a conversation between Duncan and McArthur with re- spect to McArthur's refusing to drive a unit to Memphis on May 29, 1980. Crane stated that Duncan informed him that McArthur was refusing to drive the unit be- cause it had General tires on it. Crane testified McArthur told him that he (McArthur) had been in- volved with a similar incident somewhere in Mississippi and that he would not drive the unit with General tires on it because someone had informed him that General tires were unsafe and that Respondent was not using General brand tires on the steering axles of its units. Crane stated McArthur told him that the tires he was objecting to were the same tires that had been involved in Mississippi, that he had checked them by serial num- bers. Crane testified, "I told him [McArthur] that I could see nothing wrong with the tires, just visually inspecting, and I would think he should pull it [the load to Mem- phis] unless he had some kind of certified lab to show the tires was not roadworthy." Respondent's eastern division director of maintenance, Frederick M. Ritchie, testified that Respondent operated 635 road tractors and 3,500 trailers in its freight-hauling operation, each of which utilized tires. A complete trac- tor-trailer unit utilized 18 tires. According to Ritchie, Respondent utilizes a total of 40,000 tires at any given time and purchases its tires primarily from seven tire producers, namely: Michelin, Toyo, Firestone, Goodyear, Goodrich, General, and Bridgestone. Ritchie further testified that General brand tires are utilized on the steering axle of power equipment throughout Re- spondent's system. Southern Division Director of Labor Relations Robert W. Ozment testified that he received a telephone call at his Nashville, Tennessee, office on May 29, 1980, from Terminal Manager Farmer in which call Farmer ap- prised Ozment that an over-the-road driver by the name of McArthur was refusing to drive a rig because it had General brand tires on it. Ozment testified he instructed Terminal Manager Farmer to have the tire shop with a class A mechanic check the tires on the vehicle. If the unit checked out after being road-tested, to offer the driver to take the unit on his assigned haul and, if he re- fused to drive a safe truck, to consider that the employee had abandoned his job. According to Ozment, the same vehicle with the exact same tires on it that McArthur refused to drive was dis- patched on that same day to Memphis, Tennessee, utiliz- ing another driver. After the vehicle arrived in Memphis, Tennessee, Ozment ordered that the tires be checked for safety. On June 30, 1980, after the vehicle had returned from Memphis to Atlanta with the same identical tires on it, Respondent had Kitchen and Haynie Royal Tire 134 AMERICAN FREIGHT SYSTEM Company and General Tire and Rubber Company in- spect the tires, according to Ozment. The Kitchen and Haynie Royal Tire Company, Inc., report, signed by H. E. Haynie, with respect to the examination of tires H94143 and H94152, which tires were on the steering axle of unit G-77034, stated in pertinent part: After carefully visually inspecting the above tires on said unit-I can determine no unsafe conditions. They have adequate tread remaining for safety,- they show no cuts, bruises, or separations in tread or sidewall areas. They show a smooth and even tread wear condition and no other defects. [Resp. Exh. 8.] The General Tire and Rubber Company, by its district service manager, B. G. Treeze, stated with respect to the tires as follows: I have personally inspected the General 11R22.5 Steelex Plus G Range tires mounted on the steering axle of American Freight System's tractor no. G- 77034. The left front tire, serial no. A33T77N229, has 12/32 nonskid tread remaining and exhibits a smooth, even wear with no irregularities. The right front tire also an I IR22.5, serial no. A33T77N209, has 9/32 nonskid tread remaining and also exhibits a smooth, even wear and no irregulari- ties. It is my opinion that these tires are in good, sound condition and pose no hazards. Ozment testified that Respondent's tractor G-77034 was dispatched on at least 16 over-the-road trips follow- ing McArlhur's refusal to drive the rig On those 16 trips the vehicle had the same 2 tires that were the steering axle tires on the unit on the day that McArthur refused to take it to Memphis, Tennessee. 7 McArthuT filed a grievance (Resp. Exh. 2) with the Union :,n June 9, 1980, with respect to his employment termination at Respondent. Thereafter, on June 24, 1980, at Hollywood. Florida, the grievance, Case 51-A, was heard by the Southern Multi-State Grievance Committee which case was captioned, "American v. Local 728 in- volving the discharge of Philip McArthur." The decision of the Southern Multi-State Grievance Committee was as follows: "It is the decision of the Committee to deny the claim. Costs to the Union." (Resp. Exh. 4.) The parties stipulated into evidence the National Master Freight Agreement covering over-the-road and local cartage employees of private, common, contract and local cartage carriers for the period of April 1, 1979, through May 31, 1982, as being the agreement in effect between Respondent and Union herein. Article 16, sec- tions I and 2, of the agreement just referred to at page 57 thereof states as follows: 7 The 16 dispatches coecred areas from Atlanta to Nashv'~ilk to Si. Louis to Memphis to Nashillc to Atl.jota to Memphis to Dallal, to Bir- mingham tio Atlllani t Tampa tIo Venice to Tampa to Adel, Georgia, to Cartersville. Georgia. to D)a ton. Ohio. and Io Nash illec. cennessee (Resp. Exh. 6h The employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition, including but not limited to acknowledged overweight or not equiped 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 properly equiped, shall be appropriately tagged so that it cannot be used by other drivers until the mainte- nance department has adjusted the complaint. After equipment is repaired. the employer shall place on such equipment an "o.k." in a conspicuous place so the driver can see the same. Under no circumstances wvill an employee be re- quired or assigned to engage in any activity involv- ing dangerous conditions of work or danger to per- sonal property or in any violation of any applicable statute or court order, or in violation of a govern- ment regulation relating to safety of persons or equipment. The term "dangerous conditions of work" does not relate to the type of cargo which is hauled or handled. The parties stipulated that 49 U.S.C. § 1655, which is the Federal Motor Carriers Safety Regulations, herein Safety Regulations, would apply to the instant case. Sec- tion 393.75 of the Safety Regulations is captioned "Tires" (Resp. Exh. 5), and section 392.7 is captioned "Inspection of Equipment and Use" (G.C. Exh. 10).i Section 392.7 of the red book states in pertinent part that no motor vehicle shall be driven unless the driver there- of shall have satisfied himself that the following parts and accessories are in good working order. and among other items listed thereunder is tires. Section 393.75 in the red hook captioned "Tires," at subparagraph (h), states in pertinent part that for any5 tire to be safe on the front wheels of a truck or tractor, it shall have a tread groove pattern depth of at least 4.32 hundredths of an inch when measured at any point on a major tread groove. B. Analysis and Conclusions Counsel for the General Counsel contends that McArthur was engaged in protected concerted activity on May 29. 1980, when he refused to drive his assigned tractor rig because he honestly and reasonably believed that the vehicle was unsafe to drive, a right which courtn- sel for the General Counsel asserts McArthur was at lib- erty to exercise under article 16 of the collective-bargain- ing agreement. Article 16 of the collective-bargaining agreement is set forth supra. Counsel for the General Counsel contends that McArthur honestly and reason- ably believed that the two tires on the steering axle of the tractor he was assigned to drive were the same two tires which had been declared unsafe approximately 10 " it Aould appear that oser-the-road dri'ers refer to the Federal Motor Carrier' Safety Regulations. as published in the United States De- partlmenit of radlsportatioon Federall iiigh'a) XdIlmln ilrlst .it e (iuidt.e, is tIh "red hook " 135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days earlier. Counsel for the General Counsel contends that Respondent, by discharging McArthur because he engaged in the aforementioned protected concerted ac- tivity, violated Section 8(a)(1) of the Act. Respondent contends that McArthur was not engaged in any concerted protected activity within the meaning of the Act, that McArthur unilaterally and singularly chose not to perform his job duty. Further, Respondent contends that under the collective-bargaining agreement, McArthur was granted all of his rights, that he filed a grievance which proceeded to the equivalent of arbitra- tion, and that the discharge was upheld in the arbitration proceeding, and as such the instant case is not properly before the Board. Respondent contends that McArthur was not discharged, but rather abandoned his job when he refused to carry out a work assignment he was in- structed to perform. Respondent contends that McArthur could not have honestly and reasonably enter- tained a belief that the vehicle was unsafe inasmuch as it was inspected by a class A mechanic among others and determined to be roadworthy. Further, in support of its position Respondent contends the vehicle with the tires in question was dispatched that same day on the same trip McArthur was assigned to take, and thereafter dis- patched on numerous trips with the same tires which were thereafter reported to be safe. Therefore, Respond- ent contends that McArthur's refusal to drive the as- signed tractor rig was "unjustified." There are certain principles established by the Board involving the situation where an employee complains about safety matters which are embodied in a collective- bargaining agreement. The Board adopted an Adminis- trative Law Judge's description of those principles in T & T Industries, Inc., 235 NLRB 517, 520 (1978), as fol- lows: Section 8(a)(l) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. Where an employee com- plains about safety matters which are embodied in a contract, he is acting in the interest of all the em- ployees covered by the contract in attempting to enforce those provisions and such actions are held to constitute protected concerted activities under the Act. Roadway Express, Inc., 217 NLRB 278 (1975); C & I Air Conditioning, Inc., McKeon Con- struction, 193 NLRB 911 (1971), set aside 486 F.2d 977 (C.A. 9, 1973); and Interboro Contractors, Inc., 157 NLRB 1295 (1966). Such protection is not de- pendent on the merits of the asserted contract claims or whether the employees expressly referred to applicable contracts in support of their actions or are even aware of the existence of such agreements. John Sexton & Co., a Division of Beatrice Food Co., 217 NLRB 80 (1975); and The Singer Company, Cli- mate Control Division, 198 NLRB 870 (1972), fn. 5. The Board reaffirmed these principles in McLean Trucking Company, 252 NLRB 728 (1980). Applying these principles to the evidence, supra, I have determined and find that under all the circum- stances herein, McArthur was justified in refusing to drive the tractor rig in question. Further, McArthur communicated to Respondent his honest and sincerely held claim that the vehicle was unsafe. The credited tes- timony of McArthur and Burrell indicated that the tires in question were believed by them to be unsafe as a result of dry rot. Additionally, the record testimony herein indicated beyond question that McArthur was concerned with the brand of General tires being on the steering axle of a unit he would be assigned to drive. This concern of McArthur is borne out by the fact that he along with Union Stewards Duncan and Crane can- vassed Respondent's Atlanta truck parking area to deter- mine if there were any vehicles having General brand tires on the steering axle. Accordingly, McArthur re- fused to drive his assigned unit rig because of, among other reasons, the General brand tires on the steering axle. However, the evidence also established that McArthur's concern with General brand tires grew out of, among other reasons, the fact that the two tires in question on the steering axle of the unit McArthur re- fused to drive were General brand tires that had been declared unsafe by an independent mechanic 10 days prior to McArthur's refusal. Under these circumstances, I find McArthur's discharge by Respondent on May 29, 1980, was caused by McArthur's refusal to drive a trac- tor which he reasonably believed to be unsafe and, al- though not specifically mentioned by him, his actions amounted to an attempt to require Respondent to adhere to the safety provisions of the contract affecting the in- terests of all the employees, and as such McArthur's dis- charge for concerted activities violated Section 8(a)(l) of the Act. See McLean Trucking Company, supra, and *oadiway Express, Inc., supra.9 I have concluded that the evidence herein was objec- tively sufficient to justify McArthur's refusal to drive his assigned unit on May 29, 1980, and further that McArthur communicated his reasons to Respondent. I do not find the contrary opinions of other of Respond- ent's personnel, such as that of class A mechanic Fox that the truck was safe, to diminish the reasonableness of 9 Except for the additional words "including but not limited to ac- knowledged overweight" with respect to safety in art 16 in the instant case, it is identical to art. 16 of the same type collective-bargaining agree- ment in the Roadway and McLean cases. The Board found that Roadway discharged employee Ferguson and McLean discharged employee Usry in violation of Sec. 8(a)(I) of the Act for refusing to drive what the em- ployees believed to be unsafe tractors. The Board explained its rationale in Roadway as set forth by the Administrative Las Judge and adopted by the Board in McLean, 252 NLRB at 733, as follows: 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 contract as granting him this right, the nature of his complaint has significance and relevance under the contract to the interest of all of Respondent's employees whose employment is governed under the contract. We have held in the past that when an employee makes com- plaints concerning safety matters which are embodied in a contract, he is acting not only in his own interest, but is attemptinlg to enforce such contract provisions in the interest of all employees covered under the contract. Such activity we have found to be concerted and protected under the Act, and the discharge of an individual for en- gaging in such activity to be in violation of Seclion 8(aXI). 136 AMERICAN FREIGHT SYSTEM McArthur's belief under the circumstance of the instant case, that the vehicle assigned to him was unsafe. Nei- ther do I deem it relevant or controlling in making a de- termination of the reasonableness of McArthur's activity that the tractor in question with the tires in question was driven safely for several hundred miles after McArthur refused to drive the unit. In summary, on the basis of the entire record, I am convinced that McArthur had a reasonably held good- faith belief that the vehicle in question was unsafe to drive. As the contract herein insulated employees from driving unsafe vehicles, McArthur's refusal was clearly concerted and protected. I therefore find that Respond- ent, by discharging McArthur because he engaged in protected concerted activity as described supra, violated Section 8(a)(l) of the Act. 'o IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III above, found to constitute unfair labor practices occur- ring in connection with the operations of Respondent de- scribed in section I above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(I) of the Act, I shall recommend that it cease and desist there- from and take certain affirmative action which I find necessary to effectuate the policies of the Act. Accordingly, Respondent shall be ordered to immedi- ately reinstate Philip O. McArthur to his former job or, if that job no longer exists, to a substantially equivalent 10 With respect to the issue of whether the matter herein should be deferred to the decision of the Southern Multi-State Grievance Commit- tee concerning McArthur's discharge, I have viewed the matter in light of the standards established by the Board in Spielberg Manufacturing Company, 112 NLRB 1080 (1955). With respect to the Spielberg stand- ards, the Board. in Suburban Motor Freight, Inc., 247 NLRB 146 (1980), stated In specific terms, we will no longer honor the results of an arbitra- tion proceeding under Spielberg unless the unfair labor practice issue before the Board was both presented to and considered by the arbi- trator .... [We will give no deference to an arbitration award which bears no indication that the arbitrator ruled on the statutory issue of discrimination in determining the propriety of an employer's disciplinary actions. The record herein indicates that the issue before me, that is, the refusal of McArthur to drive a tractor that he considered to be unsafe, was con- tained in a grievance and presented to the Southern Multi-Stale Griev- ance Committee. However. the second part of the requirement under Spielberg as amplified in Suburban Motor Freight. Inc.. that is, whether it was considered by the committee. was not met. The committee's decision only stated. It is the decision of the Committee to deny the claim. Costs to the Union It is impossible to tell whether or not the issue was considered by the committee in arriving at its decision I therefore decline to defer to the Decision of the Southern Multi-State Grievance Committee. See Kahn's and Company. Division of Consolidated Food Ca, 253 NLRB 25. fn. I (1980). job, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earn- ings and compensation he may have suffered because of the unlawful discrimination against him by discharging him on May 29, 1980. Backpay shall be computed in ac- cordance with F W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in accordance with Flor- ida Steel Corporation, 231 NLRB 651 (1977), enforcement denied on other grounds 586 F.2d 436 (5th Cir. 1978); see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (9th Cir. 1963). Upon the basis of the foregoing facts and the entire record, I make the following: CONCI.USIONS OF LAW 1. American Freight System, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent discharged Philip O. McArthur on May 29, 1980, because he engaged in protected concerted ac- tivity by refusing to drive a tractor-trailer which he rea- sonably and in good faith believed to be unsafe to oper- ate, a right which he could assert under the contract, and Respondent thereby violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On the basis of the above findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER" The Respondent, American Freight System, Inc., At- lanta, Georgia, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging or otherwise disciplining employees because they refuse to drive vehicles which they in good faith reasonably believe to be unsafe to operate, a right which they are free to assert under the collective-bar- gaining 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 necessary to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Philip O. McArthur to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay or other compensation he may have suffered by reason of the discrimination '" 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. 137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against him in the manner set forth in that portion of this Decision entitled "The Remedy." (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 records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Atlanta, Georgia, facility copies of the attached notice marked "Appendix."12 Copies of said I2 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 L abor Relations Board" shall read "Posted Pursu- notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 138