Gibraltar Steel Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1012 (N.L.R.B. 1984)

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gibraltar Steel Corporation, Seneca Steel Division
and Jack W. Jochum. Case 3-CA-11440
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 13 April 1984 Administrative Law Judge D.
Barry Morris issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a cross-exception
and a brief in support of its cross-exception and in
opposition to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings,2
and conclusions 3 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 In view of the dismissal of the complaint in its entirety, we find it
unnecessary to decide whether the judge properly admitted into evidence
over the Respondent's objection newspaper articles relating to the work
stoppage of the Independent Truckers Association
2 Because we agree with the judge that the General Counsel has failed
to establish that Jochum's working conditions were abnormally danger-
ous within the meaning of Sec 502 of the Act, we find it unnecessary to
determine whether Sec 502 would have otherwise applied to Jochum's
refusal to drive
3 Member Zimmerman agrees with the result reached, noting that em-
ployee Jochum's admission that he did not discuss the alleged unsafe
working conditions with other employees and his statement that he was a
"spokesman for himself" indicate that he acted specifically in his own
self-interest and thus renders his conduct unprotected
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This
case was heard before me in Buffalo, New York, on No-
vember 2 and 3, 1983. 1 On a charge filed on February 8,
a complaint was issued on June 27 and amended on
August 25, 2 alleging that Gibraltar Steel Corporation,
Seneca Steel Division (Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act).
Respondent filed an answer denying the commission of
the alleged unfair labor practices.
1 All dates refer to 1983 unless otherwise specified
2 The complaint was further amended at the hearing to allege that the
vehicle that the Charging Party was assigned to drive was overloaded
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the
General Counsel and by Respondent.
On the entire record of the case, including my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with a place of
business in Buffalo, New York, is engaged in the manu-
facture, sale, and distribution of cold-rolled steel and re-
lated products. 3 It annually sells goods valued in excess
of $50,000 to consumers located outside of New York
State. Respondent admits that it is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act, and I so find.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues are:
1. Was the Charging Party engaged in "concerted"
protected activity when he refused to drive to Corry,
Pennsylvania, on February 2, 1983?
2. When the Charging Party refused to drive, did "ab-
normally dangerous conditions" exists, within the mean-
ing of Section 502 of the Act?
B. The Facts
1. Background
Jack Jochum, the Charging Party, was employed by
the Seneca Steel Division of Respondent since April
1981 as a truckdriver. His duties were to deliver steel
from Respondent's plant in Buffalo to customers located
in New York State and Pennsylvania. He was the only
truckdriver employed by Seneca Steel Division and his
position as driver was not covered by any collective-bar-
gaining agreement. It was stipulated that, between Janu-
ary 31 and February 13, certain owner-operators of
trucks under the auspices of the Independent Truckers
Association engaged in a work stoppage to protest cer-
tain United States Government policies.
2. Refusal to drive
On the afternoon of February 2, Jochum learned that
he was scheduled to take a load to Corry, Pennsylvania,
the next day. Corry is approximately 8 miles south of the
New York State border. Jochum testified that his normal
route from Buffalo to Corry would be to take Interstate
90 until North East, Pennsylvania, and then Route 426 to
Corry. Route 426 goes in a southeasterly direction, cut-
ting through New York State.
Jochum credibly testified that he told Bob Jans, Re-
spondent's dispatcher, that he was not taking the load to
3 It was stipulated that Gibraltar Steel Corporation and Seneca Steel
Division constitute a single employer, within the meaning of the Act
273 NLRB No. 128
GIBRALTAR STEEL CORP. 1013
Pennsylvania because "it was unsafe and that it was way
overloaded." Jochum then proceeded to the office of
Kenneth Martin, Respondent's general foreman, and tes-
tified as follows:
A. And I told Kenny that I was not going to
take that load down there on account of the unsafe
conditions down there
Q. Unsafe conditions caused by what?
A. By the truckers' strike, Independent Truckers'
strike
Jochum testified that he then turned in his credit card.
Later that afternoon Jochum testified that he a telephone
call from William Vicaretto, a truckdriver employed by
Respondent's strip and strap division Vicaretto told
Jochum that after Jochum refused to take the load, Re-
spondent called Gary Ellis, who had last worked for Re-
spondent in 1981, but that Ellis had also refused to drive.
The next morning Jochum returned to the plant.
Jochum testified that he asked Martin "what my status
was and he said to me that I had quit.' Jochum further
testified:
At that I told him that I had not quit and that I'm
here for work. He told me that I was a truckdriver
and that he didn't have any work for a truckdriver.
Ellis testified that when he was called by Respondent's
foreman and asked if he would take a load for Seneca
Steel into Pennsylvania, he refused. He told the foreman,
"as far as I'm concerned, it was too dangerous and haz-
ardous to my health." He further testified that he did not
speak to Jochum on the day that Jochum refused to take
the load. Jochum conceded that he did not discuss his re-
fusal to take the load with any other employee He testi-
fied, as follows:
Q. Now, prior to your telling Company repre-
sentatives on February 2nd, I believe that's the day
that the 3 . 30 p.m. conversation roughly took place?
A. Right.
Q. Prior to that, did you discuss that matter with
anybody else?
A. No, I didn't.
Q. Did anyone else urge you "Jack, I want you
to refuse that load" or say that you should refuse
the load?
A. No. . .
Q. Were you acting as a spokesman for anybody
else? . . .
[A]. I thought it was unsafe to go down there.
Q. . I didn't ask that. I asked if you were
acting as a spokesman for anyone else at that time?
A. A spokesman for who?
Q. For anyone?
A. Not that I know of. A spokesman for myself.
I did refuse the load.
3. Vehicle overload
Jochum testified that on February 2, when he look at
the freight bill for the Corry shipment, it showed a load
of 51,000 pounds of steel. This would have been approxi-
mately 8000 pounds overweight. He further testified, and
the record indicates, however, that in late 1982 he took a
number of shipments to Pennsylvania which were over-
weight. On November 12, 1982, he took a load to Penn-
sylvania which weighed 47,530 pounds, approximately
4500 pounds overweight. At that time he checked the
following box on the driver's vehicle inspection report,
"I detect no defect or deficiency in this motor vehicle as
would be likely to affect the safety of its operation or
result in its mechanical breakdown." Similarly, on Sep-
tember 16, 1982, he took a load to Pennsylvania which
weighed 58,540 pounds, approximately 15,000 pounds
overweight. Again, he checked the box indicating no
defect or deficiency in the motor vehicle "as would be
likely to affect the safety of its operation." On November
11, 1982, he took a shipment to Pennsylvania which
weighed 73,010 pounds. In connection with this load
Jochum testified:
Q. How much overweight was that load, Mr.
Jochum?
A. That was 30,000 pounds.
Q Did you regard that as unsafe?
A. No, I did not.
Q. That's significantly overweight, isn't it?
A. Yes, sir.
The shipment which Jochum refused to take was de-
livered on February 3 by another driver, Ron Barber.
Richard Fern, Seneca's billing clerk, credibly testified
that the weight of that shipment was 42,340 pounds.
Jochum testified that any load to Pennsylvania at that
time exceeding 43,280 pounds would have been over-
weight. Accordingly, the shipment delivered by Barber
was not overweight.
4. Conditions in Pennsylvania
Jochum was questioned as to how he became aware of
"abnormally dangerous conditions" existing in Pennsyl-
vania around February 1. He testified that he was in-
formed through "newspaper articles, television, radio;
also CB radio talk." When asked what he was told, he
replied:
That they were throwing bricks around in Erie,
Pennsylvania; which I had already read in the
newspapers, and stuff like that. Trucks were being
shot at, tires shot out, radiators were being shot at.
The General Counsel introduced newspaper articles
relating to the work stoppage. Representative of the arti-
cles is General Counsel's Exhibit 5, which is an article
from The Buffalo News, dated January 31, entitled
"Truck Strike Begins Amid Violence." General Coun-
sel's Exhibit 8 is an article in The Buffalo News of Feb-
ruary I entitled "Driver Killed, Seven Wounded in Na-
tionwide Truck Strike." Similarly, General Counsel's Ex-
hibit 13 is an article from the same newspaper dated Feb-
ruary 2, entitled "Highway Violence Spreads to 27
States in Trucker Strike."
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vicaretto was questioned as to what he heard about
driving conditions for truckers in Pennsylvania during
the first few days of February. He testified:
A. There were all kinds of news.
Q. Well, what type of news did you hear or [see]
in the newspaper?
A. Guys being, you know, beat up, and their
trucks torn up. A few shootings. But again, that all
depended where you are in Pennsylvania. It doesn't
mean the whole state of Pennsylvania was in tur-
moil. If you're talking—you're talking about mills,
you know, when you're talking about truckers
strikes in Pennsylvania, you're talking down at the
mills; you're not talking about the whole state of
Pennsylvania
Vicaretto testified that Corry is not located in the mill
area, nor is it in a particularly dangerous area known as
the combat zone. The load which Jochum refused to
take was delivered by Barber to Corry, without incident,
on February 3 Similary, Ellis testified that employees
working for the trucking company he then worked for
did drive into Pennsylvania during the work stoppage.
The parties also stipulated that Seneca Steel Division re-
ceived shipments by truck from Cleveland, Ohio, on
February 2, 3, and 4.
C. Discussion and Analysis
1. Concerted activity
In Myers Industries, 268 NLRB 493, 497 (1984), the
Board stated: "In general, to find an employee's activity
to be 'concerted,' we shall require that it be engaged in
with or on the authority of other employees, and not
solely on behalf of the employee himself." Before a vio-
lation of Section 8(a)(1) can be found, it must first be de-
termined that the protected activity was "concerted." As
the Board has stated in Myers if any employee acts alone,
where no collective-bargaining agreement is involved, it
does not constitute concerted activity.
Ellis, who had not worked for Respondent since 1981,
testified that he did not speak to Jochum on the day
Jochum refused to drive. Jochum clearly and unequivo-
cally testified that he did not discuss his intended action
with anyone prior to his refusal to take the load. When
asked whether he was acting as a spokesman for anyone
else he testified, "Not that I know of. A spokesman for
myself."
It is clear that Jochum acted by himself and only on
his behalf. Under the Myers decision, supra, the General
Counsel has not shown that the Charging Party was en-
gaged in "concerted" activity.
2. Abnormally dangerous conditions
The complaint, as amended at the hearing, alleges that,
on February 2, "pursuant to Section 502 of the Act," the
Charging Party "refused to make deliveries of goods and
products to the State of Pennsylvania because of the ab-
normally dangerous and unsafe working conditions re-
sulting from the violence associated with the national
strike of the Independent Truckers and the overload of
the vehicle in which he was assigned to drive."
I believe that this case must be decided under Sections
7 and 8(a)(1) of the Act, not under Section 502. As Ad-
ministrative Law Judge Giannasi stated in Myers Indus-
tries, supra, 268 NLRB at 508 fn. 6:
Sec 502 offers no particular help m defining the
contours of protected concerted activity in the cir-
cumstances of this case. Sec. 502 does not define
either an unfair labor practice or concerted protect-
ed activity. And it adds nothing to the existing
body of law Interpreting the phrase "protected con-
certed activity."
Instead, Section 502 deals with the rights of employees
who refuse to perform work in unsafe conditions where
a contractual no-strike provision would make such activi-
ty unprotected. See Whirlpool Corp. v. Marshall, 445 U.S.
1, 17-18 fn. 29 (1980); NLRB v. Tamara Foods, 692 F.2d
1171, 1183 (8th Cir. 1982), cert. denied 103 S.Ct. 2089
(1983). In such a case Section 502 may be utilized to
rebut an employer's defense that such rfusal is unprotect-
ed because it is a "strike" in violation of a contractual
no-strike clause. See Banyard v. NLRB, 505 F.2d 342,
348 (D.C. Cir. 1974).
Even were Section 502 to be applicable, I believe that
the General Counsel has not sustained his burden. The
test for determining if conditions are "abnormally dan-
gerous" under Section 502 is an objective one Gateway
Coal Co. v. United Mine Workers, 414 U S. 368, 386-387
(1974); Redwing Carriers, Inc., 130 NLRB 1208, 1209
(1961), enfd. as modified 325 F.2d 1011 (D.C. Cir. 1963),
cert. denied 377 U.S. 905.
In Redwing Carriers, the Board stated, in construing
the term "abnormally dangerous conditions" (130 NLRB
at 1209)
We are of the opinion the term comtemplates, and
is intended to insure, an objective, as opposed to a
subjective, test. What controls is not the state of the
mind of the employee or employees concerned, but
whether the actual working conditions shown to
exist by competent evidence might in the circum-
stances be considered "abnormally dangerous."
Similarly, in Gateway Coal, supra, the Supreme Court
stated that the honest belief of employees that conditions
were unsafe was insufficient to meet the criteria of Sec-
tion 502.
With respect to the allegation that the load was abnor-
mally dangerous because it was overweight, I find that
the General Counsel has not shown by objective evi-
dence that an abnormally dangerous condition existed. In
uncontradicted testimony, Fern testified that the ship-
ment which Barber delivered to Corry on February 3
weighed 42,340 pounds, which was not overweight.
There was no corroboration for Jochum's testimony that
a weight of 51,000 pounds was written on the freight
bill. In addition, the record contains several instances of
Jochum having taken loads to Pennsylvania which ex-
ceeded the maximum weight. Jochum signed reports
GIBRALTAR STEEL CORP 1015
concerning those deliveries that the loads were not
unsafe. Jochum also testified that a load of 73,010
pounds, 30,000 pounds overweight, was not unsafe.
With respect to conditions being abnormally danger-
ous because of violence attending the Independent
Truckers' work stoppage, the General Counsel has not
shown by objective evidence that conditions on the
route to Corry, Pennsylvania, were abnormally danger-
ous. While I have no doubt of the Charging Party's good
faith and the fact that he was genuinely concerned for
his health and safety, as the above-cited cases indicate,
that is insufficient to meet the criteria of Section 502.
While there was testimony that there was violence
around the mills, the testimony also indicated that Corry
was not in the mill area. And, although the newspaper
articles spoke of violence in various places, there is no
indication that such violence was present on the routes
which the Charging Party would have taken to Cony.
Accordingly, I conclude that the General Counsel has
not shown by objective standards that abnormally dan-
gerous conditions existed at the time the Charging Party
refused to deliver the load.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The complaint is dismissed
4 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