Consolidated Freightways

National Labor Relations Board - Board DecisionsJan 5, 1981

253 N.L.R.B. 988 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consolidated Freightways and Charles Hennessey. Case 33-CA-4364 January 5, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND ZIMMERMAN On July 30, 1980, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed a brief in answer to Respondent's excep- tions. 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. In his Decision, the Administrative Law Judge intimated that Respondent's refusal to include back- pay in its offer of reinstatement to Charles Hennes- sey, by itself, could render the offer of reinstate- ment inadequate. While a valid offer of reinstate- ment must be specific, unequivocal, and uncondi- tional, the refusal to include accrued backpay in an otherwise valid offer of reinstatement does not render the offer inadequate. The imposition of such a requirement would nullify the right to litigate the lawfulness of the discharge. Moro Motors Ltd., 216 NLRB 192 (1975), and National Screen Products Co., 147 NLRB 746 (1964). Therefore, insofar as Respondent's offer of reinstatement to Hennessey did not include accrued backpay, it was not, for that reason, invalid. However, we agree with the Administrative Law Judge that Respondent's offer of reinstate- ment was invalid. In so doing, we rely on the Ad- ministrative Law Judge's finding that placement of a warning letter in Hennessey's personnel file as a prerequisite to his reinstatement renders the rein- statement offer conditional and, thus, inadequate. 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 In adopting the Administrative Law Judge' finding that Charles Hennesscy soas discharged in violation of Sec (a)( I) of the Act, we note that no exceptions were filed to that finding, or to the further Finding that deference to the arbitration award concerning Hennessey's discharge was unwarranted. Order of the Administrative Law Judge and hereby orders that the Respondent, Consolidated Freightways, Peru, Illinois, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, except that the at- tached notice is substituted for that of the Adminis- trative Law Judge. APPENDIX NOTICE To EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIlll. NOTI discharge or otherwise dis- criminate against employees in regard to hire or tenure of employment, or any term or con- dition of employment, because of their protect- ed concerted activities. WE WI.L NOT threaten employees with dis- charge or other reprisals because of their pro- tected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act except to the extent that such rights may be affected by lawful agree- ments in accordance with Section 8(a)(3) of the Act. WI wiil.t offer Charles Hennessey immedi- ate and full reinstatement to his former posi- tion or, if such position no longer exists, a sub- stantially equivalent position, without preju- dice to his seniority or other rights or privi- leges previously enjoyed, and make him whole, with interest, for any loss of pay or other benefits suffered by reason of the dis- crimination against him. CONSOI.IDATED FREIGHTWAYS DECISION STAA IIMLNT OF THE CASE JERRY B. STONIE, Administrative Law Judge: This pro- ceeding, under Section 10(b) of the National Labor Rela- tions Act, as amended, was heard pursuant to due notice on February 14 and 15, 1980, at Peoria, Illinois. The charge was filed on July I , 1979. The complaint in this matter was issued on August 30, 1979. The princi- pal issues concern whether Respondent has violated Sec- tion 8(a)(1) of the Act by threatening an employee con- cerning his exercise of protected concerted rights, and by discharging Charles Hennessey on March 22, 1979, because he engaged in protected concerted activity. There are also issues as to whether the Board should defer its right to act and honor an arbitration award and 253 NLRB No. 137 988 CONSOI.IDATED FREIGHTWAYS whether Respondent's willingness to reinstate and its "act of reinstatement" of Hennessey constitute a bar to reinstatement and a toll to backpay. All parties were afforded full opportunity to partici- pate in the proceeding. Briefs have been filed by the General Counsel and Respondent and have been consid- ered. Upon the entire record in the case and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The facts herein are based on the pleadings and admis- sions therein. Respondent Consolidated Freightways is, and has been at all times material herein, a Delaware corporation with corporate headquarters located in Menlo Park, Califor- nia, and terminal facilities located in Peru, Illinois, and at other sites throughout the United States. It is engaged in the business of intrastate and interstate transportation of goods and materials. Respondent, during a representative 12-month period, derived gross revenues in excess of $50,000 from trans- porting material from points outside the State of Illinois directly to points within the State of Illinois. Respond- ent, during the same representative period, derived gross revenues in excess of $50,000 from transporting material from the State of Illinois directly to points located out- side the State of Illinois. As conceded by Respondent and based on the forego- ing, it is concluded and found that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE l.ABOR ORGANIZATION INVOI VEDi Local Union 710, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, is, and has been at all times material herein, a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE UNFAIR ABOR PRACTICES A. Preliminary Issues, Supervisory Status 2 At all times material herein, the following-named per- sons occupied the positions set opposite their respective names, and have been, and are now, agents of Respond- ent at its Peru, Illinois, facility, acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act: William Jones-mechanics shop supervisor; Robert Tosch3 -dispatch supervisor; and Charles Schmalz-dispatch operations manager. I The facts are based on the pleadings and admissions therein : The facts are based on the pleadings and admissions therein and un- disputed credited evidence. a According to the pleadings and the record others ise, the correct spelling of Dispatch Supers isor Robert l'osch's name is "osh" Re- spondent's brief refers Io the dispatcher as Toschl. Reference to TI'sh herein is to Tosh or Tosch. whichever is the correct spelling of the indi- vidual's name Since Respondent should be more aivare of the spelling of its superxisor's name, I shall use Tosch in reference to Hrosh or ,os-ch B. Background Respondent Consolidated Freightways, is and has been for a number of years engaged in the business of intra- state and interstate transportation of goods and materials. Respondent opened a terminal in Peru, Illinois, in March 1979. At all times material herein Respondent had a collec- tive-bargaining relationship with Local Union No. 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Said bargaining relationship was governed by contracts, one of which had the following provisions: ARTICLE 16 Equipment, accidents, reports: The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety appliances prescribed by law. It shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified. All equipment which is refused because not mechanical- ly sound or properly equipped shall be appropriate- ly tagged so that it cannot be used by other drivers until the maintenance department has adjusted the complaint. After equipment is repaired the Employ- er shall place on such equipment an "OK" in a con- spicuous place so the driver can see the same. Under no circumstances will an employee be re- quired or assigned to engage in any activity invol - ing dangerous conditions of work or danger to person or property or in violation of any applicable statute or court order, or in violation of a govern- ment regulation relating to safety of person or equipment. The term "dangerous conditions of work" does not relate to the type of cargo which is hauled or handled. Any employee involved in any accident shall im- mediately report said accident and any physical injury sustained. When required by his Employer, the employee, before starting his next shift, shall make out an accident report in writing on forms furnished by the Employer and shall turn in all available names and addresses of witnesses to the accident. The employee shall receive a copy of the accident report that he submits to his Employer. Failure to comply with this provision shall subject such employee to disciplinary action by the Em- ployer. Employees shall immediately, or at the end of their shift, report all defects of equipment. Such re- ports shall be made on a suitable form furnished by the Employer and shall be made in multiple copies, one copy to be retained by the employee. The Em- ployer shall not ask or require any employee to take out equipment that has been reported by any other employee as being in an unsafe operating condition until same has been approved as being safe by the mechanical departments. When the occasion arises where an employee gives written report on forms in use by the Employ- DECISIONS OF NATIONAL LABOR RELATIONS BOARD er of a vehicle being in an unsafe working or oper- ating condition, and receives no consideration from the Employer, he shall take the matter up with the officers of the Union who will take the matter up with the Employer. If the Employer requests a regular employee to qualify on equipment requiring a special license or in the event an employee is required to qualify (rec- ognizing seniority) on such equipment in order to obtain a better job opportunity, with his Employer, the Employer shall allow such regular employee the use of the equipment in order to take the examina- tion. All equipment used as City Peddle trucks and equipment regularly assigned to peddle runs must have steps or other similar device to enable drivers to get in and out of the body. The Employer shall install heaters and defrosters on all trucks and tractors. There shall be first line tires on steering axle of road units. All new road equipment regularly assigned to the fleet after July 1, 1973, shall be equipped with air- ride seats on the driver's side. Newly manufactured over-the-road tractors which are added to the road fleet, subsequent to April 1, 1977, and assigned to road operations on a regular basis shall be air conditioned. The National Negotiating Committees shall designate an Employ- er-Union Committee which shall undertake to deter- mine the feasibility of converting road tractors to provide air conditioning by April 1, 1980. The Conference Joint Area Committee may, upon application of either the Employer or the Local Union, waive the installation of such air con- ditioning equipment as a result of climatic condi- tions or other standards established by the Commit- tee. The Employer and the Union together shall create a joint committee of qualified representatives for the purpose of consulting among themselves and with appropriate Government agencies, state and federal, on matters involving highway and equip- ment safety, and such committee shall meet on a quarterly basis with a schedule to be agreed to by the respective chairmen. Any complaint arising under this article will be processed through the Conference Area level in ac- cordance with rules and procedures to be agreed upon between the parties. Within sixty (60) days from the signing of this agreement, the Local Union will notify the Employer of the representative who will be responsible for these matters. Respondent's operations were also subject to Federal Motor Carrier Safety Regulations as prescribed by the U.S. Department of Transportation Federal Highway Administration. At all times material herein, such regula- tions included as part thereof the following regulation: Sec. 392.7 Equipment, inspection and use: No motor vehicle shall be driven unless the driver thereof shall have satisfied himself that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed: Service brakes, including trailer brake connec- tions. Parking (hand) brake. Steering mechanism. Lighting devices and reflectors. Tires. Horn. Windshield wiper or wipers. Rear-vision mirror or mirrors. Coupling devices. Charles Hennessey was employed by Respondent as a transport operator from May 19, 1977, to March 22, 1979. Respondent's discharge of Hennessey on March 22, 1979, is in issue as an alleged violation of Section 8(a)(l) of the Act. The essential question is whether Respondent discharged Hennessey because of his protected concerted activity. Hennessey refused to drive a tractor-trailer on March 22, 1979, assertedly because the lights were not of such a nature as to be safe. It is clear that, if Hennessey's refusal to operate or drive the tractor-trailer constituted protect- ed concerted activity, such discharge on March 22, 1979, would constitute conduct by Respondent violative of the Act. At first blush, the General Counsel's pleadings merely asserted that Respondent's discharge of Hennessey was because of Hennessey's protected concerted activity. Such pleadings are loose enough to allow litigation of whether Hennessey was discharged because of protected concerted activity other than the activity on March 22, 1979. In this respect, I note that the General Counsel ad- duced evidence toward establishing that Hennessey had engaged in other protected concerted activity, i.e., refus- ing to drive tractor-trailers which were overloaded as re- gards state weight regulations, and that Respondent's agents had made remarks to Hennessey revealing an atti- tude of discriminatory motivation as regards employees who refused to drive overloaded trucks, and in effect displeasure with Hennessey because of his refusal. Re- spondent objected to the receipt of such evidence and argued that the issues were narrow and related to the question of the safety of the truck on March 22, 1979. The General Counsel cleared up any ambiguity in the pleadings and stated in effect that the evidence of the re- fusal to drive overloaded tractor-trailers was "relevant" to show the conduct alleged in this case as regards the issue of discharge for driving an unsafe tractor. I have carefully reviewed the record and the General Counsel's brief. It is clear that the issue as litigated is simply whether Respondent discharged Hennessey on March 22, 1979, for his refusal to drive a tractor-trailer on March 22, 1979, and whether such refusal, because of safety rea- sons, constituted protected concerted activity under the Act. 990 CONSOLIDATED FREIGHTWAYS The tractor which was involved in Hennessey's refusal to drive a tractor on March 22, 1979, had a problem re- lating to its lights or battery on March 21, 1979. As a result, a new battery was installed in such vehicle on March 21, 1979. C. The Events of March 22, 19794 the Discharge of Hennessey The dispatcher called Charles Hennessey at approxi- mately 10 p.m. on the evening of March 21 for a run to Springfield, Missouri, which Hennessey accepted. Hennessey arrived at the terminal about 12:30 a.m. on March 22, picked up his paperwork, and went to the cof- feeroom to fill out his logs. In checking his logs, he de- termined that he did not have a sufficient number of driving hours available to take the Springfield run. Hennessey thereupon switched runs with a driver sched- uled to go to Des Moines, Iowa. Hennessey and the other driver exchanged paperwork and Hennessey re- turned to the coffeeroom to fill out the paperwork for the run to Des Moines. Tractor no. 16-3281 had been as- signed or reassigned to the Des Moines run. As Hennessey approached tractor no. 16-3281, he no- ticed that it was idling, but that no lights were visible. He then got into the cab and saw that the headlight and taillight switches were both in the "on" position. Hennessey then turned on the dome light switch and the four-way flasher switch, but still there were no lights visible on the tractor or the tandem trailers. Hennessey began to accelerate the engine. After he revved the engine for a brief period of time he noticed the lights began to appear, and after a brief period of time the lights came up to normal brightness. After doing this, he took his foot off the accelerator, and all of the lights on both the tractor and trailers went out. Hennessey then got out of the unit and noticed a vendor-mechanic work- 4The facts are based on a composite of the exhibits and the credited aspects of the testimony of Hennessey. Pole, Lentz, Klinker. Tosch, Lin- coln, and Jones. I credit Hennessey's testimony over Jones' as regards Hennessey's initially seeing Jones and completing a cry card, and as re- gards Jones' telling Hennessey that the battery in the truck would fully charge itself by Hennessey's driving the tractor for a hundred miles or so I also credit Hennessey's testimony over Tosch's as to whether Tosch re- fused to inspect the tractor First Hennessey's testimony appeared sincere, frank, and consistent. There appears little reason for either Hennessey or Jones or Tosch to present different versions as to how the complaint was initially presented. Considering Jones' examination of the battery without a detailed check or test, the possibility of erratic shorts, the contradictory testimony relating to whether or not the alternator would engage without drainage of electrical current when voltage was between 12 and 12.5 volts, and the fact that Jones did not know that a new battery had been installed that date, I am persuaded that Jones believed the battery was good and would charge up. However, I am not persuaded that Jones knew that the battery was in such a condition that it needed to be at a charging state for only about 5 minutes. Rather, I am persuaded that he has rationalized such beliefs upon an after-the-event discovery that a new battery had been installed. As to Tosch's testimony concerning his in- spection of Hennessey's tractor, I noted a hesitation and a "I believe" ref- erence in his testimony. I do not credit his testimony that he and Hennes- sey inspected the tractor. I note that both the General Counsel and Re- spondent in their briefs have presented statements of contended facts which excellently describe many of the facts. I have considered such statements of contended facts as proposed findings of facts and as to many of the findings of facts herein have accepted some of the same as is or with modification as my findings of facts, all, however, dependent on my own evaluation of the evidence and consistent with what my findings of facts would have been even without the literary aid of the parties. ing nearby. He asked the vendor-mechanic if there were something the mechanic could do to repair the unit. The mechanic stated that all the unit needed, in his opinion, was a new battery, and that Hennessey should go to the maintenance office and notify them of the unit's condi- tion." Hennessey went to the maintenance office and spoke with Bill Jones, the maintenance coordinator at the Peru terminal. Hennessey explained the condition of the unit, and Jones instructed him to complete a vehicle condition report describing the problem. After completing the report and giving it to Jones, Hennessey was instructed to go to the coffeeroom where he would be called when the unit was ready. Jones then proceeded to the tractor to inspect it personally. In order to determine whether the charging system was functioning properly, he throt- tled the engine. Jones throttled the engine just enough to raise it to over the 1200 RPM limit. As soon as he did that, he heard the relay in the charging circuit click. Upon Jones' throttling of the engine over 1200 RPM, various lights commenced to come on. 6 Jones noticed that there was mud on the headlight lenses and that the lights appeared brighter when such mud was removed. Hennessey returned to the coffeeroom where he had coffee and talked with three drivers that he recognized- Ray Lentz, Bud Pole, and George Klinker. After about 10 minutes, and as he was talking with the three drivers, Hennessey saw Jones enter the coffeeroom and go to the coffee machine. Hennessey asked Jones if the truck had been fixed. Jones replied that it was ready to go. Hennes- sey then asked Jones if the unit had been replaced. Jones stated that it had not-that it did not need repair. Jones said that all Hennessey had to do was run the unit for a hundred miles or so, and that would charge the battery. Hennessey then reminded Jones that the trailers on the unit contained a placard load (a placard load being one in which dangerous material requires special markings to be displayed and wherein special operating procedures must be followed). Hennessey again asked Jones if he would fix it, and Jones replied that he would not-that Hennessey should run it. Jones then said that, if Hennes- sey wanted anything done about it, he would have to go to the dispatch office. Jones proceeded to the maintenance area, where he called the dispatch office and informed Bob Tosch, as- sistant dispatch operations manager, that a driver who wanted the battery in his truck changed was on his way to the dispatch office. At that time, Jones told Tosch that there was nothing wrong with the truck-it was me- ' Respondent's questioning of Hennessey and other witnesses appeared to be designed to attack Hennessey's credibility as to whether the lights came on immediately or went off immediately, depending on whether the engine was being revved I am persuaded that Hennessey was a truthful witness, that all witnesses to the proceeding appeared to have an en- larged view of the timespan because of the nature of the events, and that the overall facts reveal that some lights having a lesser need for current went out first and came on last depending upon the revving of the engine above 1,200 RPM. The usage of terms. immediately, etc., in the context of facts herein must be viewed as the usage of relaitie terms 6 I do not credit Jones' testimony to the effect that all lights were on when he approached the vehicle. Such credibility resolution is based on consideration of Hennessey's credited testimony and the logical consisten- cy of facts. I)ECISIONS OF NATIONAL. LABOR RELATIONS BOARD chanically sound and the charging system was in good working order. He explained that a low charge in the battery was causing some dimness but that, if Hennessey would drive the truck, the battery would be recharged. After his discussion with Jones, Hennessey went to the dispatch office and spoke to Robert Tosch, a dispatch su- pervisor at the Peru terminal. Hennessey explained the condition of the unit to Tosch, at which time Tosch re- plied that Bill Jones had already told him about the unit, and that Jones had final say in the matter. Hennessey then told Tosch that the unit was unsafe in that condi- tion, and reminded him that it was a placard load, and that it was foggy outside. Tosch stated that there was nothing he could do. Hennessey replied that he could not drive the unit in that condition. Tosch told Hennes- sey to take it the way it was or to go home. After this exchange, Hennessey then returned to trac- tor no. 16-3281 and inspected it a second time. As Hennessey approached the unit, he again found it idling with no lights on the tractor or trailers visible. Hennes- sey got into the cab and saw that all of the light switches were in the "on" position, but that no lights were visible. Hennessey then revved the unit at a high speed for a brief time, when he noticed the lights come on. Hennes- sey continued running the engine for a brief time, then he took his foot off the accelerator. When he released the accelerator, all the lights went out. With the tractor still idling and the light switches turned on, Hennessey left the cab and inspected the unit. He again found that no lights were visible on the truck-no lights were visi- ble on the tandem trailers. After Hennessey's second inspection of his unit, he re- turned to the dispatch office and spoke with Robert Tosch and Rich Bryant, another dispatcher on duty that night. Hennessey asked Tosch and Bryant to check the vehicle with him. They both refused. Hennessey told Tosch and Bryant that the unit was unsafe, and that he could not drive it in its present condition. He then asked Tosch and Bryant if they would swap tractors for him. Hennessey was refused, and then informed that the final decision regarding the condition of the unit rested with Bill Jones, and that Tosch and Bryant could do nothing about it. Hennessey again reminded Bryant that his unit was a placard load, and that it was foggy outside. Hennessey asked Bryant if he would call Respondent's safety supervisor to look at the unit. Bryant stated that he would not call the safety supervisor in that he had been instructed not to bother him with matters like that. 7 At this point, Tosch told Hennessey to take the unit the way it was or punch out and go home. To this Hennessey stated that he did not want to go home-that he wanted the unit repaired. Tosch again said that there was nothing he could do; that either Hennessey take the unit as it was or the Company would accept his volun- tary resignation. After this discussion, Hennessey filled out his pay- sheet, explaining what had happened and the time in- volved. After completing the paysheet, Hennessey then 7 As previsouly had een indicated, I do not credit Tosch's testimony inconsistent with the facts as found. punched out, turned in his bills and paysheet, and left the dispatch office. After leaving the dispatch office, Hennessey proceeded to the coffeeroom, where he again spoke with drivers Lentz, Pole, and Klinker. Hennessey asked the three drivers if they would come out and look at the unit as- signed to him. They agreed to do so, and the group then proceeded into the yard with Hennessey. As they ap- proached the unit, Hennessey pointed out the unit, and explained that he had left the light switches on. The unit was idling, and no lights on either the tractor or trailers were visible. Hennessey then got into the cab and began revving the engine. After a brief period of time the lights began to come on and to reach normal brightness. When the lights came up to their normal brightness, Hennessey let off the accelerator and all the lights went out. Hennessey got out of the cab and discussed the problem with Lentz, Pole, and Klinker. He asked each of them what they would do. Lentz, Pole and Klinker each said that they would not take the unit out in the condition it was in. After this conversation, the three drivers returned to the coffeeroom, and Hennessey completed a second vehi- cle condition report which he placed in a slot in the driver's door of the cab. Following this, Hennessey left the terminal. In addition to the above facts, evidence was presented relating to the condition of the tractor earlier in time on March 21, 1980. Thus, the facts reveal that there was a problem concerning "lights" and that such problem re- sulted in the installation of a new battery. The testimoni- al evidence of Lincoln revealed that he considered the battery that was installed to be one in good shape. It is noted, however, that the indicated amperage reading, al- though within acceptable limits, was not at the highest preferred reading. The facts further reveal that after the discharge of Hennessey, around 4:30 to 5 a.m., an employee serviced tractor no. 16-3281 and left with said tractor around 5 a.m. for a trip to Des Moines. Such driver found that the lights were not on at first but came on when the engine was throttled. Said driver used a bar to keep the accel- erator pedal down, revving the engine during time of servicing. Around 5 a.m., as indicated, the driver took the tractor to Des Moines, Iowa, without mishap. Conclusion 8 The essential issue is whether Hennessey's conduct in refusing to drive tractor no. 16-3281 constituted conduct of protected concerted activity. If so, it is clear that Re- spondent's discharge of Hennessey on March 22, 1979, constituted conduct violative of Section 8(a)(l) of the Act. Considering the facts in this case, I am persuaded and conclude that Hennessey's refusal to operate or drive tractor no. 16-3281 on March 22, 1979, was based on a reasonable belief that to operate or drive such tractor under the existing conditions was dangerous, could result a As later set forth, I find that the arbitration award, concerning a grievance about Hennessey's discharge, should not be honored. 992 CONSOLIDATED FREIGHTWAYS in an accident, and was violative of safety statutes, and that under the collective-bargaining agreement in exist- ence he could not be required to drive such tractor.9 The determination the reasonableness of his belief must be based on the circumstances as they existed and not on whether in fact there actually existed such danger. Thus, the facts reveal that the night was foggy and that Hennessey, if he drove the tractor, would have to drive for 4 or 5 hours during the darkness of night or early morning. The facts also reveal that the load that Hennes- sey was taking was a placard load requiring some stops and checking of the load and vehicle. Hennessey's expe- rience with the lights on the morning of March 22, 1979, revealed that, when the engine was not being revved, as would be the case at times the vehicle was stopped for any purpose, including the times for checking the load and vehicle, the lights dimmed and/or went out. If the lights dimmed or went out during the time of darkness when Hennessey went on his trip, an obvious condition of danger and safety would exist. It may be that the con- dition of the battery was of such a nature that, upon a slight amount of driving time, any problem as to lights would have been eliminated. This, however, is a factor beyond Hennessey's knowledge. Further, as indicated, Jones had told Hennessey that the condition would solve itself by the driving of the tractor a hundred miles or so. As noted, Jones testified to the effect that he knew the condition of lights would have been solved by the driv- ing of the tractor for about 5 minutes. I do not believe or credit Jones' testimony to such effect. Rather, if such were the case, I find it hard to believe that Jones would have wasted more time than the 5 minutes to go to talk to Hennessey when the problem could have been solved by 5 minutes of revving the engine. As set forth above, Hennessey had a reasonable belief that the operation of the tractor under the existing condi- tions was dangerous. The question then presented is whether Hennessey's complaint and refusal to operate the tractor because of asserted dangerous conditions con- stituted concerted activities for the purposes of mutual aid and protection. It is clear that employees have a common concern to work in safe conditions and not to be required to work in unsafe conditions. The Federal Government and many States have enacted occupational safety legislation. The Board in Alleluia Cushion Co., Inc., 221 NLRB 999, 1000 (1975), discussed the question of concerted ac- tivities for mutual aid and protection as related to em- ployee actions related to OSHA rights as follows: Section 7 provides that employees have the right to engage in concerted activities for the purpose of mutual aid and protection. Henley's filing of the complaint with the California OSHA office was an action taken in furtherance of guaranteeing Re- spondent's employees their rights under the Califor- nia Occupational Safety and Health Act. It would g The principles involved in this case are the same as considered in United States Stove Co., 245 NLRB 1402 1979). Applying such principles and the reasoning thereto as related to the specific facts in this case, it is clear that Hennessey's refusal to operate the tractor on March 22, 1979, constituted protected concerted activity. be incongruous with the public policy enunciated in such occupational safety legislation (i.e., to provide safe and healthful working conditions and to pre- serve the nation's human resources) to presume that, absent an outward manifestation of support, Hen- ley's fellow employees did not agree with his efforts to secure compliance with the statutory obligations imposed on Respondent for their benefit. Rather, since minimum safe and healthful employment con- ditions for the protection and well-being of employ- ees have been legislatively declared to be in the overall public interest, the consent and concert of action emanates from the mere assertion of such statutory rights. Accordingly, where an employee speaks up and seeks to enforce statutory provisions relating to occupational safety designed for the benefit of all employees, in the absence of any evi- dence that fellow employees disavow such repre- sentation, we will find an implied consent thereto and deem such activity to be concerted. In Diagnostic Center Hospital Corp., of Texas, 228 NLRB 1215, 1217 (1977), the Board discussed its deci- sion in Alleluia and said, "A correct reading of the case is that activity will be deemed concerted in nature if it relates to a matter of common concern and this common concern will be found with respect to violations of a safety statute which created a general hazard for em- ployees." Considering the principles of Alleluia, the fact that Hennessey's complaint and refusal to operate the tractor on March 22, 1979, was based on a reasonable belief that the operation of the tractor was under unsafe and dan- gerous conditions, and the fact that the type of safety conditions involved is covered by legislation and regula- tions pertaining thereto, it must be found, in the absence of employee disavowal that Hennessey was acting on their behalf, that Hennessey's activity in complaining and refusing to operate or drive the tractor constituted con- certed activity ° in nature relating to a matter of common concern." Thus, I conclude and find that Hennessey's activities in complaining about and refusing to operate the tractor on March 22, 1979, because he be- lieved it to be dangerous to do so and so expressed con- stituted concerted activities for the purposes of mutual aid and protection and is protected by the Act. The facts reveal that Hennessey was discharged for such com- plaints and refusal to drive and operate the tractor under conditions he reasonably believed dangerous. According- ly, it is concluded and found that the discharge of Hennessey for his protected concerted activity is viola- tive of Section 8(a)(l) of the Act. Similarly, Tosch's statements relating to a "voluntary resignation," as set 'o As indicated in Dagnostic Center Hospital Corp., Hennessey's activi- ties are deemed concerted because the matter was a matter of common concern to employees Fonseca's action in taking the tractor out the next morning is not sufficient to overcome a presumption that Htennesse was acting on hehalf of other employecs, ho would not have wanted to drive for a number of hours at nighttime In possibly unsafe condition, I I As indicated in Dgnotil (enter flospirta Corp., the matter of safety violations covered in legislation arc deemed to, h a matter of common concern to nlplowes 993 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forth beforehand, constituted a threat of discharge for the exercise of a protected concerted right and was vio- lative of Section 8(a)(l) of the Act. D. The Grievance, Arbitration, and Related Events Hennessey filed a grievance on April 14, 1979, under the collective-bargaining agreement signed by Respond- ent and the Union. The grievance, which alleged that Hennessey did not resign his employment, requested re- instatement with full backpay and health and welfare benefits. A hearing was held on May 1, 1979, before the Joint State Committee' 2 at which both company and union representatives' appeared and presented their re- spective cases. John Kelly, a union business agent, Gene Wade, Hennessey's union steward, and Hennessey each made a statement in support of Hennessey's grievance for reinstatement and backpay. Charles Schmalz, the dis- patch operations manager, made a statement on behalf of the Company's position. In the instant unfair labor practice proceeding, counsel for Respondent and the General Counsel stipulated that the grievance filed by Hennessey was covered by the labor agreement between Respondent and the Union; that Respondent, the Union, and the Charging Party agreed to be bound by the decision of the Joint State Committee; that the Joint State Committee did render a decision; and that the entire grievance and arbitration procedure was fair and regular in all respects. The par- ties also stipulated that the question of whether or not tractor no. 16-3281 was, in fact, safe on March 22 was discussed and presented to the committee. The Joint State Committee rendered its decision, after hearing the arguments of all parties, awarding the Charg- ing Party his former job back with full seniority and paid up health and welfare benefits, but with no backpay. At that time, the Joint State Committee also ordered that a "final warning letter" be placed in Hennessey's personnel file. 4 Immediately after the announcement of this deci- sion, Wade, the union steward, explained to the Charg- ing Party that, as of that moment, he had his job back and that he could probably go out on a run that very night. Conclusion Upon consideration of the issues presented and the de- termination and award, it would not effectuate the pur- poses of the Act for the Board to honor the arbitration award concerning Hennessey's grievance as to his March 22, 1980, discharge. The grievance-arbitration determina- 12 The Joint State Committee is the arbiter of disputes arising under the collective-bargaining agreement signed by the Company and the Union The committee is composed of six members, three representatives from trucking companies and three representatives from the Union. This committee is defined and set out in the collective-bargaining agreement signed by Respondent and the International Brotherhood of Teamsters, the Union representing Hennessey. 13 Present at this arbitration were: Hennessey, John Kelly, union busi- ness agent, and Gene Wade, union steward; Charles Schmalz appeared for Respondent 14 Upon hearing the committee's decision, Schmalz called his office to inform them of the outcome. He informed the dispatcher to put Hennes- sey back on the "board." As of 6 p m. on May 1, 1979, Hennessey was on the "hoard " tion and award appears to be neither fish nor fowl. Rather, it appears to be a Solomon-type split decision. Thus, the award in effect required Hennessey to be rein- stated but in effect to be under the gun of a "warning letter." Further, the award left Hennessey with a loss of backpay for his period of unemployment. Under such circumstances it is clear that the award fails to remedy the alleged unfair labor practices so as to warrant the Board's deference to such award. Further, although Respondent took steps in compli- ance with such award, Respondent at no time reinstated Hennessey in such a manner as to constitute full rein- statement to his former job. There is no evidence or con- tention that Respondent reinstated Hennessey in such a way as to avoid the liability of discharge as a result of the "warning letter," a part of the award. Nor is there any evidence or contention that Respondent ever noti- fied the Union or Hennessey that it was unconditionally reinstating Hennessey without the placement of a "warn- ing letter" in his personnel file. Having discharged Hennessey for unlawful reasons, it was and is Respond- ent's responsibility to remedy the unfair labor practices. The facts indicate that Hennessey made statements indi- cating that his reason for not going back to work for Re- spondent was the lack of backpay in the award. Re- spondent's liability to reinstate Hennessey, however, con- tinues until a proper offer of reinstatement is made, and backpay is not tolled until a valid reinstatement offer is made even though an employee might be willing to be reinstated under unlawful conditions or is in ignorance of unlawful conditions. To hold otherwise would as a matter of policy encourage continued resistance by Re- spondent to observance of requirements concerning re- medying of or cessation of unfair labor practices. In sum, the facts do not reveal that Respondent has taken proper steps of reinstatement or action to toll back- pay so as to limit the remedial requirements set forth later herein. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 1II, above, occurring in connection with Respondent's oper- ations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. 5 It having been found that Respondent discharged Charles Hennessey on March 22, 1979, in violation of Is The circumstances of the discharge of Hennessey do not reveal in my opinion a general proclivity to violate the National Labor Relations Act. Such does not warrant a broad cease-and-desist order, nor do the facts otherwise reveal that a broad cease-and-desist order is warranted. 994 CONSOLIDATED FREIGHTWAYS Section 8(a)(1) of the Act, the recommended Order will provide that Respondent offer him reinstatement to his job, and make him whole for any loss of earnings or other benefits within the meaning and in accord with the Board's decisions in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977),1 6 except as specifically modified by the wording of such recommended Order. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCI USIONS OF LAW 1. Respondent Consolidated Freightways is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Charles Hennessey and by other acts Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act, and Respondent has thereby engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The Respondent, Consolidated Freightways, Peru, Illi- nois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, or otherwise discriminating against, employees in regard to hire or tenure of employment, or any term or condition of employment, because of their protected concerted activities. 16 See, generally, Isis Plumbing & Ieating Cao, 138 NLRB 716 (1962). 17 In the event no exceptions are filed as provided by Sec. 111246 of the Rules and Regulations of the National abor Relations BHoard, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the koard and become its findings, conclusions, and Order, and all oblections thereto shall be deemed waived for all purposes (b) Threatening employees with discharge and other reprisals because of their protected concerted activities. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by lawful agree- ments in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Charles Hennessey immediate and full re- instatement to his former position or, if such position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights or privileges previously enjoyed, and make him whole for any loss of pay or other benefits suffered by reason of the discrimi- nation against him in the manner described above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at Respondent's facility at Peru, Illinois, copies of the attached notice marked "Appendix." i Copies of said notice, on forms provided by the Regional Director for Region 33, after being duly signed by Re- spondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places. in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 33, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURrITHER ORDFRF.D that the allegations of unlaw- ful conduct not specifically found to be violative herein be dismissed. I In the cvenl that this ()rder 1, enflrc, i bh i Judgment of a United States Court of Appeals, the words iir tilt notice reading "Posted h5 Order of the National abor Relations Board" 'Ihall read "PIosted Puru- ant to a Judgment of the United States Court of Appeal, tinforcing an Order of the National Labor Relatiions IBoard 99