Ryder Truck Lines, Inc.,

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 713 (N.L.R.B. 1984)

RYDER TRUCK LINES 713
Ryder Truck Lines, Inc., and Melvin D. Tailor.
Case ,10-CA-19042
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AIâ– 113 MEMBERS
ZIMMERMAN AND HUNTER
, On 21 September 1983 Administrative Law
Judge Philip P. McLeod issued the attached deci-
sion in this proceeding finding that the Respondent
violated Section 8(a)(1) of the Act by discharging
Melvin D. Taylor.. On 30 April ' 1984" the Board
issued an Order remanding the prOceeding to the
judge for further , consideration in light of the
Board's Decision in Olin Corp., 268 NLRB. 573
(1984). The judge issued a supplemental , decision
on 17 July 1984 reaffirming his earlier 'decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
•ed its authority in this proceeding ...to a three-
member panel.
The Board has considered the 'decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings; findings,2
and conclusions only to the extent consistent: with
this Decision and Order.
In his decision of 21 September 1983 the judge
found that Taylor was unlawfully discharged for
refusing to drive a truck that he reasonably- be-
lieved was unsafe. The judge found 'it inappropriate
to defer - to the grievance committee's denial of
Taylor's grievance because there was no evidence
that the committee considered the statutory isues
involved.3
„ In Olin Corp. the Board adopted Member Hun-
ter's dissent in Propoco and declared it 'would .find
that an arbitrator has adequately considered the
unfair labor practice if (1) the contractual issue is
factually parallel to the unfair labor practice issue,
and (2) the arbitrator was presented generally with
the facts relevant to resolving the unfili 'labor
practice.' The Board further held that, the party
1 The Respondent has requested oral argument The request is denied
as the record, exceptions, and bnefs adequately present,the issues and the
positions of the parties .
2 We find no ment in the Respondent's contention 'that die judge was
predisposed to find in favor of the Charging Party
• 3 In deciding not to defer, the judge relied On American Freight System,
264 NLRB 126 (1982), Propoco, Inc. 263 NLRB 136 (1982), enf with un-
published, nonprecedential opinion, Case 83-4058 (2d Or 1983), and
Suburban Motor Freight, 247 NLRB 146 (1980)
4 268 NLRB 573
seeking to have the Board reject deferral and con-
iider the merits of a given case has the burden of
affirmatively demonstrating the defects in the arbi-
tral process or award.5
In his attached supplemental decision the judge
examined the minutes of the Southern Multi-State
Grievance Committee meeting and found that the
contractual issue raised by Taylor's grievance was
factually parallel to the unfair labor practice issue
and that the Committee was presented generally
with the facts relevant to resolving both issues.
The Multi-State Committee was unable to reach a
decision on Taylor's grievance and referred it to
the' Southern Area Grievance Committee. The
judge noted the brevity of the Area Committee's
minutes, which include a statement that "the tran-
script of the Multi-State hearing will be made a
part of the record," and found the minutes insuffi-
cient to show that the Committee was iiresented
generally with the facts relevant to yesolving, the
unfair labor practice or that it adequately consid-
ered the issue. The judge particularly relied on the
absence of evidence that the Area Committee actu-
ally discussed or considered the facts, contained in
the Mutli-State Committee minutes.
'We find that the General 'Counsel has not met
his burden of affirmatively demonstrating that the
unfair labor practice did not receive adequate con-
sideration in the parties' joint-panel grievance pro-
cedure. As found by the judge, the contractual and
statutory issues are factually parallel and the parties
generally presented the Multi-State Committee
with the facts relevant to the statutory issue. The
judge erred, however, in partitioning .the grievance
proceeding and requiring that a further showing be
made that the relevant facts were discussed or con-
sidered by the Area Committee. We find that the
parties' presentation of the facts relevant to the
unfair labor practice at the Multi-State Committee
stage of the grievance proceeding, together with
the General Counsel's failure to affirmatively estab-
lish that these facts were not presented to the Area
Comniittee, 6 satisfies the requirement set forth in
Olin. Since the Area Committee's decision is con-
sistent with the standards promulgated in Spielberg
.Mfg. Co., 112 NLRB 1080 (1955), we shall defer to
the grievance decision and dismiss the complaint.7
ORDER
The complaint is dismissed.
Id Suburban Motor Freight was overruled to the ' extent it provided
for a different allocation of burdens in deferral cases
6 As noted above, the transcript of the Multi-State heanng was made
part of the record of the Area Committee
7 In view of our dismissal of the complaint, we find It unnecessary to
pass on the Respondent's motion for hearing de nova before a different
administrative law judge
,
273 NLRB No. 98
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER ZIMMERMAN, dissenting.
Contrary to my colleagues, and for the reasons
set forth in my separate opinion in Olin Corp., 268
NLRB 573 (1984), I would have affirmed the ad-
ministrative law judge's initial decision in this case,
in which he declined to defer to the instant arbitra-
tion award, and found that the Respondent unlaw-
fully discharged Charging Party Melvin Taylor for
engaging in protected concerted activity by refus-
ing to drive a truck which he claimed was unsafe
to operate. More specifically, I agree with the
judge's conclusion in the initial case that it would
be inappropriate to defer to the result reached by
the Teamsters, Multi-State' Grievance Committee,
since there was not even a written decision by that
committee from which it would be possible to-de-
termine whether the committee considered the stat-
utory issues presented in this case.
For the same reasons as those stated above, " I
Would affirm the judge's supplemental decision in
which' he continued to decline to the Arbitration
award, reaffirming his initial decision. More specifi-
cally, I agree with the judge that the brief cursory
minutes of the Southern Conference Area Commit-
tee are not sufficient to show that the committee
was presented with facts relevant to the unfair
labor practice. In affirming the judge's supplemen-
tal decision, I find it unnecessary to pass on the
judge's determination that he would have deferred
to the arbitration proceeding before the Southern
Multi-State Grievance Committee if that proceed-
ing had resolved the grievance.
DECISION
STATEMENT OF THE CASE
PHILIP P. McLEop, Administrative Law Judge. This
case was heard by me on July 28 and 29, 1983 , in Bir-
mingham, Alabama. It originated from a charge filed by
Melvin D. Taylor, an individual, against Ryder Truck
Lines, Inc. (Respondent). On April 11, 1983, a complaint
and notice of hearing issued alleging, inter aim, that Re-
spondent violated Section 8(a)(1) of the National Labor
Relations Act (the Act), by discharging, and thereafter
failing and refusing to reinstate, employee Melvin D.
Taylor because he engaged in concerted activities with
other employees for the purposes of collective bargain-
ing and other mutual aid and protection. In its answer to
the complaint, Respondent admitted certain allegations,
including the filing and serving of the charge, its status
as an employer within the meaning of the Act, and the
fact that it discharged Taylor on December 2, 1982. Re-
spondent denies that it discharged Taylor for reasons
which violate the Act and denies having engaged in any
conduct which would constitute an unfair labor practice.
At the trial herein, all parties were represented and
were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence.
Following the close of the trial, both Respondent and
the General Counsel filed timely briefs with me which
have been duly considered.
On the entire record in this case, and from my obser-
vation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Ryder Truck Lines, Inc. is a Florida corporation with
offices and truck terminals located in various cities
throughout the United States. The facility involved here
is in Birmingham, Alabama During the past calendar
year, which period is representative of all times material
herein, Respondent derived gross revenues in excess of
$50,000 from the interstate transportation of freight and
commodities from its Birmingham facility directly to cus-
tomers located outside the State of Alabama.
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
II. THE ISSUES
The complaint alleges that Respondent discharged
Taylor because he engaged in concerted activities with
other employees for the purposes of collective bargain-
ing and other mutual aid and protection. Counsel for the
General ,Counsel contended in his opening statement that
Taylor was "terminated for engaging in protected, con-
certed activities when he refused to drive an unsafe
truck." The complaint does not specifically allege that
Taylor engaged in protected activity by refusing to drive
unsafe equipment. Respondent argues that because the
complaint does not specifically set forth the latter allega-
tion, the General Counsel should not be heard to pro-
pound that argument, but rather should be limited to the
concerted activities theory specifically alleged. I reject
Respondent's 'argument and find that the complaint Ian-
' guake is sufficiently particular to encompass the "unsafe
equipment" theory
Respondent admits that it discharged Taylor in the
early morning hours of December 2, 1982, because
Taylor' refused to drive a particular truck tractor as-
signed to him. Therefore, with regard to the discharge,
two issues are presented: first, whether Taylor refused to
drive the particular tractor as a result of concerted ac-
tivities engaged in by him with other employees for their
-mutual aid and protection; and second, whether Taylor's
refusal to drive the truck, if not the result of concerted
activities with other employees, was the result of a rea-
sonable belief on Taylor's part that the tractor was
unsafe.
In addition to these, a third Issue is presented as a
result of Respondent's affirmative defense that the Board
should defer to the Teamsters Multi-State Grievance
Committee's denial of Taylor's grievance regarding his
discharge and, as a result, dismiss the complaint herein.
RYDER 'TRUCK LINES

715
III. THE FACTS
A. Background
Melvin D. Taylor was employed by Respondent as a
truckdriver at its Birmingham, Alabama facility, for 26
years. Respondent's truckdrivers, including Taylor, are
represented for purposes of collective bargaining by the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Respondent is
signatory to the National Master Freight Agreement and
Southern Conference Area Over The Road Supplemen-
tal Agreement. Two portions of the collective-bargaining
agreement have relevance to this proceeding. First, arti,
cle 16, section 1, provides in part, "The' employer shall
not require employees to take out on the streets" 'or high-
Ways any vehicle that is not in safe operating condition."
Second, the collective-bargaining agreement contains
provisions for the resolution of disputes through final
and binding grievance and arbitration procedures.'
From the Birmingham facility, drivers are dispatched
to haul freight to other Ryder facilities in various loca-
tions throughout the country. Drivers do not have trac-
tors permanently assigned to them which they drive day
after day. Rather, tractors are , assigned to drivers from a
pool on a first-in-first out basis, i.e., tractors which have
arrived at the Birmingham facility from other locations
are assigned to Birmingham drivers in the order in which
they arrived in Birmingham. When a driver is assigned a
particular load, he is given bills of lading and other doc-
uments, including a Department of Transportation
(DOT) "Equipment Inspection Report" which the driver
is required to complete before, leaving on his run. In
order to complete this report, the driver is required to
inspect both the tractor and trailer assigned to him and
to report any deficiencies to the , dispatcher. The" dis-
patcher then communicates with the repair shop with
regard to any repairs that need to be made. Because of
arguments which have occurred in the past between
drivers and repair shop employees, drivers are , not per-
mitted to communicate directly with , the repair shop. If
the repair cannot be completed in a reasonable time, the
shop foreman will notify the dispatcher, and different
equipment will be assigned to the driver from the exist-
ing pool.
Truck tractors used by Respondent 'are' predominantly
GMCs and Fords. The interior of these two tractors
somewhat different, and generally speaking the Ford
tractors have less space in the cab than the GMC model.
In years past, large drivers experienced difficulty being
able to fit in the Ford models. As a result, an agreement
was reached sometime ago between Respondent and the
Union that certain individuals would not be required to
drive Ford tractors. This agreement has been applied to
two drivers at the Birmingham facility, a Mr. Starnes
and a Mr. Morris. There is, however, no evidence that
this agreement was giNien general application to any
driver who thought himself too large to , fiu comfortably
in the Ford cab. Rather, it appears that Respondent and
the Union reached agreement that certain named individ-
uals would be exempted from driving Ford tractors, and
the rule has been applied to them alone.
The 1979 Ford tractors used by Respondent have an
adjustable telescoping steering column. The telescoping
mechanism contains an inner frame with spring-loaded
pins which engage in adjustment holes located in an
outer stationary frame. Two bolts located in the outer
frame regulate the amount of play in the steering column
between the inner and outer frames. If-the bolts are loos-
ened to allow the telescoping mechanism to adjust, play
is experienced in the steering wheel. If the bolts are
tightened to eliminate this play in the steering wheel, the
telescoping mechanism will ,-not adjust. In 1980, because
of driver complaints about play in the steering wheel,
Respondent welded the steering columns in a fixed posi-
tion. Sometime during 1982, other drivers complained
that the steering wheel would not adjust. A grievance
was filed, and Respondent agreed to restore the telescop-
ing mechanism to its original condition so that it would
'adjust. Restoring the mechanism to its original condition
required the use of a cutting torch to remove a tack
weld which had been used to fix them in place.
B. Taylor's Refusal to Drive 1979 Ford 79-597
On the night of December 1, 1982, when Taylor re-
ported to work at the Birmingham facility, he was first
assigned a GMC tractor to drive on his regular bid run
to Monroe, Louisiana. After inspecting the tractor,
Taylor turned in to the dispatcher a DOT report that the
tractor' had a broken seat. The dispatcher so informed
the repair shop,' which attempted necessary repairs. The
repair shop informed the dispatcher that the seat could
not be repaired, and Taylor was then assigned the next
available tractor, 1979 model Ford 79-597.
After inspecting this Ford tractor, Taylor prepared
and turned in, a DOT report 'time-stamped 21.9 hours
(9:54 p.m.) stating, "unable to adjust steering wheel" and
"engine leaking oil." The dispatcher informed the shop
of the necessary repairs. At approximately 10:36 p.m.,
the repair shop informed the dispatcher that the unit was
ready. Taylor returned to the "ready line" to check the
vehicle. After this inspection, Taylor turned in to dis-
patcher Miller a DOT report at 10:48 p.m. stating,
"steering column loose part of" [sic]. This was reported
to the shop by Miller. Shop Superintendent Ed Mize in-
formed Miller with a written note that the repair work
had 'already been - performed earlier and there would ,be
!`no come back/n6 pay " 2 Taylor then went to the vehi-
cle, which had been returned to the "ready line" and
drove it himself to the repair shop. Taylor attempted to
confront' Mize directly and convince him that the repairs
were not complete. Mize interrupted Taylor, however,
told Taylor that the shop was not going to work on the
truck any more, that Taylor would have to drive it like
it Ni7ns, and that if Taylor had problems with the truck
1 The General Counsel claims in brief that Taylor found the "exhaust
manifold defective" and that "exhaust fumes leaked into the cab" The
General Counsel is either very mistaken or making up facts to suit his
needs, for they are-found nowhere in this record In either case, I reject
this assertion and do not rely on It in any way in reaching my decision
herein
2 This designation means that in Mize's opinion no further repair was
necessary and the driver should not be paid for the additional time spent
while the vehicle was being looked at a second time
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taylor should go to the dispatcher. 3 Taylor then drove
the truck back to the "ready line."
Upon returning to the "ready line" from the repair
shop, Taylor met two other drivers, Jack Simpson and
W. R. Worthington. Taylor asked Simpson and
Worthington to help him adjust the steering slide so that
Taylor could fit behind the steering wheel They were
unable to do so. Worthington told Taylor that Taylor
could not drive that tractor, that Taylor was too big.
Taylor then returned to the dispatch office to speak ,to
Miller. Taylor told Miller he could not drive the truck.
Miller replied that the shop was not willing to work on
the steering column any more, that it had made the nec-
essary repairs, and that Taylor was going to have to
drive the truck Taylor went back out to the truck and. a
few minutes later returned to the dispatch office with a
DOT report time-Stamped 11:06 p.m. stating, "part of
trailer's [lights] out.' Brakes grabbing on tractor." Dis- -
patcher Miller communicated the need for these repairs
to the shop
After filing this DOT report, Taylor returned to the
ready line. Taylor was standing at the ready line by the
truck with employees Joseph Shelby and Simpson when
mechanic John Smith approached to repair the lights.
Taylor asked Smith to examine the truck's steering. Ac-
cording to Smith's testimony, he found that the steering
mechanism was loose, the steering column had been cut
with a welding torch, and the ball bearings, had been let
out. According to Smith, the steering column did not
slide properly and did not allow the driver to have all
the room the cab was designed to allow. Smith testified
that in his opinion the condition of the steering column
could cause a driver to have steering trouble and possi-
bly an accident. According to Smith, the steering column
was "shot" -and needed to be replaced. 5 Smith told
3 Testimony of Taylor and Mize conflicts with regard to die statement
made by Mize to Taylor, but I accept a composite of their testimony on
this point
I do not credit Mize's testimony that at this time he was able to ob-
serve Taylor sitting behind the wheel of the tractor, that the steering
wheel may have been touching Taylor's shirt, but that the steering wheel
was not "burled in" or substantially protruding into Taylor's stomach as
Taylor asserted at trial Rather, I credit the testimony of employee Floyd
described below
5 I credit that portion of Smith's description of the actual physical con-
dition of the steering column wherein he states that the steering column
did not slide properly and did not allow the driver to have all the room
the cab was designed to allow I credit Smith on this point not because of
his own demeanor, but because this point is corroborated by employee
Thomas Floyd, whose testimony is described below and Who impressed
me as the most disinterested and credible witness in this case In crediting
this portion of Smith's testimony, I am mindful that, in general, Smith
was clearly biased in Taylor's favor His testimony was extreme and his
demeanor unsettling Smith admitted that he did not want to do anything
to hurt Taylor I have also considered the fact that following Taylor's
discharge, union business agent Simmons requested a meeting with Smith
and Shop Superintendent Paul Hergot to investigate Taylor's grievance
During this meeting, Smith told Simmons and Hergot that he did not
want to cause trouble for Taylor and did not want to give a wntten
statement, but that the steering wheel had actually been recessed as far as
it would go when he examined It on the night of December 1, and that
he had told Taylor so The fact,that Smith would make such a statement
in the presence of Shop Superintendent Hergot is consistent with my im-
pression of Smith's credibility that he would say anything he thought the
listener wanted to hear Thus, I credit only this limited portion of Smith's
testimony because it is corroborated by Floyd
Taylor, however, that he was assigned only to fix the
lights. Taylor then left the ready line and went back to
the dispatch office. Smith proceeded to fix the lights, and
the truck was again returned to the ready line shortly
after midnight.
After the truck was again released from the repair
shop, at 12:24 a.m. Taylor turned in yet another DOT
report which stated, "unable to adjust steering wheel."
This report, was 'relayed to the shop by dispatcher Miller
By this time, Shop Superintendent . Mize, who left work
at midnight, was gone Mize's replacement, Shop Super-
intendent Keys, again had the vehicle inspected Shortly
after 1 a.m., Keys informed Miller that two mechanics
had checked the steering, that the steering wheel was re-
tracted as far as it would go, and that the mechanics had
certified that to be so. The truck was again returned to
the ready line. At - 1:1i a.m , yet aricither "come back"
was written to the shop. that the trailer lights were out.
This was again checked by the shop, repaired, and re-
turned to the dispatcher as ready at approximately .1:36
a.m
'Taylor and dispatcher Miller then had a conversation
which ultimately led to Taylor's discharge. The 'conver-
sation was initiated by Taylor, who told Miller that he
would not drive the tractor until the steering was fixed.
Miller told Taylor thal the shop had fixed the steering
and that two Mechanics had certified such to be the case.
Taylor told Miller that he could not drive the truck, that
he was too big, and that the shop had not fixed the steer-
ing mechanism so that it would properly adjust. Miller
then asked the employee Thomas Floyd to be a witness
to what was about to take place. Floyd agreed but said
he wanted to inspect the truck first. Taylor and Floyd
went to inspect the truck. Miller did not accompany
them. Instead, while they were gone, Miller telephoned
Terminal Manager Scotty Appleton and told him what
had taken place Miller informed Appleton that Taylor
had made several wiiteups . on the truCk, but that it had
cOme down to the fact that the steering did not adjust.
Miller told Appleton. that Taylor now refused to drive
the truck. 'Appleton instructed Miller to order Taylor to
drive the truck and that if Taylor refused, to discharge
Taylor.
Floyd testified about whai he ' found when he and
Taylor went to the, ready line to inspect the truck. As I
have indicated above, of all the witnesses in this case,
Floyd struck me as the most credible. When Floyd and
Taylor went to inspect the truck, Floyd took a flashlight
with -him to make the inspection. When they got to the
truck, Taylor got up into the cab and sat behind the
steering wheel. As Floyd testified, "the steering wheel
was hitting him in the stomach." Taylor then got out of
the truck, and Floyd got in to inspect. Floyd testified,
"the steering wheel would slide but there was something
holding it off; it wouldn't go all the way against the dash
like it normally would go." Floyd testified that he could
place his two-cell flashlight in the space left behind the
steering wheel and the dash board Floyd testified that
he could see that a cutting torch had been used to cut
the weld loose and that "liquid wrench or break away
fluid" had been used to lubricate the sliding mechanism.
RYDER TRUCK LINES

717
Floyd testified, "It was dripping down in the floor-
board." Floyd also testified that on the steering column
there is a universal joint which allowed the steering
column to turn the truck wheels regardless of the col-
umn's position According to Floyd, "they had taken
something and beat it to drive it in, and they had beat
the rubber bushing off of it, and the bushing was hanging
down on it." After inspecting the truck, Floyd told
Taylor that in his opinion, if the telescoping mechanism
would allow the steering wheel to slide as it normally
would, Taylor could probably drive the truck. Floyd tes-
tified that, if such were the case, Taylor would have
about 2 inches between his stomach and the steering
wheel. As it was, however, the steering wheel hit Taylor
in the stomach
When Floyd and Taylor returned to the dispatch
office after inspecting the truck, Miller did not ask, and
Floyd did not have occasion to report, what he had
found. Instead, Taylor told Miller that when the tractor
was fixed; he would drive it. Miller replied that the shop
had stated the truck was ready to go, and Taylor would
have to drive it "or else." Miller 'then issued written in-
structions to Taylor to drive the truck. Taylor took the
written instructions and placed them in his pocket.
Taylor told Miller he would drive the truck when it was
fixed. Miller asked for the written instructions back and
Taylor refused to return them to Miller: 6 Miller then
wrote out a second set of written instructions, showed
them to Taylor, and told Taylor that if he did not drive
the truck he was discharged Taylor said he was going
home, and left the office .
Before Taylor could leave Respondent's facility, he
first had to perform some minor repair on his personal
vehicle in Respondent's parking lot. While doing so,
Miller came out to the parking lot and asked Taylor for
the bills of lading for the load which he was to have
taken that night. Taylor refused to give Miller the bills
of lading, telling Miller to leave him alone, that he had
had all he could stand.7
Another driver, Roland McLaunn, was called in to
take the run which Taylor was to have taken to Monroe,
Louisiana McLaurin was told by dispatcher Miller that
Taylor had refused to drive the truck because the steer-
ing mechanism would not adjust. McLaurin checked out
the tractor, found that it would adjust to his satisfaction,
and drove to Monroe and back without incident It
should be noted, however, that McLaurin weighs 200
pounds, while Taylor weighs approximately 240 pounds.
McLaunn simply did not encounter the same problem
experienced by Taylor
On December 3, 1982, Taylor was sent a letter inform-
ing him that he was discharged On December 4, Taylor
filed a grievance pursuant to the National Master Freight
Agreement protesting his discharge. As Respondent
notes, the grievance does not specifically allege that the
truck was "unsafe" for Taylor to drive Nor does Taylor
specifically refer to article 16 of the collective-bargaining
6 I find Taylor's refusal to return the instructions to be of no conse-
quence There was no indication it was considered insubordination or
played any part in Respondent's decision to discharge Taylor
I also find this incident to be inconsequential Tajdor had already
been discharged when the incident occurred
agreement dealing with an employee's right to refuse to
drive unsafe equipment. The grievance does, however,
grieve the fact that "other drivers have been allowed to
turn these Fords down because of the steering wheel
being in their stomach." A hearing was held regarding
Taylor's grievance which Taylor attended. After the
grievance was deadlocked at the Multi-State Committee,
the grievance was referred to the area committee, which
denied the grievance Taylor did not attend the area
committee meeting. Respondent did not offer into evi-
dence a transcript of any stage of the grievance proceed-
ing
Analysis and Conclusions
Regarding the issue whether the Board should defer to
the Teamsters Multi-State Grievance Committee's denial
of Taylor's grievance regarding his discharge and, as a
result, dismiss the complaint ,herein, Respondent in its
brief recognizes "the relatively recent, misguided, deci-
sions of the Board which hold ,contrary to Respondent's
position" American Freight System, 264 NLRB 126
(1982), Propoco, Inc., 263 NLRB 136 (1982); Suburban
Motor Freight, 247 NLRB 146 (1980) These are, of
course, the same cases relied on by the General Counsel
in support of the argument that the Board should not
defer, and they clearly support the General Counsel's po-
sition Accordingly, I find that it would be inappropriate
to defer to the Teamsters Multi-State Grievance Com-
mittee's denial of Taylor's grievance regarding his dis-
charge where there is not even a written decision by that
committee from which it would be possible to tell
whether the committee considered the statutory issues
presented here
With regard to Taylor's discharge, the General Coun-
sel argues that when an employee complains about safety
matters which are subjects of the collective-bargaining
agreement, he is engaged in protected concerted activity
because such conduct affects the rights of all unit , em-
ployees. McLean Trucking Co., 252 NLRB 728 (1980);
Interboro Contractors, 157 NLRB 1295 (1966), and other
similar cases. The General Counsel argues that in refus-
ing to drive Ford 79-597, Taylor was exercising a right
pursuant to article 16, section 1, of the collective-bar-
gaining agreement which provides, "The employer shall
not require employees to take out on the streets or high-
ways any vehicle that is not in safe operating condition"
Thus, according to the argument, Taylor's refusal of
Ford 79-597 was the result of complaints about a safety
matter which is the subject of the collective-bargaining
agreement, and he was thereby engaged in protected ac-
tivity Additionally, the General , Counsel argues that
Taylor's refusal to drive Ford 79-597 was protected be-
cause he was exercising a right pursuant to Federal
Motor Carrier Safety Regulations which provides, inter
aim, that motor vehicles shall not be driven unless the
driver satisfies himself that the steering mechanism,
brakes, lighting devices, and other parts and accessories
are in good ,working order. As a result, the argument
continues, Taylor's refusal to drive Ford 79-597 was of
common concern to all employees, and was therefore
"concerted" activity accorded the protection of the Act.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This theory of concerted activity has been specifically
adopted and applied by the Board in Interboro Contrac-
tors, supra, and its progeny.
Respondent argues that in refusing to drive Ford 79-
597, and in his actions which led up to that refusal,
Taylor was not acting in concert with other employees,
but rather was acting by himself and only for himself.
Respondent further argues that the Interboro doctrine has
been rejected by the U.S. Court of Appeals for the 1 1 th
Circuit in - which this case arose 8 and therefore should
not be applied here. Respondent argues that even if the
Interboro principle is applied here, in refusing to drive
Ford 79-597 Taylor was not attempting to enforce any
provision of the collective-bargaining agreement and had
no reasonable belief that the vehicle was unsafe. In a nut-
shell, Respondent argues:
A review of the transcript reveals clearly that what
this entire case amounts to is that for reasons of per-
sonal comfort and convenience Taylor did not want
to drive that Ford tractor on the night in question,
and he was bound and determined to get out of it.
The real crux of the matter is to be found in Tay-
lor's statement:
.don't drive them [Fords] when I can get out of
it, I agree with you. Because they hurt my stom-
ach.
After hearing this case, there is no doubt in my mind
that, in refusing to drive Ford 79-597, Taylor was con-
cerned solely for himself. There is nothing in the Act,
however, which requires an employee to be motivated
by altruistic concerns in order to be afforded its protec-
tion. Nor does it follow from the fact that Taylor was
concerned solely for himself that Taylor was therefore
acting by himself and not in concert with other employ-
ees, even though he may have been the only one to
refuse to drive a truck on the night of December 1, 1982.
My analysis of the facts herein leads me ultimately to
the conclusion that in refusing to drive Ford 79-597 on
the night of December. 1, 1982, Taylor was acting not
only in conformity with the Motor Carrier Safety Regu-
lation which provides in part that a driver must satisfy
himself that the steering mechanism works properly and
that provision of the collective-bargaining agreement
which states that an employer shall not require employ-
ees to drive any vehicle that is not in safe operating con-
dition; nor solely because Taylor reasonably believed it
was dangerous to drive Ford 79-597; and, lastly, not
solely as a result of concerted activities engaged in with
other employees. Rather, all of these factors are present
in Taylor's refusal to drive Ford 79-.597. -
That Taylor was acting in conformity with the Motor
Carrier Safety Regulation described above and article 16,
section 1, of the collective-bargaining agreement is so ap-
parent as to require no further explication. Taylor's belief
that driving Ford 79-597 -on the night of December 1,
1982, would present a dangerous situation was indeed
8 Roadway Express v NLRB, 700 F 2d 687 (11th Cir 1983) See also
Enerhaul, Inc. v NLRB, 700 F 2d 748 (11th Or 1983)
reasonable, for I find that the result would have been in
fact unsafe. This is not to say that driving Ford 79-597
was necessarily unsafe for all drivers. When Taylor re-
fused, McLaurin drove the vehicle without incident, and
the record shows that many miles have been put on that
vehicle since that night. As the vehicle existed 'on the
night of December 1, 1982, however, it was unsafe for
many large drivers, including Taylor, because the steer-
ing wheel in fact protruded into Taylor's stomach and no
doubt would have done the same for other drivers of
equal girth. On the night of December 1, as well as
throughout this proceeding, Respondent reacted to Tay-
lor's complaints about the steering mechanism as if they
arose only from his desire for comfort I specifically
credit Taylor that he explained to Miller that he could
not fit behind the steering wheel of this truck because he
was too big and the steering wheel would not adjust
properly. Not once did dispatcher Miller bother to check
to see whether Taylor could fit reasonably behind the
steering wheel. Miller asked Floyd to be his witness, and
yet did not himself bother to witness the problem being
complained of, even when Floyd himself insisted on
doing so. Floyd, Miller's witness, testified credibly
before me that in fact the steering wheel protruded into
Taylor's stomach. By simple inspection Miller could
have determined that even though the steering column
may. have been worked on by the repair shop, the steer-
ing wheel did not recess as far as it was intended to, that
the truck could not safely be assigned to a driver of Tay-
lor's girth but could be assigned to a thinner smaller
driver Miller, who had it within his power, could then
have simply reassigned the vehicle. The problem on the
night of December 1 did not represent a conflict be-
tween Taylor and the repair shop, nor between Miller
and the repair shop. The unsafe condition could easily
have been corrected by Miller without any conflict, but
Miller turned a deaf ear to Taylor's complaints that the
steering wheel would not adjust as far as it was intended
to and Taylor could not fit behind the wheel Miller as-
sumed, and Respondent now argues, that Taylor was
motivated solely out of a desire for personal comfort.
This argument would have me ignore, as Respondent
itself ignored, the fact that on Ford 79-597 the steering
wheel in fact protruded into Taylor's stomach to such a
degree as to impair proper steering of the vehicle. While
Respondent may have chosen to ignore this, I cannot.
Turning now to the concerted nature of Taylor's
action, I wholly reject Respondent's argument that
Taylor did not seek out other employees and solicit their
opinions regarding the condition of the truck he refused
to drive. Rather, this record is replete with evidence that
throughout the night of December 1 and into the early
morning hours of December 2, 1982, Taylor solicited the
opinion and the support of other employees that it would
be unsafe for him to drive Ford 79-597. Taylor attempt-
ed to confront Shop Superintendent Mize about the
problem and was rebuffed because company rules Pro-
hibit drivers from communicating directly with the
repair shop. Taylor then approached employees Jack
Simpson and W. R. Worthington Worthington told
Taylor that Taylor could not drive the tractor in ques-
RYDER TRUCK LINES 719
lion, that Taylor was too big Taylor asked shop me-
chanic John Smith, who had been dispatched to repair
lights on . the trailer, to inspect the steering' column.
Smith found that the steering column did not slide prop-
erly and did not ,allow the driver to have all the room
the cab was designed to, allow. Employee Floyd also in-
spected the vehicle with Taylor, and he too found that
the steering wheel would not recess against the dash-
board as it was supposed to and that it hit Taylor in the
stomach. In sunimary, , Taylor not only spoke to:but had
the support of other drivers before he ultimately, refused
to drive Ford 79-597.
I find that Taylor's refusal to drive Ford 79-597 was
concerted activity for yet another reason. In the past,
other large drivers have complained because they could
not fit in Ford tractors, and specifically the 1979 model,
without the steering wheel touching, or even being im-
bedded in, their stomachs. The fact that such a condition
presents not only an uncomfortable but a hazardous situ-
ation because it interferes with steering the vehicle must
necessarily' have been part of the reason for Respondent
and the Union entering into an agreement to exempt cer-
tain drivers from driving Fords. Further, numerous com-
plaints have been made, and at least two grievances filed,
regarding the adjustable steering column. Neither the
General Counsel nor Respondent offered these past
grievances as exhibits. Instead, both chose to rely on oral
testimony with regard to them. Whether those griev-
ances still exist is not revealed by the record. Thus,
while there is no direct evidence to prove conclusively
that the complaints and the first grievance regarding the
telescoping steering mechanism were related to com-
plaints by large dri