Washington Cartage, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 701 (N.L.R.B. 1981)

WASHINGTON CARTAGE, INC.
Washington Cartage, Inc. and Wilbert O. Weaver,
Jr. Case 5-CA-11825
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 22, 1981, Administrative Law Judge
Sidney J. Barban issued the attached Decision in
this proceeding. Thereafter, the Charging Party
filed exceptions and a supporting brief, and Re-
spondent filed a response to exceptions and cross-
exceptions.
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, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
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 complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard in Washington, D.C., on July 21,
August 6, and September 2-5, 1980, upon a complaint
issued on February 28, 1980, based on a charge filed on
January 11, 1980, by the above-named Charging Party
(herein Weaver). The complaint alleges that Respondent
violated Section 8(a)(1) of the National Labor Relations
Act, as amended (herein the Act), by constructively dis-
charging Weaver in that Respondent required him to
drive a tractor which he reasonably, and in good faith,
considered to be unsafe, thereby causing Weaver to
resign, and has since refused and failed to reinstate him,
all because he engaged in protected concerted activities
with other employees for their mutual aid and protection
by his refusal to drive the aforesaid tractor.
The answer to the complaint denies the unfair labor
practices alleged, but admits allegations of the complaint
sufficient to justify the assertion of jurisdiction under the
Board's present standards (Respondent, engaged in the
local and interstate transportation of freight by motor
carrier, during a recent annual period received gross rev-
enues exceeding $50,000 from the interstate transporta-
tion of freight).
258 NLRB No. 93
Upon the entire record in this case, from my observa-
tion of the witnesses and their demeanor, and after due
consideration of the briefs filed by the General Counsel,
Respondent, and the Charging Party, I make the follow-
ing:
FINDINGS AND CONCLUSIONS
I. THE ISSUES
As discussed hereinafter, Weaver, on January 7 and 8,
1980, refused assignments to drive tractor 15, asserting
that he considered it unsafe because of an alleged pro-
pensity of that tractor to become disengaged from and to
drop trailers which it was pulling. This resulted in the
termination of Weaver's employment. Two major issues
herein concern (1) the validity of Weaver's asserted con-
cern that tractor 15 was unsafe for the transport of
freight and (2) whether his complaint that it was not safe
to drive that tractor constituted concerted activity pro-
tected by the Act. Other issues also will be considered
hereinafter.
11. THE FACTS
This matter was heard at considerable length and in
great detail. It is unnecessary to set forth all of this evi-
dence and the conflicts therein. I have considered the
entire record. Only that evidence which is clearly to the
resolution of this matter will be discussed. Some conflicts
will be specifically noted. Any testimony inconsistent
with findings of fact made hereinbelow is not credited.
A. Respondent's Operations
During the period involved in this case, principally
from October 1979 through January 1980, Respondent
was engaged in the transportation of freight by motor
carrier in the area of metropolitan Washington, D.C., in-
cluding the adjacent areas of Virginia, Maryland, and
Baltimore, Maryland, and as far south as Charlottesville,
Virginia.' In carrying out these functions, Respondent
uses several so-called straight trucks, including one num-
bered 101 (all Respondent's straight trucks have three
digit numbers), and five tractors (motorized vehicles de-
signed to be hooked up to trailers for the transportation
of freight) numbered 15, 16, 17, 18, and 19. As will be
developed, we are particularly concerned here with the
operation of tractor 15.
Respondent's tractors in regular use for transportation
of freight are normally assigned to a particular driver.
Tractor 15 had a regular driver until December 1979.
After that driver left Respondent, tractor 15 was used
largely, though not exclusively, in jockeying trailers
around Respondent's yard.
Tractor 15 was the oldest tractor Respondent owned.
It was disruptable in appearance-one witness said it was
"embarassing" to drive the vehicle-it had a large crack
in the metal of the cab, was difficult to turn because of a
lack of power steering, lacked certain knobs on the gear-
shift and other levers, and had other similar deficiencies.
'An allied corporation. ADL, is engaged in a warehousing operation
in the Washington area
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously indicated, Weaver, in January 1980, re-
fused to drive tractor 15 because of an asserted propensi-
ty to drop trailers which were ostensibly attached to and
being pulled by that tractor.
B. Tractor-Trailer Hookups Generally
The record is concerned to a considerable extent with
the manner in which tractors, such as number 15, are at-
tached to trailers, and whether, once attached, a trailer
will become disconnected from or "dropped" by the
tractor pulling it. For our purposes it is sufficient to note
that the "hookup" is accomplished by the driver backing
up his tractor so that a large round platelike mechanism
at the back of the tractor, referred to as the "fifth
wheel," slides under the trailer until a pin on the under-
side of the trailer fits into a locking mechanism in the
fifth wheel. In the vehicles involved in this matter, the
driver principally relies on the sound made by this at-
tachment, the feel of the trailer being engaged when he
drives forward in low gear, and by his experience to de-
termine whether the trailer is securely attached to the
tractor. Prior to these manuevers the driver also usually
connects up the airhoses and electric connections be-
tween the tractor and the trailer. It is clear on this
record that tractor 15 was particularly difficult to hook
up to trailers. Thus Respondent's witness John Gibson, a
driver, when asked about the "general impression around
the yard regarding the 5th wheel on Tractor 15," testi-
fied, "[I]t was just a real pain to get it hooked up . . .
[drivers] might talk about its condition or the 5th wheel
being hard to hook up, being a pain."
Respondent's president, Joseph Peters, asserts that
based on his long experience it is impossible for a trailer
to become detached from the pulling tractor if the two
were properly hooked up in the first instance. It is ac-
knowledged, however, that often trailers are dropped
from the pulling tractors-Peters himself has dropped
several trailers-but he insists that these instances are
caused solely by driver carelessness in not hooking up
the tractor-trailer in the first instance. Peters says that in
these instances the trailer will come loose within a very
short distance, so that these occurrences take place in or
about the terminal yard. A number of the trailers
dropped, including two dropped by Peters, were
dropped from tractor 15.
The General Counsel's expert witness, Raymond L.
Sanders, testified, however, that if the locking mecha-
nism on the fifth wheel became worn, humps in the road-
way could cause the trailer to detach from the tractor.
Peters, though asserting that he was unaware of such oc-
currences, did not seriously dispute this testimony, and I
credit Sanders. Sanders also testified without contradic-
tion that the effective life of the fifth wheel mechanism is
about 5 to 6 years. Tractor 15 is clearly older than that
and there is no indication that the fifth wheel locking
mechanism on number 15 had been replaced or repaired
prior to the incidents material to this case set forth here-
inafter.
C. Weaver's Employment
1. Generally
Weaver, hired in October 1974, was one of the first
drivers Respondent employed when its business was or-
ganized. He was considered a good employee. Up until
around October 1979, Weaver was employed exclusively
in driving straight trucks, for some period being assigned
to truck 101. However, about October 1979, Respondent
began training Weaver to drive a tractor-trailer. This in-
volved jockeying trailers around in the yard and at least
on one occasion taking a tractor-trailer ig on the street
with another driver. Weaver was told that until he
became more experienced he would be permitted to
drive a tractor-trailer rig only in the metropolitan Wash-
ington area. The record shows that he drove tractor 17
on October 17, and drove truck 101 every workday
thereafter until October 31, when he first drove number
15.
2. Experiences with tractor 15
On October 31, 1979, Weaver was assigned to make
local deliveries using tractor 15. After hooking up to the
trailer, in accordance with the instructions as to this pro-
cedure which he had been given, Weaver began pulling
the trailer out of the yard. As he reached the street, he
felt the trailer disengage from the tractor although it did
not fall off. Weaver walked back to the dispatch office
and sought help in getting the tractor-trailer hooked up.
After it was hooked up Weaver made his local deliv-
eries, using tractor 15, without further incident.
On a second occasion, in November, when Weaver
was jockeying a trailer in the yard with tractor 15, after
following the prescribed procedure for hooking up the
tractor-trailer, the trailer became disconnected and hit
the ground. Weaver cautiously reconnected the tractor
and trailer and slowly backed it into the designated spot
without seeking other help. In a third instance, in late
November or early December, when Weaver was at-
tempting, as instructed, to back a loaded trailer to a ter-
minal door with tractor 15, the trailer again became dis-
connected from the tractor. Weaver again sought help
from the dispatcher's office. Night Supervisor Thomas
D. Gibson came out to help and after some difficulty
was able to get the tractor-trailer hooked up. 2
Weaver discussed his problems with tractor 15 with
the other drivers and received some advice from them.
He also became aware of problems other drivers had
with, and their complaints about, tractor 15, such as
those indicated by John Gibson, as quoted above, and
the fact that other drivers had dropped trailers from
tractor 15.
There is no evidence that any drivers, other than
Weaver, complained to Respondent about the difficulty
of hooking up trailers to tractor 15, or that other drivers
considered the tractor unsafe because of the possibility of
trailers becoming disconnected from tractor 15. While all
'Thomas Gibson testified that he told Weaver and other drivers that
tractor 15 was "a piece of junk." Weaver made a similar comment on his
mileage report October 31, 1979
702
WASHINGTON CARTAGE. INC.
of the drivers presently working for Respondent who
testified said that they did not consider tractor 15 unsafe,
John Gibson, who also testified to having difficulty with
hooking up trailers to tractor 15, indicated something
less than a wholehearted endorsement of the vehicle, as
indicated in the following testimony:
Q. Now with respect to the difficulties of getting
[tractor] 15 hooked up, do you consider that to be a
safety problem?
A. [John Gibson] After it is hooked, no, I don't.
Q. Based upon your knowledge of the other driv-
ers and the conversation around the yard, would
you consider the comments about the condition of
15, [or] the difficulty in hooking up the safety latch
[to be complaints about safety]?
A. To tell you the truth, the truck was so far
beyond, there were a lot of things you could sit
down and say that needed repair to make it more
safe, but I wouldn't go so far as to say it was complete-
ly unsafe. (Emphasis supplied.)
In a similar vein, witness Sanders gave as his opinion
that while a tractor with the idiosyncracies of number 15
might be safe for a driver experienced in its problems, it
would be unsafe for an inexperienced driver.
During this period, from October 31, 1979, to January
4, 1980, the record shows that Weaver drove a straight
truck until November 9, at which time he seems to have
been assigned to tractor 16, which he drove thereafter
until January 4, with the exception of three occasions on
which he drove a straight truck in November and De-
cember.
3. Weaver's termination
The details of the events, beginning on January 7,
1980, which led to Weaver's termination from employ-
ment are largely disputed. I find it unnecessary for the
purposes of this Decision to set forth all the details
which were litigated and resolve the many various con-
flicts. The following are the critical findings:
On January 7, because tractor 16, which was regularly
assigned to Weaver, was not available, the dispatcher di-
rected Weaver to make certain local deliveries using
tractor 15. Weaver refused, asserting that he considered
tractor 15 to be unsafe because of its propensity for
dropping trailers. Weaver was concerned that some fol-
lowing motorists or truckdrivers would run into such a
dropped trailer (which being disconnected would have
no lights),3 or that the dropped trailer would injure per-
sons or property adjacent. Weaver was sent home for the
rest of the day.' Another experienced driver made the
deliveries that day originally assigned to Weaver using
tractor 15, apparently without incident.
Though tractor 16 was available on January 8, the dis-
patcher decided to again assign Weaver to drive number
15, on the basis that Respondent could not permit its
3 One such accident did occur with a tractor other than 15. which
dropped a trailer which was run into by another of Respondent's drivers
' It is noted that John Gibson, who had refused to drive another truck
on another occasion, also took the rest of the day off, though in his case
this was apparently to permit his truck to be fixed.
drivers to decide which equipment they would drive.
This was discussed with President Peters who agreed.
Peters also testified to another reason (of rather infre-
quent occurrence in Respondent's operations) which he
asserted required that tractor 16 be assigned to another
driver that day. It is not necessary to pass upon this ex-
planation beyond saying that I found it less than fully
persuasive.
When assigned tractor 15 again to make deliveries on
January 8, Weaver again refused to drive that tractor on
the ground that it was unsafe as previously stated.
There is a dispute as to whether Weaver was offered
straight truck 101 to drive on these occasions and re-
fused it on the ground that it would be a demotion pe-
nalizing him for not driving tractor 15. 1 credit Weaver's
denial that he was offered or refused an opportunity to
drive 101 on this occasion. The change to straight trucks
apparently involved no loss in pay or other benefits. Fur-
ther, I note that during November and December imme-
diately preceding, when Weaver was regularly driving a
tractor, he still occasionally drove a straight truck, with-
out complaint so far as this record shows. I find that the
dispatcher clearly gave Weaver to understand that, if he
did not drive number 15, he would not drive, with the
possible exception that he might in the future be assigned
to drive a straight truck.
While Weaver was in the dispatch office, another
driver, who was assigned to take a load of freight to the
vicinity of Charlottesville, Virginia, while on his way out
of the door, offered to swap assignments with Weaver.
Weaver did not take him seriously. Weaver had never
previously driven that far. The exchange would have re-
quired the approval of the dispatcher who said nothing.
Respondent, nevertheless, contends that Weaver refused
this offer. The incident has all the aspects of insincere
masculine raillery, and does not merit serious considera-
tion.
Weaver took his complaint about being required to
drive tractor 15 to Respondent President Peters. There is
a dispute about the day on which this occurred. This is
not important. There is also a dispute about what was
said, Weaver asserting that he told Peters he was "ner-
vous about driving tractor 15 because I had dropped
trailers," recalling that Peters had also dropped two trail-
ers with number 15, and continuing said, "I would drive
any truck but that tractor, and he said I would have to
drive 15." Weaver states that he told Peters that he con-
sidered tractor 15 to be unsafe. In essence, Weaver as-
serts that Peters said that, if Weaver would not drive
tractor 15, Peters wanted to see Weaver leave Respond-
ent's employ.
Peters, whose testimony concerning this meeting was
not impressive, asserts, in essence, that he did not dis-
charge Weaver on this occasion, but that Weaver quit
his employment.
On the record as a whole I find, as alleged in the com-
plaint, that Weaver quit his employment with Respond-
ent. I further find that he quit because Respondent insist-
ed that he drive tractor 15 which Weaver considered to
be unsafe.
703
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had the fifth wheel on tractor 15 checked
on January 11, after being notified that charges had been
filed in this case. It has since, assertedly for lack of busi-
ness, been removed from service, as has another, newer
tractor.
D. Analysis and Conclusions
Based on the record as a whole, I find that Weaver
had a reasonable, good-faith belief that tractor 15 was
unsafe for him to drive because of a fear that the tractor
would become disconnected from the trailer while on
the street and endanger him and others around. Though
he drove other tractors without apparent difficulty, on
three occasions while he was driving tractor 15 trailers
had become disconnected from number 15, in and around
the yard, despite his best efforts. On the first occasion,
after the tractor and trailer had been reconnected by a
more experienced driver, he did make his deliveries.
However, as noted, Weaver continued to have difficulty
with tractor 15. In discussions at work he learned that
more experienced drivers had dropped trailers from
number 15, that the tractor was considered "a piece of
junk," and that at least on one occasion a trailer dropped
from another tractor had caused an accident. These fac-
tors, in addition to Weaver's relative inexperience in
driving tractor-trailer rigs, present an objective basis for
Weaver's reasonable concern over the safety in driving
tractor 15. As previously found, Weaver's termination of
employment was caused by Respondent's insistence that
he drive tractor 15, which he considered unsafe.
The major issue here, however, is whether this refusal
to drive tractor 15 is an activity protected by the Act.
The issue is very close, but, on consideration of all the
facts, I am of the opinion that this was not protected ac-
tivity.
It is well settled, under decisions of the Board, includ-
ing several in the trucking industry, that individual com-
plaints and refusals to operate equipment or drive vehi-
cles which serve the interest of other employees com-
monly situated in safe working conditions constitute pro-
tected concerted activity for the purpose of mutual aid
and protection. 5 As was stated in Allen M. Campbell,
5 See, e.g.. Allen Campbell Company, General Contractors. Inc., 245
NLRB 1002, 1006 (1979); United States Stove Co.. 245 NLRB 1402 (1979);
Pink Moody. Inc., 237 NLRB 39 (1978); Roadway Express, Inc., 217
supra, "The Board has long held that even lacking union
representation or a collective-bargaining agreement indi-
vidual action is protected concerted activity under the
Act, if the employee is complaining about a matter of
common concern to other employees in the same circum-
stances." See also United States Stove, supra (refusal to
operate machinery under dangerous conditions constitut-
ed concerted activity involving "a matter of common
concern") Robert Batchelor d/b/a Batchelor Electric Co.,
a sole proprietorship, 254 NLRB 1145 (1981) ("a matter of
common interest and concern to all employees").
My difficulty with this case is that none of the other
drivers appear to have any concern over tractor 15 drop-
ping trailers. Though Weaver interpreted their com-
plaints about the condition of number 15 and their expe-
riences in dropping trailers from that tractor as com-
plaints about safety, I am satisfied that these were gripes
about the difficulty of driving the vehicle, or its unsa-
vory condition, rather than concern over its safety. No
one else seems to have refused to drive it.
As I have found, I am convinced that Weaver's con-
cern was real enough, but I have no doubt that it was
largely due to his limited experience. 6 In the circum-
stances I cannot find that the propensity of tractor 15 to
drop trailers was a matter of common concern and inter-
est to drivers other than Weaver. It therefore must be
held that Weaver's refusal to drive tractor 15 did not
constitute concerted activity. I shall recommend dismiss-
al of the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I issue the following recom-
mended:
ORDER7
It is hereby ordered that the complaint in this matter
be, and it hereby is, dismissed.
NLRB 278 (1975): T & T Industries. Inc., 235 NLRB 517 (1978); United
Parcel Service, 241 NLRB 1074 (1979).
6 As he himself states he told Peters, he was "nervous" about driving
tractor 15 because he had dropped trailers from it.
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions. and Order, and all objections thereto
shall be deemed waived for all purposes
704