Yellow Freight Systems, Inc.

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yellow Freight Systems, Inc. and Frederick Foster. Case 39-CA-1640 30 November 1984 DECISION AND ORDER - BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 3 May 1984 Administrative Law Judge James F. Morton issued the attached decision. The Charging Party filed exceptions and a letter in sup- port of these exceptions. The General Counsel and the Respondent filed briefs in answer to the Charg- ing Party's exceptions and in support of the judge's decision.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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, findings, and conclusions and to adopt the recommended Order. 2 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. MEMBER ZIMMERMAN, 'dissenting. Contrary to my colleagues, and for the reasons set forth in my dissenting opinion in Olin Corp., 268 NLRB 573 (1984), I would not defer to the award of the arbitration panel. The panel's award, issued shortly after the close of the 2-hour arbitration hearing, consists in its en- tirety of the following two sentences: Based on the facts presented and the testimony submitted, case of the Union is denied. The discharge of Mr. Fred Foster was for just cause. There is no showing that the unfair labor prac- tice issue, i.e., whether the Charging Party was dis- charged because he asserted certain rights under the collective-bargaining agreement, was present- ed to or considered by, much less resolved by, the arbitration panel. In the absence of such a showing, I would not defer to the arbitration award. The Respondent also filed a statement opposing the Charging Party's 11 July 1984 request that a transcript of proceedings before the Occupa- tional Safety and Health Administration be received in evidence 2 The Charging Party has requested oral argument and that the tran- script of a hearing held on 10 and II May 1984 before the Occupational Safety and Health Administration be received as evidence These requests are hereby denied, as the record, the exceptions, and the briefs adequate- ly present the issues and the positions of the parties I See NLRB v City Disposal Systems, 104 S Ct 1505 (1984) DECISION - STATEMENT OF THE CASE JAMES F MORTON, Administrative Law Judge. After the hearing had closed in this case, counsel for the Gen- eral Counsel filed a motion to withdraw the complaint, discussed in detail below The Charging Party opposed the motion. I shall grant the motion for the following reasons The complaint which issued on June 30, 1983 (all dates are in 1983 unless stated otherwise), alleged that the Charging Party, Frederick Foster, had been discharged on April 6 by Yellow Freight Systems, Inc (Respond- ent) because he asserted certain rights under the collec- tive-bargaining agreement Respondent had with Team- sters and Chauffeurs Local 443 a/w International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union). Respondent filed its answer which averred, inter aim, that the Board should defer to an arbitration award which upheld Respondent's 'dis- charge of the Charging Party At the hearing, the Gen- eral Counsel, relying on the Board's holding in American Freight Systems, 264 NLRB 126 (1982), contended that deferral was inappropriate as the arbitration panel had not considered the unfair labor practice issue raised by the allegation of the complaint that Respondent's dis- charge of Foster violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). After the hear- ing closed, the Board issued its decision in Olin Corp., 268 NLRB 573 (1984), which overruled the holdings in American Freight, supra and in earlier cases. The Board, in Olin, held that an arbitrator will have adequately con- sidered the unfair labor practice issue if the contract issue is factually parallel to the unfair labor practice issue and if the arbitrator was generally presented with those facts The General Counsel, after weighing the impact of Olin on the facts in the Instant case, concluded that there was merit to Respondent's deferral defense and, on the basis, moved to withdraw the complaint The Charging Party's views thereon were solicited He opposed defer- ral but did not contest the rationale underlying the Gen- eral Counsel's motion to withdraw Thus, the Charging Party's opposition was based on his assertion that, in the proceeding before me, perjured testimony was given re- specting the-merits of the case itself In order to rule on the General Counsel's motion, it is necessary to make the following FINDINGS OF FACT I JURISDICTION The pleadings establish that Respondent is a Corpora- tion of the State of Indiana, that it is engaged in the busi- ness of providing transportation services, and that its op- erations annually meet the applicable Board standard for the assertion of its jurisdiction II. LABOR ORGANIZATION The pleadings further establish that the Union is a labor organization as defined in Section 2(5) of the Act. 273 NLRB No. 7 YELLOW FREIGHT SYSTEMS 45 III. THE PROCEDURE ISSUE The essential facts are not in material dispute. Respondent has a truck terminal in Milford, Connecti- cut, and has a collective-bargaining agreement with the Union covering the drivers employed there. The Charging Party, Foster, has worked at the termi- nal as a driver beginning August 1981. In 1982 he and other full-time drivers protested Respondent's assigning to them a certain truck they considered unsafe, tractor B7696. The terminal manager orally agreed then not to assign tractor B7696 to the regular drivers It appears that in 1983 a new terminal manager was hired and that, in early 1983, Foster, more than once and without fur- ther incident, rejected assignments to operate tractor B7696. On April 6, Foster was operating a truck which became disabled because of defective brakes A relief driver who had been operating tractor B7696 was in- structed to bring it to Foster so that he could use it to complete his route. Foster called the dispatcher and ob- jected to driving tractor B7696; he reminded the dis- patcher of the oral understanding that had been reached in 1982 with the previous terminal manager. The dis- patcher informed him that the new terminal manager had decided, a month or two previously, that any driver who refused to operate a truck that management deemed safe would be considered to be "an automatic quit" Foster was also told, in effect, that Respondent was satisfied that tractor B7696 was safe to operate. Foster then began to drive it. About 10 minutes later and 6 miles distant, however, he stopped and telephoned the dispatcher. He stated that he had problems with the brakes and with other operating aspects of that vehicle The dispatcher told him the complaints he had were not valid and that, if he refused to drive that truck, he would be considered a voluntary quit Foster declined to operate it and was discharged Foster filed a grievance with the Union to protest his discharge, relying on contractual language that permitted a driver to refuse to operate unsafe equipment The matter went to arbitration. The arbitration hearing was held on April 20 and lasted about 2 hours. Foster testi- fied before me that he related to the arbitration panel, in substance, the same testimony he gave before me, as summarized above Respondent called a union official as its witness and he related that he also had testified before the arbitration panel as to how Foster told him he drove tractor B7696 on April 6. After the hearing on Foster's case was completed before the arbitration panel on April 20, it issued later that same day an award which, in its entirety, read. Based on the facts presented and the testimony sub- mitted, case of the Union is denied. The discharge of Mr. Fred Foster was for just cause. It is evident, under the Olin rationale, that the arbitra- tion panel has considered the statutory issue as it was presented with generally the same facts on which the al- leged unfair labor practice was predicated It is clear, too, that the other deferral criteria set out in Spielberg Mfg. Co, 112 NLRB 1080 (1955), have been met The opposition by Foster to the General Counsel's motion is not addressed to any of those concerns but instead would have me render a separate judgment on the merits based on my view of the evidence. I am not permitted to do so, as there is no basis on which it can be found that the arbitration award was "palpably wrong." - CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 3 It will effectuate the purposes and policies of the Act to defer to the April 20 arbitration award and to grant the posthearing motion by counsel for the General Counsel to withdraw the complaint in its entirety. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The General Counsel's motion to withdraw the com- plaint in its entirety is granted. If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses