Ryder Truck Lines, Inc.

806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ryder Truck Lines, Inc. and Melvin D. Taylor. Case 10-CA-19042 16 December 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JENKINS AND STEPHENS On 14 December 1984 the Board Issued a Deci- sion and Order in this proceeding ' dismissing the complaint.2 The Board applied its Olin standards for deferral , and determined that dismissal was ap- propriate because the General Counsel failed to af- firmatively demonstrate that the parties' bipartite grievance procedure did not adequately consider the unfair labor practice issue . On 21 April 1986 the United States Court of Appeals for the Elev- enth Circuit vacated the Board's Decision and Order and remanded the case for further consider- ation. 3 The court determined that deferral was inappro- priate because , inter alia, the Board 's Olin standard of deferral does not protect sufficiently an employee's rights granted by the National Labor Relations Act. By presuming, until proven otherwise, that all arbitration proceedings confront and decide every possible unfair labor practice issue, Olin Corp. gives away too much of the Board's responsibility under the NLRA. 786 F .2d at 1521 . The court additionally found de- ferral inappropriate because the evidence failed to establish that the Southern Conference Joint Area Grievance Committee (Area Committee) consid- ered any facts relevant to Taylor's statutory claim and that the Area Committee proceedings likely would not satisfy the "fair and regular" require- ments under Spielberg Mfg. Co., 112 NLRB 1080 (1955). The Board accepted the remand on 27 August 1986 and thereafter the General Counsel , the Re- spondent, and the Charging Party filed briefs. 1 273 NLRB 713 2 The complaint alleged that the Respondent violated Sec 8(a)(1) when it discharged Melvin D Taylor because he engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection On 21 September 1983 Administrative Law Judge Philip P McLeod issued the attached decision finding that the Respondent had violated the Act as alleged Subsequent to the judge's decision, Olin Corp, 268 NLRB 573 (1984), issued and the Board, in an unpublished Order, remanded the case for further consideration Judge McLeod issued the attached supple- mental decision on 17 July 1984 finding that deferral was inappropriate and reaffirming his decision 3 786 F 2d 1516 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record, the court's decision, and the parties' briefs and has de- cided to adopt the judge's 21 September 1983 rul- ings, findings,4 and conclusions as modified herein. 1. Having accepted the remand, the Board must observe the court's opinion as the law of the case. We will therefore apply a deferral standard under which deferral is improper unless the party urging deferral has demonstrated that the arbitral forum in question has considered the facts relevant to the unfair labor practice issue. As the court expressed it, with respect to the deferral issue, "[t]he overrid- ing question in this case is whether the Area Com- mittee ever considered any facts relevant to Tay- lor's statutory claim." The Respondent has requested that the record be reopened to allow it to put in additional evidence about whether the Area Committee actually con- sidered Taylor's statutory claim. We deny that re- quest and consider the deferral question on the basis of the record of the initial unfair labor prac- tice proceeding before Judge McLeod. That pro- ceeding was conducted before the Board issued its decision in Olin, and thus at that time the Respond- ent had the burden of showing that the unfair labor practice issue had been considered. We see no breach of due process in denying the Respondent a second opportunity to put in evidence under the same standard. Having considered the matter on the original record, we find that the Respondent did not establish that the facts relevant to the unfair labor practice issue were considered by the Area Committee, and we therefore do not defer to the Area Committee's decision. 2. The judge's 21 September 1983 decision sets forth the facts. Briefly, the Respondent transports freight and commodities interstate from its facili- ties, including one in Birmingham, Alabama. The Respondent's Birmingham truckdrivers are repre- 4 The Respondent previously excepted to some of the judge's credibil- ity findings in the judge's decision and supplemental decision 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 Prod- ucts, 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 find- ings The Respondent further contends that the complaint does not encom- pass the allegation that Taylor was discharged for refusing to drive unsafe equipment We agree with the judge, for the reasons stated in his 21 September 1983 decision, that the complaint is sufficient The Respondent has repeated its request for a de novo hearing We affirm our earlier denial because the evidence fails to establish that the judge was predisposed to find in favor of the Charging Party According- ly, the Respondent's request for a de novo hearing before another judge lacks merit I 287 NLRB No. 82 RYDER TRUCK LINES 807 sented by the International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers of America (the Union). The Union and the Respond- ent are signatory to the National Master Freight Agreement and the Southern Conference Area Over-the-Road Supplemental Agreement which provide that the Respondent shall not require its employees to drive any vehicles which are not in safe operating condition.5 The parties also have a side agreement stating that certain large drivers are not required to drive Ford tractors because of their small cabs This agreement traditionally has been applied only to employees Starnes and Morris and not generally to drivers who consider themselves too large to comfortably fit in the Ford cabs. How- ever, the Respondent's area transportation manag- er, Scotty Appleton , testified that if a driver dem- onstrated that the steering wheel of a Ford tractor "was jammed under their [sic] belly, and that the truck was unsafe," the driver could be reassigned to another vehicle . Finally, the Respondent and its drivers are required by law to comply with the Department of Transportation 's (D.O.T.) Federal Motor Carrier Safety Regulations & Noise Emission Requirements, under which drivers must complete an "Equipment Inspection Report," verifying the safety of the equipment.6 Taylor has been employed by the Respondent as a driver for approximately 26 years. On 1 Decem- ber 1982 the Respondent assigned to him a G.M.C. tractor to drive on his regular run which Taylor claims involves 15 hours of driving . Taylor submit- 5 Art 16 of the National Master Freight Agreement provides, in perti- nent part Sec 1 The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating con- dition, including but not limited to acknowledged overweight or not equipped with the safety appliances prescribed by law Sec 2 Under no circumstances will an employee be required or assigned to engage in any activity involving dangerous conditions of work or danger to any person or property or in violation of any ap- plicable statute or court order, or in violation of a government regu- lation relating to safety of person or equipment 6 The DOT regulations provide 392 7 No motor vehicle shall be driven unless the driver thereof shall have satisfied himself that the following parts and accessories are in good working order Service brakes, including trailer brake connections Parking (hand) brake Steering mechanism Lighting devices and reflectors 396 7(a) General A motor vehicle shall not be operated in such a condition as to likely cause an accident or a breakdown of the vehi- cle 396 13 Before driving a motor vehicle, the driver shall (a) Be satisfied that the motor vehicle is in safe operating condi- tion, (b) Review the last vehicle inspection report required to be car- ried on the power unit, and (c) Sign the report to acknowledge that the driver has reviewed it and that there is a certification that the required repairs have been performed ted a D.O.T. inspection report indicating that the driver's seat was broken. The seat was irreparable and Taylor was assigned a Ford tractor. Taylor's version of the events is substantially as follows. After inspecting the Ford tractor Taylor discov- ered that he could not adjust the steering wheel away from his stomach; he had to wedge 'himself behind the steering wheel.? Taylor submitted a D.O.T. inspection report to the dispatcher, noting that he was unable to adjust the steering wheel and that the engine leaked oil. After the tractor was re- turned from she repair shop, Taylor discovered that the steering column now moved from side-to- side, but that it still could not be adjusted away from his stomach. When Taylor again reported the steering column to dispatcher Miller, Miller said that Repair Shop Foreman Mize indicated that the repairs had been made. Taylor then wedged him- self behind the steering wheel and drove to the repair shop to talk to Mize. Taylor told Mize that the vehicle had not been repaired, Mize said: "We're not working on that damn truck no more; you'll have to drive it like it is." Mize then in- structed Taylor to direct any further communica- tions to Miller. While Taylor was enroute to talk to Miller, em- ployees Simpson and Worthington attempted to adjust the steering column. When these efforts failed, Worthington told Taylor: "You can't drive it, Taylor; you're too big."8 Taylor then told Miller, "Bill, there's no way I can drive this truck; it'll beat me to death." Taylor informed Miller that he had undergone a colon operation the previous year and that he did not want additional surgery. When Miller reiterated that the shop would not further repair the steering column, Taylor submit- ted a D.O.T. inspection report to the dispatcher in- dicating that the tractor brakes grabbed and that some of the trailer lights were out. While the vehi- cle was being repaired, Taylor asked shop mechan- ic Smith to check the steering column. Smith testi- fied that he told Taylor that the steering mecha- nism was loose 'and that the steering column did not slide in properly, preventing the driver from achieving maximum driving room. After the tractor was again released from the repair shop, Taylor prepared another D.O,T. in- spection report indicating that he could not adjust the steering column. Mize's relief foreman, Keys, had the vehicle inspected by two mechanics and reported to Miller that the steering column was re- tracted as far as it would go. Miller relayed this in- 7 Taylor is 5 feet 10 inches tall, weighs 240 pounds, and has, a 44-inch waist 8 This is Taylor's version of the discussion Neither Worthington nor Simpson testified 808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD formation to Taylor who stated that he would not drive the tractor. When Miller insisted, Taylor an- swered, "I can't drive the truck; I'm too big. They hadn't fixed it." Miller then enlisted employee Floyd to witness his further discussions with Taylor. Before acting as a witness, Floyd examined the Ford tractor with Taylor. Floyd testified that the steering wheel hit Taylor in the stomach and that it would not go all the way against the dash- board as it should. While Floyd and Taylor inspected the tractor, Miller telephoned Appleton and informed him of the dispute with Taylor. Miller told Appleton that Taylor was claiming that the steering column would not, adjust and was refusing to drive the tractor. Appleton instructed Miller to order Taylor to drive the tractor; if Taylor refused, he was to be discharged. 9 When Taylor and Floyd returned, -Taylor reiter- ated that he could not drive the tractor. Miller di- rected Taylor to "drive it or else." Floyd heard Miller tell Taylor that the shop had determined that his tractor was ready and safe; Taylor would have to drive the tractor or go home. At Taylor's request, Miller put these instructions in writing: After Taylor said that he would drive the tractor when it was fixed, Miller handed him a second set of written instructions i ° and told him he would be discharged if he refused to drive the tractor. Taylor told Miller he was going home. As Taylor was leaving, Miller requested the return of the bills of lading. Taylor refused stating that he had had all that he could stand. Taylor eventually did return the documents claiming that he found them following his discharge. Following Taylor's discharge, McLaurin, who weighs 200 pounds and has a 36-inch waist, drove the tractor. On 3 December 1982 the Respondent wrote Taylor that he was discharged because he had re- fused to drive a vehicle which had been certified as road worthy, despite written and verbal instruc- tions to do so. t l Taylor testified that approximate- ly six times during the previous 2 years he has driven Ford tractors for the Respondent. However, he claims that in some of these instances the vehi- cles' steering columns were adjusted all the way down and other times the tractors had been modi- fied to include smaller steering wheels. Taylor fur- 0 Appleton testified about this conversation Miller was not a witness at the hearing 10 Taylor apparently refused to return the first set 11 The letter also stated that when Taylor was asked for the bills of lading, he threatened Miller with bodily harm However, Appleton, who wrote the letter, testified that the only reason for Taylor's discharge was his refusal to drive the vehicle Appleton and Supervisor Akers testified that generally bills of lading need not accompany the freight Although it is the Respondent's policy to have the bills accompany the freight, trac- tors have been dispatched without bills of lading ther claims that he has refused to drive Ford trac- tors on other occasions when he was unable to adjust the steering wheel. In these instances, the Respondent assigned him different vehicles. Based on the credited testimony of Taylor, Floyd, and, in part,- Smith, the judge found.that while Taylor, in refusing to drive the tractor was acting solely for himself, his actions were undertak- en in concert with other employees. Thus, because Taylor's refusal to drive the tractor was in ' con- formity with the D.O:T. safety and reporting re- quirements, article 16 of the'contract, and the spirit of the-side agreement, the judge found that ' it con- stituted concerted activities engaged in with other employees. The judge further found ,that Taylor re- peatedly sought out employees for their opinion and support on this safety issue and that Taylor reasonably believed that the vehicle was unsafe. Indeed, the judge concluded that the vehicle actu- ally was unsafe for Taylor and drivers of like girth. Based on these findings, the judge concluded, inter alia, that Taylor was engaged in concerted protected activity under Interboro i 2 when he re- fused to drive the tractor. He further found that Taylor's refusal to promptly return the bills of lading, was immaterial inasmuch as he had already been discharged when he was instructed to return these documents and because there was, no evi- dence that insubordination was a basis for his dis- charge. - We agree with the judge that Taylor was en- gaged in concerted protected activity under Inter- boro. The Interboro doctrine establishes that when an employee invokes rights which are embodied in a collective-bargaining agreement, he is'acting not only in his own interest, but in the -interest of all the employees' covered by that agreement. In NLRB v. City Disposal Systems, 465 U.S. 822 (1984), the Supreme Court endorsed the Board's Interboro doctrine: As long as the nature of the employee's com- plaint • is reasonably clear to the person to whom it is communicated, and the complaint does, in fact, refer to a reasonably perceived violation of the collective-bargaining agree- ment, the complaining employee is engaged in the process of enforcing that agreement. In the context of a workplace dispute, where the par- ticipants are likely to be unsophisticated in col- lective-bargaining matters, a requirement that the employee explicitly refer to the collective- bargaining agreement is likely to serve as noth- 12 Interboro Contractors, 157 NLRB 1295 (1966) RYDER TRUCK LINES Ing more than a trap for the unwary. [465 U.S. at 840.] In this case, the nature of Taylor's complaint, i.e., that it was unsafe for him to drive the tractor, was abundantly clear to the Respondent. The Re- spondent had previously received grievances from large drivers complaining that they could not fit into the smaller Ford cabs. Those complaints had prompted the parties to enter into a side agreement exempting large drivers from these vehicle assign- ments. Although, in practice, only two Birming- ham drivers were covered by this agreement, the Respondent specifically acknowledged that, in ap- propriate circumstances, other drivers could invoke the provisions of this side agreement and have their vehicles exchanged. Further, Taylor repeatedly told Miller and Mize that, inter alia, the steering column of the tractor did not operate properly. When filling out the D.O.T. inspection reports, Taylor frequently noted that the steering wheel would not adjust. Taylor also informed Miller that he could not drive the tractor because of his size and physical condition. That Miller recognized the nature of Taylor's safety complaints is demonstrated by his instruction that Taylor drive the tractor because the repair shop had declared it "ready and safe." Additionally, although Taylor did not specifical- ly mention the collective-bargaining agreement or side agreement, his complaints concerned reason- ably perceived violations of these agreements. Thus, by requiring Taylor to drive the tractor for approximately 15 hours in circumstances where the steering wheel would cut into his stomach, exacer- bating an existing physical condition and potential- ly impairing his ability to react promptly to emer- gency situations, the Respondent arguably created an unsafe condition within the meaning of article 16 and the D.O.T. regulations, and contrary to the spirit of the parties' side agreement. Further, there is ample record evidence to support the judge's finding that Taylor honestly believed that because of his girth and his inability to adjust the steering column, the tractor was unsafe for him to drive. Moreover, other employees validated Taylor's con- cerns by telling him that the steering column would not fully retract and that Taylor was too large to operate the tractor . Based on this evi- dence, we agree with the judge that Taylor reason- ably believed that it was unsafe for him to drive the tractor. Accordingly, we reject the Respond- ent's claim that Taylor's actions were founded ex- clusively on his desire for personal comfort and convenience and conclude that Taylor was en- gaged in protected concerted activity when he re- fused to drive the tractor. 809 We further agree with the judge that the inci- dent between Miller and Taylor regarding the bills of lading did not cause Taylor to lose the Act's protection. This incident occurred after Taylor was terminated and, although Appleton referenced this incident in Respondent's 3 December letter of dis- charge, he subsequently testified that Taylor's dis- charge was based solely on his refusal to drive the tractor. This incident did not make Taylor unfit for further employment. Moreover, although the Re- spondent's witnesses testified that it is company policy that bills of lading accompany deliveries, de- liveries have been made without these documents. We conclude that, based on all the evidence, the Respondent discharged Taylor for voicing and pur- suing safety complaints covered by D.O.T. regula- tions, the collective-bargaining agreement, and the parties' side agreement. We therefore determine that by discharging Taylor the Respondent violat- ed Section 8(a)(1) of the Act.13 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Ryder Truck Lines, Inc., Birmingham, Alabama, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 14 1. Substitute the following for paragraph 1(a). "(a) Discharging or otherwise disciplining em- ployees because they exercise their right to engage in concerted activities as guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I would remand this case to the administrative law judge for the pur- pose of reopening the record to take evidence on the question of whether and to what extent the Southern Conference Joint Area Grievance, Com- mittee (Area Committee) actually considered the transcript of the factual hearing on the instant grievance conducted by the Southern Multi-State Grievance Committee (Multi-State Committee). 1a In light of this finding, we find it unnecessary to pass on the Gener- al Counsel's alternative theory that Taylor's activities were also protected under Meyers Industries, 281 NLRB 118 (1986), or the judge' s treatment of that issue 14 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In remanding this case to the Board, the court stated: In his supplemental decision, the ALJ found that the statutory issue clearly was considered at the Multi-State Committee hearing. If that hearing had produced a dispositive result, then deferral to that result would have been proper under any of the many variations of the Spiel- berg standard. It is the Area Committee's deci- sion, however, that is relevant for deferral pur- poses and the ALJ had no indication from the transcript of that proceeding whether the Area Committee considered any unfair labor prac- tice claim:. . . The overriding question in this case is whether the Area Committee ever con- sidered any facts relevant to Taylor's statutory claim.' Thus, the Multi-State Committee heard and found all the material facts, but simply failed to reach a result. The Area Committee, on the other hand, while reaching a result, did not clearly show that it had actually considered all the facts as heard and found by the Multi-State Committee. The pro- cedural implications of the above-quoted excerpts from the court's remand are clear: if it is ultimately shown that the Area Committee did reach its result based on, inter alia, an actual consideration of the facts found by the Multi-State Committee, then de- ferral to the result reached by the Area Committee would be proper. Indeed, the court specifically re- manded this case to the Board for "further consid- eration of Ryder's exceptions and the General Counsel's cross-exceptions to the decision of the ALJ."2 In this regard, the Respondent argues in its exceptions to the judge's supplemental decision that, inter, alia, the judge erroneously assumed, without factual support, that the Area Committee did not consider the issues and facts raised before the Multi-State Committee. Clearly, in remanding this case to the Board for further consideration of the Respondent's excep- tions, the court intended the Board to consider this aspect of the Respondent's position-particularly since, as seen, the court itself considers this to be the overriding question in this case. Accordingly, in light of the court's framing of the issue, and consistent with its remand instruc- tions, I would remand this case to the judge for a resolution of the issue framed by the court.3 ferral policy in the Board's initial decision in the instant case, 273 NLRB 713 (1984) Ultimately, however, the court in my view remanded this case to the Board for resolution of the crucial factual issue discussed above Thus, while I am of course mindful of,the court's criticism of the Board's deferral policy, I nevertheless do not view that criticism as pro- hibiting deferral in the instant case to the result reached by the Area Committee, if it were ultimately to be determined by the judge that the Area Committee actually considered the facts and issues raised before the Multi-State Committee In this regard , I disagree with my colleagues' view that the Respondent has effectively had, under these usual proce- dural circumstances, a full opportunity to establish factually whether the Area Committee actually considered the facts and issues raised before the Multi-State Committee Accordingly, I would remand this case to the judge for a resolution of that factual issue My position in this case is not affected by my acquiescence policy set forth in my dissenting opinion in Arvin Industries, 285 NLRB 753 (1987) In my view, the present case ultimately rests on a factual issue based on the court's review of the record rather than , as in Arvin, a disagreement between the Board and the court on a proposition of law APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge or otherwise discipline you because you exercise your rights to engage in concerted activities as guaranteed by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Melvin D. Taylor immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority and other rights and privileges and we will make him whole for any loss of earnings or benefits he may have suffered by reason of our unlawful discharge of him on 2 December 1982. WE WILL remove from our files any reference to the discharge of Melvin D. Taylor and notify him in writing that this has been done and that evi- dence of the unlawful discharge will not be used as a basis for future personnel actions against him. 1 786 F 2d 1516, 1522 (11th Cir 1986) 2 Id The General Counsel did not file any exceptions to the judge's 21 September 1983 initial decision, but did file cross-exceptions to the judge's 17 July 1984 supplemental decision Thus, the "decision of the ALP referred to by the court is the judge's supplemental decision a In its opinion remanding this case to the Board, the court first gener- ally criticized the Board's deferral policy as set forth in Olin Corp, 268 NLRB 573 (1984), and then rejected the Board's application of that de- RYDER TRUCK LINES, INC. Steven K. Leibel, Esq., for the General Counsel. John Paul Jones, Esq., of Staunton, Virginia, for the Re- spondent. RYDER TRUCK LINES 811 DECISION STATEMENT OF THE CASE PHILIP P . MCLEOD, 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 alia, that Re- spondent violated Section 8(a)(1) of the National Labor Relations 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 bargaining and other mutual aid and protection In its answer to the com- plaint, Respondent admitted certain allegations , including the filing and serving of the charge , its status as an em- ployer within the meaning of the Act, and the fact that it discharged Taylor on December 2, 1982 Respondent denies that it discharged Taylor for reasons that violate the Act and denies having engaged in any conduct that would constitute an unfair labor practice. At the trial all parties were represented and were af- forded full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence. Fol- lowing the close of the trial , both Respondent and the General Counsel filed timely briefs that 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, Respondent derived gross revenues in excess of $50,000 from the interstate transportation of freight and com- modities from its Birmingham facility directly to custom- ers located outside the State of Alabama Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. 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 . The General Counsel contended in his opening statement that Taylor was "terminated for engaging in protected , concerted ac- tivities when he refused to drive an unsafe truck " The complaint does not specifically allege that Taylor en- gaged in protected activity by refusing to drive unsafe equipment . Respondent argues that because the com- plaint does not specifically set forth the latter allegation, the General Counsel should not be heard to propound that argument, but rather should be limited to the con- certed activities theory specifically alleged . I reject Re- spondent's argument and find that the complaint lan- guage 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; second, whether Taylor's re- fusal to drive the truck, if not the result of concerted ac- tivities with other employees , was the result of a reason- able 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. 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 Supplemental 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 through out the country Drivers do not have trac- tors permanently assigned to them that they drive day after day Rather, tractors are assigned to drivers from a pool on a first-in first-out basis , i e , tractors that have ar- rived 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 (D O.T.) "Equipment Inspection Report" that 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 that have occurred in the past between driv- ers and repair shop employees , drivers are not permitted to communicate directly with the repair shop If the I 812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 is 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 some time 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, Starnes and Morris. There is, however, no evidence 'that this agree- ment was given general application to any driver who thought himself too large to fit comfortably in the Ford cab. Rather, it appears that Respondent and the Union reached agreement that certain named individuals 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 that 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 be- tween 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 tightended to eliminate this play in the steering wheel the telescoping mechanism will not adjust. In 1980, be- cause of driver complaints about play in the steering wheel, Respondent welded the steering columns in a fixed'position. Sometime during 1982, other drivers com- plained that the steering wheel would not adjust. A grievance was filed, and Respondent agreed to restore the telescoping 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 that 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 D.OT report that the tractor had a broken seat. The dispatcher so in- formed the repair shop, which attempted necessary re- pairs The repair shop informed the dispatcher that the seat could not be repaired, and Taylor was then assigned the next available tractor, a 1979 model Ford 79-597. After inspecting this Ford tractor, Taylor prepared and turned in a D.O.T. 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 i Counsel for the General Counsel claims in his brief that Taylor found the "exhaust manifold defective" and that "exhaust fumes leaked into the cab" Counsel for the General Counsel is either very mistaken or making 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 columns 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/no 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, and told Taylor that the shop was not going to work on the truck any more,.that Taylor would have to drive it like, it was, and that if Taylor had problems with the truck Taylor should go to the dispatcher 3 Taylor then drove the truck back to the "ready line."4 On 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 re- turned 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 necessary 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 D 0 T. report time-stamped 11 06 p.m. stating, "part of trailer's [lights] out Brakes grabbing on tractor." Dispatcher Miller com- municated 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 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 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 a Testimony of Taylor and Mize conflicts with regard to the 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 "buried in" or substantially protruding into Taylor's stomach as Taylor asserted at trial Rather, I credit the testimony of employee Floyd described below RYDER TRUCK LINES 813 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 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 D.O.T. report that 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 am , 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 1.12 a m , yet another "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 that ultimately led to Taylor's discharge The conversa- tion was initiated by Taylor, who told Miller that he would not drive the tractor until the steering was fixed. Miller told Taylor that 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 writeups 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 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 de- meanor unsettling Smith admitted that he did not want to do anything to hurt Taylor I have also considered the fact that following Taylor's dis- charge, 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 written 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 the truck Appleton instructed Miller to order Taylor to drive the truck and that, if Taylor refused, to discharge Taylor. Floyd testified about what 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. Floyd testified, "it was dripping down in the floor- board " Floyd also testified that on the steering column there is a universal joint that 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 like 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 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 that he was to have taken that night. Taylor refused to give Miller the bills of lading, telling 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 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Miller to. leave him alone, that he had had all he could stand.', Another driver, Roland McLaurin, was called in to take the run that 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 McLaurin 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 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 evidence a transcript of any stage of the grievance pro- ceeding. IV. ANALYSIS AND CONCLUSIONS ` Regarding the issue whether the Board should 'defer to the Teamster 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); Professional Porter Cleaning Co., 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 its argument that the Board should not defer, and they clearly support the General Counsel's position. Accordingly, I find that it would be inappropriate to defer to :the Teamsters Multi- State Grievance Committee's denial of Taylor's griev- ance regarding his discharge when 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 that 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); ' I also find this incident to be inconsequential Taylor had already been discharged when the incident occurred 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-bargain- ing agreement that provides, "The employer shall not re- quire employees to take out on the streets or highways any vehicle that is not in safe operating condition." Thus, according to the argument, Taylor's iefusal of Ford 79-597 was the result of complaints about a safety matter that 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 that provides, inter alia, 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. 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 that lead up to that refusal, Taylor was not acting in concert with other employees, but rather was acting by himself and only for himself. Re- spondent further argues that the Interboro doctrine has been rejected by the Eleventh United States Circuit Court of Appeals 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 nutshell, Respondent argues: A review of the transcript reveals clearly that what this entire case amounts to is that for reasons of personal 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: I don't drive them [Fords] when I can get out of it, I, agree with you. Because they hurt my stomach. 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 8 Roadway Express v NLRB, 700 F 2d 687 (11th Cir 1983) See also Enerhaul. Inc v NLRB, 710 F 2d 748 (11th Cir 1983) RYDER TRUCK LINES 815 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 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 Regulation, which provides in part that a driver must satisfy himself that the steering mechanism works properly, and that provision of the collective-bargaining agreement that states that an employer shall not require employees to drive an vehicle that is not in safe operating condition; 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 em- ployees. Rather, all of these factors are present in Tay- lor'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 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 complaint 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 himself without any con- flict, 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 assumed, and Respondent now argues, that Taylor was motivated solely out of a desire for personal com- fort. This argument would have me ignore, as Respond- ent itself ignored, the fact that on Ford 79-597 the steer- ing wheel in fact protruded into Taylor's stomach to such a degree as to impair proper steering of the vehicle. Although 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- tion, 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 summary, 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 coun- sel for 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 grievances still exist is not revealed by the record. Thus, while there is no direct evidence to prove conlusi- vely that the complaints and the first grievance regard- ing the telescoping steering mechanism were related to complaints by large drivers that they could not fit in Ford tractors, I believe it is reasonable to draw the infer- ence that they were Initially, large drivers complained because they could not fit behind the steering wheel. Other drivers complained because when the adjusting bolts were left loose so that the telescoping mechanism 816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would adjust, there was play and vibration in the steer- ing wheel.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 mechanisms 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 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 that was in fact unsafe; was action that Taylor took only after speaking to and obtaining the support of other em- ployees; and was action engaged in on 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 dis- charge of Taylor for engaging in this activity violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent, Ryder Truck Lines, Inc., is an employ- er. engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2. Taylor's refusal Jo 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 concert with other employees who had com- plained in the past and had filed grievances regarding the steering mechanism and the lack of room in 1979 Ford tractors, and Taylor was thereby engaged in concerted 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 relation to trade, traffic, and commerce among the several States and tends 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 and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edi.o ORDER The Respondent, Ryder Truck Lines, Inc., Birming- ham, Alabama, its officers, agents, successors, and as- signs, shall 1: Cease and desist from (a) Discharging or otherwise disciplining employees who concertedly refuse to drive vehicles pursuant to an obligation and rights accorded them by Motor Carrier Safety Regulations, pursuant to rights accorded them in the collective-bargaining agreement between Respondent and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and which are unsafe on which employees in good faith reasonably be- lieve to be unsafe '(b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Melvin D. Taylor immediate and full rein- statement to his' former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority and other rights and privi- leges. (b) Make whole Melvin D Taylor for any loss of earnings or benefits he may have suffered by reason of 0 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 that might arise and that would otherwise have been detected through their effects on the steering 10 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 RYDER TRUCK LINES 817 the discrimination against him by payment of a sum of money equal to the amount he normally would have earned from the date of said discrimination to the date of Respondent's offer of reinstatement , less net interim earn- ings, with backpay to be computed in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962) (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (e) Post at its facility located in Birmingham, Alabama, copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. I' If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Steven K. Leibel, Esq., for the General Counsel John Paul Jones, Esq, of Staunton, Virginia, for the Re- spondent. SUPPLEMENTAL DECISION PHILIP P MCLEOD, Administrative Law Judge. On September 21, 1983, I issued my decision in this proceed- ing finding, inter alia, that Respondent discharged Melvin D. Taylor in violation of Section 8(a)(1) of the National Labor Relations Act. I also concluded that the issues involving the alleged unlawful discharge of Taylor should not be deferred to the grievance-arbitration pro- cedures 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 file supplemental briefs setting forth their positions on this issue. Supple- mental reply briefs were also provided for Both the General Counsel and Respondent filed timely briefs. Re- spondent also filed a reply brief. These briefs have been duly considered Neither party desired additional hearing to introduce further evidence. In the brief filed by the General Counsel, the representation was made that the parties telephonically stipulated to the authenticity and admissibility of certain documents attached to its brief that constitute minutes of the Southern Multi-State Grievance Committee and the Southern Conference Area Grievance Committee, which reviewed and consid- ered Taylor's grievance regarding his discharge 2 In its reply brief, Respondent does not dispute the accuracy of the General Counsel's representation regarding this stipu- lation In Olin Corp., supra at 574, the Board stated in rele- vant part: Accordingly, we adopt the following standard for deferral to arbitration awards. We 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 unfair labor prac- tice [footnote omitted]. In this respect, differences, if any, between the contractual and statutory stand- ards of review should be weighed by the Board as part of its determination under the Spielberg stand- ards of whether an award is "clearly repugnant" to the Act. And, with regard to the inquiry into the "clearly repugnant" standard, we would not require an arbitrator's award to be totally consistent with Board precedent 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- I 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 Ohn 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 1 note that the minutes of these meetings attached to the brief of Counsel for Acting General Counsel are misnumbered by oversight Min- utes of the January 25, 1983, Southern Multi-State Grievance Committee are referred to in the brief as appendix I but are, in fact, marked appen- dix 2 as attached to the brief This misnumbering should cause no confu- sion because the two appendices speak for themselves 818 - DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD onstrating the defects in the arbitral process or award [footnote omitted]. 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 him. Rather, this case involves a grievance filed by a- discharged employee pursuant to the National Master Freight Agreement in which an ar bitration panel is made up of equal numbers of manage- ment'and union representatives If those individuals, who in this case comprised the Southern 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- sblved. The issue that was placed before the grievance com- mittees regarding Taylor's discharge arose pursuant to article '45 of the collective-bargaining agreement that 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 General Counsel argues, the grievance com- mittees 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 that 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 interpre- tation to guidelines handed down by the Safety Commit- tee . . . 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 argu- ment was devoted to Taylor's position 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 review- ing this document, I am satisfied that in all major re- spects it is a capsulized version of the record in the trial before me. Based on all the above, I find the contractual issue raised by Taylor's grievance, though not identical, was factually parallel to the unfair labor practice issue and that the Southern Multi-State Grievance Committee was presented generally with the facts relevant to resolv- ing 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 Postal Service, 270 NLRB 290 (1984). The last sentence of the Board's foot- note in that decision, however, when viewed in the con- text 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 that 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 that comprises the vast majority of the minutes of that committee meeting. Following Respondent's state- ment, 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 the Southern Conference Area Greivance 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 RYDER TRUCK LINES 819 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