Ryder Truck Lines, Inc.,

RYDER TRUCK LINES 713 Ryder Truck Lines, Inc., and Melvin D. Tailor. Case ,10-CA-19042 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AI■113 MEMBERS ZIMMERMAN AND HUNTER , On 21 September 1983 Administrative Law Judge Philip P. McLeod issued the attached deci- sion in this proceeding finding that the Respondent violated Section 8(a)(1) of the Act by discharging Melvin D. Taylor.. On 30 April ' 1984" the Board issued an Order remanding the prOceeding to the judge for further, consideration in light of the Board's Decision in Olin Corp., 268 NLRB. 573 (1984). The judge issued a supplemental , decision on 17 July 1984 reaffirming his earlier 'decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-excep- tions and a supporting brief. 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,2 and conclusions only to the extent consistent: with this Decision and Order. In his decision of 21 September 1983 the judge found that Taylor was unlawfully discharged for refusing to drive a truck that he reasonably- be- lieved was unsafe. The judge found 'it inappropriate to defer - to the grievance committee's denial of Taylor's grievance because there was no evidence that the committee considered the statutory isues involved.3 „ In Olin Corp. the Board adopted Member Hun- ter's dissent in Propoco and declared it 'would .find that an arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfili 'labor practice.' The Board further held that, the party 1 The Respondent has requested oral argument The request is denied as the record, exceptions, and bnefs adequately present,the issues and the positions of the parties . 2 We find no ment in the Respondent's contention 'that die judge was predisposed to find in favor of the Charging Party • 3 In deciding not to defer, the judge relied On American Freight System, 264 NLRB 126 (1982), Propoco, Inc. 263 NLRB 136 (1982), enf with un- published, nonprecedential opinion, Case 83-4058 (2d Or 1983), and Suburban Motor Freight, 247 NLRB 146 (1980) 4 268 NLRB 573 seeking to have the Board reject deferral and con- iider the merits of a given case has the burden of affirmatively demonstrating the defects in the arbi- tral process or award.5 In his attached supplemental decision the judge examined the minutes of the Southern Multi-State Grievance Committee meeting and found that the contractual issue raised by Taylor's grievance was factually parallel to the unfair labor practice issue and that the Committee was presented generally with the facts relevant to resolving both issues. The Multi-State Committee was unable to reach a decision on Taylor's grievance and referred it to the' Southern Area Grievance Committee. The judge noted the brevity of the Area Committee's minutes, which include a statement that "the tran- script of the Multi-State hearing will be made a part of the record," and found the minutes insuffi- cient to show that the Committee was iiresented generally with the facts relevant to yesolving, the unfair labor practice or that it adequately consid- ered the issue. The judge particularly relied on the absence of evidence that the Area Committee actu- ally discussed or considered the facts, contained in the Mutli-State Committee minutes. 'We find that the General 'Counsel has not met his burden of affirmatively demonstrating that the unfair labor practice did not receive adequate con- sideration in the parties' joint-panel grievance pro- cedure. As found by the judge, the contractual and statutory issues are factually parallel and the parties generally presented the Multi-State Committee with the facts relevant to the statutory issue. The judge erred, however, in partitioning .the grievance proceeding and requiring that a further showing be made that the relevant facts were discussed or con- sidered by the Area Committee. We find that the parties' presentation of the facts relevant to the unfair labor practice at the Multi-State Committee stage of the grievance proceeding, together with the General Counsel's failure to affirmatively estab- lish that these facts were not presented to the Area Comniittee, 6 satisfies the requirement set forth in Olin. Since the Area Committee's decision is con- sistent with the standards promulgated in Spielberg .Mfg. Co., 112 NLRB 1080 (1955), we shall defer to the grievance decision and dismiss the complaint.7 ORDER The complaint is dismissed. Id Suburban Motor Freight was overruled to the ' extent it provided for a different allocation of burdens in deferral cases 6 As noted above, the transcript of the Multi-State heanng was made part of the record of the Area Committee 7 In view of our dismissal of the complaint, we find It unnecessary to pass on the Respondent's motion for hearing de nova before a different administrative law judge , 273 NLRB No. 98 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER ZIMMERMAN, dissenting. Contrary to my colleagues, and for the reasons set forth in my separate opinion in Olin Corp., 268 NLRB 573 (1984), I would have affirmed the ad- ministrative law judge's initial decision in this case, in which he declined to defer to the instant arbitra- tion award, and found that the Respondent unlaw- fully discharged Charging Party Melvin Taylor for engaging in protected concerted activity by refus- ing to drive a truck which he claimed was unsafe to operate. More specifically, I agree with the judge's conclusion in the initial case that it would be inappropriate to defer to the result reached by the Teamsters, Multi-State' Grievance Committee, since there was not even a written decision by that committee from which it would be possible to-de- termine whether the committee considered the stat- utory issues presented in this case. For the same reasons as those stated above, " I Would affirm the judge's supplemental decision in which' he continued to decline to the Arbitration award, reaffirming his initial decision. More specifi- cally, I agree with the judge that the brief cursory minutes of the Southern Conference Area Commit- tee are not sufficient to show that the committee was presented with facts relevant to the unfair labor practice. In affirming the judge's supplemen- tal decision, I find it unnecessary to pass on the judge's determination that he would have deferred to the arbitration proceeding before the Southern Multi-State Grievance Committee if that proceed- ing had resolved the grievance. DECISION STATEMENT OF THE CASE PHILIP P. McLEop, Administrative Law Judge. This case was heard by me on July 28 and 29, 1983, in Bir- mingham, Alabama. It originated from a charge filed by Melvin D. Taylor, an individual, against Ryder Truck Lines, Inc. (Respondent). On April 11, 1983, a complaint and notice of hearing issued alleging, inter aim, that Re- spondent violated Section 8(a)(1) of the National Labor Relations Act (the Act), by discharging, and thereafter failing and refusing to reinstate, employee Melvin D. Taylor because he engaged in concerted activities with other employees for the purposes of collective bargain- ing and other mutual aid and protection. In its answer to the complaint, Respondent admitted certain allegations, including the filing and serving of the charge, its status as an employer within the meaning of the Act, and the fact that it discharged Taylor on December 2, 1982. Re- spondent denies that it discharged Taylor for reasons which violate the Act and denies having engaged in any conduct which would constitute an unfair labor practice. At the trial herein, all parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Following the close of the trial, both Respondent and the General Counsel filed timely briefs with me which have been duly considered. On the entire record in this case, and from my obser- vation of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Ryder Truck Lines, Inc. is a Florida corporation with offices and truck terminals located in various cities throughout the United States. The facility involved here is in Birmingham, Alabama During the past calendar year, which period is representative of all times material herein, Respondent derived gross revenues in excess of $50,000 from the interstate transportation of freight and commodities from its Birmingham facility directly to cus- tomers located outside the State of Alabama. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II. THE ISSUES The complaint alleges that Respondent discharged Taylor because he engaged in concerted activities with other employees for the purposes of collective bargain- ing and other mutual aid and protection. Counsel for the General ,Counsel contended in his opening statement that Taylor was "terminated for engaging in protected, con- certed activities when he refused to drive an unsafe truck." The complaint does not specifically allege that Taylor engaged in protected activity by refusing to drive unsafe equipment. Respondent argues that because the complaint does not specifically set forth the latter allega- tion, the General Counsel should not be heard to pro- pound that argument, but rather should be limited to the concerted activities theory specifically alleged. I reject Respondent's 'argument and find that the complaint Ian- ' guake is sufficiently particular to encompass the "unsafe equipment" theory Respondent admits that it discharged Taylor in the early morning hours of December 2, 1982, because Taylor' refused to drive a particular truck tractor as- signed to him. Therefore, with regard to the discharge, two issues are presented: first, whether Taylor refused to drive the particular tractor as a result of concerted ac- tivities engaged in by him with other employees for their -mutual aid and protection; and second, whether Taylor's refusal to drive the truck, if not the result of concerted activities with other employees, was the result of a rea- sonable belief on Taylor's part that the tractor was unsafe. In addition to these, a third Issue is presented as a result of Respondent's affirmative defense that the Board should defer to the Teamsters Multi-State Grievance Committee's denial of Taylor's grievance regarding his discharge and, as a result, dismiss the complaint herein. RYDER 'TRUCK LINES 715 III. THE FACTS A. Background Melvin D. Taylor was employed by Respondent as a truckdriver at its Birmingham, Alabama facility, for 26 years. Respondent's truckdrivers, including Taylor, are represented for purposes of collective bargaining by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Respondent is signatory to the National Master Freight Agreement and Southern Conference Area Over The Road Supplemen- tal Agreement. Two portions of the collective-bargaining agreement have relevance to this proceeding. First, arti, cle 16, section 1, provides in part, "The' employer shall not require employees to take out on the streets" 'or high- Ways any vehicle that is not in safe operating condition." Second, the collective-bargaining agreement contains provisions for the resolution of disputes through final and binding grievance and arbitration procedures.' From the Birmingham facility, drivers are dispatched to haul freight to other Ryder facilities in various loca- tions throughout the country. Drivers do not have trac- tors permanently assigned to them which they drive day after day. Rather, tractors are , assigned to drivers from a pool on a first-in-first out basis, i.e., tractors which have arrived at the Birmingham facility from other locations are assigned to Birmingham drivers in the order in which they arrived in Birmingham. When a driver is assigned a particular load, he is given bills of lading and other doc- uments, including a Department of Transportation (DOT) "Equipment Inspection Report" which the driver is required to complete before, leaving on his run. In order to complete this report, the driver is required to inspect both the tractor and trailer assigned to him and to report any deficiencies to the , dispatcher. The" dis- patcher then communicates with the repair shop with regard to any repairs that need to be made. Because of arguments which have occurred in the past between drivers and repair shop employees, drivers are , not per- mitted to communicate directly with , the repair shop. If the repair cannot be completed in a reasonable time, the shop foreman will notify the dispatcher, and different equipment will be assigned to the driver from the exist- ing pool. Truck tractors used by Respondent 'are' predominantly GMCs and Fords. The interior of these two tractors somewhat different, and generally speaking the Ford tractors have less space in the cab than the GMC model. In years past, large drivers experienced difficulty being able to fit in the Ford models. As a result, an agreement was reached sometime ago between Respondent and the Union that certain individuals would not be required to drive Ford tractors. This agreement has been applied to two drivers at the Birmingham facility, a Mr. Starnes and a Mr. Morris. There is, however, no evidence that this agreement was giNien general application to any driver who thought himself too large to , fiu comfortably in the Ford cab. Rather, it appears that Respondent and the Union reached agreement that certain named individ- uals would be exempted from driving Ford tractors, and the rule has been applied to them alone. The 1979 Ford tractors used by Respondent have an adjustable telescoping steering column. The telescoping mechanism contains an inner frame with spring-loaded pins which engage in adjustment holes located in an outer stationary frame. Two bolts located in the outer frame regulate the amount of play in the steering column between the inner and outer frames. If-the bolts are loos- ened to allow the telescoping mechanism to adjust, play is experienced in the steering wheel. If the bolts are tightened to eliminate this play in the steering wheel, the telescoping mechanism will,-not adjust. In 1980, because of driver complaints about play in the steering wheel, Respondent welded the steering columns in a fixed posi- tion. Sometime during 1982, other drivers complained that the steering wheel would not adjust. A grievance was filed, and Respondent agreed to restore the telescop- ing mechanism to its original condition so that it would 'adjust. Restoring the mechanism to its original condition required the use of a cutting torch to remove a tack weld which had been used to fix them in place. B. Taylor's Refusal to Drive 1979 Ford 79-597 On the night of December 1, 1982, when Taylor re- ported to work at the Birmingham facility, he was first assigned a GMC tractor to drive on his regular bid run to Monroe, Louisiana. After inspecting the tractor, Taylor turned in to the dispatcher a DOT report that the tractor' had a broken seat. The dispatcher so informed the repair shop,' which attempted necessary repairs. The repair shop informed the dispatcher that the seat could not be repaired, and Taylor was then assigned the next available tractor, 1979 model Ford 79-597. After inspecting this Ford tractor, Taylor prepared and turned in, a DOT report 'time-stamped 21.9 hours (9:54 p.m.) stating, "unable to adjust steering wheel" and "engine leaking oil." The dispatcher informed the shop of the necessary repairs. At approximately 10:36 p.m., the repair shop informed the dispatcher that the unit was ready. Taylor returned to the "ready line" to check the vehicle. After this inspection, Taylor turned in to dis- patcher Miller a DOT report at 10:48 p.m. stating, "steering column loose part of" [sic]. This was reported to the shop by Miller. Shop Superintendent Ed Mize in- formed Miller with a written note that the repair work had 'already been - performed earlier and there would ,be !`no come back/n6 pay "2 Taylor then went to the vehi- cle, which had been returned to the "ready line" and drove it himself to the repair shop. Taylor attempted to confront' Mize directly and convince him that the repairs were not complete. Mize interrupted Taylor, however, told Taylor that the shop was not going to work on the truck any more, that Taylor would have to drive it like it Ni7ns, and that if Taylor had problems with the truck 1 The General Counsel claims in brief that Taylor found the "exhaust manifold defective" and that "exhaust fumes leaked into the cab" The General Counsel is either very mistaken or making up facts to suit his needs, for they are-found nowhere in this record In either case, I reject this assertion and do not rely on It in any way in reaching my decision herein 2 This designation means that in Mize's opinion no further repair was necessary and the driver should not be paid for the additional time spent while the vehicle was being looked at a second time 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taylor should go to the dispatcher. 3 Taylor then drove the truck back to the "ready line." Upon returning to the "ready line" from the repair shop, Taylor met two other drivers, Jack Simpson and W. R. Worthington. Taylor asked Simpson and Worthington to help him adjust the steering slide so that Taylor could fit behind the steering wheel They were unable to do so. Worthington told Taylor that Taylor could not drive that tractor, that Taylor was too big. Taylor then returned to the dispatch office to speak ,to Miller. Taylor told Miller he could not drive the truck. Miller replied that the shop was not willing to work on the steering column any more, that it had made the nec- essary repairs, and that Taylor was going to have to drive the truck Taylor went back out to the truck and. a few minutes later returned to the dispatch office with a DOT report time-Stamped 11:06 p.m. stating, "part of trailer's [lights] out.' Brakes grabbing on tractor." Dis- - patcher Miller communicated the need for these repairs to the shop After filing this DOT report, Taylor returned to the ready line. Taylor was standing at the ready line by the truck with employees Joseph Shelby and Simpson when mechanic John Smith approached to repair the lights. Taylor asked Smith to examine the truck's steering. Ac- cording to Smith's testimony, he found that the steering mechanism was loose, the steering column had been cut with a welding torch, and the ball bearings, had been let out. According to Smith, the steering column did not slide properly and did not allow the driver to have all the room the cab was designed to allow. Smith testified that in his opinion the condition of the steering column could cause a driver to have steering trouble and possi- bly an accident. According to Smith, the steering column was "shot" -and needed to be replaced. 5 Smith told 3 Testimony of Taylor and Mize conflicts with regard to die statement made by Mize to Taylor, but I accept a composite of their testimony on this point I do not credit Mize's testimony that at this time he was able to ob- serve Taylor sitting behind the wheel of the tractor, that the steering wheel may have been touching Taylor's shirt, but that the steering wheel was not "burled in" or substantially protruding into Taylor's stomach as Taylor asserted at trial Rather, I credit the testimony of employee Floyd described below 5 I credit that portion of Smith's description of the actual physical con- dition of the steering column wherein he states that the steering column did not slide properly and did not allow the driver to have all the room the cab was designed to allow I credit Smith on this point not because of his own demeanor, but because this point is corroborated by employee Thomas Floyd, whose testimony is described below and Who impressed me as the most disinterested and credible witness in this case In crediting this portion of Smith's testimony, I am mindful that, in general, Smith was clearly biased in Taylor's favor His testimony was extreme and his demeanor unsettling Smith admitted that he did not want to do anything to hurt Taylor I have also considered the fact that following Taylor's discharge, union business agent Simmons requested a meeting with Smith and Shop Superintendent Paul Hergot to investigate Taylor's grievance During this meeting, Smith told Simmons and Hergot that he did not want to cause trouble for Taylor and did not want to give a wntten statement, but that the steering wheel had actually been recessed as far as it would go when he examined It on the night of December 1, and that he had told Taylor so The fact,that Smith would make such a statement in the presence of Shop Superintendent Hergot is consistent with my im- pression of Smith's credibility that he would say anything he thought the listener wanted to hear Thus, I credit only this limited portion of Smith's testimony because it is corroborated by Floyd Taylor, however, that he was assigned only to fix the lights. Taylor then left the ready line and went back to the dispatch office. Smith proceeded to fix the lights, and the truck was again returned to the ready line shortly after midnight. After the truck was again released from the repair shop, at 12:24 a.m. Taylor turned in yet another DOT report which stated, "unable to adjust steering wheel." This report, was 'relayed to the shop by dispatcher Miller By this time, Shop Superintendent . Mize, who left work at midnight, was gone Mize's replacement, Shop Super- intendent Keys, again had the vehicle inspected Shortly after 1 a.m., Keys informed Miller that two mechanics had checked the steering, that the steering wheel was re- tracted as far as it would go, and that the mechanics had certified that to be so. The truck was again returned to the ready line. At - 1:1i a.m , yet aricither "come back" was written to the shop. that the trailer lights were out. This was again checked by the shop, repaired, and re- turned to the dispatcher as ready at approximately .1:36 a.m 'Taylor and dispatcher Miller then had a conversation which ultimately led to Taylor's discharge. The 'conver- sation was initiated by Taylor, who told Miller that he would not drive the tractor until the steering was fixed. Miller told Taylor thal the shop had fixed the steering and that two Mechanics had certified such to be the case. Taylor told Miller that he could not drive the truck, that he was too big, and that the shop had not fixed the steer- ing mechanism so that it would properly adjust. Miller then asked the employee Thomas Floyd to be a witness to what was about to take place. Floyd agreed but said he wanted to inspect the truck first. Taylor and Floyd went to inspect the truck. Miller did not accompany them. Instead, while they were gone, Miller telephoned Terminal Manager Scotty Appleton and told him what had taken place Miller informed Appleton that Taylor had made several wiiteups . on the truCk, but that it had cOme down to the fact that the steering did not adjust. Miller told Appleton. that Taylor now refused to drive the truck. 'Appleton instructed Miller to order Taylor to drive the truck and that if Taylor refused, to discharge Taylor. Floyd testified about whai he ' found when he and Taylor went to the, ready line to inspect the truck. As I have indicated above, of all the witnesses in this case, Floyd struck me as the most credible. When Floyd and Taylor went to inspect the truck, Floyd took a flashlight with -him to make the inspection. When they got to the truck, Taylor got up into the cab and sat behind the steering wheel. As Floyd testified, "the steering wheel was hitting him in the stomach." Taylor then got out of the truck, and Floyd got in to inspect. Floyd testified, "the steering wheel would slide but there was something holding it off; it wouldn't go all the way against the dash like it normally would go." Floyd testified that he could place his two-cell flashlight in the space left behind the steering wheel and the dash board Floyd testified that he could see that a cutting torch had been used to cut the weld loose and that "liquid wrench or break away fluid" had been used to lubricate the sliding mechanism. RYDER TRUCK LINES 717 Floyd testified, "It was dripping down in the floor- board." Floyd also testified that on the steering column there is a universal joint which allowed the steering column to turn the truck wheels regardless of the col- umn's position According to Floyd, "they had taken something and beat it to drive it in, and they had beat the rubber bushing off of it, and the bushing was hanging down on it." After inspecting the truck, Floyd told Taylor that in his opinion, if the telescoping mechanism would allow the steering wheel to slide as it normally would, Taylor could probably drive the truck. Floyd tes- tified that, if such were the case, Taylor would have about 2 inches between his stomach and the steering wheel. As it was, however, the steering wheel hit Taylor in the stomach When Floyd and Taylor returned to the dispatch office after inspecting the truck, Miller did not ask, and Floyd did not have occasion to report, what he had found. Instead, Taylor told Miller that when the tractor was fixed; he would drive it. Miller replied that the shop had stated the truck was ready to go, and Taylor would have to drive it "or else." Miller 'then issued written in- structions to Taylor to drive the truck. Taylor took the written instructions and placed them in his pocket. Taylor told Miller he would drive the truck when it was fixed. Miller asked for the written instructions back and Taylor refused to return them to Miller: 6 Miller then wrote out a second set of written instructions, showed them to Taylor, and told Taylor that if he did not drive the truck he was discharged Taylor said he was going home, and left the office . Before Taylor could leave Respondent's facility, he first had to perform some minor repair on his personal vehicle in Respondent's parking lot. While doing so, Miller came out to the parking lot and asked Taylor for the bills of lading for the load which he was to have taken that night. Taylor refused to give Miller the bills of lading, telling Miller to leave him alone, that he had had all he could stand.7 Another driver, Roland McLaunn, was called in to take the run which Taylor was to have taken to Monroe, Louisiana McLaurin was told by dispatcher Miller that Taylor had refused to drive the truck because the steer- ing mechanism would not adjust. McLaurin checked out the tractor, found that it would adjust to his satisfaction, and drove to Monroe and back without incident It should be noted, however, that McLaurin weighs 200 pounds, while Taylor weighs approximately 240 pounds. McLaunn simply did not encounter the same problem experienced by Taylor On December 3, 1982, Taylor was sent a letter inform- ing him that he was discharged On December 4, Taylor filed a grievance pursuant to the National Master Freight Agreement protesting his discharge. As Respondent notes, the grievance does not specifically allege that the truck was "unsafe" for Taylor to drive Nor does Taylor specifically refer to article 16 of the collective-bargaining 6 I find Taylor's refusal to return the instructions to be of no conse- quence There was no indication it was considered insubordination or played any part in Respondent's decision to discharge Taylor I also find this incident to be inconsequential Tajdor had already been discharged when the incident occurred agreement dealing with an employee's right to refuse to drive unsafe equipment. The grievance does, however, grieve the fact that "other drivers have been allowed to turn these Fords down because of the steering wheel being in their stomach." A hearing was held regarding Taylor's grievance which Taylor attended. After the grievance was deadlocked at the Multi-State Committee, the grievance was referred to the area committee, which denied the grievance Taylor did not attend the area committee meeting. Respondent did not offer into evi- dence a transcript of any stage of the grievance proceed- ing Analysis and Conclusions Regarding the issue whether the Board should defer to the Teamsters Multi-State Grievance Committee's denial of Taylor's grievance regarding his discharge and, as a result, dismiss the complaint ,herein, Respondent in its brief recognizes "the relatively recent, misguided, deci- sions of the Board which hold ,contrary to Respondent's position" American Freight System, 264 NLRB 126 (1982), Propoco, Inc., 263 NLRB 136 (1982); Suburban Motor Freight, 247 NLRB 146 (1980) These are, of course, the same cases relied on by the General Counsel in support of the argument that the Board should not defer, and they clearly support the General Counsel's po- sition Accordingly, I find that it would be inappropriate to defer to the Teamsters Multi-State Grievance Com- mittee's denial of Taylor's grievance regarding his dis- charge where there is not even a written decision by that committee from which it would be possible to tell whether the committee considered the statutory issues presented here With regard to Taylor's discharge, the General Coun- sel argues that when an employee complains about safety matters which are subjects of the collective-bargaining agreement, he is engaged in protected concerted activity because such conduct affects the rights of all unit , em- ployees. McLean Trucking Co., 252 NLRB 728 (1980); Interboro Contractors, 157 NLRB 1295 (1966), and other similar cases. The General Counsel argues that in refus- ing to drive Ford 79-597, Taylor was exercising a right pursuant to article 16, section 1, of the collective-bar- gaining agreement which provides, "The employer shall not require employees to take out on the streets or high- ways any vehicle that is not in safe operating condition" Thus, according to the argument, Taylor's refusal of Ford 79-597 was the result of complaints about a safety matter which is the subject of the collective-bargaining agreement, and he was thereby engaged in protected ac- tivity Additionally, the General , Counsel argues that Taylor's refusal to drive Ford 79-597 was protected be- cause he was exercising a right pursuant to Federal Motor Carrier Safety Regulations which provides, inter aim, that motor vehicles shall not be driven unless the driver satisfies himself that the steering mechanism, brakes, lighting devices, and other parts and accessories are in good ,working order. As a result, the argument continues, Taylor's refusal to drive Ford 79-597 was of common concern to all employees, and was therefore "concerted" activity accorded the protection of the Act. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This theory of concerted activity has been specifically adopted and applied by the Board in Interboro Contrac- tors, supra, and its progeny. Respondent argues that in refusing to drive Ford 79- 597, and in his actions which led up to that refusal, Taylor was not acting in concert with other employees, but rather was acting by himself and only for himself. Respondent further argues that the Interboro doctrine has been rejected by the U.S. Court of Appeals for the 1 1 th Circuit in -which this case arose8 and therefore should not be applied here. Respondent argues that even if the Interboro principle is applied here, in refusing to drive Ford 79-597 Taylor was not attempting to enforce any provision of the collective-bargaining agreement and had no reasonable belief that the vehicle was unsafe. In a nut- shell, Respondent argues: A review of the transcript reveals clearly that what this entire case amounts to is that for reasons of per- sonal comfort and convenience Taylor did not want to drive that Ford tractor on the night in question, and he was bound and determined to get out of it. The real crux of the matter is to be found in Tay- lor's statement: .don't drive them [Fords] when I can get out of it, I agree with you. Because they hurt my stom- ach. After hearing this case, there is no doubt in my mind that, in refusing to drive Ford 79-597, Taylor was con- cerned solely for himself. There is nothing in the Act, however, which requires an employee to be motivated by altruistic concerns in order to be afforded its protec- tion. Nor does it follow from the fact that Taylor was concerned solely for himself that Taylor was therefore acting by himself and not in concert with other employ- ees, even though he may have been the only one to refuse to drive a truck on the night of December 1, 1982. My analysis of the facts herein leads me ultimately to the conclusion that in refusing to drive Ford 79-597 on the night of December. 1, 1982, Taylor was acting not only in conformity with the Motor Carrier Safety Regu- lation which provides in part that a driver must satisfy himself that the steering mechanism works properly and that provision of the collective-bargaining agreement which states that an employer shall not require employ- ees to drive any vehicle that is not in safe operating con- dition; nor solely because Taylor reasonably believed it was dangerous to drive Ford 79-597; and, lastly, not solely as a result of concerted activities engaged in with other employees. Rather, all of these factors are present in Taylor's refusal to drive Ford 79-.597. - That Taylor was acting in conformity with the Motor Carrier Safety Regulation described above and article 16, section 1, of the collective-bargaining agreement is so ap- parent as to require no further explication. Taylor's belief that driving Ford 79-597 -on the night of December 1, 1982, would present a dangerous situation was indeed 8 Roadway Express v NLRB, 700 F 2d 687 (11th Cir 1983) See also Enerhaul, Inc. v NLRB, 700 F 2d 748 (11th Or 1983) reasonable, for I find that the result would have been in fact unsafe. This is not to say that driving Ford 79-597 was necessarily unsafe for all drivers. When Taylor re- fused, McLaurin drove the vehicle without incident, and the record shows that many miles have been put on that vehicle since that night. As the vehicle existed 'on the night of December 1, 1982, however, it was unsafe for many large drivers, including Taylor, because the steer- ing wheel in fact protruded into Taylor's stomach and no doubt would have done the same for other drivers of equal girth. On the night of December 1, as well as throughout this proceeding, Respondent reacted to Tay- lor's complaints about the steering mechanism as if they arose only from his desire for comfort I specifically credit Taylor that he explained to Miller that he could not fit behind the steering wheel of this truck because he was too big and the steering wheel would not adjust properly. Not once did dispatcher Miller bother to check to see whether Taylor could fit reasonably behind the steering wheel. Miller asked Floyd to be his witness, and yet did not himself bother to witness the problem being complained of, even when Floyd himself insisted on doing so. Floyd, Miller's witness, testified credibly before me that in fact the steering wheel protruded into Taylor's stomach. By simple inspection Miller could have determined that even though the steering column may. have been worked on by the repair shop, the steer- ing wheel did not recess as far as it was intended to, that the truck could not safely be assigned to a driver of Tay- lor's girth but could be assigned to a thinner smaller driver Miller, who had it within his power, could then have simply reassigned the vehicle. The problem on the night of December 1 did not represent a conflict be- tween Taylor and the repair shop, nor between Miller and the repair shop. The unsafe condition could easily have been corrected by Miller without any conflict, but Miller turned a deaf ear to Taylor's complaints that the steering wheel would not adjust as far as it was intended to and Taylor could not fit behind the wheel Miller as- sumed, and Respondent now argues, that Taylor was motivated solely out of a desire for personal comfort. This argument would have me ignore, as Respondent itself ignored, the fact that on Ford 79-597 the steering wheel in fact protruded into Taylor's stomach to such a degree as to impair proper steering of the vehicle. While Respondent may have chosen to ignore this, I cannot. Turning now to the concerted nature of Taylor's action, I wholly reject Respondent's argument that Taylor did not seek out other employees and solicit their opinions regarding the condition of the truck he refused to drive. Rather, this record is replete with evidence that throughout the night of December 1 and into the early morning hours of December 2, 1982, Taylor solicited the opinion and the support of other employees that it would be unsafe for him to drive Ford 79-597. Taylor attempt- ed to confront Shop Superintendent Mize about the problem and was rebuffed because company rules Pro- hibit drivers from communicating directly with the repair shop. Taylor then approached employees Jack Simpson and W. R. Worthington Worthington told Taylor that Taylor could not drive the tractor in ques- RYDER TRUCK LINES 719 lion, that Taylor was too big Taylor asked shop me- chanic John Smith, who had been dispatched to repair lights on . the trailer, to inspect the steering' column. Smith found that the steering column did not slide prop- erly and did not ,allow the driver to have all the room the cab was designed to, allow. Employee Floyd also in- spected the vehicle with Taylor, and he too found that the steering wheel would not recess against the dash- board as it was supposed to and that it hit Taylor in the stomach. In sunimary, , Taylor not only spoke to:but had the support of other drivers before he ultimately, refused to drive Ford 79-597. I find that Taylor's refusal to drive Ford 79-597 was concerted activity for yet another reason. In the past, other large drivers have complained because they could not fit in Ford tractors, and specifically the 1979 model, without the steering wheel touching, or even being im- bedded in, their stomachs. The fact that such a condition presents not only an uncomfortable but a hazardous situ- ation because it interferes with steering the vehicle must necessarily' have been part of the reason for Respondent and the Union entering into an agreement to exempt cer- tain drivers from driving Fords. Further, numerous com- plaints have been made, and at least two grievances filed, regarding the adjustable steering column. Neither the General Counsel nor Respondent offered these past grievances as exhibits. Instead, both chose to rely on oral testimony with regard to them. Whether those griev- ances still exist is not revealed by the record. Thus, while there is no direct evidence to prove conclusively that the complaints and the first grievance regarding the telescoping steering mechanism were related to com- plaints by large dri</ers that they could not fit in Ford tractors, I believe it is reasonable to draw the inference that they Were. Initially, large drivers complained be- cause they could not fit behind the steering wheel Other drivers complained because, when the adjusting bolts were left loose so that the telescoping mechanism would adjust, there was play and vibration in the steering whee1.9 Respondent attempted to resolve all of these com- plaints by exempting certain drivers from driving Ford tractors and welding the steering columns in a fixed posi- tion with steering wheels as -close as they would go to the dashboard, thereby eliminating play in the steering wheel and at the same time providing most room in the cab. A later grievance in 1982 resulted in Respondent agreeing to remove the welds and return the steering mechanism to their original condition. It was Respond- ent's inability to do this successfully on Ford 79-597 which resulted in the steering wheel not being able to re- tract as far as it was intended to be that caused the wheel to protrude into Taylor's stomach. In order for ac- tivity to be concerted, it does not necessarily have to be simultaneous, or even contemporaneous. It is sufficient if the actions of various people, though engaged in at dif- ferent times, are in fact shown to be related to the same 9 Testimony here shows that this vibration was not so excessive to affect actual steering of the vehicle It was, however, of such a degree that it tended to mask or hide various malfunctions which might arise and which would otherwise have been detected through their effect on the steenng subject, or are sufficiently related to be of a common concern. Taylor was fully aware of the history of com- plaints and grievances regarding the steering mechanism and the lack of room in Ford tractors when he refused to drive Ford 79-597 on the night of December 1, 1982. Respondent was equally aware of this history of com- plaints and grievances. I find that in refusing to drive . Ford 79-597 on the night of December 1, 1982, Taylor was engaged in activity in concert with other employees who had complained in the past, and filed grievances, re- garding the steering mechanism and the lack of room in Ford tractors. Accordingly, I find that because Taylor's refusal to drive Ford 79-597 on the night of December 1, 1982, was in conformity with Motor Carrier Safety Regula- tions; was a right accorded him pursuant to the collec- tive-bargaining agreement; was the result of a condition which was in fact unsafe; was action that Taylor took only after speaking to, and obtaining the support of, other employees; and was activity engaged in in concert with other employees who had complained in the past, and filed grievances regarding, the steering mechanism and the lack of room in 1979 Ford tractors, Respondent's discharge of Taylor for engaging in this activity violated Section 8(a)(1) of the Act. •, CONCLUSIONS OF LAW 1. The Respondent, Ryder Truck Lines, Inc., is an em- ployer engaged in commerce within the, meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Taylor's refusal to drive Ford 79-597 on the night of December 1, 1982, was in conformity with Motor Carrier Safety Regulations; was a right accorded him pursuant to the collective-bargaining agreement between Respondent and the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica; was the result of a condition that was in fact unsafe; was action that Taylor took only after speaking to and obtaining the support of other employees; and was action engaged in in concert .with other employees who had complained in the past and had filed grievances regard- ing the steering mechanism and the lack of room in 1979 Ford tractors, and Taylor was thereby engaged in con- certed activity protected by the Act. 3. Respondent discharged Melvin D Taylor on De- cember 2, 1982, because of his protected concerted ac- tivities described above, and Respondent thereby violat- ed Section 8(a)(1) of the Act. 4. The unfair labor practices which Respondent has been found to have engaged' in, as described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease 720 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD and desist therefrom and to take -certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.] SUPPLEMENTAL DECISION PHILIP P. McLEop, Administrative Law Judge. On September 21, 1983, I issued my decision in this prOceed- ing finding, inter 'aim, that Respondent discharged Melvin D. Taylor in violation of Section 8(a)(1) of the National Labor Relations Act (the Act). *I also concluded that the issues involving the alleged unlawful discharge of Taylor should not be deferred to the gnevance-arbi- tration procedures of the parties' collective-bargaining agreement. Thereafter, Respondent filed exceptions to my decision with the Board. On January 19, 1984, after-the issuance .of my decision, the Board issued its Decision and Order in Olin Corp., 268 NLRB 573 (1984). In Olin Corp., the Board articulat- ed the standard it would use for the deferral of cases to arbitration as that policy was renewed in United Technol- ogies Corp., 268 NLRB 557 (1984), issued that same day. By Order dated April 30, 1984, the Board remanded this proceeding to me to prepare this supplemental deci- sion setting forth further •findings of fact, conclusions of law, and a recommended Order regarding the applicabil- ity of Olin Corp. to the instant case.' Accordingly, the record in this case was reopened to afford the parties the opportunity to introduce evidence and to file supplemen- tal briefs setting ,forth their Positions on this issue. Sup- plemental reply briefs were also provided for. Both counsel for the Acting General Counsel and Respondent filed timely briefs with me. Respondent also filed a reply brief. These briefs have been duly considered. Neither party desired additional hearing to introduce further evi- dence. In the brief filed by the Acting General Counsel, the representation was made that the parties telephoni- cally stipulated to the authenticity and admissibility of certain documents attached to its brief which constitute minutes of the Southern Multi-State Grievance Commit- tee and the Southern Conference Area Grievance Com- mittee which reviewed and considered Taylor's griev- ance regarding his discharge. 2 In its reply 'brief, Re- spondent does not dispute the accuracy of the Acting General Counsel's representation regarding this stipula- tion. In Olin Corp., supra, the Board stated in relevant part (268 NLRB at 574): Accordingly, we adopt the following standard for deferral to arbitration awards. We would find that an arbitrator has adequately considered the 1 I note that Meyers. Industries, 268 NLRB 493 (1984), which might also be argued to be applicable herein, ,issued on January 6, 1984. The remand, however, only directed me to consider the deferral Issue raised by Olin Corp. supra Accordingly, I did not direct the parties to brief, nor have I attempted to consider herein, the applicability, if any, of Meyers Industries, to my earlier decision 2 I note that the minutes of these meetings attached to the brief of the Acting General Counsel are misnumbered by oversight Minutes of the January 25, 1983, Southern Multi-State Grievance Committee are re- ferred to in the brief as appendix 1 but are, in fact, marked appendix 2 as attached to the bnef This misnumbenng should cause ,no confusion be- cause the two appendices speak for themselves unfair labor practice' if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor prac- tice. In this respect, differences, if any, between the contractual and statutory , standards of review should be weighed by the Board as part of its deter- mination under the Spielberg standards of whether an award is "clearly repugnant" to the Act. And, with regard to the inquiry into the "clearly repug- nant" standard, we would dot require an arbitrator's award to be totally consistent with Board prece- dent.' Unless the' award, is "palpably wrong," i.e., unless the arbitrator's decision is not susceptible to an interpretation consistent with the Act, we would defer. • Finally, we would require that the 'parties seeking to have the Board reject deferral and consider the merits of a given case show that the above stand- ards for deferral have not been' met; Thus, the party seeking to have the Board ignore the determination of an arbitrator has the burden of affirmatively dem- onstrating the defects in the arbitral process or award. It should be noted from the outset that this case does not involve the usual situation in Which a grievance has been presented to an independent outside arbitrator who has individually,' heard the facts and rendered a written decision Considering' those facts in disposing of the con- tractual issue presented to MM. Rather, this case involves a gnevance filed by a discharged employee pursuant to the National Master Frieght Agreement in which an ar- bitration, panel is made up of equal numbers of manage- ment and , Onion representatives. If those individuals, who in this case comprised the Southei-n Multi-State Griev- ance Committee, are not able to reach a majority deci- sion with regard to the grievance, it is considered "dead- locked." Such a grievance is then referred to another committee, also made up of equal numbers of manage- ment and union representatives, which in this case was the "Southern Conference Area Grievance Committee." It is at this latter stage that Taylor's grievance was re- solved. The issue winch was placed before the grievance com- mittees regarding Taylor's discharge arose pursuant to article 45 of the collective-bargaining agreement which provides in part that "the employer shall not discharge . . . any employees without just cause." The issue in the unfair labor practice proceeding is whether Taylor's re- fusal to drive a truck assigned , to him was protected ac- tivity within the meaning of the Act, such that his dis- charge for such conduct violated Section 8(a)(1) of the Act. As the Acting General .Counsel argues, the griev- ance committees were not asked to consider whether Taylor was engaging in activity protected by the Act On the other hand, the minutes of the Southern Multi- State Grievance Committee reflect that an issue which was fundamentally similar to the issue before me was at least given passing consideration. During that grievance meeting the point was made that "In accordance with the national interpretation to guidelines handed down by RYDER TRUCK LINES 721 the Safety Committee . . it says that if a man because of his physical size cannot drive a unit and you have other equipment on the yard, you will switch it out for him." Moreover, the minutes of that committee reflect that substantial argument was devoted to Taylor's posi- tion that the truck he was assigned to drive was unsafe. That committee was also presented with Taylor's claim that regardless of whether the truck was safe for drivers smaller than Taylor, it was unsafe for him because of his physical size. Finally, I note that the minutes of the Southern Multi-State Grievance Committee, .which was first asked to consider Taylor's grievance, are contained On nine legal-size typewritten single-spaced pages. After renewing this document, I am satisfied that in all major respects it is a capsulized version of the record in the trial 'before me. BaSed on all The abOve, I find that the contractual issue raised by Taylor's grievance, though hot identical, was factually parallel to the unfair labor practice issue and that the Southern Multi-State Griev- ance Committee was presented generally with the facts relevant to resolving both issues. If the Southern Multi-State Grievance Committee had decided the merit of Taylor's grievance, I would have little trouble deferring to that decision. Despite the dif- ferences between the joint-panel procedure utilized here and the more usual situation, the Board has deferred to decisions of such a joint panel. See United Parcel Service, 270 - NLRB 290 (1984). The last sentence of the Board's -fobtriote in that decision; however, when viewed -in the context of the administrative law judge's findings in that case, leaves considerable room for doubt whether the BOard would accord equal weight to the decisions of such joint panels in every case. In the instant case, the Southern Multi-State Grievance Committee, which heard the actual evidence, could not reach a majority decision and instead became "deadlocked." The grievance was then referred to the "Southern Conference Area Griev- ance Committee." The .minutes of that committee are Contained on a single typewritten page The only refer- ence to the lengthy proceedings before the Southern Multi-State Grievance Committee is a single line which reads,' "The transcript of the Multi-State hearing will be made a part of the record." The parties, who at this later proceeding were only the Employer and the Union, were then given the opportunity to "add anything at this time" Respondent's representative then made a state- ment which comprises .the vast majority of the minutes of that committee meeting: Following Respondent's statement, the minutes contain the following. "Local Union don't have anything to add." Following that is the single line which reads: DECISION: Case number 15 DENIED, COST TO THE UNION. In my judgment, -the brief cursory minutes of the Southern Conference Area Committee are not sufficient to, show that it was presented with the facts relevant to the unfair labor practice, much less that it adequately considered those facts, and I would not defer to this award. Though the issue before the Southern Conference Area Committee was 'identical to that before the South- ern Multi-State Grievance Committee, and the contrac- tual issue therefore remains factually 'parallel to the unfair labor practice issue, the minutes of the Southern Conference Area Grievance Committee are wholly inad- equate and provide no basis for finding that it was pre- sented generally with the facts relevant to -resolving the unfair labor practice or that it adequately considered that issue. The only reference in the minutes of the Southern Conference Area Grievance Committee to the minutes of the Southern Multi-State Grievance Committee is the single line - quoted above that "The transcript of the Multi-State hearing will be made a part of the record." The minutes of theSouthern Conference .Area Grievance Committee contain nothing to show that the facts con- tained in the minutes of the Southern Multi-State Griev- ance Committee were discussed or considered in any way. They were simply "made a part of the record." I find that- it would be inappropriate to defer to the deci- sion of the Southern Conference Area Grievance Com- mittee where the minutes of that committee are so curso- ry so as not to reflect whether it was actually presented with the facts relevant to resolving the unfair labor prac- tice, and I reaffirm my earlier decision herein.3 3 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