Roadway Express, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1975

217 N.L.R.B. 278 (N.L.R.B. 1975)

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roadway Express, Inc. and Clay Donald Ferguson.
Case 11-CA-4888
April 2, 1975
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On April 25, 1973, the National Labor Relations
Board issued its Decision and Order' in this case
adopting the Decision of Administrative Law Judge
John M. Dyer, deferring to an arbitration award and
dismissing the complaint herein in its entirety.
On August 14, 1974, the United States Court of
Appeals for the District of Columbia Circuit remanded
this case to the Board, with instructions that deferral
to the arbitration award not being appropriate in this
proceeding, the Board should proceed to a considera-
tion of the unfair labor practice issues in a manner not
inconsistent with the court's opinion.'
Thereafter, the General Counsel and the Charging
Party filed briefs, and the Respondent filed a statement
of position and 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 entire record, the
briefs, and the opinion of the court in this case and has
decided to affirm the rulings, findings, and conclusions
of the Administrative Law Judge to the extent consist-
ent herewith.
We agree with the Administrative Law Judge that
Driver Supervisor C. B. Crim's remark to Clay D.
Ferguson was not in violation of Section 8(a)(1) of the
Act. Contrary to the Administrative Law Judge, we
find that Respondent's discharge of Ferguson on
March 20, 1972,3 was in violation of Section 8(a)(1).
Clay Ferguson started to work for Respondent as an
over-the-road driver in August 1963. On March 20,
1972, he was assigned tractor 5777 for a run from
Nashville, Tennessee, to Columbia, South Carolina.
After inspection of the tractor around 10 a.m., he com-
plained about a loose seat and something being wrong
with the transmission. A mechanic fixed the seat, and
reported that there was nothing wrong with the trans-
mission. Upon leaving, Ferguson stated Respondent
would probably have to come after him since on a
previous occasion he had a tractor whose gears felt like
that, and it had broken down on the road.
After driving the tractor a short distance, Ferguson
noticed that there was some slack in the fifth wheel (the
1 203 NLRB 157
2 Sub nom. Banyard v. N.LR B., 505 F 2d 342.
3 Unless otherwise stated all the events herein occurred during 1972.
coupling connection between the tractor and the
trailer), which caused a jerking motion when the gears
were changed or the brakes applied. According to Fer-
guson, after he got on Interstate 40 and drove the truck
5 or 6 miles, there was jerking and twisting in the
tractor cab, and he had trouble holding the truck on the
road. Feeling that the truck was unsafe, he stopped.
Ferguson then flagged down another of Respon-
dent's drivers, Potts, and requested that Potts drive the
truck awhile and see what if anything was wrong with
it. After driving a short distance, Potts pulled over; told
Ferguson there was something wrong with the tractor
in the way it was jerking around and that he didn't feel
it was "safe; and advised Ferguson to take it back to
Nashville. Ferguson then drove to Hageman's, a
nearby truckstop, and called Respondent's dispatcher
who instructed him to have Hageman's mechanic in-
spect the truck. The mechanic road-tested the truck
and found that it could barely hold the road. When
Ferguson again called the Nashville dispatcher, Hage-
man's mechanic told the dispatcher that it appeared to
him that the front end was out of line, that the right
front tire was cupped, and that he couldn't make the
repairs. The dispatcher then instructed Ferguson to
drive carefully to Respondent's "tire bank" approxi-
mately 50 miles away where the tire could be changed
and where they could possibly align the front end. Fer-
guson refused, and told the dispatcher the tractor
wasn't safe to drive.
Ferguson then called Respondent's main office in
Winston-Salem, North Carolina, and told them some-
thing was wrong with the tractor and he wouldn't drive
it. Respondent then sent one of its safety supervisors,
Williams, along with a mechanic, Caudill, to check the
tractor. After conferring with Hageman's mechanic
and Ferguson, Caudill and Williams road-tested the
truck. They found that there was some vibration in the
front end at around 40 to 42 miles per hour, but that
it diminished above or below that speed. They advised
Ferguson that they considered the vehicle safe. Fergu-
son again refused to drive the tractor and contacted
Safety Inspector Gatlin of the Department of Trans-
portation. Meanwhile Respondent had sent a replace-
ment truckdriver, Roberts, to Hageman's to drive the
truck the rest of the way to Columbia. Upon Gatlin's
arrival at Hageman's he visually checked the truck and
asked Roberts to road-test it and tell him what if any-
thing was wrong with it. Roberts drove the truck 10 to
15 miles and reported to Gatlin and Ferguson that
there was a wobble or shimmy in the front right wheel
and some slack in the fifth wheel, but that he felt it was
safe to drive.
After making this report, Roberts safely drove the
tractor approximately 400 miles to Columbia, South
Carolina, and thereafter wrote in his vehicle report that
217 NLRB No. 49
ROADWAY EXPRESS, INC.
there was some slack in the fifth wheel and some shim-
mying in the right front wheel.
Ferguson was given a bus ticket and left for Winston-
Salem. On the following day he received a letter from
Respondent stating that based on his actions of March
20, his seniority was terminated.
From Columbia, South Carolina, Logan, another of
Respondent's drivers, drove the tractor to Charleston,
South Carolina, and then the next day to Winston-
Salem, North Carolina. According to Logan he too
considered the vehicle safe.
On March 22, Respondent's maintenance shop fore-
man, Bennett, gave Ray, one of Respondent's mechan-
ics, a work order on tractor 5777 to repair the clutch
which was hard to push, check the fifth wheel for slack,
and check the steering and front end. After checking
the fifth wheel, Ray indicated on the work order that
it had been checked and no repairs or adjustments were
necessary; he also found that the clutch operated nor-
mally. However, in checking the steering, Ray found
that the rear springs and hangers were excessively worn
and, in his opinion, needed replacement. He showed the
worn condition to Foreman Bennett and Fleet
Manager Healy. A short time later Bennett told Ray to
put the vehicle on the ready line, rating it as servicea-
ble, and not to replace any parts. Thereafter, Bennett
added to the work order "rear pins and hangers" and
"road test ok," and then indicated by a code number
that no repairs or adjustments were necessary to these.
In fact the tractor had not been road-tested and was
only driven by mechanics around the yard. The tractor
was then sent out for another trip.
Ferguson filed a grievance concerning his discharge
which came before the Carolina Joint Bi-State Griev-
ance Committee on April 11. Following presentation of
the evidence by the parties, the Committee ruled that
Ferguson's discharge was proper.
The General Counsel alleged that Respondent's dis-
charge of Ferguson was in violation of Section 8(a)(1),
contending that Respondent's actions were in retalia-
tion for Ferguson's activities on behalf of PROD, a
driver organization; that Respondent disparately
treated employees who made complaints concerning
safety; and that Ferguson was discharged for asserting
his Section 7 rights, and insisting on performance of the
union contract. For the reasons given by the Adminis-
trative Law Judge, we agree with his findings that there
is no showing that Respondent attempted any retalia-
tion for any activities by employees on behalf of PROD,
or that employees who made complaints concerning
safety were treated in a disparate manner. We do find,
however, that Ferguson was discharged for asserting
his Section 7 rights and insisting on performance of the
contract, and that such discharge was in violation of
Section 8(a)(1) of the Act.
279
Respondent is a party to the National Master Freight
Agreement with the Carolina Freight Council and with
the Teamsters . Article l6 of this agreement provides in
part 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 violation of this Agreement where em-
ployees refuse to operate such equipment unless
such refusal is unjustified . All equipment which is
refused because not mechanically sound or prop-
erly equipped , shall be appropriately tagged so
that it cannot be used by other drivers until the
maintenance department has adjusted the com-
plaint . After equipment is repaired , the Employer
shall place on such equipment an "OK" in a con-
spicuous place so the driver can see the same.
Under no circumstances will an employee be re-
quired or assigned to engage in any activity involv-
ing dangerous conditions of work or danger to
person or property or in violation of any applica-
ble statute or court order, or in violation of a
government regulation relating to safety of person
or equipment . The term "dangerous conditions of
work" does not relate to the type of cargo which
is hauled or handled.
Upon reconsideration of the evidence before us in
this case, we find that Ferguson was in fact insisting on
his contract rights when he refused to drive tractor
5777 on to Columbia. The contract clearly indicates
that the Employer shall not require employees to drive
an unsafe vehicle, 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 con-
tract as granting him this right, the nature of his com-
plaint has significance and relevance under the contract
to the interests of all'of Respondent's employees 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 pro-
visions in the interest of all the employees covered un-
der that contract. Such activity we have found to be
concerted and protected under the Act, and the dis-
charge of an individual for engaging in such activity to
be in violation of Section 8(a)(1).`
As the discharge of Ferguson was caused by his
refusal to drive what he believed to be an unsafe tractor,
4 C & I. Air Conditioning, Inc., 193 NLRB 911 (1971 ), set aside 486 F.2d
977 (C A. 9, 1973); Interboro Contractors, Inc., 157 NLRB 1295 (1966), cf
Erie Strayer Company, 213 NLRB No. 45 (1974).
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and as such refusal was an attempt to compel adher-
ence to the provisions-of the contract, we find that his
discharge was in violation of Section 8(a)(1) of the Act.
The court of appeals opined in this case that the
Board should consider whether Ferguson's refusal to
work fell under the protection of Section 502 of the
Act,' and suggested that in determining this the
Board might consider whether Ferguson's belief that
the tractor was unsafe was amply supported by "ascer-
tainable, objective evidence."6
Accepting this as the law of the case, we find that
Ferguson's belief that the tractor was unsafe was sup-
ported by such objective evidence, and that his refusal
to drive the tractor was thus protected under Section
502. Ferguson's observation of the jerking and twisting
of the tractor on the road and his opinion that it was
unsafe to drive were based on his years of experience
in driving such trucks, and were not the unfounded fear
one might find in a person driving a tractor-trailer rig
for the first time. It also was not a solitary opinion.
Another of Respondent's drivers, Potts, and Hage-
man's mechanic, Buckliew, both test-drove the truck
and told Ferguson that they felt it was unsafe. Such
evidence, we believe, is objective enough to lead a per-
son to reasonably determine that he should not drive
such a truck. We do not believe that the contrary opin-
ions of others of Respondent's drivers, and of Caudill
and Williams, that the truck was safe, diminish the
reasonableness of Ferguson's belief under the circum-
stances . Nor do we deem relevant in considering the
reasonableness of Ferguson's- activity the fact that the
truck was subsequently driven safely for several hun-
dred miles without repairs having been made.
Remedy
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act,
we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate
the policies of the Act. Respondent will be ordered to
offer Clay Donald Ferguson immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and to make him whole for any loss of pay suffered as
a result of his unlawful discharge, with backpay com-
puted as prescribed in F W. Woolworth Company, 90
5 Sec. 502 of the Act provides, in relevant part
[N]or shall the quitting of labor by an employee or employees in good
faith because of abnormally dangerous conditions for work at the place
of employment of such employee or employees be deemed a strike
under this Act.
6 Citing Gateway Coal Co v United Mine Workers ofAmerica, et at, 414
US 368 (1974)
NLRB 289 (1950), and with interest at 6 percent per
annum as provided in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Roadway
Express, Inc., Kernersville, North Carolina, its offic-
ers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because they engage in
concerted activity.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Clay Donald Ferguson immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges.
(b) Make Clay Donald Ferguson whole for any loss
of pay he may have suffered as a result of his unlawful
discharge in the manner set forth in the Remedy sec-
tion of this Supplemental Decision and Order.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its place of business and office at Kerners-
ville, North Carolina, copies of the attached notice
marked "Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 11, after
being duly signed by the Respondent's representative,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are, customarily
posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing, -within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
I In the event that 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
National 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."
ROADWAY EXPRESS , INC. 281
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity
to present their evidence , the National Labor Relations
Board has found that we violated the law and has or-
dered us to post this notice.
WE WILL NOT discharge employees because they
engage in protected concerted activity.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce employees in the ex-
ercise of the rights guaranteed them in Section 7
of the National Labor Relations Act.
WE WILL offer Clay Donald Ferguson immedi-
ate and full reinstatement to his former job or, if
that job no longer exists , to a substantially equiva-
lent position , without prejudice to his seniority or
other rights and privileges.
WE WILL make Clay Donald Ferguson whole for
any loss of pay he may have suffered as a result of
the discrimination against him.
ROADWAY EXPRESS, INC