Meyers Industries

MEYERS INDUSTRIES Meyers Industries, Inc. and Kenneth P. Prill. Case 7-CA-17207 6 January 1984 DECISION AND ORDER On 14 January 1981 Administrative Law Judge Robert A. Giannasi issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed cross-exceptions with supporting briefs, after which the General Counsel filed a brief in re- sponse to the Respondent's exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,1 findings, 2 and conclusions only to the extent consistent with this Decision and Order. 3 On 4 November 1980, after the hearing and before the judge's deci- sion, the General Counsel, with the Charging Party's concurrence, moved to amend the complaint to include an additional allegation that the unl*aful nature of Prill's discharge is supported by Sec. 502 of the National L'bor Relations Act. The relevant portion of that section states: INlor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this Act. The judge, after considering the arguments of all parties, denied the Gen- eral Counsel's motion by telegram of II November 1980. The General Counsel and the Charging Party cross-except. We note that counsel for the General Counsel engaged in lengthy argument at the hearing con- cerning the theory of her case both before as well as after the presenta- tion of evidence, but gave no indication that Sec. 502 formed the basis for any portion of the General Counsel's case. In addition, although counsel for the Charging Party took the position at the hearing that Sec. 502 was applicable, counsel for the General Counsel thereafter reiterated that the theory of her case rested on Alleluia Cushion Co., 221 NLRB 999 (1975), and at no time adopted the Charging Party's position. Thus, al- though we agree with the judge that the General Counsel's motion to amend the complaint should be denied, we do so for the reason that the General Counsel neither raised nor litigated the Sec. 502 issue at the hearing. Accordingly, we affirm the judge's ruling and therefore do not reach the issue discussed in fn. 6 of the attached decision of whether Sec. 502 protects an employee in the circumstances of this case. 2The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent also asserts that the judge's decision is the result of bias. After a careful examination of the entire record, we are satisfied that this allegation is without merit. There is no basis for finding that bias and partiality existed merely because the judge resolved important factual conflicts in favor of the General Counsel's witnesses. As the Supreme Court stated in NLRB v. Pittsburgh Steamship Co, 337 U.S. 656, 659 (1949), "IT]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." See generally Jack August En- terprises, 232 NLRB 881 (1977). 3 The Charging Party urges, as part of its cross-exceptions, that it be awarded a reasonable attorney's fee for this litigation. When a respond- ent's defense is dependent upon resolutions of credibility and hence is "debatable" rather than "frivolous," the Board has consistently refused to award litigation costs, even if the respondent has "engaged in 'clearly ag- gravated and pervasive misconduct,' or in the 'flagrant repetition of con- duct previously found unlawful."' Heck's Inc., 215 NLRB 765, 767 (1974); see also Tiidee Products, 194 NLRB 1234 (1972). Upon a review of the record, we cannot say that the Respondent's defenses were frivolous. 268 NLRB No. 73 Relying on Alleluia Cushion Co., 221 NLRB 999, the judge concluded that the Respondent violated Section 8(a)(1) of the Act when it discharged em- ployee Kenneth P. Prill because of his safety com- plaints and his refusal to drive an unsafe truck after reporting its condition to the Tennessee Public Service Commission. Upon careful consideration, and for the reasons set forth below, we reject the principles the Board adopted in Alleluia, and do not agree with the view of protected concerted ac- tivity which that decision and its progeny advance. We, therefore, find that the Respondent did not violate Section 8(a)(l) by discharging Prill. I. THE CONCEPT OF PROTECTED CONCERTED ACTIVITY The concept of concerted action has its basis in Section 7 of the Act, which states in relevant part: Employees shall have the right to self-organi- zation, to form, join, or assist labor organiza- tions, to bargain collectively through 'repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection .... Although the legislative history of Section 7 does not specifically define "concerted activity," it does reveal that Congress considered the concept in terms of individuals united in pursuit of a common goal. The immediate antecedent of Section 7 was Section 7(a) of the National Industrial Recovery Act of 1933, 4 the purpose of which was, as then Congressman Boland suggested, to "afford [the la- boring person] the opportunity to associate freely with his fellow workers for the betterment of working conditions . . . [and it] primarily creates rights in organizations of workers."5 A review of the language of Section 7 leads to a similar united-action interpretation of "concerted activity." The wording of that section demon- Accordingly, we deny the Charging Party's request for reasonable attor- ney's fees. ' 48 Stat. 195, 198. See also § 2 of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 102. The Supreme Court has stated that "Congress modeled the language of § 7 after that found in § 2 of the Norris-LaGuardia Act . . which de- clares that it is the public policy of the United States that 'workers shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of ... representatives or in self organi- zation or in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection....' Easrex, Inc. v. NLRB. 437 U.S. 556, 565 fn 14 (1978). a 79 Cong. Rec. H 2332 (daily ed Feb. 20, 1935) (statement of Rep. Boland), reprinted in 2 Leg. Hist. of the National Labor Relations Act of 1935, at 2431-32 (1935). Boland's analysis of the "collectivist" antecedents of what became Sec. 7 of the Act was recognized by others. See, e.g., William H. Spencer, Collective Bargaining Under Section 7(a) of the .Vational Industrial Recovery Act 3-6 (1935) 493 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strates that the statute envisions "concerted" action in terms of collective activity: the formation of or assistance to a group, or action as a representative on behalf of a group. Section 7 limits the employee rights it grants to the examples of concerted activi- ties specifically enumerated therein-"self-organiza- tion"; forming, joining, or assisting labor organiza- tions; and bargaining collectively ,through repre- sentatives-and to engaging in "other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection." (Emphasis added.) Thus, the statute requires that the activities in ques- tion be "concerted" before they can be "protect- ed." Indeed, Section 7 does not use the term "pro- tected concerted activities," but only "concerted activities." 6 Consistent with this interpretation, the Board and courts before Alleluia generally analyzed the concept of protected concerted activity by first considering whether some kind of group action oc- curred and, only then, considering whether that action was for the purpose of mutual aid or protec- tion.7 In a 1951 case, Root-Carlin, Inc.,8 the Board addressed the issue of what was required in order for activity to be "concerted." The case involved only conversation among employees about the need for a union in their workplace. The Root-Carlin Board stated: Manifestly, the guarantees of Section 7 of the Act extend to concerted activity which in its inception involves only a speaker and a listener, for such activity is an indispensable prelimi- nary step to employee self-organization. [Em- phasis added. 92 NLRB at 1314.] Significantly, the Board described concerted activi- ty in terms of interaction among employees. Several years later, the Board again considered what constituted concerted activity in Traylor- Pamco.9 That case involved the discharge of two men who consistently ate their lunch in the "dry shack" even during a concrete pour, while every- one else ate in the less pleasant surroundings of the tunnel so as to minimize "downtime." The trial ex- aminer, with Board approval, declined to find the 6 The Act does not protect all concerted activity. It is not a violation of the Act to restrain or coerce an employee because he engages in con- certed activity that is not protected-either, for example, because such activity contravenes another section of the Act or another statute, or be- cause it was not engaged in "for the purpose of collective bargaining or other mutual aid or protection." See Eastex, 437 U.S. at 568 fn. 18. See generally Gregory, Unprotected Acrivity and the NLRA, 39 Va. L. Rev. 421 (1953). 7 See, e.g., Texas Textile Mills, 58 NLRB 352 (1944); Lion Brand Mfg. Co., 55 NLRB 798 (1944), enfd. in relevant part 146 F.2d 773 (5th Cir. 1945); Globe Co., 54 NLRB 1 (1943); M. F: A. Milling Co., 26 NLRB 614 (1940), enfd. in relevant part 115 F.2d 140 (8th Cir.). 8 92 NLRB 1313 (1951). 9 154 NLRB 380 (1965). employees' refusal to eat in the tunnel to be con- certed, stating: "There is not even the proverbial iota of evidence that there was any consultation be- tween the two in the matter, that either relied in any measure on the other in making his refusal, or that their association in refusing to eat in the tunnel was anything but accidental." 154 NLRB at 388. Thus, in Traylor-Pamco, the Board continued to define concerted activity in terms of employee interaction in support of a common goal. Thereafter, the Board decided in Continental Mfg.,10 in which employee Ramirez prepared and signed, on her own, a letter that she handed to re- spondent's owner. The letter stated that a majority of employees were disgusted with their treatment, that a supervisor played favorites, and that a jani- tor was needed for the women's bathroom. The letter concluded, "We all want to continue work- ing here with you; please help us to improve our working conditions." The Board reversed the trial examiner's finding that Ramirez' letter constituted concerted activity, stating: The letter, which was directed only to the Respondent, was prepared and signed by Ra- mirez acting alone. She did not consult with . . .any other employee, or the Union about the grievances therein stated or her intention of sending the letter to DeSantis [an owner of respondent]. There is no evidence that the criticisms in the letter reflected the views of other employees, nor is there evidence that the letter was intended to enlist the support of other employees. This letter received no sup- port from union representatives. . . . [155 NLRB at 257.] Once again, the Board defined concerted activity in terms of interaction among employees. '' In recent years, but before Alleluia, the Board often decided the circumstances under which ap- parently individual activity may properly be char- acterized as "concerted." One of these cases, G. V. R.. Inc.,12 is factually indistinguishable from Alle- luia, but equivocal in its reasoning. Glace and Curry were two employees who reported to the United States Army and the Department of Labor that their employer forced them to "kick back" portions of their wages. The judge found that Glace and Curry were discharged in violation of Section 8(a)(l) of the Act because they concertedly made complaints to United States agencies about 'O 155 NLRB 255 (1965). J The Board's analysis of the facts in Continental Mfg., which were similar to those in Alleluia, was directly contrary to the Alleluia Board's reasoning. 12 201 NLRB 147 (1973) (former Chairman Edward Miller dissenting). 494 MEYERS INDUSTRIES their wages, hours, and working conditions.13 At footnote 2 of its decision, the Board majority noted: The Administrative Law Judge found, in substance, that even in the absence of concert- ed activity, "Public policy would be frustrated if employees . . . could not, with full protec- tion of the Act, make complaints to public agencies about wages, hours, etc., without fear of reprisals." The Board majority specifically disavowed the judge's language, stating: We do not adopt this improper extension of our enunciated principle that it would be con- trary to public policy to hold that the making of complaints to public authorities in the course of concerted activity removes the protection of the Act from the concerted activity .... [201 NLRB 147 at fn. 2.] Despite the Board's rejection of the judge's ex- tension of the concept of concerted activity, the Board majority stated: We also find, in addition to these reasons [the evidence of Glace's and Curry's actual con- certed activities], that an employee covered by a federal statute governing wages, hours, and conditions of employment who participates in a compliance investigation of his employer's administration of a contract covered by such a statute, or who protests his employer's non- compliance with the contract, is engaged in concerted activity for the mutual aid and pro- tection of all the employer's employees similar- ly situated. [Emphasis added. 201 NLRB at 147.]J' Thus, with G. V R., the Board apparently declined to extend its concept of concerted action as a matter of policy, but did so as a matter of law. The distinction is a difficult one to discern. II. ALLELUIA, ITS PROGENY, AND THE DEVELOPMENT OF THE PER SE STANDARD OF CONCERTED ACTIVITY With Alleluia, the transformed concept of con- certed activity was at last revealed. In that case, maintenance employee Jack Henley registered safety complaints with respondent. Henley was '3 The judge and the Board majority found evidence that Glace and Curry had actually acted in concert during the course of the investiga- tion. t' The "contract" referred to in the decision was not a collective-bar- gaining agreement, but a contract for services entered into between re- spondent and the United States Army. later transferred to another facility,' 5 where he en- countered similar safety problems. Not satisfied with Alleluia's response to these problems, Henley wrote a letter of complaint to the California OSHA office (Occupational Safety and Health Administra- tion), with a copy to the respondent. The Board found no evidence that, before complaining to re- spondent or writing to California OSHA, Henley discussed the safety problems with other employ- ees, sought their support in remedying the prob- lems, or requested assistance in preparing the letter. Henley accompanied the OSHA inspector on a plant tour and was discharged the following day. The judge dismissed the complaint in its entirety, finding no outward manifestation of group action. The Board disagreed and found concerted activity. The Board reasoned from the premise that "(s]afe working conditions are matters of great and con- tinuing concern for all within the work force." In support of that premise, the Board noted that both the Federal Government and the States had made known their concern with this area of industrial life through occupational safety and health legislation. The Board, therefore, reasoned that because Con- gress and the States made manifest the apparent na- tional will in the area of industrial safety, "the con- sent and concert of action emanates from the mere assertion of such statutory rights." Under the Alleluia approach, an observable mani- festation of "group will" in the workplace (as distin- guished from the legislature) was no longer re- quired to find concert of action. The existence of relevant legislation and its invocation by a solitary employee became sufficient to find concerted activ- ity. The practical effect of this change was to transform concerted activity into a mirror image of itself. Instead of looking at the observable evidence of group action to see what men and women in the workplace in fact chose as an issue about which to take some action, it was the Board that determined the existence of an issue about which employees ought to have a group concern. Stated another way, under the Alleluia analytical framework, the Board questioned whether the purpose of the activ- ity was one it wished to protect and, if so, if then deemed the activity "concerted," without regard to its form. This is the essence of the per se standard of concerted activity. We emphasize that the Board, in Alleluia, presumed to divine the rel- evance of the safety issue to the "theoretical" em- ployee group by pointing to the existence of legis- lation in the health and safety area. Alleluia's prog- eny, however, dropped even the requirement of legislative action, and the Board ultimately decided I5 The transfer was not at issue. 495 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what ought to be the subject matter of working persons' concern when the statutory manifestation of such "group concern" was slim or nonexist- ent. 16 Another aspect of the Alleluia doctrine warrants scrutiny. Perhaps in an attempt to retain some ele- ment of the previous requirement of observable evidence of group support, the Board stated: Accordingly, where an employee speaks up and seeks to enforce statutory provisions relat- ing to occupational safety designed for the benefit of all employees, in the absence of any evidence that fellow employees disavow such rep- resentation, we will find an implied consent thereto and deem such activity to be concert- ed. [Emphasis added. 221 NLRB at 1000.] This is yet another mirror image turn that the defi- nition of concerted activity has taken. In the past, we required the General Counsel to prove support by other employees in order to find activity con- certed. With Alleluia, the Board seemed to require a respondent to submit evidence that other employ- ees disavowed the activity to prove that it was not concerted. This is a clear shift in the burden of proof, not countenanced by either the legislative history or judicial interpretation of Section 7.17 The courts of appeals that have reviewed the post-Alleluia cases have rejected the per se stand- ard of concerted activity. 8 In Krispy Kreme, the Fourth Circuit summarized the response of the courts as follows: The Board cites no circuit decision support- ing its theory of presumed "concerted activi- ty" in this case. The only courts which have considered it have flatly rejected any rule that where the complaint of a single employee re- lates to an alleged violation of federal or state safety laws and there is no proof of a purpose enlisting group action in support of the com- plaint, there is "constructive concerted action" meeting the threshold requirement under Sec- tion 7. [635 F.2d at 309.] For all the foregoing reasons, we are persuaded that the per se standard of concerted activity, by I' In Air Surrey Corp., 229 NLRB 1064 (1977), enf. denied 601 F2d 256 (6th Cir. 1979), and Pink Uoody. Inc., 237 NLRB 39 (1978), Alleluia was expanded to include state banking statutes and motor vehicle laws, respectively. In Steere Dairy, Inc., 237 NLRB 1350 (1978), and Ontario Knife Co., 247 NLRB 1288 (1980), enf. denied 637 F.2d 840 (2d Cir. 1980), the stat- utory element of Alleluia was not present, and individual conduct was deemed to be concerted solely on the theory that it involved a matter the Board considered to be of concern to the group. II Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304, 310 (4th Cir 1980). ': E.g., Ontario Knife Co. v. NLRB, 637 F.2d 840 (2d Cir. 1980); Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304 (4th Cir. 1980); N'LRB v. Dawson Cabinet Co., 566 F.2d 1079 (8th Cir. 1977) which the Board determines what ought to be of group concern and then artificially presumes that it is of group concern, is at odds with the Act. The Board and courts always considered, first, whether the activity is concerted, and only then, whether it is protected. This approach is mandated by the statute itself, which requires that an activity be both "concerted" and "protected." A Board find- ing that a particular form of individual activity warrants group support is not a sufficient basis for labeling that activity "concerted" within the mean- ing of Section 7.19 III. INTERBORO DISTINGUISHED FROM ALLELUIA The Board's decision in Interboro Contractors2 0 holds that actions an individual takes in attempting to enforce a provision of an existing collective-bar- gaining agreement are, in effect, grievances within the framework of that agreement. 21 It is not our intention to set forth the parameters of Interboro in this case, but rather to distinguish Interboro from Alleluia. The focal point in Interboro was, and must be, the attempted implementation of a collective-bar- gaining agreement. By contrast, in the Alleluia situ- ation, there is no bargaining agreement, much less any attempt to enforce one, and we distinguish the two cases on that basis. IV. DEFINITION OF CONCERTED ACTIVITY Based on the foregoing analysis, we hold that the concept of concerted activity first enunciated in Al- leluia does not comport with the principles inher- ent in Section 7 of the Act. We rely, instead, upon the "objective" standard of concerted activity-the standard on which the Board and courts relied before Alleluia. Accordingly, we hereby overrule Alleluia and its progeny. Although the definition of concerted activity we set forth below is an attempt at a comprehensive 19 Southern Steamship Co. v. VLRB, 316 U.S 31 (1942), cited by the Board in Alleluia, is not to the contrary. That case involved a strike on board a ship moored in an American port. The strike, which was found to be in violation of the Federal mutiny statutes, would otherwise have been protected by the National Labor Relations Act. The Supreme Court resolved the conflict between the Act and the mutiny statutes by instruct- ing the Board that it could not order the reinstatement of strikers who, under the circumstances, had engaged in a criminal act. In short, the Board was required to accommodate its own mandates to those of an- other statutory scheme. Such accommodation, we emphasize, had the effect of narrowing the scope of the National Labor Relations Act. The "accommodation" the Alleluia decision compelled, however, involved nothing less than using other statutes to create rights that do not exist under the Act. 20 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). 2 1 The issue of the validity of the Interboro doctrine is presently pend- ing before the Supreme Court. Citry Disposal Systems, 256 NLRB 451 (1981), enf denied 683 F.2d 1005 (6th Cir 1982), cert. granted 51 U S L.W. 3703 (U.S. Mar. 28, 1983) (No. 82-960). 496 MEYERS INDUSTRIES one, we caution that it is by no means exhaustive. We acknowledge the myriad of factual situations that have arisen, and will continue to arise, in this area of the law. In general, to find an employee's activity to be "concerted," we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.2 2 Once the activity is found to be concerted, an 8(a)(1) violation will be found if, in addition, the employer knew of the concerted nature of the employee's activity, the concerted ac- tivity was protected by the Act, and the adverse employment action at issue (e.g., discharge) was motivated by the employee's protected concerted activity. 2 3 We emphasize that our return to a pre-Alleluia standard of concerted activity places on the Gener- al Counsel the burden of proving the elements of a violation as set forth herein. It will no longer be sufficient for the General Counsel to set out the subject matter that is of alleged concern to a theo- retical group and expect to establish concert of action thereby. We also emphasize that, under the standard we now adopt, the question of whether an employee engaged in concerted activity is, at its heart, a fac- tual one, the fate of a particular case rising or fall- ing on the record evidence. It is, therefore, impera- tive that the parties present as full and complete a record as possible. V. APPLICATION OF THE DEFINITION OF CONCERTED ACTIVITY TO THE FACTS OF THE INSTANT CASE As the judge found, Charging Party Kenneth P. Prill drove trucks for a number of years and was an owner-operator for the 4 years before his em- ployment by the Respondent. The Respondent as- signed Prill to drive what was described as the "red Ford truck" and its accompanying trailer, with which he hauled boats from the Respondent's facility in Tecumseh, Michigan, to dealers through- out the country. Prill's equipment, particularly the brakes and steering, gave him difficulty on a number of occasions, and he often lodged com- plaints with the Respondent concerning malfunc- tions. 12 See Ontario Knife Co. v. NLRB, 637 F.2d 840, 845 (2d Cir. 1980); Pacific Electricord Co. v. NLRB, 361 F.2d 310 (9th Cir. 1966). a2 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (Ist Cir. 1981), cert. denied 455 U.S. 989, approved in NLRB v. Transportation Management Corp., 103 S.Ct. 2496, 97 LC * 10,164 (1983). Under this standard, an employee "may be discharged by the employer for a good reason, a poor reason, or no reason at all, so long as the terms of the statute are not violated." NLRB v. Condenser Corp. of A/merica, 128 F.2d 67, 75 (3d Cir. 1942). Thus, absent special circumstances like NLRB v. Burnup & Sims, 379 U.S. 21 (1964), there is no violation if an employ- er, even mistakenly, imposes discipline in the good-faith belief that an em- ployee engaged in misconduct. Although the red Ford truck and trailer were as- signed to Prill on what might fairly be described as a permanent basis, during the first 2 weeks of June 1979 Prill's fellow employee, Ben Gove, was as- signed that equipment while Prill was absent from work. On a trip to Sudberry, Ontario, Gove experi- enced steering problems which nearly caused an accident. On Gove's return, he informed Supervi- sor Dave Faling of difficulties with the truck. Prill, who had by then returned to work, was also in Faling's office to receive paperwork for an upcom- ing trip. Prill was present when Gove told Faling that he "wouldn't take the truck as far as Clinton and back, until they had done some repair on it. Until someone repaired it. I [Gove] didn't care who done it, but I wasn't going to drive it no far- ther." The Respondent's mechanic, Buck Maynard, made an unsuccessful attempt to correct the prob- lems. Thereafter, on a trip to Xenia, Ohio, during which the brakes malfunctioned, Prill voluntarily stopped at an Ohio State roadside inspection station where the trailer was cited for several defects, some relating to the brakes. Prill forwarded the ci- tation to the Respondent's officials. In July 1979, while driving through Tennessee, Prill was involved in an accident caused by the malfunctioning brakes. Prill telephoned the Re- spondent's president, Alan Beatty, who instructed Prill to have a mechanic look at the equipment, but to get it home as best he could. The following morning Prill again called Beatty. The Respond- ent's vice president, Wayne Seagraves, joined the conversation on an extension telephone. Both Beatty and Seagraves were upset with Prill for not having left Tennessee, and a decision was made to send Maynard to Tennessee to examine the equip- ment. Thereafter, Prill, of his own volition, contacted the Tennessee Public Service Commission to ar- range for an official inspection of the vehicle. The following morning a citation was issued, and the unit was put out of service due to bad trailer brakes and damage to the hitch area of the truck. The citation mentioned several Department of Transportation regulations, including 49 C.F.R. § 396.4, which prohibits the unsafe operation of a ve- hicle. A commission representative instructed Prill that certain repairs would have to be made before the vehicle could be moved. When Maynard arrived in Tennessee, Prill showed him the citation. Maynard called Beatty, and it was decided to sell the trailer for scrap. Prill then drove the truck back to Tecumseh. The judge found that when Prill reported in on 5 July 1979 he turned in his paperwork and was sum- 497 DECISIONS OF NATIONAL LABOR RELATIONS BOARD moned to Seagraves' office. Seagraves questioned him about the accident and the damage to the truck. He asked why Prill did not chain the truck and trailer together and drive back. Prill responded that he did not believe it was safe to drive the ve- hicle. Seagraves then said that Prill would be ter- minated because "we can't have you calling the cops like this all the time." Beatty, who had en- tered the office during the conversation, also asked why Prill did not chain the truck and trailer. Prill responded that it would have been 'unsafe and un- lawful in view of the citation. The judge concluded that Prill was discharged for two reasons: (1) his refusal to drive an unsafe vehicle after filing the report with the Tennessee Public Service Commission, and (2) his earlier safety complaints, including a complaint to Ohio authorities. The judge held that Prill's discharge was unlawful, relying on Alleluia, which he noted, "established a presumption that an individual em- ployee engages in concerted activity where his conduct arises out of the employment relationship and is a matter of common concern among all em- ployees." (Decision of the administrative law judge, sec. II,B, par. 2.)24 The judge further noted in support of his Alleluia analysis that Prill's refusal to drive the equipment was mandated by Depart- ment of Transportation regulations, which require that an inspection be made after an accident to de- termine the extent of damage, and also that a vehi- cle cited as unsafe not be operated until it is re- paired. 25 The judge found that Prill, by contacting local authorities and refusing to drive the vehicle, was enforcing the cited provisions of the national trans- portation policy, and that his invoking the Tennes- see Public Service Commission's inspection appara- tus was the legal equivalent of a safety complaint to OSHA. See Alleluia. The judge concluded his analysis by stating that the Respondent was "free, under Alleluia Cushion, to rebut the inference that Prill's activity inured to the benefit of all employ- ees. It could have been shown, for example, that Prill's protests and complaints were not made in good faith or were simply the idiosyncrasies of a super sensitive individual whose concerns could not have been shared by other truckdrivers in simi- lar circumstances. This Respondent failed utterly to accomplish." (ALJD, sec. II,B, par. 10.) Rejecting, as we do, the judge's reliance on Alle- luia we find that the Respondent did not violate Section 8(a)(1) of the Act when it discharged Prill for refusing to drive his truck and trailer and for 24 The judge additionally relied on Ontario Knife Co., 247 NLRB 1288 (1980), enf. denied 637 F.2d 840 (2d Cir.); Steere Dairy, 237 NLRB 1350 (1978); and Pink Moody, Inc., 237 NLRB 39 (1978). 24 Citing Federal Motor Carrier Safety Regulations, 49 C.F.R. § 396.4. contacting state authorities. Prill alone refused to drive the truck and trailer; he alone contacted the Tennessee Public Service Commission after the ac- cident; and, prior to the accident, he alone contact- ed the Ohio authorities. Prill acted solely on his own behalf. It follows that, without the artificial presumption Alleluia created, the facts of this case do not support a finding that Prill engaged in con- certed activity. There is one other point that warrants consider- ation. The judge stated that "Prill's complaints about the trailer brakes prior to the accident were clearly concerted since they were joined by driver Gove who made similar complaints, in Prill's pres- ence, to management officials about the safety of Prill's vehicle when he, Gove, was assigned to drive it for 2 weeks." (ALJD, sec. II,B, par. 8.) It is not certain whether the judge cited this evidence in support of his Alleluia analysis, or in support of an alternative pre-Alleluia rationale. To the extent that the judge appears to have concluded that this record evidence would lead to a finding of con- certed action under a pre-Alleluia analysis, we reject his conclusion. The record is clear that Prill merely overheard Gove's complaint while in the office on another matter, and there is no evidence that anything else occurred. The record reflects, and the judge found, only that Prill stood by when Gove made his com- plaint; the judge correctly made no factual finding that Prill and Gove in any way joined forces to protest the truck's condition. Indeed, the most that can be inferred from this scenario is that another employee was individually concerned, and individ- ually complained, about the truck's condition. Taken by itself, however, individual employee con- cern, even if openly manifested by several employ- ees on an individual basis, is not sufficient evidence to prove concert of action. In this regard, the Alleluia presumption has only engendered analytical confusion. Thus, under Alle- luia, concern is presumed unless otherwise rebutted; to affirmatively show that another employee is in- dividually concerned, or even lodges a complaint, adds not one whit to an Alleluia analysis. Yet, evi- dence of individual concern by more than one em- ployee has come to be viewed as evidence of con- cert itself, and has so blurred the distinction be- tween the two types of evidence that the Board has lost sight of what is required of a pre-Alleluia analysis. In its pre-Alleluia days the Board had, in fact, considered factual patterns similar to that presented herein and had declined to find concerted activity. See, e.g., Traylor-Pamco and Continental Mfg., dis- cussed above. As with the employees who ate their 498 MEYERS INDUSTRIES lunch together in Traylor-Pamco, there is no evi- dence here that there was any concerted plan of action between Gove and Prill, or that either relied in any measure on the other when each refused to drive the truck. In addition, as in Continental Mfg., there is no support for a finding that either Gove's or Prill's refusal was intended to enlist the support of other employees. Prill's refusal to drive the truck and trailer and his report to the Tennessee Public Service Commission were made by himself and for himself alone, and thus cannot be deemed concerted. One might nonetheless fairly argue that Prill's situation is a sympathetic one that should cause us concern. We do not believe, however, that Section 7, framed as it was to legitimize and protect group action engaged in by employees for their mutual aid or protection, was intended to encompass the case of individual activity presented here. Al- though it might be argued that a solitary over-the- road truckdriver would be hard pressed to enlist the support of coworkers while away from the home terminal, the Board, to paraphrase former Chairman Edward Miller's dissent in G. V R., is neither God nor the Department of Transportation. Outraged though we may be by a respondent who-at the expense of its driver and others travel- ing on the nation's highways-was clearly attempt- ing to squeeze the last drop of life out of a trailer that had just as clearly given up the ghost, we are not empowered to correct all immorality or even illegality arising under the total fabric of Federal and state laws. In conclusion, we acknowledge that there are few areas of the law that are entirely free of uncer- tainty or disagreement. We are persuaded, howev- er, that Alleluia and its progeny have been an un- fortunate deviation from the objectives and pur- poses of the Act, as defined by its legislative and judicial history, and it will not serve us well, nor those whom we are charged to protect, to continue to adhere to Alleluia's precepts. Accordingly, based on all the foregoing reasons, and the record as a whole, we shall dismiss the complaint. ORDER The complaint is dismissed. MEMBER ZIMMERMAN, dissenting. My colleagues today reject the theory of implied concerted activity developed in Alleluia Cushion Co., 221 NLRB 999 (1975). Their ruling allows the Respondent to lawfully discharge employee Prill for filing a complaint with the Tennessee Public Service Commission (Tennessee Commission) after having an accident due to faulty brakes. My col- leagues admit there may be something outrageous about an employer who is willing to endanger its employees by attempting to force the use of a trail- er which had "clearly given up the ghost." They also concede that a solitary over-the-road truck- driver would be hard pressed to enlist the support of coworkers while away from the home terminal. Nevertheless, they find this employee unprotected by the Act because no other employee expressly joined him in lodging the complaint with the Ten- nessee Commission. My colleagues report today that the Board is not God. If only their expectation of employees cov- ered by this Act were equally humble. Protection for such employees, they now announce, will be withheld entirely if in trying to ensure reasonably safe working conditions they happen not to be so omniscient as to rally other employees to their aid in advance. No matter that the conditions com- plained of are highly hazardous, or that they are a potential peril to other employees, or that they are the subject of Government safety regulation. This is a distortion of the rights guaranteed employees by the Act. The historical roots of "concerted ac- tivity" lie in the movement to shield organized labor from the criminal conspiracy laws and the in- junctive power of the courts. It goes against the history and spirit of Federal labor laws to use the concept of concerted activity to cut off protection for the individual employee who asserts collective rights. It is my colleagues who use mirrors on Sec- tion 7 and not the Board which decided Alleluia Cushion Co. I. THE ALLELUIA DECISION IS BASED ON TWO RATIONALES Alleluia involved the discharge of an employee for filing a complaint with the California office of the Occupational Safety and Health Administration (OSHA). It was undisputed that the employee acted alone in protesting the lack of safety precau- tions. The Board nevertheless found this individual action to be concerted and protected by the Act on the ground that it must be presumed that other em- ployees shared the interest in safety and supported the single employee's complaint. The Board's deci- sion contains two rationales for the presumption of concerted action. First, reference is made to safe working conditions as "matters of great and con- tinuing concern for all within the work force"' and occupational safety is identified as "one of the most important conditions of employment." 2 In addition, 221 NLRB at 1000. 2 Id. 499 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board emphasized that the nature and extent of the employee's complaints demonstrated that while the employee was concerned for his individual safety, his object also encompassed the well-being of his fellow employees. Second, the Board pointed to the public policy enunciated in the Occupational Safety and Health Act and made the following analysis: [S]ince minimum safe and healthful employ- ment conditions for the protection and well- being of employees have been legislatively de- clared to be in the overall public interest, the consent and concert of action emanates from the mere assertion of such statutory rights. Ac- cordingly, where an employee speaks up and seeks to enforce statutory provisions relating to occupational safety designed for the benefit of all employees, in the absence of any evi- dence that fellow employees disavow such representation, we will find an implied consent thereto and deem such activity to be concert- ed.3 The two rationales are discrete: the first pre- sumes concert from the presence of a matter of "great and continuing concern" to the work force and requires an analysis of the specific complaint to determine whether it goes beyond individual con- cerns; the second presumes concert from the legis- lative declaration of public interest in a matter re- lating to the workplace and requires the assertion of a statutory right. Neither rationale was articulat- ed with precision. Though these two approaches are different, the Alleluia decision intertwined them, treating them as one. This mixture of ration- ales undoubtedly created conditions for court op- position to the concept of concerted activity in Al- leluia. Criticism of the opinion is therefore under- standable. But that alone is not sufficient ground for rejecting the principles established in the deci- sion. The case before us involves only one of the prin- ciples embodied in Alleluia-that an employee's as- sertion of an employment-related statutory right can be presumed to be activity covered by the NLRA. As such it requires no consideration of general arguments concerning a presumption of concert in the assertion of a matter of common concern to the work force. I would find in this case, as did the Board in Al- leluia, that the presumption of concert in the asser- tion of an employment-related statutory right is proper and valid. This position is based on the Board's recognized authority to apply presump- tions and on the finding that the presumption of 3 Id. concerted activity in the individual assertion of a statutory right concerning the workplace is consist- ent with the legislative history of Section 7 of the Act, is supported by the policies of the Act, and fulfills the Board's responsibility to accommodate the Act to other employment legislation. II. THE POLICIES OF THE ACT AND THE HISTORICAL USE OF THE TERM "CONCERT" INDICATE THAT SECTION 7 PROTECTS THE INDIVIDUAL ASSERTION OF A WORK-RELATED STATUTORY RIGHT The central purpose of the Act is to avoid or minimize industrial strife which interferes with the normal flow of commerce. Section l(b) of the Labor Management Relations Act (29 U.S.C. 141(b)) asserts that this purpose can be achieved if employers, employees, and labor organizations "each recognize under law one another's legitimate rights in their relations with each other, and above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety or interest." Section 1 of the Act fur- ther declares that it is "the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce . . . by protecting the exercise by workers of full freedom of association . . . for the purpose of . . . mutual aid or protection." Section 7 of the Act then sets forth the boundaries of employees' protected rights, establishing the right "to engage in other concerted activities for the purpose of. . . mutual aid or protection." There is no question that the assertion of a work- related statutory right by two or more employees falls within the above-described policies and pro- tections of the Act. It involves association for the purpose of mutual aid or protection and opposes an act or practice by the employer which may jeop- ardize public health, safety, or interest. However, an individual employee's assertion of such a statu- tory right raises a question concerning the applica- bility of the Act because it is not taken in physical and simultaneous concert with at least one other employee and the language of Section 7 specifical- ly mentions "concerted activity." Opposing courts have taken the view that "con- certed" means literal group action. The legislative history of the Act neither supports nor refutes this interpretation. It is virtually silent as to the precise meaning and applicability of "concerted activities." But the likely explanation for this silence is that, in view of the history leading up to enactment of Sec- tion 7, there existed, at the time of enactment, no need for precise definition of the term. 500 MEYERS INDUSTRIES A. The Earliest Use of the Term Concerted was in Opposition to the Application of the Doctrine of Criminal Conspiracy to Employees' Organizing Efforts The earliest attempts of American labor to orga- nize in order to improve working conditions were met by judicial application of the doctrine of crimi- nal conspiracy as established in England in the 18th century.4 That doctrine permitted individual con- duct, but proscribed the same conduct by two or more persons acting together: As in the case of journeymen conspiring to raise their wages; each may insist on raising his wages if he can; but if several meet for the same purpose, it is illegal and the parties may be indicted for a conspiracy. Rex v. Mawbey, 6 T.R. 619, 636 (1796). In a 19th century case, Justice Holmes noted the anomaly which allowed individual action but found criminal the same action taken collectively by a group. He took issue with the conspiracy doctrine in a dissenting opinion in Vegelahn v. Gunter:5 But there is a notion which latterly has been insisted on a good deal, that a combination of persons to do what any one of them lawfully might do by himself will make the otherwise lawful conduct unlawful. It would be rash to say that some as yet unformulated truth may not be hidden under this proposition. But in the general form in which it has been present- ed and accepted by many courts, I think it plainly untrue, both on authority and on prin- ciple. Despite use of the conspiracy doctrine and the attendant labor injunction, the movement toward organized labor continued and eventually made an impact on the legislative process. Some of the earli- est labor legislation was directed toward insulating organized labor from the criminal conspiracy doc- trine and the injunctive power of the courts. It is in this context that the term "concert" first appeared. The Clayton Act of 1914 provided that "no . . . injunction shall prohibit any person or persons, whether singly or in concert, from . . . ceasing to perform any work or labor .... ". The term ap- peared again in the Norris-LaGuardia Act both in a clause prohibiting injunctions7 and in a clause 4 See generally Russell A. Smith, Leroy S. Merrifield, and Theodore J. St. Antoine, Labor Relations Law (4th ed. 1968) at 1-54 and Robert A. Gorman and Matthew W. Finkin, The Individual and the Requirement of "Concert" under the National Labor Relations Act, 130 U. Pa. L. Rev. 286. 5 167 Mass. 92, 44 N.E. 1077 (1896). 5 38 Stat. 738 (1914), 29 U.S.C. § 51 (1946). 47 Stat. 70 (1932), 29 U.S.C. § 104 (1946). which is similar to the language used in Section 7 of the Act: "it is necessary that [the individual un- organized worker] shall be free from the interfer- ence, restraint or coercion of employers . . . in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ."8 Identical lan- guage was used in Section 7(a) of the National In- dustrial Recovery Act,9 and subsequently in Sec- tion 7 of the NLRA, providing that "concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection" shall not be inter- fered with. It thus appears that the concept of con- certed activities which first emerged in the Clayton Act of 1914 as a check against the use of the crimi- nal conspiracy doctrine was picked up, without comment, in subsequent labor legislation. B. "Concerted Activities" May Reasonably be Contrued as Supplementing an Individual Employee's Rights Given this history, it is reasonable to construe the term "concerted" in the Act as expanding pre- existing employee rights concerning the workplace, assuring that acts lawfully undertaken by an indi- vidual could not be deemed unlawful when under- taken as a group. While the Act focuses on collec- tive action, there is no indication that the term ap- plies only to literal collective action or was intend- ed by Congress to limit the assertion of employee rights.1 0 Rather, the term appears to limit only the assertion of individual rights which have no rela- tionship to any collective effort to improve work- ing conditions or to extend aid or protection to fellow workers. C. The Assertion of a Work-Related Statutory Right Falls Within the Meaning of "Concerted Activity" A work-related statutory right is not in essence an individual right; instead, it is a right shared by and created for employees as a group through the legislative process at the Federal or state level. In such a case, the legislature determines that mainte- nance or establishment of a particular condition of employment is in the public interest. The statute is addressed to the needs of employees as a class or strata within the society at large. When viewed against the historical background of the Act, an in- dividual employee's assertion of this type of statu- tory right is fully consistent with the literal group action of employees requesting higher wages for 8 47 Stat. 70 (1932). 29 U.S.C. § 102 (1942). ' 48 Stat. 198 (1938). 'O Congressman Bolard's remarks, cited by the majority, provide no such indication, as they merely focus on the expansion of rights. 501 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all. In both instances, the action concerns employ- ees as a group constituting an opposing force to the economic power of employers, the very type of action that the earliest uses of the term "concert- ed" were designed to protect. III. THE SUPREME COURT HAS LONG ACKNOWLEDGED THE BOARD'S AUTHORITY TO USE PRESUMPTIONS IN ADMINISTERING THE ACT The Alleluia decision makes the presumption that the individual assertion of an employment-related statutory right is a concerted act. The creation of presumptions by the Board based on the realities of the workplace is not a unique phenomenon. In 1945 the Supreme Court approved the Board's use of such a presumption in Republic Aviation Corp. l That case involved the presumption that a rule pro- hibiting union solicitation by employees outside of working hours is an unreasonable impediment to self-organization and hence unlawful. In rejecting the attack on the Board's use of this presumption, the Court stated: An administrative agency with power after hearings to determine on the evidence in ad- versary proceedings whether violations of stat- utory commands have occurred may infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven. One of the purposes which led to the creation of such boards is to have decisions based upon eviden- tial facts under the particular statute made by experienced officials with an adequate appre- ciation of the complexities of the subject which is entrusted to their administration. [Ci- tations omitted.] 1 2 The Court found no error in the Board's adoption of the presumption, noting that it was "the product of the Board's appraisal of normal conditions about industrial establishments. Like a statutory presump- tion or one established by regulation, the validity, perhaps in a varying degree, depends upon the ra- tionality between what is proved and what is in- ferred." 13 Here, it is undisputed, and therefore proven, that a right concerning the workplace has been estab- lished by a legislature and an individual has suf- fered adverse consequences from asserting that right. Unlike my colleagues, I would infer that the assertion of the right is, at its core, a concerted act. Thus, a matter concerning conditions of employ- " Republic Aviation Corp. v NLRB, 324 U.S. 793 (1945). 12 Id. at 800. 'a Id. at 804-805. ment which legislatively has been deemed in the public interest may certainly be presumed a matter of concern to all the employees for whom the stat- ute has been enacted. 4 For the reasons set forth in section II, this inference of concert is one rational- ly drawn from the proven facts and is, therefore, valid under the standards of Republic Aviation Corp. IV. THE INFERENCE OF CONCERT IN THE INDIVIDUAL ASSERTION OF A WORK-RELATED STATUTORY RIGHT IS SUPPORTED BY THE ACT'S POLICIES AND THE BOARD'S MANDATE TO ACCOMMODATE OTHER EMPLOYMENT LEGISLATION As shown above, there is a rational connection between the assertion of a statutory right govern- ing the workplace and the inference that all em- ployees whose rights are protected by the statute support the individual assertion of those rights. Not only is this presumption of concerted action sup- ported by the historical use of the term "concert- ed," but also by the Act's policies and by the Board's mandate to administer the Act in accom- modation with other employment legislation. The Act specifically states that the purpose of avoiding and minimizing industrial strife can be achieved if employers, employees, and labor orga- nizations "above all recognize under law that nei- ther party has any right in its relations with any other to engage in acts or practices which jeopard- ize the public health, safety or interest."1 5 The Act therefore contemplates a concern by employees for matters affecting the public health, safety, or inter- est. Further, the Board has been admonished to recognize the purposes of other employment legis- lation and to construe the Act in a manner support- ive of the overall statutory scheme. The Supreme Court stated in Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942): [T]he Board has not been commissioned to ef- fectuate the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other and equally important Congres- sional objectives. Frequently the entire scope of Congressional purpose calls for careful ac- commodation of one statutory scheme to an- other, and it is not too much to demand of an administrative body that it undertake this ac- commodation without excessive emphasis upon its immediate task. i" See, e.g., Bethlehem Shipbuilding Corp. v. NLRB, 114 F.2d 930, 937 (Ist Cir. 1940), petition for cert. dismissed on motion of petitioner 312 U.S. 710 (1941) (involving unlawful interference with employee efforts to secure favorable workmen's compensation legislation). 15 29 U.S.C. 141(b) 502 MEYERS INDUSTRIES Given these policies and admonitions, it is rea- sonable to presume that when an individual em- ployee invokes a statute governing a condition in the workplace he is within the scope of employee action contemplated by the Act (i.e., a challenge to an employer's practice concerning the public health, safety, or interest). Further, it would be in- congruous with the public policy embedded in em- ployment-related legislation-and indeed inconsist- ent with the very act of passage-to assume that, in the absence of an express manifestation of support, other employees do not collectively share an inter- est in an attempted vindication of the statutory right created for their benefit. Presuming concert in the individual assertion of an employment-relat- ed statutory right running to all employees, there- fore, accommodates the Act to the overall legisla- tive policy regarding the workplace and working conditions. Conclusion For all the reasons set forth above, it is appropri- ate to presume that the individual assertion of an employment-related statutory right is concerted. Making this presumption does not end the matter; it merely shifts the burden to the employer to show that, in a particular case, the employees, for what- ever reasons, opposed the individual's assertion of that interest or that the individual specifically acted in his own interest."' The presumption is no less valid, and the employer's burden no heavier, than in cases involving, as did Republic Aviation, solicita- tion rules. Considering the facts of this case, as found by the judge, I conclude that Prill was discharged in violation of Section 8(a)(l). The judge found that Prill was discharged because of his complaints about the safety of equipment he was required to drive, including a complaint to the Tennessee Com- mission following an accident, and because of his refusal, for safety reasons, to drive the equipment following the accident. By reporting to the Tennes- see Commission, Prill invoked laws regulating motor carriers, and initiated an investigation which resulted in issuance of a citation by the Tennessee Commission based on Department of Transporta- tion regulations. I would find that in resorting to this legislation Prill engaged in concerted activity. Although the Department of Transportation reg- ulations concern the safety of public highways gen- erally, they also regulate, among other things, the safety of equipment that drivers for motor carriers are required to operate and the obligations of driv- '6 See Comet Fast Freight, 262 NLRB 430 (1982), for an example of such a demonstration that the individual did not act in the interest of his fellow employees. ers in case of accidents. Since the highways they regulate are the workplace of commercial drivers, they, in effect, concern conditions of employment for such drivers of motor carriers. In these circum- stances, it is appropriate to presume that other drivers support the assertion of those regulations. The presumption is validated by the record. Em- ployee Gove drove Prill's regularly assigned truck and trailer for a 2-week period while Prill was absent. Prill was present when Gove reported problems with the steering and told Supervisor Faling that he would not drive the truck until someone repaired it. It is, therefore, indisputable that two employees were concerned with the safety of the truck and trailer and tried to do some- thing about it. It is certainly valid to presume, at the very least, that Gove supported Prill's com- plaint to the Tennessee Commission. Yet my col- leagues allow Prill's fate to be dictated by such happenstance as the failure to make a phone call. If, after the accident in Tennessee, Prill had phoned Gove, discussed the problem, and received his likely approval to contact the Tennessee Com- mission, his action would have been concerted and he would be working today. Because he failed to make such a call, and instead individually invoked regulations designed to protect commercial drivers as a group and others using the highways, his case is dismissed. Surely the concerted activity provi- sion in Section 7 was not intended to produce such anomalous results when the safety of employees' working conditions is at issue. My colleagues' concern with the need to draw a line in this area is, like the criticism of Alleluia, un- derstandable. But, wherever the line should be drawn it assuredly should not be drawn at such a point where it creates a safe zone for employers to retaliate against employees who protest over mat- ters which strike at the heart of the economic rela- tionship between employer and employee. To do so runs against one of the central aims of the Na- tional Labor Relations Act: to guarantee that em- ployees do not lose their jobs because they chal- lenge an employer on a matter concerning group wages, hours, or terms and conditions of employ- ment. The use of the term "concerted" in this arena merely ensures that collective action cannot be subject to charges of criminal conspiracy and that the Act's protection extends only to matters addressed to employees as a class or group. I dis- sent from my colleagues' use of the term to distort the fundamental principles of the statute they are charged to enforce. 503 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge: This case was tried in Adrian, Michigan, on August 1, 1980. The complaint alleges that the Respondent violated Section 8(a)(l) of the Act by discharging truckdriver Kenneth Prill because he engaged in protected concerted activity, i.e., making complaints about the safety of his trailer, contacting the Tennessee Public Service Commis- sion about the safety of his vehicle after it was involved in an accident, which contact resulted in the issuance of an out-of-service notice, and refusing thereafter to drive the vehicle. The Respondent denies the essential allega- tions in the complaint. The Respondent and the Charg- ing Party filed briefs. Based upon the entire record in this case, including the testimony of the witnesses and my observation of their demeanor, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation, is engaged in the manufacture, sale, and distribution of aluminum boats, canoes, jeep tops, and related products at several locations in Michigan. Its principal office and place of business is located at 9133 Tecumseh-Clinton Road in Tecumseh, Michigan, the only facility involved herein. During a representative I-year period, the Respondent manufactured, sold, and distributed at its Tecumseh, Michigan facility products valued in excess of $2 million, of which products valued in excess of $500,000 were shipped from its Tecumseh facility to points located out- side the State of Michigan. Accordingly, I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Facts Kenneth Prill was hired by the Respondent on April 24, 1979, as a skilled driver. He had driven trucks for a number of years before being hired. He was an owner- operator for the 4 years prior to his employment by the Respondent. His employment application notes that he had "good driving experience" and had 2 years of schooling as a mechanic. Prill was assigned to drive what was described as the red Ford truck and its accompanying trailer. He hauled boats from the Respondent's facility in Tecumseh, Michi- gan, to dealers throughout the country. His supervisor, Dave Faling, had no complaints about Prill's work and he testified that Prill took "very good care of his equip- ment." Prill was never given a disciplinary warning during his employment with the Respondent which lasted until his discharge on July 5, 1979.' I It is uncontested that Prill never received a written warning. The Re- spondent's president, Alan Beatty, testified that he never orally repri- manded Prill. Vice President Wayne Seagraves testified that he did, but Prill credibly denied receiving any such oral warnings before his dis- charge. Prill experienced a number of problems with his equip- ment. The most significant problem was the failure of the brakes on the trailer to operate properly. On one trip, as he was driving through Chicago, Prill experienced a brake failure which almost caused an accident. Prill also noticed a steering problem on his equipment. Fellow driver Ben Gove drove Prill's equipment for the first 2 weeks in June 1979. Gove noticed the steering problem on a trip to Sudberry, Ontario. The steering problem nearly caused an accident on that trip. When Gove re- turned, he told Faling about the problem and stated, in Prill's presence, that he would not take the truck out again until it was repaired. Faling promised to make the needed repairs. Prill made numerous complaints about the deficiencies in his equipment. He made these complaints to President Alan Beatty, mechanic Buck Maynard, and his supervi- sor, Dave Faling. Faling corroborated Prill's testimony that he made complaints to Faling. Faling transmitted these complaints to Maynard. Maynard also corroborat- ed Prill's testimony that complaints concerning the brakes on the trailer were made to him. During his employment, Prill made 11 trips in his truck and he complained after several of them. Most of his problems were with the trailer's brakes. He testified credibly and in detail about each of these complaints. Buck Maynard made some repairs on the brakes after one of Prill's complaints, but the problem was still not fully resolved. Maynard told Prill that the axles were so old that replacement parts could not be secured. Prill in- sisted that new parts should be purchased. On Prill's next trip, the brakes continued to give Prill trouble, to the point of causing him to take longer on the trip than planned even because he had to drive slower. Prill asked Faling when the brakes would be repaired but Faling simply referred him to Maynard. On a subsequent trip to Xenia, Ohio, the brakes contin- ued to be inoperative. Prill stopped at a roadside inspec- tion conducted by the Ohio State Highway Patrol. As a result of that inspection, the truck was issued a citation for a number of defects, including problems with the brakes. Prill turned the citation in to the Respondent's officials. The brake problem was never resolved and-the truck continued to give its driver problems. In late June 1979, Prill was assigned to drive a load to Jacksonville, Florida. The brakes gave him trouble on that trip. He described them as inoperative. On the return trip with an empty trailer, he had an accident in Athens, Tennessee. The accident took place on Sunday, July 1, 1979. It was caused when a pickup truck struck the left rear of Prill's trailer causing it to jackknife. Prill's trailer ended up off the road and immobile. The Respondent concedes that the accident was not Prill's fault and was not a con- sideration in his discharge. The equipment was towed to a nearby truckstop in Knoxville, Tennessee. The night of the accident, Prill called the Respond- ent's president, Alan Beatty, at his home. Prill advised Beatty of the damage to the trailer, more specifically, the hitching areas of the truck and trailer. Beatty asked Prill 504 MEYERS INDUSTRIES to chain the tractor and trailer hitches together and to tow the trailer back to Tecumseh. Prill told Beatty that this would be dangerous since the hitch area was cracked. Beatty told Prill to have a mechanic in Tennes- see look at the equipment but to get it home as best he could. The following morning, Prill called Beatty again. Wayne Seagraves, the vice president of production, also got on the phone. They were upset with Prill for not having left Tennessee. Seagraves said, "Why in the hell haven't you come back?" Prill said that the vehicle was unsafe. He cited the brake problem and said the hitch was damaged. Toward the end of the conversation, Beatty and Seagraves decided to send mechanic Buck Maynard to Tennessee to look at the vehicle. After the phone call, Prill decided to call the Tennesee Public Service Commission and have an official inspec- tion of the vehicle. The next morning, Tuesday, a Cap- tain Charles Bain inspected the vehicle and issued a cita- tion. The unit was put out of service because of the bad trailer brakes and the damage to the hitch area of the truck. The citation mentioned several Department of Transportation regulations, including 49 C.F.R. § 396.4 which prohibits the unsafe operation of a vehicle. Bain told Prill that, before the vehicle could be moved, cer- tain repairs had to be made. Prill turned the citation over to the Respondent with is paperwork. When Maynard arrived later in the day on Tuesday, Prill showed him the citation. Maynard called Beatty and they agreed that the trailer was not worth returning to Tecumseh or even being repaired. They decided to leave the trailer behind and sell it for scrap after remov- ing the tires. Prill then drove the truck back to Tecum- seh. On Thursday, July 5, Prill reported for work and turned in the paperwork on his trip. Seagraves sum- moned Prill to his office. Seagraves questioned him about the accident and the damage to the truck. He asked why Prill did not chain the truck and trailer to- gether and drive back. Prill responded that he did not believe it was safe to drive the vehicle. Seagraves then said that Prill would be terminated because "we can't have you calling the cops like this all the time." Beatty, who had come into the office during the conversation, also asked why Prill did not chain the truck and trailer. Prill responded that it would have been unsafe and un- lawful in view of the citation. Beatty testified that he was not in Seagraves' office when Prill was terminated but he met Prill afterwards. He testified that they talked briefly about the incident but his version of their conversation is different from Prill's. To the extent that Beatty's testimony differs from that of Prill on this or any issue, I credit Prill. He im- pressed me as a candid and honest witness who testified in meaningful detail about all the issues in this case. His recollection was lucid and precise. Beatty, on the other hand, was not a reliable witness. He dissembled when he tried to intimate that Prill was both laid off and dis- charged. He exaggerated Prill's alleged work deficiencies in order to strengthen his case. On numerous occasions he went far beyond the scope of the question to deni- grate Prill as an employee, even though there is no evi- dence of written reprimands against Prill. Moreover, he was unable to be specific when recounting Prill's alleged deficiencies. After stating that probationary employees, like Prill, are not issued written reprimands, he conceded that he himself had never even orally reprimanded Prill. Indeed, the Respondent's written rules provide for writ- ten reprimands and they make no exception for proba- tionary employees. This is significant because there are specific references in the rules to permanent employees where such references are thought to be necessary. In my view, Beatty was unable to give objective testimony about Prill. Seagraves also gave a different version of the July 5 termination interview. To the extent his version differs from Prill's I also discredit Seagraves' testimony because I found him to be an unreliable witness. Seagraves testi- fied that, after he terminated Prill, Prill asked him if he was being fired because "I called the cops." Seagraves said he was not, but he interjected, in his testimony, "I had no knowledge that he did call the police." Later, he conceded he told Prill he did not appreciate him calling the police but it was not the reason for his termination. Actually it is quite likely that Seagraves did know that Prill notified the police in Tennessee. Mechanic Maynard testified he told Beatty about the citation and it is reason- able to assume that Beatty spoke to Seagraves prior to Prill's discharge. Significantly, Seagraves did not tell Prill that he and Beatty had decided, before Prill's trip to Jacksonville, to terminate him. This lack of candor was reflected in Seagraves' testimony. Moreover, Seagraves attempted to show that he orally reprimanded Prill. But he was not specific in his testimony. In contrast, Prill was candid and detailed in his testimony. In these cir- cumstances, I credit Prill over Seagraves where their tes- timony conflicts. The same day that Prill was discharged, the Respond- ent hired Glenn Bolduc as a driver. Bolduc did not take his first trip until about a week and a half later. In late July, Faling had a conversation with Beatty about Prill's termination. Faling, who was returning from a 2-week layoff, asked where Prill was. Beatty said he had "let him go." Faling asked the reason for the termi- nation. He testified that Beatty said "he had an accident or what had happened, and he was a little upset because he had to send another man down there to get the equip- ment." Beatty also said that Prill refused to drive the truck back to Tecumseh.2 B. Discussion and Analysis It is well settled that an employer violates Section 8(a)(1) of the Act when he discharges an employee for engaging in protected concerted activity within the meaning of Section 7 of the Act. Protected activity in- cludes a refusal to work in protest of a working condi- tion. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1961). In such cases the Board does not inquire into the reasonableness of the work-related complaint. It only re- quires that the complaint or protest be undertaken in 2 The above is based on the credited testimony of Faling, a supervisor of the Respondent. Beatty did not contradict this testimony. 505 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good faith. See E. R. Carpenter Co., 252 NLRB 18 (1980). Although concerted activity is often undertaken by a group of employees3 or by a single employee enforcing a collective-bargaining agreement which is the ultimate result of concerted group action,4 the Board has also held that even the activity of a single worker may be concerted if it inures to the benefit of all employees. Thus, a single employee's refusal to work to protest a change in terms and conditions of employment for all employees may be concerted notwithstanding that other employees do not join in that refusal. See Ontario Knife Co., 247 NLRB 1288 (1980); Steere Dairy, 237 NLRB 1350 (1978). The Board has established a presumption that an individual employee engages in concerted activi- ty where his conduct arises out of the employment rela- tionship and is a matter of common concern among all employees. Alleluia Cushion Co., 221 NLRB 999 (1975). Indeed, in a decision which is almost on all fours with the instant case, the Board found that an employer who discharges a single employee for refusing to drive an unsafe vehicle, about which he and other employees had complained, violates Section 8(a)(1) of the Act. See Pink Moody, Inc., 237 NLRB 39 (1978). The following is an excerpt from the Pink Moody deci- sion (237 NLRB 39-40): In Alleluia Cushion, supra, we held that where an employee speaks up and seeks to enforce statutory provisions relating to occupational safety designed for the benefit of all employees, in the absence of any evidence that fellow employees disavow such representation, we will find implied consent thereto and deem such activity to be concerted. In Air Surrey, supra, we found as concerted activity an em- ployee's individual inquiry at his employer's bank as to whether the employer had sufficient funds on de- posit to meet the upcoming payroll, because the matter inquired into by the employees was of vital concern to all employees. And in Dawson Cabinet Company, Inc., 228 NLRB 290 (1977), we extended the Alleluia Cushion principle in order to find as concerted activity a female employee's individual refusal to perform a certain job unless she was paid the same wages as a male employee doing the same job, because the employee was attempting to vindi- cate the equal pay rights of the female employees.' In the instant case, the facts clearly establish that Salinas' refusal to drive truck 25 on March 5 was concerted activity within the meaning of Alleluia Cushion, Air Surrey, and Dawson Cabinet. Respond- ent acknowledged its own concern over the brakes on truck 25 when it took the truck out of service for a few nights in January after the brakes had malfunctioned while Salinas was driving his route. In March, Respondent became aware that other drivers besides Salinas were concerned about the malfunctioning brakes on truck 25. Thus, on March 3, Salinas had a telephone conversation with Horn, 3 See Washington Aluminum, above. See Interboro Contractors, 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). who had driven truck 25 that day and had experi- enced the malfunctioning brakes. Horn stated that he (Horn) would not drive truck 25 again. The next day, when directed by Respondent to drive truck 25, Horn refused. Nothing happened, however, be- cause another truck became available before Horn started his run. The very next day, Salinas refused to drive truck 25 back to the garage when ordered to do so by Respondent. Thus, at the time Respond- ent suspended Salinas, it was on notice that on suc- cessive days two of its drivers had refused to drive truck 25 because of the brake problem. In addition, compliance with an order to drive a motor vehicle with malfunctioning brakes would clearly violate traffic regulations, 2 and thus any benefits resulting from Salinas' refusal to drive such an unsafe vehicle would inure to the benefit of all of Respondent's drivers. In light of these facts, it is clear that Salinas' ac- tions on March 5 were part of a continuing effort by Salinas and at least one other employee to have Respondent repair the brakes on truck 25, that Re- spondent was fully aware of such effort as well as the specific problem with the brakes on truck 25, and, thus, that Salinas' activity was concerted. Inas- much as Respondent suspended Salinas for engaging in protected concerted activities, we find that his suspension violated Section 8(a)(1) of the Act. I Thus, the Administrative Law Judge's conclusion that Sali- nas' refusal to perform his normal work tasks distinguished this case from the Alleluia Cushion line of cases is clearly incorrect. 2 An employer's ordering of a commercially licensed driver to violate traffic regulations and ordinances would be a matter of grave concern to all drivers. Applying these principles and the Board's reasoning in Pink Moody and Alleluia Cushion, I find that the Re- spondent's discharge of Prill was violative of Section 8(a)(1) of the Act. The General Counsel has made a prima facie showing that Prill was discharged for refusing to drive his truck and trailer back to Tecumseh, Michigan, and, by his in- sistence that the truck was unsafe to drive, causing the Respondent to dispatch its mechanic to Knoxville, Ten- nessee. This finding is supported by the uncontradicted testimony of Supervisor Dave Faling. Faling testified that President Alan Beatty said that this was the reason for the termination. He mentioned no other reasons. This admission by the highest ranking official of the Respond- ent is confirmed by the circumstances of Prill's termina- tion. He was fired the day after he reported to work fol- lowing his return from Knoxville, Tennessee. He was told by Seagraves that the Respondent could not have him "calling the cops all the time," an obvious reference to the fact that Prill had asked local authorities in Ten- nessee to inspect the vehicle which resulted in a citation being issued that prevented the trailer from being moved. The timing of the discharge makes it clear that what happened in Tennessee precipitated the discharge. The Respondent conceded that Prill was not discharged be- cause of the accident itself. Seagraves and Beatty were clearly insistent on Prill's driving the vehicle back to Te- 506 MEYERS INDUSTRIES cumseh and were upset when Prill balked. In these cir- cumstances, the inference is clear that Prill was fired for refusing-for safety reasons-to drive the truck and trail- er back to Tecumseh. The credited testimony also shows that the Respondent was concerned with Prill's earlier safety complaints, including a complaint to Ohio authori- ties which resulted in a citation of the vehicle for safety violations, and that this too formed a basis for the dis- charge. Thus, Seagraves told Prill, when he fired him, "we can't have you calling the cops like this all the time" (emphasis added). In view of the many earlier problems with the trailer brakes which were not satisfactorily re- solved and of the citation of the Tennessee authorities di- recting that the trailer not be moved unless repaired, Prill's refusal to drive the equipment back to Tecumseh was made in good faith. At the hearing, the Respondent attempted to show, through the testimony of Seagraves and Beatty, that it decided to lay off Prill for economic reasons prior to the Jacksonville trip and that he was fired for being a poor employee. Apart from the inconsistency and contradic- tion of these two reasons, they fly in the face of the un- contradicted testimony of Supervisor Faling which made it clear that Beatty conveyed the view to him that Prill was fired for refusing to drive the truck back to Tecum- seh. Beatty did not mention any other reasons to Faling. Moreover, the reasons related at the hearing are based on the discredited testimony of Beatty and Seagraves. I have discussed some of this testimony above as well as my reasons for discrediting it. In addition, the assertion that Prill was to be laid off for economic reasons prior to the Jacksonville trip is implausible. Why would an em- ployer who has allegedly decided to lay off a particular employee send him on a lengthy trip without even tell- ing him he was going to be laid off? And why would an employer then hire another driver the same day Prill was discharged and not give Prill the opportunity to handle the job? As I have indicated, the testimony concerning Prill's alleged poor work performance was unreliable. Prill received no written warnings although the Re- spondent's rules require written warnings before a dis- charge. Probationary employees are not excluded from such rules. Beatty did not even orally reprimand Prill. There is no evidence that Faling, his immediate supervi- sor, ever did. Seagraves' testimony as to oral warnings was undetailed and ambiguous. The testimony was point- edly and credibly rebutted by Prill. Faling's testimony also controverts Seagraves since he had no problems with Prill. In these circumstances, I find that the Respondent's reasons for the termination, advanced by its officials at the hearing, were pretexts. The Respondent has thus failed to rebut the General Counsel's evidence or show that Prill would have been discharged notwithstanding his safety complaints and his refusal to drive an unsafe vehicle after reporting its condition to the Tennessee Public Service Commission. The question then becomes whether Prill's safety com- plaints and his refusal to drive an unsafe vehicle in the circumstances of this case constituted protected concert- ed activity under Section 7 of the National Labor Rela- tions Act. Prill's refusal to drive the vehicle was mandat- ed by Department of Transportation regulations which require that an inspection be made after an accident to determine the extent of damage and also require that a vehicle cited as unsafe not be operated until it is re- paired. 5 Prill was, by contacting local authorities and re- fusing to drive the vehicle, enforcing these provisions of the national transportation policy. This policy obviously reflects concern not only for the safety of the general driving public but also for particular drivers. Obeying the Respondent's orders to drive an unsafe vehicle would have caused a violation of DOT regulations. Moreover, Prill's refusal to drive the vehicle was also based, in part, on his earlier experience which had resulted in numerous complaints about the inoperative trailer brakes on this same vehicle. The Tennessee citation mentioned the in- operative trailer brakes as one of two deficiencies which rendered the vehicle inoperable. Prill's complaints about the trailer brakes prior to the accident were clearly con- certed since they were joined by driver Gove who made similar complaints, in Prill's presence, to management of- ficials about the safety of Prill's vehicle when he, Gove, was assigned to drive it for 2 weeks. These concerted complaints were thus a sufficient basis on which a refusal to drive the truck could be made. See Pink Moody, above. Prill's effort to have the Tennessee Public Service Commission to inspect the damaged trailer was the equivalent of a safety complaint to OSHA. Indeed, the application of Department of Transportation regulations in this respect is mandatory. After an accident, a driver must report the accident, and, if a citation is issued which states that the truck not be driven, the citation must be complied with. In contrast, the processes of OSHA are voluntary: An employee may or may not take a work-related safety complaint to OSHA. Furthermore, the safety of a driver's vehicle is at least the equivalent of a workplace safety problem which affects all employ- ees. A truckdriver's place of work is behind the wheel of a truck just as the manufacturing employee's place of work is the plant environment. An employee who com- plains about the safety of a particular truck speaks for the safety of any employee who may drive that truck I The Federal Motor Carrier Safety Regulations provide, in 49 C.F.R.. as follows: Section 396.4 Unsafe operations forbidden. No motor carrier shall permit or require a driver to drive any motor vehicle revealed by inspection or operation to be in such con- dition that its operation would be hazardous or likely to result in a breakdown of the vehicle nor shall any driver drive any motor vehi- cle which by reason of its mechanical condition is so imminently hazardous to operate as to be likely to cause an accident or a break- down of the vehicle. If while any motor vehicle is being operated on a highway, it is discovered to be in such unsafe condition, it shall be continued in operation only to the nearest place where repairs can safely be effected, and even such operations shall be conducted only if it be less hazardous to the public than permitting the vehicle to remain on the highway. Section 396 6 Damaged vehicles, inspection. No motor carrier shall permit or require a driver to drive nor shall any driver drive a motor vehicle which has been damaged in an ac- cident or by other cause until inspection has been made by a person qualified to ascertain the nature and extent of the damage and the relationship of such damage to the safe operation of the motor vehi- cle, nor shall such motor vehicle be operated until such person has determined it to be in safe operating condition. 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and for any employee who has an interest in the safety of his vehicle. It is not a remote inference that an em- ployer who seeks to have one driver drive an unsafe ve- hicle may do likewise with another driver or another ve- hicle. Indeed, the evidence in this case shows that the Respondent had dispatched another driver, Gove, to op- erate Prill's vehicle. Gove expressed his reluctance to drive the vehicle in the future. Thus, under the rationale of Alleluia Cushion and Pink Moody employee Prill's re- fusal to drive an unsafe vehicle was. tantamount to making a work-related safety complaint which would inure to the benefit of all employees and the activity of Prill was thus presumptively protected. The Respondent was, of course, free, under Alleluia Cushion to rebut the inference that Prill's activity inured to the benefit of all employees. It could have shown, for example, that Prill's protests and complaints were not made in good faith or were simply the idiosyncrasies of a supersensitive individual whose concerns could not have been shared by other truckdrivers in similar circum- stances. This the Respondent failed utterly to accom- plish. Indeed, three witnesses, Maynard, Faling, and Gove, essentially corroborated Prill on the safety prob- lems of the vehicle Prill was driving. The Respondent did not even attempt to return the trailer from Tennes- see, thus confirming Prill's judgment and that of the Ten- nessee Public Service Commission that the vehicle was unsafe. In these circumstances, I find that the Respond- ent has not rebutted the presumption that Prill's safety complaints and refusal to drive an unsafe vehicle inured to the benefit of all employees and thus constituted pro- tected concerted activity.6 6 The General Counsel and the Charging Party allege that the illegal- ity of Prill's discharge is buttressed by reference to Sec. 502 of the Act which states, in pertinent part, "nor shall the quitting of labor by an em- ployee or employees in good faith because of abnormally dangerous con- ditions for work at the place of employment of such employee or em- ployees be deemed a strike under this Act." In my view, Sec. 502 has no applicability to this case which must be decided under Sec. 7 and Sec. 8(aXl) of the Act. Sec. 502 offers no particular help in defining the con- tours of protected concerted activity in the circumstances of this case. Sec. 502 does not define either an unfair labor practice or concerted pro- tected activity. And it adds nothing to the existing body of law interpret- ing the phrase "protected concerted activity." Sec. 502 is, of course, useful in helping to determine the rights of employees who refuse to per- form work in unsafe situations where a contractual no-strike provision would make such activity unprotected. Thus, in a case where an individ- ual's refusal to work is prima facie protected and concerted because, under the Inrerboro rationale, he seeks to enforce a cnntractual provision. such as the specific provision that an employee may refuse to drive a ve- hicle he believes to be unsafe, reference to Sec. 502 may rebut an em- ployer's defense that such refusal is unprotected because it is a "strike" in CONCLUSIONS OF LAW 1. By discharging employee Kenneth Prill for engag- ing in protected concerted activity, the Respondent com- mitted an unfair labor practice in violation of Section 8(aX1) of the Act. 7 2. This unfair labor practice affected commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in the unfair labor practice set forth above, I will recommend that it cease and desist therefrom and take certain affirm- ative action designed to effectuate the policies of the Act. The Respondent will be ordered to reinstate Ken- neth Prill to his former job or, if that job no longer exists, to a substantially equivalent job, and to make him whole for any losses of wages and other benefits he may have suffered as a result of his unlawful discharge. Such losses are to be computed in the manner prescribed in F. W Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977).8 [Recommended Order omitted from publication.] violation of a contractual no-strike clause. See Banyard v. NLRB, 505 F.2d 342, 348 (D.C. Cir. 1974), citing Gateway Coal Co. v. United Mine Workers, 414 U.S. 368 (1974). The instant case is distinguishable. The pro- tected concerted activity here is not based on the enforcement of a con- tractual clause under the Interboro rationale. Here there is no contract in- volved, no representative, and no no-strike clause. The concertedness of the activity must be established by reference to Washington Aluminum, Alleluia Cushion, and its progeny. The Respondent alleged that the State of Michigan Department of Labor dismissed a complaint filed by Prill alleging that the discharge vio- lated the Michigan Occupational Safety and Health Act. I have consid- ered the evidence submitted by the Respondent in support of this allega- tion and I conclude that it does not detract from my findings in this case. The statutory procedure under which the Michigan Department of Labor operates does not result in a final determination which can be equated with the result obtained under the Labor Act. Indeed, the department es- sentially conducts investigation which may result in the issuance of a complaint which is then taken to a local court. No hearing was held. The department's standard for issuing a complaint is that the "over riding factor" in the employee's discharge be his "safety related" complaint. In these circumstances, the department's refusal to issue a complaint is of scant relevance in determining whether the General Counsel has proved, by a preponderance of the evidence, in an adversary hearing where an administrative law judge must assess the credibility of witnesses, that Prill was fired for engaging in activity which was, under the Labor Act, pro- tected and concerted. 8 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 508