McLean Trucking Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD McLean Trucking Company and David Usry and Max Ray. Cases 10-CA-14770 and 10-CA- 14813 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 31, 1980, Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, McLean Trucking Company, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has requested oral argument. This request is hereby denied as the record. the exceptions, and the brief adequately present the issues and the positions of the parties. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. I In accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB No 11 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. DECISION STATEMENT O ITHE CASIE IRWIN KAPLAN, Administrative Law Judge: This case was heard before me in Atlanta, Georgia, on January 30, 1980. The underlying charge in Case 10-CA-14770 was filed by David Usry, an individual, on June 22, 1979. The es- sence of the aforenoted charge which gave rise to a complaint and notice of hearing on July 25, 1979, was that McLean Trucking Company' (herein called The tanae of Respondent appears as reflected bh) the record 252 NLRB No. 104 McLean or Respondent) terminated David Usry on Feb- ruary 27, 1979, because he engaged in protected concert- ed activity by refusing to drive a tractor-trailer which he reasonably believed to be defective and unsafe, and that Respondent thereby violated Section 8(a)(1) of the Na- tional Labor Relations Act, as amended (herein called the Act). The underlying charge in Case 10-CA-14813 was filed by Max Ray, an individual, on July 6, 1979, which charge was amended by said Max Ray on August 1, 1979. The aforenoted charge and the amendment thereto in substance allege that Respondent terminated Max Ray on February 28, 1979, because he engaged in union and protected concerted activity by refusing to drive the same tractor-trailer (with the support and assistance of the Union) which David Usry had refused to drive on the previous day and for virtually the same reasons and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act. v The aforenoted cases culminated in a complaint, order consolidating cases and notice of hearing which issued on August 2, 1979. While Respondent reinstated both Usry and Ray on or about May 9, 1979, it is further al- leged that Respondent by converting the discharge into suspensions and written warnings, it thereby additionally violated Section 8(a)(1) of the Act against Usry and Sec- tion 8(a)(3) and (1) of the Act vis-a-vis Ray. Respondent filed an answer conceding inter alia juris- dictional facts, but denying all allegations that it commit- ted any unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses, and after careful consid- eration of the post-trial briefs, I find as follows: FINDINGS OF FACT I. JURISDICTION Respondent, a North Carolina corporation, is engaged in the interstate transportation of freight and commod- ities and in connection therewith it maintains an office and place of business located in Atlanta, Georgia. During the past calendar year, and at all other times material herein, Respondent received revenue in excess of $50,000 from the interstate transportation of freight and com- modities. Respondent admits, and I find that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. It is admitted and I find that General Teamsters Local Union No. 728, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (herein called the Union), is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALI.EGED UNFAIR I.ABOR PRACTICES A. Sequence of Events David Usry, an over-the-road truckdriver, began working for Respondent approximately 7 years ago. On 728 MCLEAN TRUCKING CO()MPANY February 27, 1979,2 Usrv was dispatched for a trip to Louisville, Kentucky, over 400 miles from Respondent's Atlanta, Georgia, terminal. Usry tested the vehicle (trac- tor-trailer unit no. 26144-7911) in the yard at the termi- nal, a distance of approximately 450 yards, and experi- enced the steering wheel pulling to the right. He also discovered other problems with the vehicle and noted these items on a "Defective Equipment Report" (G.C. Exh. 4). The tractor was then checked out by Respond- ent's Class A mechanics, Gregory Levette and Robert Powell, who in turn completed a "Road Failure Report" (G.C. Exh. 5) reflecting inter alia the repairs they made on the vehicle.3 Usry then proceeded on his trip but soon noticed that the vehicle was still pulling to the right. He continued to drive the vehicle until he could test it on the highway, Interstate 20 (herein called 1-20). Usry drove on 1-20 for a short distance to Interstate 75 (herein called 1-75) and while on 1-75, he concluded that the vehicle was unsafe to drive because it was pulling too much to the right. He stopped the vehicle at the West Paces Ferry exit on 1-75, 17 miles from the Atlanta terminal to advise the shop supervisor of the condition of the truck and asked for someone to check the unit out and make the necessary repairs. Usry testified that he waited approximately an 1-1/2 hours before Class A mechanic Roy Alberson and 3 su- pervisors, Relay Manager Tom Pickel, Maintenance Su- perintendent James Becher, and Safety Supervisor Bob Harrison appeared. According to Usry, the group ar- rived about 4:30 p.m., and Alberson and Becher then took the alleged defective truck for a test drive in heavy traffic for a distance of 6 to 8 miles which he, Usry as- serted was not far enough to get an accurate picture of the condition of the vehicle. When they returned with the truck, Alberson acknowledged that it pulled to the right, but stated that it was safe to drive and placed an "OK tag" with his signature on the vehicle. While Alberson substantially corroborated Usry, he disagreed regarding the time and traffic conditions under which he tested the unit. Thus, Alberson (Respondent's witness) testified that he tested the truck about 3:30 p.m. in medium traffic, Usry protested Alberson's conclusion that the truck was safe to drive and stated that he would like to call the union hall and discuss the matter with union officials. Pickel told Usry that he would give him 5 minutes to decide whether he would drive the truck. Usry then called the union hall to talk to Business Agent Wayne Sheppard, but he had already left for the day. Pickel told Usry that his time was up and the latter thereupon got into the vehicle and continued with his as- signment to Louisville. Usry testified that he continued to experience difficulties steering the vehicle and keeping it off the shoulder of the road. He stopped a second time on Highway 92, Kennesaw, Georgia, some 22 miles from the first stop and called first Union Business Agent Shep- pard at home and then the Atlanta terminal for repairs. I All dates hereinafter refer to 1979, unless otherwise indicated. 3 Mechanic Levette testified that swhen he and Powell first tested the vehicle, the steering %wheel almost came off in his hands Even after he and Powell made certain adjustments, he) still experienced the steering pulling to the right but only slightly Levette testified that in testing the vehicle he did not go more than 10 miles per hour According to Usry the three-member supervisory team that had come out earlier to look at his truck had not yet returned to the terminal and Shop Supervisor Charles Foster told him that as they were handling the problem he would have the other supervisors call him back. While Usry waited to hear from the company officials he filled out another "Defective Equipment Report" noting inter a/lia that the vehicle steers to the right and is unsafe to drive (G.C. Exh. 6). Pickel then spoke with Usry and ordered him to continue the trip pointing out that the unit had already been checked out as okay for the entire trip. Usry countered by stating that he was still having problems with the vehicle and that it was unsafe to drive, and again requested that a mechanic inspect it fur- ther. Pickel rejected Usry's request for a mechanic and declared that if he refused to drive the unit in the condi- tion he found it, he was abandoning the job. Usry denied that he was abandoning the job and continued to press Pickel for a mechanic. Pickel finally told Usry to go home; he was "no longer work[ing] for McLean Truck- ing Company." A couple of hours later, Pickel, along with Dock Su- pervisor Travis Payne and driver Robert Young arrived. Pickel told Usry to get his belongings and leave the trac- tor. He then instructed Young to drive the truck and that he would discuss the condition of the unit with him after he, Young had a chance to check it out. Young drove the truck from 6 to 8 miles at which time he in- formed Pickel who was in an automobile closely follow- ing the tractor that "[the] unit is pulling to the right of the road," and a mechanic was needed. Pickel acceded to contacting a mechanic and they drove another 8 or 9 miles to the Midway Truck Stop in Cartersville, Geor- gia, to call for assistance. Young testified that they ar- rived at the truck-stop approximately 11 p.m. and waited approximately 1 to 1-1/2 hours for the mechanic to arrive. Frank Watford was the mechanic assigned to service the tractor in Cartersville. He testified that inter alia he road-tested that unit over a distance of 8 to 10 miles and found that if he relaxed his grip on the steering wheel, he was unable to maintain the vehicle on the road. Wat- ford checked out the truck over 3 or 4 hours but could not locate the cause of the "pulling" problem. In this connection he called the terminal to tell Bob Thompson, the night shift supervisor about the problems and re- quested that he be permitted to rotate the front tires which he asserted sometimes eliminated the pulling. Wat- ford testified that Thompson would not allow him to do anything to the unit and told him not to worry about it. 4 Watford told Pickel that he did not know what was wrong with the truck, that it was pulling to the right and that he, Watford, would not drive it in that condition nor would he tell anyone else to drive it. He then "red tagged" the unit indicating thereon that it was unsafe to I According to Watford, the Company was applying pressure on him to give his imprimatur on the condition of the truck Thus Watford testi- flied that Supervisor Thompson pointed out to him even before Watfird left the Atlanta terminal to service the unit in question, that three me- chanics had already checked it out and found that in swas safe to drive Further. Watford testified that Superintendent Becher told him that if he "down[ed] the truck, he] swould make the shop look bad " 729 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drive, and does not meet factory specifications. Young was not required to drive the truck to Louisville, but was paid for the trip and stayed with the unit until it was towed back to the Atlanta terminal. On February 28, Respondent made arrangements for Robert Allen, a shop foreman at the General Motors fac- tory in Atlanta, to test the unit in question to determine whether it met the "factory requirements." Allen, who did not testify, submitted a report dated March 7 stating inter alia that he, Allen, had road checked truck no. 26144 (unit in question) for a "steering complaint," and had driven it with and without a loaded trailer and al- though there was slight pulling he "didn't notice any dif- ficulty in steering." He added inter alia that he "felt that it was safe to operate." (Resp. Exh. 2.) 5 After the unit was road-tested on February 28, Becher called two union shop stewards, Glen Best and Conley Poplan into his office to hear Allen's statement concern- ing the condition of the vehicle. Allen told them that the vehicle had a slight pull to the right but that in his opin- ion it was not unsafe to drive. 6 After everyone left the office, Becher made out an "OK. tag" for the unit in question and wrote thereon as follows: The alleged pulling to the right problem has been road tested by a representative of GMC in Atlanta and deemed completely safe for operation. (Resp. Exh. 3.) Becher testified that he deposited the "OK tag" on the disputed vehicle sometime late afternoon on February 28. Later that evening, Max Ray, a driver was assigned to drive the same unit (Tractor 26144) and make the same trip to Louisville that had been assigned to Usry the previous day. While Ray was involved in making preparations for the trip he became engaged in conversa- tion about the disputed tractor with Jerry King, David Parnell, and Mack Mock, all McLean drivers, the former two also serving as shop stewards. King informed Ray that two drivers had already been fired.7 over this par- ticular unit for safety defects. Pickel approached the group and asked Ray to talk to him privately. King ad- vised Ray that he did not have to talk with Pickel with- out a union representative present. He also told Ray in Pickel's presence that the truck had been "red-tagged" and taken out of service in Cartersville and had not been recertified by a Class A mechanic. He added that 5 Becher testified that it was his decision to have General Motors test the unit. He also testified that he accompanied Allen while the latter road tested the vehicle which involved a distance of approximately 10 miles at a highway speed of 45 to 58 miles an hour. According to Becher, Allen who assertedly was in his presence at all times did not make any repairs but merely inspected the front end of the unit before he drove it. Becher also testified that Allen had previously done "very little" work for Re- spondent and this was the first time that he, Becher, accompanied Allen. 6 Best testified that this was the first and only occasion that he had spent any time with Allen. Best who is also a Class A mechanic asserted that a tractor may perform differently depending upon the weight of the trailer While Becher testified that Allen tested the tractor with the origi- nal load to Louisville attached thereto, he also conceded that the original trailer was disconnected from said tractor at least twice prior to Allen testing the entire original unit. 7 The record however, does not substantiate that anyone other than Usry was terminated for refusing to drive the vehicle at the time of this conversation McLean has refused to let the Company's mechanics in- spect or otherwise check the unit out. During this en- counter, Ray charged that Respondent was not in com- pliance with article 16 of the National Master Freight Agreement 8 and section 394.6 (sic) of the Federal regula- tions (Department of Transportation or DOT).9 Pickel asked Ray whether he was going to drive the truck to which he responded "If the truck was safe and in safe operating manner, I would be glad to drive the truck," Pickel advised Ray that a General Motors' engineer checked out the truck and that Becher had placed an "OK tag" in the vehicle. On the other hand he conceded to Ray that he did not have the documentation to sub- stantiate that the truck was inspected. Ray, Pickel, and the others in the group went over to the vehicle in question. Ray then got into the tractor cab with his overnight bag, radio, and other belongings. Once inside the truck, Ray discovered that the tag was not signed by anyone. He then pressed Pickel for a sig- nature from a Class A mechanic and Pickel in turn promised to get the tag signed. They all proceeded to Becher's office where Supervisor Bill Rollin was present in addition to Becher. When Ray asked Becher for his signature, King interjected that Becher was not a Class A mechanic. According to Ray, Becher then passed the tag to Rollin who gave it right back to Becher when someone also noted that Rollin's was not a Class A me- chanic. According to Ray, the tag was not signed in his presence nor had he ever seen the tag signed. to Ray left Art. 16, inter alia, provides as follows: The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety appliances prescribed by law. It shall not be a iolation of this Agreement where the employees refuse to operate such equipment unless such refusal is unjustified. All equipment which is refused because not mechanically sound or properly equipped, shall be appropriately tagged so that it cannot be used by other drivers until the maintenance department has adjusted the complaint. After the equipment is repaired, the Employer shall place on such equipment an "OK" in a conspicuous place so the driver can see the same. Under no circumstances will an employee be required or assigned to engage in any activity involving dangerous conditions of work or danger to person or property or in violation of any applicable statute or court order, or in violation of a government regulation to safety of person or equipment . . . . .The Employer shall not ask or require any employee to take out equipment that has been reported by any other employee as being in an unsafe operating condition until same has been approved as being safe by the mechanical departments . (GC Exh. 2, pp. 53-54.) DOT regulation 396.4 mandates that carriers refrain from permitting or requiring drivers to drive unsafe motor vehicles. (G.C. Exh. 3.) The parties stipulated, and I find that Respondent is a regulated carrier under the Federal Motor Carrier Regulations as prescribed by the U S Depart- ment of Transportation, Federal Highway Administration. 'o Becher testified at first that after his meeting with Shop Stewards Best and Poplan, he made out an OK tag, signed it, and deposited the tag in the vehicle. When cross-examined however, Becher testified that the tag which he made out earlier and left on the steering wheel was without a signature and was not signed until he was asked to do so by Ray. While Becher maintained that he signed the tag in the presence of Ray and the others at the session, this is somewhat at odd's with Pickel's testimony who could not recall a signature on the tag until after Ray had gone home. Moreover Pickel could not state whether Ray had ever observed a signature on that tag. Still further, Pickel corroborated Ray's testimony in other material respects. Thus Pickel confirmed Ray's testimony that Continued 730 MCLEAN TRUCKING COMPANY the office and walked through the shop whereupon he met Union Business Agents Sheppard and Profit who as- sertedly told him that they supported his position and maintained that he would get his job back with backpay if he were terminated. Pickel then approached Ray and again asked him whether he was going to drive the vehi- cle. Ray indicated that he was receptive, provided the shop personnel certified the vehicle as safe. Pickel main- tained that the truck was safe and declared, "You have abandoned your job, and you no longer work for McLean Trucking Company." Ray denied that he was abandoning the job and offered to drive the unit, but only if it was repaired or another tractor was made avail- able. He told Pickel that he would wait in the drivers' room for further instructions. About 20 minutes later Ray was told he was terminated. On or about March 2, both Ray and Usry received let- ters of termination on the basis that each had abandoned their jobs. Both filed grievances and were ultimately re- instated without backpay. Respondent converted the dis- charges into warning letters and suspensions. B. Discussion and Conclusions The General Counsel asserts that Usry and Ray were engaged in protected concerted activity on February 27 and 28, respectively, when they refused to drive the as- signed tractor because they honestly and reasonably be- lieved that the vehicle was unsafe to drive, a right which he asserts they were at liberty to exercise under article 16 of the collective-bargaining agreement." He there- fore contends that Respondent by discharging, suspend- ing, and issuing warning letters to Usry and Ray because they engaged in the aforementioned protected concerted activity, it violated Section 8(a)(1) of the Act. The Gen- eral Counsel further maintains that Respondent by taking the aforenoted adverse action against Ray, who also acted with the advice and support of the Union, thereby discourages union activity in violation of Section 8(a)(3) of the Act. Respondent in its brief, states that it "understands and concedes that complaining about safety problems or safety violations is a protected concerted activity." How- ever Respondent contends that Usry and Ray were not justified in maintaining that the assigned vehicle was unsafe to drive. Respondent also professes profound con- cern that a decision in favor of Usry and Ray in the cir- cumstances of this case would obviate article 16 of the collective-bargaining agreement. According to Respond- ent "in effect the driver would be permitted to substitute his judgment for that of the mechanic .... In any event, Respondent denies that Usry and Ray were dis- charged as alleged but contends that they "abandoned their jobs, or refused to carry out their work assignments the tag was passed back and forth from Becher to Rollin and "discrepan- cies" arose as to which one would sign. In these circumstances. I credit Ray's testimony that Becher did not sign in his presence, and that at no material time did he see a signature on the OK tag Further, I find on the basis of responsiveness, plausibility, consistency of testimony, and demea- nor, that neither Becher nor Pickel was a reliable witness and I reject their testimony where it conflicts with the General Counsel's witnesses II Article 16 is set forth in part. infra. fn. 8 as they were instructed to do by supervisors at the time." I. David Usry As noted above, Respondent contends that Usry was not justified in maintaining that the vehicle in question was unsafe to drive. In support thereof. Respondent points out that three Class A mechanics had inspected the alleged defective tractor, and "none of the three had determined that it was unsafe to drive." Thus Respond- ent argues, as none of the Class A mechanics had red tagged the vehicle, Usry was obligated under article 16 to continue his trip to Louisville. Article 16 states inter alia "It shall not be a violation of this Agreement where employees refuse to operate [ostensibly unsafe] equip- ment unless such refusal is unjustified." (Emphasis sup- plied.) I am not persuaded, however, that Respondent's reliance on the fact that none of the Class A mechanics had red tagged the vehicle before Usry's refusal to drive it, compels the conclusion that he was obligated under article 16 to complete his assignment without still further inspection and/or repairs. Thus, article 16 also signifi- cantly states as follows: Under no circumstances will an employee be re- quired or assigned to engage in any activity includ- ing dangerous conditions of work or danger to person or property or in violation of any applicable statute or court order, or in violation of a govern- ment regulation relating to safety of person or equipment. [Emphasis supplied.] It must be determined therefore whether under all the "circumstances" Usry was "justified" in refusing to drive the vehicle. The credited testimony discloses that Usry experienced problems of various magnitude insofar as the vehicle consistently pulled to the right throughout the afternoon and early evening hours on February 27. Fur- ther, the record discloses that on the same date and even before Usry first checked out the assigned unit, Chris Leslie, another driver also experienced "pulling to the right" with the same tractor. In connection therewith, Leslie made out a "Defective Vehicle Report" noting therein inter alia that at times it was difficult to maintain the vehicle on the road. (G.C. Exh. 7.) With regard to Usry's assignment to Louisville on February 27, the record discloses that at about 1 p.m., he tested the tractor trailer in question in the yard at the Atlanta terminal and discovered inter alia "steering pull- ing right" which gave rise to Usry's first "Defective Ve- hicle Report" that day. (G.C. Exh. 4.) Respondent with record support points out that the two mechanics who checked this unit (and made some adjustments) did not red tag it nor did they otherwise determine it unsafe. On the other hand, it is also noted that one of them, Greg- ory Levette, testified that the steering wheel almost came off in his hands. Levette also experienced some pulling to the right and in this regard it is noted that by his own estimate at no time did he test drive the vehicle more than 10 miles an hour. Even Usry had not tested the vehicle (before engaging on his trip to Louisville) at a speed greater than 20 miles per hour and that was in 731 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the yard over a relatively short distance of approximate- ly 450 yards. On the other hand when Usry attained the highway speed of 55 miles per hour on 1-75, he credibly testified that the tractor pulled so hard to the right that he had serious difficulty controlling the vehicle and keeping it on the road. In disputing Usry's appraisal vis-a-vis the operating condition of the vehicle, Respondent points out that a third Class A mechanic, Roy Alberson, tested the vehi- cle under road conditions and while he found some pull- ing to the right, he still deemed the vehicle safe to drive. According to Respondent, when Alberson placed an "OK tag" on the vehicle, Usry was obligated to continue the assigned trip to Louisville. Usry on the other hand asserted that Alberson could not get an accurate reading because he road-tested the vehicle in "real heavy rush- hour traffic, I mean, bumper to bumper." t 2 In any event as Alberson, a Class A mechanic had placed an "OK tag" on the vehicle,' 3 Usry climbed into the tractor cab and continued his trip to Louisville, albeit with serious misgivings. The record discloses that Usry drove another 22 miles to Kennesaw, Georgia, before he stopped a second time and called Respondent, again requesting that the unit be checked out further by a mechanic. Usry expressed the drive to Kennesaw as follows: That it would pull too bad to drive and that I was constantly fighting it, pulling it back off the shoul- der of the road. And I felt that the public and myself both were unsafe-that it would be best not to drive the truck any further without repairs. Pickel refused Usry's request to send a mechanic pointing out that that vehicle had already been checked out as okay for the entire trip. Pickel then gave Usry an ultimatum, either drive the truck or a refusal to do so would be construed as an abandonment of the job. Usry insisted that the truck was unsafe and stated that he was not quitting or abandoning the job. Pickel told Usry to get his belongings and go home. Usry remained with the unit for 2 hours until Pickel appeared along with Tractor-Driver Robert Young and Dock Supervisor Travis Payne. In the meantime Usry had completed a second "Defective Equipment Report" noting again inter alia that the steering was pulling to the right and "is unsafe to drive." (G.C. Exh. 6.) Pickel or- dered Usry to leave the vehicle stating that he no longer worked for McLean Trucking Company. He then com- manded Young to drive the unit, and he, Pickel followed in an automobile. Young drove the unit for several miles and then complained to Pickel that the truck was pulling too far to the right also stating, "I would need a mechan- 12 Alberson first asserted that he tested the vehicle at around 3:30 to 3:45 p.m. and that the traffic was about medium for that time of day. However, when pressed by counsel for the General Counsel regarding the time of the test. Alberson admitted that he was unsure adding, I don't know anything definite about the time." Given Alberson's admit- tedly uncertain recollection and as I found Usry to be an impressive and credible witness, I credit his account regarding the time and road condi- tlions over that supplied by Alberson. 13 Under art. 16 of the collective-bargaining agreement the "OK tag" (which was signed by Alberson). represents that the maintenance depart- ment has made the necessary repairs and has adjusted the complaintL ic to O'Kay it before I drive it." Pickel acceded to Young's request, agreeing to summon a mechanic once they reached a nearby truckstop. Frank Watford, a Class A mechanic, was dispatched to service the unit. He drove the unit some 8 to 10 miles and found as follows: I could not let go of the steering wheel at all. I had to hold it to the left at all times. You could never relax your hands. It was pulling so hard. If I ever relaxed, I would have went (sic) off the road. Watford told both Young and Pickel that he did not then know what was wrong with the unit but "[he] would not drive it and [he] would not tell any other driver to drive the truck." That evening, Watford red tagged the truck and it was towed back to the Atlanta terminal. The testimony of Young and Watfordt 4 largely con- firm the validity of Usry's contention that the vehicle was unsafe to drive. They experienced substantially the same problems with the unit in question, as had Usry. Thus the fact that Young and Watford expressed to man- agement that they would not drive the truck without fur- ther adjustments or repairs and further that Watford would not tell anyone else to drive the truck, tend to buttress the reasonableness of Usry's course of action. While on the other hand the record discloses that three mechanics had not red tagged the vehicle or determined that it was unsafe to drive, the record also reveals factors tending to militate against the validity of their findings. Thus the record disclosed that the first two mechanics (Levette and Powell) did not test the vehicle at a speed greater than 10 miles per hour. Further, the credited tes- timony discloses that the third mechanic (Alberson) tested the vehicle during rush hour in "very heavy traf- fic, bumper to bumper," hardly a fair simulation of the road conditions faced by Usry at 55 miles per hour. Moreover, the record discloses that mechanic Watford spent substantially more time with the unit in question, a factor further tending to support the reliability of his findings.t s This is not a case involving an individual with a history of malingering or insubordination, but rather one in which the great weight of the evidence tends to establish, and I so find, that Usry acted in good faith out of a reasonable belief that the vehicle was unsafe. Pickel testified to only one other incident during the 7 years in which Usry has been employed by Re- spondent whereby he refused to drive a truck, and that was because there were an insufficient number of lights on the trailer and even on that occasion, Usry made the trip. 14 It is noted that both Young and Watford were still employed at the time of the hearing. As such they testified adversely to their own pecuni- ary interest, a factor tending to support their credibility. See e.g., Federal Sluinless Sink Div. of Unarco Industries. Inc., 197 NLRB 489, 491 (1972); Gateway Iransportation. Co., Inc., 193 NLRB 47, 48 (1971); Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961) iS The record disclosed that Watford has worked as a mechanic for 10-1/2 years, and was classified by Respondent as "main mechanic." 732 MCLEAN TRUCKING COMPANY The case at hand is strikingly similar to the factual pat- tern set forth in Roadway Express. Inc.,' 6 cited by re- spective counsel. Even Respondent concedes that Road- way is a "similar case" although he notes some differ- ences which he contends supports a different result. In Roadway, an over-the-road driver named Ferguson refused the dispatcher's instructions to drive a tractor ap- proximately 50 miles from a truckstop to the Company's "tire bank" where a tire could be changed and where possibly front end alignment work could be done. It was not possible to make these repairs at the truckstop. Fer- guson refused because he did not believe that the truck was safe to drive. Earlier that day Ferguson had substan- tial difficulties operating the vehicle, including experienc- ing trouble holding the truck cn the road while on the highway. Another company driver also experienced simi- lar results after driving the same vehicle at Ferguson's request, and told Ferguson that he did not feel it was unsafe. The Company sent one of its safety supervisors along with a mechanic to the truckstop to check over the tractor. They road-tested the unit and found some vi- brations in the front end at around 40 miles, but it dimin- ished when driven above and below that speed. They ad- vised Ferguson that they considered the vehicle safe to drive but he refused to drive it. The Company dis- patched a replacement driver who safely drove the trac- tor to its destination approximately 400 miles away. Fer- guson was terminated for refusing to drive the vehicle. The contractual provision in Roadway which the Board found supported Ferguson's refusal is the indenti- cal article 16 contained in the collective-bargaining agreement in the instant case in which McLean is a party thereto. The Board found that Roadway discharged Fer- guson in violation of Section 8(a)(1) of the Act for refus- ing to drive what he believed to be an unsafe tractor. The rationale was expressed as follows: The contract clearly indicates that the Employer shall not require employees to drive an unsafe vehi- cle, and that employees have a right to refuse to drive such a vehicle. Although Ferguson acted alone in his refusal to drive the tractor, and he did not at the time of his refusal specifically refer to the contract as granting him this right, the nature of his complaint has significance and relevance under the contract to the interests of all of Respondent's em- ployees whose employment is governed under the contract. We have held in the past that when an employee makes complaints concerning safety matters which are embodied in a contract, he is acting not only in his own interest, but is attempting to enforce such contract provisions in the interest of all the employ- ees covered under the contract. Such activity we have found to be concerted and protected under the Act, and the discharge of an individual for engaging in such activity to be in violation of Section 8(a)(1). [Citations omitted.] ? '6 217 NL.RB 27R (1975) Id. at 279 In the instant case, for reasons previously stated, I have found that Usry refused to drive the vehicle in question because he honestly and reasonably believed it to be unsafe. Applying the principles of Roadway to the instant case, this was a right Usry was at liberty to exer- cise under article 16 even though at the time of the re- fusal, he had not made any specific reference to the con- tract. In Roadway, the Board found such activity to be concerted and protected under the Act.' 8 On the total state of this record, I therefore find that Respondent by first discharging Usry and then converting said discharge into a suspension and written warning because he en- gaged in protected concerted activity, Respondent there- by violated Section 8(a)(l) of the Act as alleged. 2. Max Ray The record disclosed that on the evening of February 28, Ray was assigned a trip to Louisville with the same unit which I had previously found Usry to refuse in good faith to drive because he believed the tractor to be unsafe. Ray, while making arrangements for the trip, learned from Union Shop Stewards King and Parnell inter alia that Usry complained about the same unit being unsafe and that he was discharged because he refused to drive it. Union Shop Steward King also informed Ray, in Pickel's presence that the truck had been "red tagged" and had not been recertified by a Class A mechanic. Fur- ther, King told Ray that Respondent refused to let any of its own mechanics inspect or service the unit. Ray, while still in Pickel's presence charged that Respondent was not in compliance with article 16 of the National Freight Agreement which provides, inter alia: . . . All equipment which is refused because not mechanically sound or properly equipped shall be appropriately tagged so that it cannot be used by other drivers until the maintenance department has adjusted the complaint. After equipment is repaired, the Employer shall place on such equipment an "OK" in a conspicuous place so the driver can see the same. . The Employer shall not ask or require any em- ployee to take out equipment that has been reported by any other employee as being in an unsafe operating condition until same has been approved by the me- chanical department. [Emphasis supplied.] According to Respondent, it met its contractual obli- gation by arranging for a General Motors engineer to test drive the vehicle and he deteimined that the truck was safe to drive. Pickel passed this information on to Ray and accordingly Respondent contends that Ray was "unjustified" in asserting that it was unsafe. I find this contention without merit and not supported by the record. Thus according to Watford, whom I found to be credible, he wrote on the red tag "backward and for- ward. The tractor is unsafe to drive, and it does not meet factory specifications." Watford further specified that the '" Id See also & T Industries. Inc., 235 NLRB 517, 520 (1978); Woodings Verona Tool Works, 243 NLRB 472 (1979) 733 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vehicle was "pulling to the right." While article 16 re- stricts the Employer from assigning equipment which has been refused "because not mechanically sound" to other drivers "until the maintenance department has adjusted the complaint," the record reveals that the maintenance department was excluded from working on the unit after it was red tagged. Instead, the vehicle was declared safe to drive by a General Motors representative who only road-tested the truck but made no repairs.19 Pickel ex- plained that Respondent's maintenance department was not utilized because 3 of its mechanics checked the vehi- cle and "[e]veryone said that the tractor was O'kay." According to Pickel as it was written on the "red tag" that the vehicle "does not meet factory specifications" the General Motors factory representative was brought in to check whether said vehicle met the specifications. However, Watford credibly testified that he also red tagged the truck because it was "pulling to the right" and was "unsafe." In the aforenoted circumstances, and in the absence of any evidence tending to show that it was Respondent's standard operating procedure to have a factory repre- sentative rather than its own maintenance department certify the condition of the "red-tagged" vehicle, I am unpersuaded Respondent was in compliance with the contract. Moreover, given Watford's credited testimony that he inter aia spent 3 to 4 hours with the unit before he red tagged it, that he told Respondent that he would not drive the truck (without the necessary repairs or ad- justments) nor would he tell anyone else to and that Becher told him that he, Watford, would make the "shop look bad" by red tagging the unit, all tend to reflect ad- versely on Respondent's sincerity with regard to main- taining the vehicle in a safe operating manner. In the same meeting with Pickel and the union shop stewards referred to previously, Ray made it clear that he was willing to drive the truck if he could safely do so. When Pickel told Ray that Becher had deposited an "OK tag" in the vehicle, Ray appeared ready to engage on his as- signment. Thus he climbed into the tractor cab with his overnight bag, radio, and other belongings, but once inside, discovered that the "OK tag" was not signed. He then pressed Pickel, who had accompanied him to the tractor, for a signature from a Class A mechanic which Pickel promised to do. However, the credited testimony discloses that the "OK tag" was never signed by a Class A mechanic, but rather was signed by Becher and only after Ray had gone home. According to Respondent, Ray by electing not to follow his supervisor's instructions and drive the vehicle in question in effect abandoned his job. Respondent also denies that Ray was discharged. I find Respondent's po- sition untenable and not supported by the record. On the contrary, the credited testimony persuades me that Ray was prepared to fulfill his assignment and drive the trac- tor until informed by union represenatives about the events of the previous day including the fact that the same tractor was "red-tagged" as unsafe to drive. Ray then expressly asserted his rights under the contract by 1g It is noted that the General Motors representative's written report is dated March 7, 7 days after Ray was terminated. (Resp. Exh. 2.) refusing to drive the tractor unless certified as safe to op- erate with a signed "OK" tag by the maintenance depart- ment. Instead, the Respondent elected to ignore its own maintenance personnel and invited a representative from another company to make the decision as to whether the vehicle was safe to drive. The uncontroverted testimony discloses that Ray told Pickel that he was not abandon- ing the job and demonstrated his good faith by volunter- ring to drive another tractor or even the assigned tractor if the appropriate repairs were made as required under the contract. Respondent elected to do neither and termi- nated Ray. On the basis of the entire record, I am convinced that Ray had a good-faith and reasonable belief that the vehi- cle was unsafe to drive. As the contract clearly insulates employees from driving unsafe vehicles, Ray's refusal is clearly concerted and protected. 20 Moreover, the Board has consistently held that the protection accorded under the Act does not depend on the merits of the asserted contractual claims but rather that it be made in good faith and reasonably related to the provisions in the con- tract. 2t I therefore find that Respondent by first dis- charging Ray and later converting the discharge into a suspension and warning notice because he engaged in protected concerted activity as described above, Re- spondent thereby violated Section 8(a)(l) of the Act. 22 In addition the record discloses that Ray acted largely with the advice and support of the Union. Respondent concedes as much by contending that Ray's refusal to drive the tractor "was based on union pressure." In these circumstances I find that the adverse action taken by Re- spondent described above because he acted in reliance on the union contract in concert with union officials tends to discourage union activity, and Respondent thereby ad- ditionally vioiated Section 8(a)(3) and (1) as alleged. 23 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent discharged David Usry and then con- verted the discharge into a suspension and written warn- ing because said Usry engaged in protected concerted activity by refusing to drive a tractor-trailer which he reasonably and in good faith believed to be unsafe to op- erate, a right which he could assert under the contract and Respondent thereby violated Section 8(a)(1) of the Act. 4. Respondent discharged Max Ray and then convert- ed the discharge into a suspension and written warning because said Ray engaged in union and protected con- 20 Roadway Express Inc.. supra, and cases cited in fn. 18 infra. 2L See, e.g., Wheeling-Pittsburgh Steel Corporation, 241 NLRB 1214, 1221 (1979); Woodings Verona Tool Works. supra; T T Industries, Inc.., supra. 22 As noted previously Respondent also contends that findings in favor of Usry and Ray will effectively obviate art. 16. I am unpersuaded that by holding employees to act in good faith and reasonably with regard to safety complaints will prove detrimental to the contract rights of Re- spondent. 23 See Wheeling-Pirttsburgh Seel Corporation, supra. 734 MCLEAN TRUCKING C()MPANY certed activity by refusing to drive a tractor-trailer which he reasonably and in good faith believed to be unsafe to operate, a right which he expressly asserted, and Respondent thereby violated Section 8(a)(3) and (1) of the Act. THE Rt EMl)Y Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent cease and desist therefrom and that it take certain af- firmative action to effectuate the policies of the Act. Thus, it having been found that Respondent unlawful- ly discharged David Usry and Max Ray and then rein- stating them by unlawfully converting the discharges into suspensions and warning notices, I shall recommend that Respondent be ordered to make them whole for any loss of earnings, with interest in the manner set forth below, which they may have suffered by reason of Re- spondent's unfair labor practices and I shall recommend that the warning notices be rescinded and expunged from Usry's and Ray's personnel files and other records. Back- pay shall be computed in accordance with the Board's formula set forth in WU Woolworth Company, 90 NLRB 289 (1950). Payroll and other records in possesion of the Respondent are to be made available to the Board, or its agents, to assist in such computation. Interest on backpay shall be computed in accordance with Florida Steel Corporation, 231 NLRB 651 (1977).24 On the basis of the above findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 25 The Respondent, McLean Trucking Company, Atlan- ta, Georgia, its officers, agents, successors, and assigns, shall: 1,. Cease and desist from: (a) Discharging, suspending, issuing warning notices, or otherwise disciplining its employees because they refuse to drive vehicles which they in good faith and reasonably believe to be unsafe to operate, a right which they are free to assert under the collective-bargaining agreement. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: 24 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (19h2) 25 In the event no exceptions are filed as provided b Sec. 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived fior all purposes (a) Make David Usry and Max Ray whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Rescind and expunge the warning notices %which were issued to David Usry and Max Ray because they engaged in union and/or protected concerted activity as found herein, from their personnel files and other re- cords. (c) P'reserve and, upon request, make available to the Board and its agents, for examination any copying, all payroll records and reports, and all other records neces- sary to ascertain the backpay due under the terms of this Order. (d) Post at its Atlanta. Georgia, facility copies of the attached notice marked "Appendix."2 " Copies of said notice on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's au- thorized representative shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced. or covered by any other material. (e) Notify the Regional Director for Region 10. in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 2', In the event that this Order is enforced h a Judgment of the United States Court of Appeals, the ords in the notice reading "Posted bh Order f tile National ahor Relations Board" shall read " Po,std I'ur- suant Io a Judgmenlt of the United States Court of Appeals Eknt irc ing anld )rder f the National Labor Relations Board APPENDIX NoTICi T-o EMPLOYEiIS POS I I) BY ORDER OtF I'HE NAlONAI. LABOR RELATIONS BOARI) An Agency of the United States Government WE WILI. NOT, discharge, suspend, issue warning notices or otherwise discipline our employees be- cause they refuse to drive vehicles which they in good faith and reasonably believe to be unsafe to operate. WE WI1.t NOT, in any like or related manner in- terfere with, restrain or coerce our employees in the exercise of the rights guaranteed them in Setion 7 of the National Labor Relations Act, as amended. WE Wltl. make David Usry and Max Ray whole for any loss of earnings, with interest resulting from the unfair labor practices against them. WtI WiLL rescind and expunge the warning no- tices issued against David Usry and Max Ray be- cause they engaged in union and/or protected con- certed activity from their personnel files and other records. MCLEAN TRUCKING COMPANY 735