Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1009 (N.L.R.B. 1980)

OVERNITE TRANSPORTATION COMPANY 1009
Overnite Transportation Company and Milo W.
Knight. Case 14-CA-12825
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.I.O, AND
TRUESDALE
On May 15, 1980, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the 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.2
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 Respondent, Overnite
Transportation Company, Mt. Vernon, Illinois, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
I Respondent has excepted to certain credihiliy findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Produces.
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
2 Member Jenkins would pr¥ ide interest on the backpa, award in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB No. 11 (1980).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
251 NLRB No. 140
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge employees for en-
gaging in protected concerted activities of
complaining to management about unsafe
working conditions.
WE WILL NOT discharge any employee in
order to discourage our employees from en-
gaging in protected concerted activities.
WE WILL NOT discharge employees for en-
gaging in protected concerted activities of re-
fusing assigned runs to obtain safer working
conditions.
WE WIILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights mentioned
above.
WE WILL offer Milo Knight immediate and
full reinstatement to his former job or, if his
job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
or any other rights or privileges previously en-
joyed, and make him whole for any loss of
earnings he may have suffered due to the dis-
crimination practiced against him by paying
him a sum equal to what he would have
earned, less any net interim earnings, plus in-
terest.
OVERNITE TRANSPORTATION COMPANY
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard at St. Louis, Missouri, on December 6-7,
1979.' The charge was filed on July 27 and the com-
plaint was issued on November 2. The case arose when
the Company, the Respondent,2 discharged over-the-
road driver Milo Knight after he refused to make an as-
signed delivery at night during a violent strike by inde-
pendent truckers. The primary issue is whether the Com-
pany discharged Knight for engaging in protected con-
certed activities and to discourage other employees from
engaging in such activities, in violation of Section 8(a)(1)
of the National Labor Relations Act, as amended.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and the
Company, I make the following:
I All dales are in 1979 unless otherw ise indicated
2 The names of the Respondent and the Charging Party were amended
at the hearing
I010 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
FINI)IN(;S 01 FACT
I. JURISI)IICTION
The Company, a corporation authorized to do business
in Illinois and maintaining a terminal in Mt. Vernon. Illi-
nois, is engaged in the interstate transportation of freight.
It annually performs services valued in excess of $50,000
for enterprises which meet one of the Board's jurisdic-
tional standards other than solely an indirect inflow or
indirect outflow standard. It admits, and I find, that it is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. Al.I T.(iil) UNFAIR ILABOR PRACfIC.ES
A. Background
The Company is a nonunion trucking firm which has
the dual policy of attempting to operate its business as
near normal as possible during strikes by the Teamsters
and the Independent Truckers Association and to pro-
vide a safe working environment for its employees.
In its printed "Safety and Operating Rules and Regula-
tions" booklet issued to all of its drivers (Resp. Exh. 1),
the Company states its "Safety Policy" on page I as fol-
lows, over the name of Safety Director Bobby W. Ed-
wards:
To work in a safe and secure environment is one of
the many natural desires of man. Of utmost concern
to myself and Overnite is your personal health and
welfare while at work. To this end, Overnite is
dedicated to doing all that is humanly possible to see
to it that you work in a safe environment. We know
that this is a prime concern not only to you but also
to your family and fellow employees. [Emphasis
supplied.]
It is undisputed, as credibly testified by road driver Milo
Knight (who impressed me by his demeanor on the stand
as being an honest, forthright witness), that employees
are informed at the Company's l-week school for all
new road drivers of a purported company policy con-
cerning operating during strike violence. When Knight
was hired in April 1978, he and others in the school
were told by the school instructor, from the Company's
safety department, that in case of strike violence, "we
would either run in pairs" or "run in daylight hours,"
and "In the past the company had had convoys with a
safety man in front and a safety man behind leading them
into the terminals with the freight." Thereafter, at the
Mt. Vernon terminal where he was assigned, Knight dis-
cussed with Terminal Manager James Riggan and Dock
Supervisor Glen Davis what would happen during a
trucker's strike, and "they assured us that we would be
protected."
The Company's rules and regulations booklet does not
contain any specific reference to driving during a strike.
Under "Driver Rules" (pp. 16-17), the booklet does con-
tain a general rule regarding following dispatcher
instructions:
23. Drivers are required to follow the instructions
of the Dispatchers at all times unless performance
of these instructions would result in a violation of
the safety rules and regulations of the Department
of Transportation or the Company safety rules and
regulations.
In 1979, the problem of strike violence first arose
during the Teamsters strike in April. On two occasions.
when Knight took his regularly scheduled run from Mt.
Vernon to St. Louis, rocks were thrown at his tractor
and trailer as he was entering the Company's St. Louis
terminal.
On June 20, the independent truckers' strike began.
Because of the problems experienced 2 years earlier
during such a strike, the Company on June 19 sent out a
teletype to all its terminals for immediate posting on the
drivers' bulletin boards, notifying the drivers of the im-
pending strike at midnight and stating: "Do not stop at
truck stops (other than sign-in stations) tonight or until
further notice. It is requested that you go to the terminal
and take drivers' cars for meals."
B. Expres.sed Fears of 'iolence
1. June 22
On Friday, June 22 (2 days after the independent
truckers' strike began), road driver Knight met with road
driver George Laskowski in the drivers' room at the Mt.
Vernon terminal. They were discussing a shooting the
night before east of Mt. Vernon, the driver being in the
hospital "supposedly paralyzed," and their fear of
making their runs that night. Dock Supervisor Davis
(who was then acting as terminal manager in the absence
of Riggan who left on vacation that day) entered the
room. Knight told him, "Glen, if you think I have never
been serious before, I am .... serious now. I do not
want to run to St. Louis anymore after tonight without
some protection because it is getting violent out." Knight
told Davis about the shooting and the driver being in the
hospital, and Davis started joking by asking what kind of
flowers Knight wanted if he was killed. That evening the
Company had two loads for Louisville and, at driver
Charles Harlan's request, the Company assigned Harlan
and Laskowski to drive there double, or in pairs, for
more safety. Knight proceeded to take his scheduled run
to St. Louis. (The freight was scheduled to arrive there
that night, for next-day delivery.)
After arriving at the St. Louis terminal that Friday
evening, June 22, driver Knight had a discussion with
two company drivers who were driving as a "sleeper
team." They stated that they were going to the hotel,
that they were running days and sleeping nights, and
claimed that they had contacted "someone higher up"
and that "the final decision to run . . . or not was up to
the driver." Then on Knight's way back to Mt. Vernon
that night, "it seemed like every overhead that I crossed
there was a car up on top with people just watching
. As I got out to the overhead at the 17 mile marker
a van type car pulled up and stopped. I was scared."
However, Knight proceeded on to the weigh station
where he and three other company drivers formed a
OVERNITF TRANSPORTATION COMPANY I011
convoy, with one of the drivers shining a spotlight at the
overheads from there into Mt. Vernon.
2. June 24
Although not scheduled to drive on Sunday, June 24,
Knight went to the Mt. Vernon terminal about 6 o'clock
that evening and talked to drivers Laskowski and
Harlan-part of the time in the presence of Dock Super-
visor Davis-about the continuing strike violence. They
discussed the shooting in Benton on Friday morning, and
all three drivers stated they were scared but needed to
work. Laskowski stated he thought the next night would
probably be the worst night of it; Knight stated that "it
looks like someone is going to have to get hurt before
we get any type of protection"; and, as Harlan credibly
testified, "We tried to figure out what we could do about
it." No one answered the telephone when Laskowski at-
tempted to contact Safety Director Edwards, so Knight
telephoned Special Safety Investigator Gerald Rogers
(admittedly a part of management and a supervisor, who
was listed in the rules and regulations booklet as one of
the management representatives to be called on the
weekend in the event of an accident).
As Knight credibly testified, he told Safety Investiga-
tor Rogers about the Thursday night and Friday morn-
ing shootings, and Rogers "said we want you to run
where you can because the freight needs to be delivered.
If you have to, run two tractors and trailers together or
run in daylight hours." Knight said, "I want to ask you if
we would get dismissed if we do not run," and Rogers
replied that "we would not get run off if we did not run.
They had discussed that at the home office." Knight
said, "I am scared to death to run, and I don't want to
run on Monday night without some kind of protection."
Rogers responded, "If you don't run, call me back."
Knight then said that Laskowski wanted to talk to him,
and Laskowski got on the phone. (Laskowski is deceased
and did not testify.) Knight heard Laskowski tell Rogers
that "we are concerned about the violence on the high-
ways, and we are wanting to know if we do not run, will
we get run off? . . . All right, that is all I want to hear.
We can't seem to find out anything here." That evening,
Laskowski and Harlan again drove together to Louis-
ville.
3. June 25
Driver Knight went to the terminal on this Monday
afternoon and talked to drivers Laskowski, Harlan,
Dennis Carnes, and Don Owens. Knight, Laskowski, and
Harlan had agreed to go there early "to try to get some
type of protection before we went out on our runs." The
drivers discussed the continuing violence which had
been reported on TV, on radio, and in the newspapers.
Knight again expressed his fear of driving alone at
night on his scheduled St. Louis run. Laskowski and
Harlan stated that they felt safer driving in the other di-
rection, together, to Louisville and that it "wasn't too
bad" the night before. As Harlan credibly testified, he
told Knight, "I feel like we have to be our own judge
here. I think for his own safety he should be his own
judge whether he should run or not."
C. Knight's Discharge
That Monday evening, June 25, after drivers Knight,
Laskowski, and Harlan arrived early to try to get some
protection on their runs and after Harlan expressed
agreement with Knight that a company driver should be
able, for his own safety, to be his own judge whether to
make a run during the violent strike, Knight told Dock
Supervisor Davis, "I am scared to death to go to St.
Louis tonight, and I don't want to go." Knight pleaded
with Davis to permit him to make the run early Tuesday
morning, but Davis said that it had to go that night, and
told him that if he did not make the run, to tell Dis-
patcher Jan Isom so that Isom could call Central Dis-
patch and get somebody else. Knight asked if he would
get fired if he did not go, and Davis answered, "I don't
know," but if he did not take the run, "go home and we
will call you when we need you." Knight then told
Isom, "I just don't feel it is safe to go due to the vio-
lence," and asked what Davis had said. Isom responded
that Davis said to call Central if Knight did not go.
Thereafter Knight had a conversation with city drivers
Carnes and Owens, and Carnes (whose windshield had
been cracked during the Teamsters strike) said he knew
Knight was scared to death, that he had been scared to
death too during the other strike, and "he wished he had
enough nerve to tell them that he wouldn't go too."
As instructed by Safety Investigator Rogers the night
before, Knight called Rogers back, reported that he had
not taken the St. Louis run, and told Rogers about the
continuing violence: both a shooting at Effingham and a
driver being killed on Route 51 on Sunday night. Rogers
told Knight to call Central Dispatch and Knight said
that the dispatcher had already taken care of that. Con-
trary to Knight's plea that he be permitted to take the
run the following morning, the dispatcher assigned the
run to another driver who made the run the next morn-
ing.
Thereafter, the national guard was called out in Illi-
nois, and placed on alert in Missouri. (Terminal Manager
Riggan admitted on the stand that violence during the
strike was directed at truck drivers who continued to
drive, and that the company drivers were risking their
own safety and the safety of the equipment.) The vio-
lence continued from time to time, but none of the other
company drivers refused to drive, and none of them was
injured.
On Thursday, June 28, after not being recalled to
work, Knight went to the terminal to pick up his pay-
check and asked Dock Supervisor Davis if "they decided
what they are going to do with me." As Knight credibly
testified, Davis answered no, they haven't decided, possi-
bly to give you a week off" and "said he had called Jim
Riggan . . . in North Carolina, and . . . Jim didn't seem
to be too worried about it . . . . If I hear anything I will
give you a call." (Emphasis supplied.) (When testifying
as a defense witness, Davis did not dispute this testimo-
ny.)
On Monday, July 2, as Knight credibly testified, he
had two telephone conversations and one conversation in
person with Terminal Manager Riggan who returned
from vacation that day. In the first telephone conversa-
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, Knight said "I am sitting here worrying about this
situation of whether I am going to get to go back to
work, and Riggan responded, "I am going to have to let
you go." Knight asked why and Riggan said "because of
you not running the other night and other things." (Em-
phasis supplied.) Knight "actually begged him to let me
keep my job," and said that if necessary, "I will go
before all the drivers and employees down there and
apologize for anything I have done wrong." Riggan said
that would not be necessary, and that he would talk to
Dock Supervisor Davis and call Knight back. Riggan
later telephoned Knight and said "his decision was to
dismiss me." Knight asked again if he could stay and
Riggan said no, "I want you to come down and sign for
your stock, and I don't want you to be mad at me. I
have liked you, always have, and always will continue to
like you." Knight went to the terminal, signed for the
company stock, and asked Riggan, "Jim, are you sure
you have to let me go?" (As found above, Knight had
been told by Safety Investigator Rogers that the employ-
ees "would not get run off if we did not run" and that
"They had discussed that at the home office.") Riggan
replied, "Yes, because I would be putting my neck on
the line and I am getting some feedback from St. Louis."
(Emphasis supplied.) (As found, Knight had talked to a
"sleeper team" at St. Louis on June 22 about them run-
ning only during the day and sleeping at night, and about
the driver making the final decision whether to run.)
Knight asked what Riggan meant by "feedback from St.
Louis," and Riggan answered, "Maybe it is your voice
that carried so that they think you are mad when you
are not mad." Knight asked, "Isn't 96 percent of the
reason you are letting me go because I didn't make that
run to St. Louis?" and Riggan answered, "Yes, other rea-
sons too." (Emphasis supplied.) (Riggan's discredited ver-
sion of the conversations is discussed below.)
On July 5, Knight telephoned Safety Investigator
Gerald Rogers. "I told him I had been dismissed by
Riggan. And he said we agreed at the home office that
we wouldn't fire anyone if they didn't run. I said, well I
got dismissed, and I told him that 96 percent of the
reason . . . was because I didn't make that run. Gerald
said he would be out this way in a week or so and he
would check into it .... I have never heard from him
since." In his pretrial affidavit, Knight did not mention
"home office decision" being stated by Rogers in their
telephone conversations. As read into the record, the af-
fidavit does state: "On July 5 I called Gerald Rogers,
safety investigator. I told Rogers about my being fired.
Rogers said, when the independent strike started we said
nobody would be fired over not running. There must be
more to this." Knight admitted giving this version of the
conversation in the affidavit.
D. The Company's Defense
When called as a defense witness, Safety Investigator
Rogers testified that he traveled the entire system during
the strike and was familiar with most of the incidents of
violence. He narrowly testified that the June 19 truck-
stop bulletin was the only "special instructions" given to
him and that there were no other decision or instructions
out of the home office about "how drivers were to be
dispatched or how they were to operate." However he
did not deny that he had discussed with management of-
ficials, at the home office, whether drivers would be dis-
charged during the strike for not running. He denied
much of Knight's testimony about the conversations with
him, but when asked if Knight could have asked him,
"Would I be fired if I refused to run," he repeatedly an-
swered, "I don't recall him asking me that." He denied
recalling if he talked to driver Laskowski after talking
with Knight (on Sunday, June 24), but acknowledged
that Knight was not alone, stating that he recalled
Knight "holding the phone and talking to two other
people in the background." Rogers also acknowledged
that Knight "relayed to me . . . some instances [of vio-
lence] that he knew about that had taken place during
this truck strike," and testified that Knight asked about
company policy regarding running double, etc. Rogers
did not impress me as being a candid witness, and I dis-
credit his denials of Knight's testimony. In view of
Rogers' position and duties during the strike, and his
statements to Knight (as Knight credibly testified), I find
that the Company did decide at the beginning of the in-
dependent truckers' strike not to discharge drivers for re-
fusing to make their assigned runs during strike violence.
I also infer, from Rogers' responsibilities concerning the
violence and the significance of the violence on the
Company's operations during the strike, that Rogers re-
ported to higher management his June 24 telephone con-
versation with Knight in which Knight sought some pro-
tection and indicated his role as a spokesman for drivers
who were fearful of the strike violence.
Contrary to the above finding that the Company de-
cided at the beginning of the independent truckers strike
not to discharge drivers for refusing to run during strike
violence, two defense witnesses made the claim (which I
discredit) that they received instructions during the strike
to terminate any drivers who refused to run. Field Safety
Supervisor William Hartle, when asked if he received
any instructions during that strike "about what to do
when and if a driver refused to run," he answered, "Just
handle it like normal, if he refuses to run, terminate him."
(Emphasis supplied.) Similarly, when Terminal Manager
Riggan was asked, "Did you receive any instructions
about what to do with drivers who refused to run their
assigned load?" he at first positively answered, "Yes, sir
. . .if the driver refused to run he was terminating him-
self and was voluntarily quitting." (Thus he agreed with
Hartle that instructions had been received during the
strike on this subject.) He then appeared to attempt to
retract the answer. When asked by company counsel,
"Was this a special instruction you received during the
independent truckers strike or this just general?" he an-
swered, "No, sir, it is just a general instruction."
Concerning his conversations with Knight on Monday,
July 2, Terminal Manager Riggan claimed that, when
Knight came in and talked to him, he told Knight, "You
failed to take your assigned run so you voluntarily quit,
so I have no alternative at this point but to go ahead and
let you go." He also claimed that, after Knight returned
home, he talked to Dock Supervisor Davis, telephoned
Executive Vice President Price who "said under the cir-
OVERNITE TRANSPORTATION COMPANY 1()13
cumstances like this we have no alternative but to let a
man go," and later told Knight "that a decision was
made that I could not put him back on." Thus, contrary
to the undisputed testimony that Acting Terminal Man-
ager Davis advised Knight on the preceding Thursday
that they "haven't decided" what to do about his refus-
ing the run, "possibly give you a week off," and also
told Knight that "Jim Riggan . . . in North Carolina
. . .didn't seem to be too worried about it," Riggan was
claiming on the stand that the refusal to make the run
was a voluntary quit or automatic termination. (Riggan
also claimed, contrary to Knight's credited denial, that
he had threatened Knight with termination during the
earlier Teamsters strike if Knight did not take the St.
Louis run.) Riggan did not impress me as being a trust-
worthy witness. I discredit his version of the July 2 con-
versations with Knight.
E. Concluding Findings
Having a dual policy of attempting to operate as near
by normal as possible while attempting to provide a safe
working environment, the Company decided at the be-
ginning of the violent independent truckers' strike to
continue operations but not to discharge any driver for
refusing to run during the violence. As explained by
Safety Investigator Rogers to driver Knight on Sunday,
June 24, "we want you to run where you can because
the freight needs to be delivered," but that the drivers
"would not get run off" if they did not run, that the
Company "had discussed that at the home office."
As the events developed, there was only one driver,
Knight, who refused to make his regularly assigned run,
and this was the same driver who had engaged in repeat-
ed discussions with other drivers and management about
the danger of driving without protection. Engaging in
what clearly was protected concerted activity, Knight
held discussions with other drivers at the Mt. Vernon
terminal on June 22, 24, and 25 about the widely report-
ed violence and about obtaining some protection, and a
discussion with two of the Company's "sleeper team"
drivers at the St. Louis terminal on June 22. The evi-
dence is also clear that the Company was aware of
Knight playing a leadirg role in this concerted activity.
It happened that when Knight finally refused to
make his nighttime run to St. Louis-alone and
without protection-on June 25 after widespread re-
ports of repeated shootings and one killing, Termi-
nal Manager Riggan was on vacation. Acting in
Riggan's absence, Dock Supervisor Davis sent
Knight home, assigned another driver to make the
run the next morning instead of granting Knight's
plea for permission to make the run then, and told
Knight "we will call you when we need you."
Although Knight's refusal of the nighttime run was a
violation of Driver Rule 23 (requiring drivers "to follow
the instructions of the Dispatcher at all times" with cer-
tain inapplicable exceptions), he was not immediately dis-
charged. It is undisputed that 3 days later, when Knight
had not been recalled and he went to the terminal for his
paycheck, Acting Terminal Manager Davis told him
they "hadn't decided" what to do about his refusing the
run, "possibly to give you a week off." Davis added that
"he had called [Terminal Manager] Jim Riggan .... in
North Carolina, and . . . Jim didn't seem to be too wor-
ried about it."
However, by the time Terminal Manager Riggan re-
turned from vacation the following Monday, July 2., the
Company had decided to discharge Knight-despite the
earlier decision not to discharge any driver for refusing
to run during the violence. Riggan told Knight, "I am
going to have to let you go," and when Knight asked
why, he answered "because of you not running the other
night and other things." (Emphasis supplied.) Knight of-
fered to "go before all the drivers and employees down
there and apologize." but Riggan declined the offer.
Later when Knight asked Riggan, "Jim, are you sure
you have to let me go?" (apparently referring to Safety
Investigator Rogers' June 24 statement that employees
"would not get run off if we did not run" and that
"They had discussed that at the home office"), Riggan
said yes and made a direct reference to the earlier pro-
tected concerted activity. He said, "I am getting some
feedback from St. Louis" (where Knight had talked to
the sleeper team on June 22). When Knight asked what
he meant, Riggan explained, "Maybe it is your voice so
that they think you are mad when you are not mad."
Knight asked whether his not making the St. Louis run
was "96 percent of the reason you are letting me go,"
and Riggan again referred to another motivation by an-
swering, "Yes, other reasons too." (Emphasis supplied.)
Safety Investigator Rogers (admittedly a part of man-
agement and a supervisor) also implied another motiva-
tion for the discharge (as Knight acknowledged recalling
in his pretrial affidavit). Knight telephoned Rogers on
July 5 and reported being discharged. Rogers said that
"when the independent strike started we said nobody
would be fired over not running. There must be more to
this." (Emphasis supplied.) As Knight further credibly
testified, Rogers promised to "check into it," but Knight
heard nothing further from him.
F. Analysis and Conclusions
The complaint alleges that the Company unlawfully
discharged and refused to reinstate Knight because he
engaged in the employees' concerted complaining about
safety and other working conditions to Acting Terminal
Manager Davis (on June 22) and to Safety Investigator
Rogers (on June 24), because he "engaged in a cessation
of work in a concerted attempt on behalf of himself and
other employees . . . to make safe their mutual working
conditions" (on June 25); and "in order to discourage
employees from engaging" in such protected concerted
activities. The Company contends that Knight was dis-
charged solely because he refused his assigned run, vio-
lating Driver Rule 23.
Upon weighing all the evidence, I find that a major
reason for discharging and refusing to reinstate Knight
was to discourage employees from engaging in protected
concerted activities during the violence in the independ-
ent truckers' strike. Despite Rule 23, requiring drivers to
follow instructions, the Company had decided not to dis-
charge any driver who "did not run." Not having been
1014 DECISIONS OF NA'I'IONAL .ABO()R RLATIONS B()ARI)
advised of this decision, Dock Supervisor Davis (in Ter-
minal Manager Riggan's absence) denied Knight's re-
quest to make his nighttime run the next morning and
suspended him until "we need you." When Davis report-
ed the suspension to his superiors, the Company did not
decide immediately what to do about the refusal to run:
it being undisputed that Davis told Knight 3 days later
that they "haven't decided," and would possibly give
Knight a week off, and that Riggan "didn't seem to be
too worried about it." The next Monday, after returning
from vacation, Riggan made it clear that more was in-
volved than refusing the assigned run. (None of the
other drivers had joined Knight's lead in refusing a run
during the continuing violence.) Although Riggan did
not specifically mention Knight's discussing the violence
with other drivers and seeking protection on June 22 and
25-as well as going to the terminal and talking to the
drivers on Sunday night, June 24, when Knight was not
scheduled to make a run-and did not specifically men-
tion Knight's leadership role in complaining about the
violence and lack of protection to Dock Supervisor
Davis on June 22 and to Safety Investigator Rogers on
June 24, Riggan indicated the Company's concern about
Knight's influence on the other drivers. As found,
Riggan referred both to "other things" and "other rea-
sons too" for discharging Knight, stated he was "getting
some feedback from St. Louis" (where Knight talked to
two drivers on June 22 about the violence), and told
Knight that "Maybe it is your voice that carried so that
they think you are mad when you are not mad." (I note
that the Company's brief asserts that Knight repeatedly
solicited other company drivers to join him in refusing to
run.) Under these circumstances I find that the Company
reversed its earlier decision not to discharge any driver
for refusing an assigned run because of the strike vio-
lence, and belatedly decided to discharge Knight as a
means of discouraging Knight and other drivers from
continuing to make complaints to management about the
lack of protection and to discourage the other drivers
from joining Knight in refusing runs which they may be-
lieve were too dangerous. I therefore find that the Com-
pany unlawfully discharged Knight on July 2, and there-
after refused to reinstate him, because he engaged in pro-
tected concerted activities with other employees in com-
plaining to management about unsafe working condi-
tions, and in order to discourage Knight and other em-
ployees from engaging in protected concerted activities,
in violation of Section 8(a)(l) of the Act.
The remaining question is whether Knight's refusal to
make the assigned run on June 25 was protected concert-
ed activity for which he was unlawfully discharged.
Relying on the lead case of Alleluia Cushion Co., Inc.,
221 NLRB 999 (1975), and various subsequent cases, the
General Counsel contends that Knight's "refusal to make
his assigned delivery on June 25 was protected concerted
activity in that he was acting not only for himself, but
also on behalf of other employees." The General Coun-
sel argues that "conversations with and testimony of
other drivers clearly show that working during the vio-
lent strike was a matter of moment to all those who had
to drive on the open road," pointing out driver Harlan's
testimony that "Anybody who said he wasn't scared,
probably would have been lying. We tried to figure out
what we could do about it." The G(eneral Counsel also
cites Harlan's statement (in the employee discussion on
June 25, immediately before Knight refused his run) that
"1 feel like we have to be our own judge here" and "I
think for his own safety he should be his own judge
whether he should run or not," and argues: "The state-
ment . . . should be construed as indicating group sup-
port for each driver's individual decision to risk driving
during the strike or not."
On the other hand, the Company argues that the Gen-
eral Counsel's claim that "Knight's refusal was protected
concerted activity because it grew out of his conversa-
tions with other employees," perhaps would have some
validity "if there had been some sort of agreement with
other employees that Knight's refusal would be a symbol
of their concerted concern. But that is not present here.
The only agreement was that of 'every-man-for-himself.'
It was specifically decided that there would be no con-
certed activity. Everyone intended for Knight to act
alone and solely in his own behalf." The Company then
argues:
The General Counsel may attempt to rely on the
line of cases wherein the object of an employee's in-
dividual act is to protest unsafe working conditions.
Under certain circumstances the Board has deemed
such conduct to be concerted activity. See, e.g., Al-
leluia Cushion Co.....
However, it must be remembered that concerted
protected activity under Section 7 of the Act in-
volves two fundamental aspects, the object of the
activity and the nature of the conduct. For an activ-
ity to be found protected, both the object and the
conduct must be protected. Thus, where the object
is protected, but the conduct is unprotected, the
whole activity is unprotected....
Thus, even if it is conceded that the object of
Knight's protest (alleged unsafe working conditions)
was protected, his conduct (refusal to perform his
assigned task [conduct "specifically prohibited" by
rule 23]) was not.
To the extent that Knight's refusal to make the as-
signed run on June 25 was an actual reason for his July 2
discharge (notwithstanding the Company's earlier deci-
sion not to discharge any driver for this reason during
the strike violence), I find that the Company knew that
he was refusing the run as part of a concerted attempt,
on behalf of both himself and other drivers, to have safer
working conditions. The Company knew that he had re-
peatedly met with other drivers in an effort to obtain
some protection during the violent strike, that he had
complained in the presence of other drivers (to Dock Su-
pervisor Davis on June 22) about the danger and lack of
protection, and that he had telephoned another member
of management (Safety Investigator Rogers on June 24),
on behalf of himself and other drivers, to report the re-
peated highway shootings in the area and to seek permis-
sion not to run without some protection. On June 25,
Knight and two other drivers engaged in protected con-
certed activity of arriving early "to try to get some type
OVERNI I-RANSPO()RTATION C()MI'ANY I015
of protection," and at least one of the other drivers
agreed with Knight that each driver should he able. for
his own safety, to be his own judge whether to make a
run during the violent strike. The two other road drivers
were then dispatched to drive in pairs, but Knight as
dispatched to drive alone, at night without protection.
His refusal to make the run was not only for his own
personal safety, but it was also for the purpose of en-
hancing the safety of other drivers by obtaining the
Company's consent to permitting the individual driver,
faced with the strike violence, to decide whether or not
to run.
In Alleluia Cushion, 221 NLRB at 1000, the Board
held that "where an employee speaks up" and takes cer-
tain action "for the benefit of all employees, in the ab-
sence of any evidence that fellow employees disavow
such representation, we will find an implied consent
thereto and deem such activity to be concerted." (Em-
phasis supplied.) As this Decision was interpreted in The
United Credit Bureau of America, Inc., 242 NLRB 921
(1979), "the Board held that in the absence of evidence
that other employees do not share the expressed interests
and concerns, the test of concerted activity is not wheth-
er an employee acts alone without any outward manifi'stu-
tion of support Jior his tfforts but whether his complaint or
objective is a matter of common interest and concern to
his fellows employees." (Emphasis supplied.) Here, how-
ever, the facts are different and I find it unnecessary to
rely on the .lleluia Cushion line of cases. In the present
case, there had been an "outward manifestation of sup-
port" for Knight's action, and there is therefore no occa-
sion to find "an implied consent." It is true that drivers
Harlan and Laskowski had decided that their own runs
that evening (in pairs. in the opposite direction) would
not be unduly dangerous and that they did not join
Knight in his refusal to run (alone), but both of them had
expressed support for his efforts: Harlan by stating his
agreement immediately before Knight's refusal that each
driver should be able, for his own safety, to be his own
judge whether to make a run during the violent strike;
Laskowski by expressing their collective concern about
the violence to Safety Investigator Rogers the night
before and asking whether they would be discharged for
not running; and both of them by meeting with Knight
at the terminal early that evening "to try to get some
type of protection." Under these circumstances, I find
that Knight's refusal to drive alone that evening, without
protection, was part of employees' joint effort to avoid
injury during the violent strike, and was therefore part of
the employees' "concerted" activity.
I reject, as lacking in merit, the Company's contention
that Knight's refusal to make the assigned run could not
be "protected" because the conduct was specifically pro-
hibited by a company rule. Even ignoring the fact that
the Company had earlier decided not to discharge any
driver during the strike violence for refusing a run in
violation of rule 23, such a contention has been specifi-
cally rejected by both the Supreme Court and recently
by the Board. In A'.L.R.B. v. Washington .- lurninum Co..
370 U.S. 9,16-17 (1962), the Court held that an employer
is not at liberty to discharge a man, engaged in concert-
ed activity, because he violated a plant rule forbidding
employees to leave their work without permission of the
foreman. In Ontario KnifJ, Company, 247 NI.KRB No Iht
(198)). the Board held: ''"It is well settled that emploN ccs
have the right to leave work in support of a griexance
pertaining to terms and conditions of emplomenit .
When this occurs, an employer ma\ not lawfully disci-
pline an employee for breaking a company rule concern-
ing leaving work without permission: for to allow it
would abrogate the statutory right to withhold services
in support of a grievance."
Accordingly, I find that the Company unlawfully dis-
charged Knight on July 2, and thereafter refused to reill-
atate him. for engaging in protected concerted actixity in
violation of Section 8(a)( I ) of the Act.
CONCI LUSIONS O L xW
By discharging employee Milo Knight on July 2, 170.
and thereafter refusing to reinstate him, (a) because he
engaged in protected concerted activities \ailh other inm-
ployees in complaining to management about unsafe
working conditions, (b) in order to discourage him and
other employees from engaging in protected cncIerted
activities, and (c) for engaging in protected concerted ac-
tivity by refusing an assigned run to obtain safer ,\orking
conditions for the employees, the Compan\ engaged in
unfair labor practices affecting commerce t ithin the
meaning of Section 8(a)(1) and Section 2(hl and (7) of
the Act.
Having found that Respondent has engaged in certain
unfair labor practices. I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent unla wfully discharged
an employee. I find it necessary to order it to offer him
reinstatement with compensation for lost pay and other
benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement. less net
interim earnings, in accordance with ' HW UWiowlortlh
Company, 90 NLRB 289 (1950), plus interest as comput-
ed in Florida Steel Corporation 231 NLRB 651 (1177).
See, generally, Isis Plumbnhing & Ileating Co., 138 NI.RB
716 (1962).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following:
ORDER:'
The Respondent, ()Overnite Transportation Companl.
Mt. Vernon, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
In the eCe nll no excpI i ron arc file I, ptv-x cd hN So 101 4 at tht
RuleC and Regulationl, nt til e Na.,il, .r I .hor RCI.toiini It l.ld. Ii., tllil
I1gs. llCtIlson. antli rccoll'i icnded ()rdcr h eftrill shall, ;Inp11 i r; l, IHI
Se 1i02 48 iAf the Rule, and Rcgulaltions h, adtpic d h\ II ttshl.l1 aill
hCeClIrt itI filldillgS, oncllIMIS, and ()rdtl, ad all , hic l lllon tpl/lql
shall he deemid skair cd fr All purr .s
I()lh I)'C'ISI()NS ()F NAII()NAL. LABOR RATIONS BOARD
(a) Discharging and refusing to reinstate employees for
engaging in protected concerted activities of complaining
to management about unsafe working conditions.
(b) Discharging and refusing to reinstate any employee
in order to discourage employees from engaging in pro-
tected concerted activities.
(c) Discharging and refusing to reinstate employees for
engaging in protected concerted activities of refusing as-
signed runs to obtain safer working conditions.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Milo Knight immediate and full reinstatement
to his former job or, if his job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously en-
joyed, and make him whole for any loss of pay or other
benefits he may have suffered by reason of the discrimi-
nation against him in the manner set forth in the section
of this [)ecision entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social aecurity 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 its terminal in Mt. Vernon, Illinois, copies
of the attached notice marked "Appendix."4 Copies of
said notice, on forms provided by the Regional Director
for Region 14, after being duly signed by the Respond-
ent's authorized representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that the notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
4 In thre venil Ih;ll his Order is enforced by a Judgment f a ilnted
Staltes Court of Appeals, the woerds inl he noice reading "Ptosted by
()rder of the Nati onal L.abr Relatiots Iloard" shall read "Posted i'ursu-
Lit to a Judgment of the United States, Curt of Appeals Fitforcing an
()Ordler of the National [Labor Relations Btoard