Chemical Leaman Tank Lines, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1058 (N.L.R.B. 1980)

1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chemical Leaman Tank Lines, Inc. and Ricky A.
Stauffer. Case 4-CA-9797
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On January 31, 1980, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
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
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Members Penello and Truesdale agree with the
Administrative Law Judge's conclusion that the
complaint herein should be dismissed, but they do
so on the grounds that current Board law, as re-
flected in Atlantic Steel Company, 245 NLRB No.
107 (1979), mandates Board deferral to the arbitra-
tion panel's decision involved herein. For reasons
set forth in their separate opinions in Atlantic Steel,
both Member Penello and Member Truesdale defer
to the arbitration award and dismiss the complaint
in its entirety.
Member Penello, in response to his dissenting
colleagues' reliance on Suburban Motor Freight,
Inc., 247 NLRB No. 2 (1980), notes that he dissent-
ed in that case and continues to adhere to the ma-
jority opinion in Electronic Reproduction Service
Corporation, et al., 213 NLRB 758 (1974).
In response to Member Jenkins, Member Trues-
dale notes that the arbitration award contains com-
plete factual findings on the safety issue, and that
there is the necessary parallelism between the con-
tractual and statutory issues. Accordingly, the arbi-
tration panel implicitly decided the unfair labor
practice question, and deferral is warranted under
Atlantic Steel.
Moreover, Member Truesdale also finds deferral
here consistent with Suburban Motor Freight, supra,
since in that case the Board merely stated (in
dicta)that it would not defer to an award "which
bears no indication that the arbitrator ruled on the
statutory issue...." Here, by virtue of the factual
findings and the virtually identical nature of the
contractual and legal issues, the award does indi-
cate the arbitrator's resolution of the unfair labor
practice issue. Suburban Motor Freight, like Atlantic
251 NLRB No. 146
Steel, does not require more, i.e., an explicit discus-
sion of the unfair labor practices. In fact, the real
significance of Suburban Motor Freight is the over-
ruling of Electronic Reproduction Service Corpora-
tion, 213 NLRB at 761, a case in which the Board
deferred to an arbitration award even though the
evidence relevant to the unfair labor practice, at
least with respect to two employees, had been in-
tentionally withheld from the arbitrator. Under
Suburban Motor Freight, the Board will not defer to
an award where the evidence relevant to the unfair
labor practice has been withheld from the arbitra-
tion proceeding. That, however, is not the situation
presented here, and therefore Member Jenkins need
have no concern about the continued viability of
Suburban Motor Freight.
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.
MEMBER JENKINS, dissenting:
Contrary to my colleagues in the majority, I
would refuse to defer to the decision of the Joint
Area Committee. Further, on the merits of the in-
stant proceeding, I would find that Respondent un-
lawfully discharged Ricky Stauffer in violation of
Section 8(a)(1) of the Act.
The operative facts are simple and uncontrovert-
ed. Respondent is engaged in the transportation by
truck of liquid and dry commodities. On October
3, 1978,1 Stauffer, who was employed as a truck-
driver, was assigned the task of driving a tank trail-
er containing 72,000 pounds of liquid nitrogen.
Upon his arrival at the terminal, Stauffer was in-
formed that the pretrip inspection by Respondent's
mechanics had revealed a broken leaf in the left
front spring assembly of the tank trailer. Respond-
ent's terminal manager. Melvin Jones, told Stauffer
that management was in the process of determining
what course of action should be followed. Stauffer
suggested that the liquid nitrogen be transferred
into another trailer or returned to the storage
tanks. Jones rejected Stauffer's suggestions, stating
that no other trailer was available and that the ni-
trogen could not be off-loaded into the storage
tanks. Jones also rejected Stauffer's suggestion that
the trailer be repaired at the terminal. Jones ex-
plained that, although such repairs had been made
at the terminal in the past, Respondent did not
I Llilles oilther ise nlited, all dlatcs are 1978
CHEMICAL. LE-AMAN ANK I INFiS. INC 1(59
have the proper jacks to do so. Shortly thereafter,
Jones instructed Stauffer to drive the faulty trailer
to a repair facility approximately 10 miles distant.
After inspecting the defective leaf spring assembly
himself, Stauffer informed Jones that he believed
the trailer was unsafe and would not drive it, even
to the repair facility. Jones offered to have a me-
chanic follow the trailer to the repair site, but
Stauffer reiterated his belief that the trailer was
unsafe and suggested that a management official or
mechanic drive the truck. Jones then sent Stauffer
home, stating that disciplinary action would be
taken. Later that same day, Respondent informed
Stauffer that he was discharged.
At all times material herein, Respondent was
party to a multiemployer collective-bargaining
agreement with Teamsters Local No. 773, referred
to herein as the Union. The agreement contained a
grievance procedure providing that disputes go
before a Joint Area Committee composed of equal
numbers of employer and union representatives.
Also included in the collective-bargaining agree-
ment was the following provision:
Section 18.1-Defective Equipment
(a) Employees not required to operate: No em-
ployee shall be compelled to take out equip-
ment that is not mechanically sound and prop-
erly equipped to conform with all applicable
city, state and federal regulations.
It was undisputed that the above-quoted clause was
intended to and had been applied in such a manner
as to provide an objective standard for determining
whether equipment was safe to operate. Finally,
the collective-bargaining agreement also contained
a no-strike or lockout clause.
Following his discharge, Stauffer filed a griev-
ance alleging that his refusal to work was proper
because the tank trailer was unsafe for the road. On
October 24, a hearing was held before the Joint
Area Committee. After hearing evidence from all
parties, the Committee issued the following deci-
sion: "Based on the facts presented, the claim of
the Union is denied."
Respondent argued below, and my colleagues
now agree, that the Administrative Law Judge
should have deferred to the decision of the Joint
Area Committee under the Board's Spielberg doc-
trine. 2 For the reasons stated below, I believe that
the Administrative Law Judge correctly refused to
defer to the decision of the Joint Area Committee,
and that my colleagues' decision to do so is an un-
warranted and ill-advised departure from existing
Board precedent. Moreover, in my opinion the in-
' Sprlherg MI.anuJciturrng (rompuntl, 112 NLR 180 ((1 I55
stant decision overrules our recent holding in Sub-
urban Motor Freight, Inc., 247 NLRB No. 2 (1980),
and returns to the rule set forth in the case express-
ly overruled therein, Electronic Reproduction Service
Corporation, e a., 213 NLRB 758 (1974).
In Spielberg, the Board held that it would defer
to an arbitration award where the proceedings
appear to have been fair and regular, all parties had
agreed to be bound, and the decision of the arbitra-
tor is not clearly repugnant to the purposes and
policies of the Act.3 In Raytheon Company. 140
NLRB 883 (1963), the Board added a fourth re-
quirement, that the arbitrator consider and rule
upon the unfair labor practice issue. Here, the Ad-
ministrative Law Judge found that the statutory
issue, i.e., whether Stauffer was engaged in union
or concerted activities which led to his termina-
tion, was not presented or even considered by the
arbitration panel. Accordingly, the Administrative
Law Judge found that deferral was inappropriate.
Without explanation, my colleagues reverse and
find deferral proper. I cannot agree.
There can be no question but that the unfair
labor practice issue was not presented to or consid-
ered by the Joint Committee. The issue before the
Joint Committee was whether Stauffer's contention
that the tank trailer did not meet the objective
standard of safety specified in section 18.1 of the
contract was, in fact, correct. The unfair labor
practice issue, however, is whether Stauffer was
engaged in protected concerted activity by protest-
ing unsafe working conditions. The entirety of the
Joint Committee's inquiry was directed to the cor-
rectness of Stauffer's contention. At no time did
the Committee broaden its focus to include consid-
eration of the statutory issue. Under the rule set
forth in the majority opinion of Atlantic Steel Com-
pany, 245 NLRB No. 107 (1979), it would appear
that the signatories to that opinion would neverthe-
less defer to the Joint Committee's decision, but
only if the committee's findings are "complete and
comprehensive and factually parallel to the unfair
labor practice question."' Unfortunately, the Joint
Committee made no findings whatsoever. Rather.
the Committee's decision merely reviewed the con-
tentions made by Respondent and the Union and,
without resolving the conflicts inherent therein,
issued an award upholding Stauffer's discharge.
Such a decision hardly satisfies the standard of
"complete and comprehensive" findings. Thus,
even under the standards set forth in Atlantic Steel,
deferral in the instant case is appropriate.
:I 112 NRBH ilr IO2
4 411ala Sttt T (' Pn r
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, it would appear that the Board's
more recent decision in Suburban Motor Freight,
Inc., supra, is indistinguishable from this case.
There we stated that:
In specific terms, we will no longer honor the
results of an arbitration proceeding under
Spielberg unless the unfair labor practice issue
before the Board was both presented to and
considered by the arbitrator. In accord with
the rule formerly stated in Airco Industrial
Gases [195 NLRB 676 (1972)], we will give no
deference to an arbitration award which bears
no indication that the arbitrator ruled on the
statutory issue of discrimination in determining
the propriety of an employer's disciplinary ac-
tions. In like accord with the corollary rule
stated in Yourga Trucking [Yourga Trucking,
Inc., 197 NLRB 928 (1972)], we shall impose
on the party seeking Board deferral to an arbi-
tration award the burden to prove that the
issue of discrimination was litigated before the
arbitrator. 5
As is apparent, the majority decision in the instant
case effectively overrules Suburban Motor Freight.
Most distressing, however, are the majority's fail-
ure to explicate the reasons for its conclusion that
deferral is appropriate, and Member Truesdale's
failure to reconcile his views in Suburban Motor
Freight, Atlantic Steel, and the instant case.
Finally, one other ground exists for my refusing
to defer in this case. The Joint Area Committee
was made up of equal numbers of management and
union representatives. I would not in any event
defer to the decision of an arbitral panel lacking
"neutral members." See my dissenting opinions in
Automobile Transport, Inc., 223 NLRB 217 (1976),
and Terminal Transport Company, Inc., 185 NLRB
672 (1970).
As noted above, the issue herein is whether
Stauffer was engaged in protected concerted activi-
ty by protesting unsafe working conditions. If
Stauffer was so engaged, it was a prima facie viola-
tion of the Act for Respondent to discharge him
for that activity. Alleluia Cushion Co., 221 NLRB
999 (1975); Roadway Express, Inc., 217 NLRB 278
(1975). Turning to the facts of this case, it is undis-
puted that Stauffer was assigned to drive a trailer
he believed unsafe, that Stauffer refused to perform
that assignment, and that Respondent discharged
Stauffer for that refusal. It is also undisputed that
Respondent knew that the reason asserted by
Stauffer for his refusal was that the trailer was
unsafe. That Stauffer's belief was erroneous, or that
the tank trailer met the minimal Federal, state, and
Sburban Motor Freight. supra.
city regulations incorporated into the requirements
of section 18.1, is completely irrelevant.
In contrast to the objective standard of safety
specified in the collective-bargaining agreement,
our unfair labor practice decisions require only that
Stauffer's belief that the trailer was unsafe be rea-
sonable under the circumstances. United States
Stove Co., 245 NLRB No. 183 (1979); United Parcel
Service, 241 NLRB 1074 (1979); Youngstown Sheet
and Tube Company, 235 NLRB 572 (1978); T & T
Industries, Inc., 235 NLRB 517 (1978). See also
Keystone-Seneca Wire Cloth Co., 244 NLRB No. 62
(1979), and cases cited therein. There can be no
doubt on this record but that Stauffer's belief was
entirely reasonable. Indeed, after Stauffer was in-
structed to go home by Respondent for failing to
drive the liquid nitrogen-filled tank truck, Vince
Fresoli, a 10-year veteran mechanic employed by
Respondent, told Stauffer that he was correct to
refuse to take the trailer on the road in its then-ex-
isting condition and that he (Fresoli) would not
drive it without strapping or welding down the
broken leaf spring. Accordingly, without deciding
whether the trailer was in fact safe, it is apparent
that Stauffer reasonably believed that it was not.
That is all our decisions require.
Thus, for the foregoing reasons, I would find
that, by discharging Stauffer for refusing to drive
the trailer, Respondent violated Section 8(a)(1) of
the Act. 6
6 I would find totally devoid of merit Respondent's suggestion that the
proper procedure for Stauffer to have followed would have been to per-
form the assigned work and thereafter file a grievance under the collec-
tive-bargaining agreement. It needs but little forethought to realize that if
in fact the danger was as Stauffer perceived, he would have little to gain
from what well could have been a posthumous grievance.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This case
was heard in Allentown, Pennsylvania, on August 20-21,
1979, upon due notice. The sole question presented for
decision is whether the termination of the Charging
Party, Ricky A. Stauffer, on October 3, 1978, was a con-
sequence of his union or concerted activities protected
by Section 7 of the National Labor Relations Act, as
amended (herein the Act), in violation of Section 8(a)(l)
and (3) of the Act.'
At the close of the hearing, the parties waived oral ar-
gument, but filed written briefs, which have been duly
considered. 2
The original charge was filed November 3(0, 1978; the complaint
issued January 31, 1979
2 Attached to the brief of counsel fior the General Counsel is an unop-
posed "Motion to Correct Transcript" in certain respects Such motion is
hereby granted
C11EMICAI ILEAMAN TANK lI-NES, INC. 10 1
Upon the entire record, including arguments of coun-
sel, and my observation of the demeanor of the wit-
nesses, I make the following:
FINI)INGS AND CONCI USIONS
3
I. THE ALI..I(GED UNFAIR ABOR PRACTIC(ES
Respondent, a Delaware corporation, is engaged in the
transportation of liquid and dry commodities from its
Bethlehem, Pennsylvania, terminal. At such facility, it
employs truckdrivers, mechanics, and other personnel
who are represented for purposes of collective bargain-
ing by the Union. At all times material, Respondent and
Union had been parties to a collective-bargaining agree-
ment which contains, inter alia, a grievance procedure
resulting in arbitration, a no-strike clause, and the follow-
ing provision respecting the obligation of employees to
operate defective equipment:
Section 18.1-Defective Equipment
(a) Employees not required to operate: No em-
ployee shall be compelled to take out equipment
that is not mechanically sound and properly
equipped to conform with all applicable city, state
and federal regulations.
Additionally, through a supplement to the collective-
bargaining agreement, the parties promulgated certain
"Uniform Rules and Regulations" respecting discipline to
be imposed upon employees for certain offenses. As re-
spects the issue in this case, the pertinent provision is
section 3(H) which provides that an employee's refusal
to work or perform a duty if he is qualified, fit, and able,
shall be construed to constitute a voluntary quit.
On October 3, 1978, the Charging Party had been em-
ployed as a truckdriver by Respondent at the Bethlehem
facility for a period exceeding 3 years. He was also a
member of the Union, and had been an assistant shop ste-
ward since July 10, 1978. Stauffer reported for work at
approximately 10 a.m. that day, and learned that he had
been assigned to transport some liquid nitrogen to Prin-
ceton, New Jersey. The trailer containing the nitrogen
had already been loaded but, upon a pretrip inspection
by a mechanic, it was learned that the left front wheel of
the trailer was defective in that one of the leaves on the
spring assembly was broken.4 The mechanic had notified
the terminal manager, Jones, of the defect, and Jones no-
tified Stauffer upon the latter's reporting for work. Jones
' There is no issue as to the Board's jurisdiction in this case The com-
plaint alleges sufficient facts respecting the interstate operations of
Chemical Leaman Tank Lines, Inc herein Respondent). hich are ad-
mitted by answer, upon which I may. and do hereby, find that Respond-
ent is an employer engaged in commerce within the meaning of Sec. 2(61)
and (7) of the Act Additionally. the complaint alleges, the answer
admits, and I find that at all times material Lcal No. 773, Teamsters.
Chauffeurs, Warehousemen and Helpers. a/w the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(herein the Union), is a labor organization ithin the meaning of Sec
2(5) of the Act
I The spring assembly on each heel of the trailer contained seven
leaves. The leaf hich was broken on this particular assembly as the
iiipmost, the main leaf It should he explained that the nexl t sso leavcs im
the assembly arc also denominated "main leaes:" the rmaill ig foiur
leaves are progressively shorler irl lengIlh
also advised Stauffer that management was in the process
at that time of determining whether to send the trailer to
a facility of Bethlehem Steel, unload it, and repair it, or
to drive it to a repair shop located approximately 10
miles away in Easton, Pennsylvania. A few minutes later,
Jones advised Stauffer that management had decided
upon the latter course, whereupon Stauffer inspected the
vehicle and advised Jones that he did not wish to drive
the unit in that condition because he considered it dan-
gerous. Stauffer suggested that the material might be
transferred to another trailer, but there was no other
trailer available in the shop at that time. Stauffer also in-
quired why the spring could not be repaired in Respond-
ent's shop as had been done in some instances in the past.
Jones responded that it was true that some trailers had
been repaired in the past in Respondent's shop, but Re-
spondent did not have the jacks available in its shop to
lift a trailer as heavy as the one involved in this case. Fi-
nally, in an effort to assuage Stauffer's concern, Re-
spondent offered to have its chief of maintenance,
Wizmer (who happened to be at the facility that day),
follow Stauffer in Wizmer's car to the repair shop so
that, if anything out of the ordinary occurred, a manage-
ment representative would be present at the scene. How-
ever, Stauffer declined the offer, suggesting that perhaps
a mechanic or foreman could drive the unit, whereupon
Jones advised Stauffer to return to his home, and that
some form of discipline would be imposed because of
Stauffer's refusal to perform the assigned work. Shortly
thereafter, Jones called another driver-the next in line
on the seniority list-and advised him of the situation.
That driver apparently felt that the trailer was safe
enough to drive to the repair shop, which he did. The
unit was repaired and the driver subsequently made the
trip to New Jersey.
Respondent determined that day to terminate Stauffer,
and so advised him by letter dated October 3, 1978, as
follows:
As a result of your actions on October 3, 1978,
your employment with Chemical Leaman Tank
Lines is terminated effective immediately.
This action is being taken under Article I Section
3-H of the Uniform Rules and Regulations.
Subsequently, Stauffer filed a grievance under the col-
lective-bargaining agreement concerning his discharge.
Such grievance went through the entire grievance proce-
dure, terminating in arbitration before an arbitration
panel referred to as the "Joint Committee." 5 After a
hearing before the Joint Committee, at which the Charg-
ing Party was represented by the Union, and testimony
was presented by both the Union and Respondent, the
Committee decided as follows:
' The Joint Committee consists of an equal number of representatives
of the Employer and the Union The collectise-bargaining agreement
prosides that a decision bh a majoritL of an) panel of the Joint Commit-
tee shall b fhinal and binding Upon the parties ad the eniplo ees ii-
,A Ledtl
1062 Dl CISIONS ()1: NAtIIONAL L.ABO()R R.AtIO)NS B()ARI)
Based on the facts preseinted, the claim of the Union
is denied
II. ANAI YSIS AN) ()N( I UI)N( (i I INI)IN(S
At the outset, Respondent vigorously urged that this
matter should have been deferred to the decision of the
Joint Committee under the Spielberg doctrine7 "
since the four requirements as interpreted by the Board
have been satisfied." I cannot agree with that conclu-
sion.
In Spielberg, the Board determined that it would exer-
cise its discretion in an unfair labor practice case to defer
a decision of an arbitration panel where () the proceed-
ings appear to have been fair and regular, (2) all parties
had agreed to be bound, and (3) the decision of the arbi-
tration panel is not clearly repugnant to the purposes and
policies of the Act. A fourth criteria was added later to
the effect that the arbitrator was required to have con-
sidered the unfair labor practice issue and ruled on it.'
This last requirement appears to have been confirmed by
the Board in the recent case, The Kansas City Star Com-
pany, 236 NLRB 866 (1978). In that case, a Board major-
ity stated that "All issues contained in the complaint
were presented, considered, and determined in the arbi-
tration proceeding."' 0
In the case at bar, it is acknowledged that the statu-
tory issue, i.e., whether Stauffer was engaged in union or
concerted activities which led to his termination, was not
presented, much less considered, by the arbitration panel.
Because of that fact, I am unable to agree with Respond-
ent that the arbitration tribunal disposed of the statutory
claim by its findings. Therefore, this argument of Re-
spondent is rejected.
Turning now to the merits of the case, I find and con-
clude that the General Counsel has not established by a
preponderance of the evidence that the Charging Party
was terminated on October 3, 1978, because of his en-
gagement in union or concerted activities, in violation of
Section 8(a)(l) of the Act.
At the outset, we may dispose of the 8(a)(3) allegation
in view of the fact that there is absolutely no evidence in
the record that Respondent was in anywise motivated by
antiunion considerations in effectuating the discharge. To
the contrary, the record shows that the Company and
the Union have had a long and harmonious relationship,
and there is nothing in the record to indicate that Re-
f See JI Fxh
7 Spielberg uanulfua(rurilrn (Cornpun, 1 12 N RII 1080 (t)( 5)
M Resp hr
!' Ruythoiwrl (tponly. 141) N. RIB 81 (1963). clnforccrneril deried 12(,
F 2d 471 (1sl Cir Ih4) I
2 Nt RB at 67 See also cncurring opuinion oif Member Irues-
dale at f six, where he Ratheon case is cited with ;pprroval (id aill 8o)
I I I am not unmindful of the Board's Decisions i srikilgl> sinilar
factual situalion, in prior cases See UI'rird Puare! S riw, hi,, 232 NIRI
1114 (1977), enfd uh train. Bloo,,: s N. I.R. . 603 F 2d I0)15 (D C Cir
1979); see also Roudway Eprcr:. Im. 217 NI.RIt 278 (175), where the
Hoard originally deferred to an arhitration award but later decided Ihe
case on its merits i view of a remand hb the United Sates Court of Ap-
peals fr the District of Columhia Circuit that such deferral was nolt p-
propriale in that proceeding However, I feel hbiuld hb the Board', latest
declaration in this area
spondent was out to "get" Stauffer because of his actixi-
ties on behalf of (or against) the Union. 12
As to the 8(a)( ) conltentioln, the (eneral Counsel
argues that, while the evidence does not showr that
Stauffei was acting concertedly with other employees in
his protest on October 3, he s aas still protected in his
conduct because he was seeking to enforce contractual
rights which may be said to inure to all employees simi-
larly situated. I am constrained to agree with that con-
struction in view of the language of the Board in Road-
way Exprcss, supra, where it was found that:
Although Ferguson acted alone in his refusal to
drive the tractor, and he did not at the time of his
refusal specifically refer to the contract as granting
him this right, the nature of his complaint has sig-
nificance and relevance under the contract to the
interests of all of Respondent's employees whose
employment is governed under the contract. I
However, unlike the factual situation in Roadwa Ex-
press, supra, I am of the view, and therefore find, that
Stauffer's belief that the tractor was unsafe in the instant
case was not supported by ascertainable, objective evi-
dence." 4
It appears to be the ruling of the Court and of the
Board in the cited cases that, in a situation ivolving a
protest by employees of a safety factor in their employ-
ment, an employee's honest belief that the working con-
ditions are not safe is not sufficient unless supported by
"ascertainable, objective evidence."]) Unlike the situa-
tion in Roadway Express. upra, I am of the view that this
test has not been met in the factual situation here.
Thus, unlike Road way Expresv, there was no empirical
evidence from which Stauffer could have properly con-
cluded that the tractor-trailer was unsafe to drive be-
cause of the broken leaf on a seven-leaf spring assem-
bly. 6 On the other hand, the preponderance of the "as-
certainable, objective evidence" in this case indicates a
minimal risk of accident front the driving of the trailer a
short distance of 10 miles, at a slow speed, to the repair
shop. The evidence is undisputed that the function of the
spring assembly is to absorb the shock of the road irregu-
larities so that they may not be transferred to the con-
tents of the trailer. Where one leaf of a seven-leaf assem-
bly is broken, the shock is basically absorbed by the
other six leaves. 17 Moreover, it appears from the record
( Rda) l I 'pr-im, hi, 217 N KIR .l 27Q
IbiM
l This phrase is aken from tile dcci'sii, l of the utllert Slate, Suprclule
Courtl im, g;Utey (U/ ( )omipoanv x tr(td llnr inc WurrAker InJ ,iprl(U. 414
UlS 368 (1974) It was relied uponl h the lntiltcd Sates C ,rlt I of Ap-
peals fir the I)itsrict of CrOlumnhial Cre ult ir Icnrliitiig the R uadi, Er-
prr', case io tile Boiard 5(05 1: 2d 142 (1 )74)1
" As the Supreme Corl ict cd the situailltil
If the courts require o ilhjectise vildelle Ihat such Collditions aclU-
lly obtain. tilhe farce a holly spccula lise illquiry iltr, the trrlitss
rIt the workers [414 If S at 380
' I h facts ill Rlldl,,,I' I prci illriltil thailt, because of the ICrkllig
aud tisting in the ractor cab, the driver i that case "had trouhble hold-
itg the truck on the rad"
7 The difference i sh ock absorhtiol uder the clrcUilmstllances was es-
tiilalted hby a willleSS for RcKP(ItInldi to e he little mIore tha I r 2 IercetIt-
age plli ts
CHEMICAL. LEAMAN TANK LINES. INC 10()hl
stant case is a more expensive and safer apparatus than a
three-spring assembly utilized by many carriers in the in-
dustry; and that the seven-leaf assembly was designed to
be more structurally secure and able to absorb the shock
of the road even with one of the leaves broken.
However, Stauffer also pointed to the asserted danger
of the broken leaf possibly becoming disengaged from
the assembly and falling onto the tire, or braking system,
or upon the road with consequent danger to oncoming
traffic behind the trailer. Nevertheless, other evidence
showed that it was practically impossible for the broken
leaf to work its way out of the assembly particularly
where, as here, the loaded trailer tends to hold the leaves
in the assembly in place. This is particularly true where,
as the evidence shows, the trailer may be driven slowly
and carefully a short distance to the repair shop.
Additionally, I have taken judicial notice of-and con-
sidered-a regulation by the United States Department
of Transportation, Federal Highway Administration,
which prescribes criteria under which the field staff of
that agency may utilize in "declaring and marking vehi-
cles 'out of service."'"' As pertains to spring assemblies,
the regulations are as follows:
Spring assembly
(1) One-fourth or more of the leaves in any leaf
spring assembly broken or missing, or the main leaf
depended upon for positioning the axle is broken.
(2) One or more leaves shifted from normal posi-
tion that could permit coming in contact with a tire,
rim, brake drum, or frame.
It is clear that the factual situation in this case would
not provide a basis for placing the trailer herein in the
"out of service" category, utilizing the foregoing criteria.
Finally, I have considered that, as contended by Re-
spondent, the Charging Party at no time-either at the
time of the incident or later in the grievance procedure
offered evidence to satisfy the objective standard re-
quired by the above-quoted section of the collective-bar-
gaining agreement, to wit: that the trailer was not me-
chanically sound and properly equipped to conform with
all applicable city, state, and Federal regulations. Re-
" See Resp Exh 2
spondent proffered undisputed evidence at the hearing
herein to the effect that it insisted upon such an objectibe
test at the negotiations of the contract, and prevailed
over the Union's attempt to substitutc a more subjective
standard. '1
In vies of all of the foregoing, I am of the 'iew,. and
therefore find, that there is insufficient objective evi-
dence to sustain Stauffer's belief that the tractor-trailer
was not safe to drive the 10 miles to the repair shop on
the morning of October 3. I therefore conclude that he
was not engaged in concerted activity when he declined
to take the assignment, and therefore his conduct on this
occasion was unprotected under the Act. Accordingly,
Respondent was justified in meting out the disciplinary
action which it took. I shall therefore recommend that
the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCI.USIONS OF L'\w
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent did not, as alleged in the complaint,
engage in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
Upon the basis of the foregoing findings of fact, and
conclusions of law, and upon the entire record, and pur-
suant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER20
The complaint is hereby dismissed in its entirety.
'9 See Active Products Corporation. 242 NRB 325 (It79), here the
Administrative L.av Judge found the conduct or the Chrging Palrlt in
that case "ails notl an attempt to enforce a cot raclI. s as he cials ill
Roadway E.xpretx. ruprua it was an attempt to expand rights iun.lcr it I" l
dccision was. in its essential repects. affirmed hby the Board
I the event no exceptions are filed as provided hb Sec 102 4h ot
the Rules and Regulaltions of the National Labor Relaltliols Board. Ihe
findings, conclusions. and recommended Order herein shill. as pro, idcd
in Sec 10)2 48 of the Rules and Regulations, e adopled h the Board aid
hecone itc findiIngs, conclusions and Order. and all ohiectio,l tIhreto
shall he dleemed wsaied for all purpose,