Rainbo Bread Co.

National Labor Relations Board - Board Decisions

Feb 13, 1984

268 N.L.R.B. 870 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rainbo Bread Company of Denver and Larry Paul
Davis. Case 27-CA-8088
13 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 9 September 1983 Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief. Respondent filed a brief in response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
We agree with the judge's finding that the General Counsel has failed
to show by a preponderance of the credible evidence that Respondent
discharged employee Larry Davis and that the record supports instead
the contention that Davis "walked away from the situation" and, in
effect, quit prior to a meeting with Respondent scheduled to investigate
the possibility of a discharge. We thus find it unnecessary to pass on the
judge's alternative finding that, assuming a discharge, Davis' refusal to
complete his driving assignment on 12 April 1982 was not protected ac-
tivity within the meaning of Sec. 7 of the Act.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge:
This case was heard in Denver, Colorado, on May 24,
1983. The complaint' dated March 21, 1983, was based
on a charge filed on October 8, 1982, by Larry Paul
Davis, an individual. The complaint alleges that Rainbo
Bread Company of Denver (the Company) violated Sec-
tion 8(a)(1) of the National Labor Relations Act, as
amended.
Issues
The primary issues are:
1. Whether Davis was discharged or whether he quit.
I At the opening of the hearing the caption of the complaint was
amended to show the correct name of Respondent.
268 NLRB No. 125
2. If he were discharged, whether the discharge was
motivated by Davis' protected activity in refusing to
drive his truck under windy conditions which he consid-
ered dangerous.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and the Company.
Upon the entire record of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, a Delaware corporation with its princi-
pal office and place of business at Commerce City, Colo-
rado, is engaged at its plant in Commerce City, Colora-
do, in the manufacture and sale of bakery products. The
Company annually sells and ships goods valued in excess
of $50,000 directly to places outside of Colorado. The
complaint alleges, the answer as amended admits, and I
find that the Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 537 (the
Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
The Company and the Union are parties to a collec-
tive-bargaining agreement covering the Company's sales
and transport employees, which is effective from August
2, 1981, through August 4, 1984. Larry Paul Davis
(Davis), who is alleged to have been discharged in viola-
tion of the Act, was an employee covered by that con-
tract. Article XIV of the contract provides: "The Em-
ployer shall not require an employee to operate any ve-
hicle that is not safe or equipped with safety appliances
prescribed by law." The contract also contains a detailed
grievance and arbitration procedure which includes a
provision for binding arbitration and an agreement that
there will be no lockouts, strikes, or stoppages of work
during the term of the contract.
Davis was employed by the Company for about 8
months, from August 1981 until April 12 or 14, 1982.
The Company contends that he quit his employment on
April 14, 1982, and the General Counsel contends that he
was discharged on April 12. During his term of employ-
ment Davis drove a semitrailer delivering bakery prod-
ucts to different warehousing facilities for the Company.
His immediate supervisor was Transport Supervisor
George Wright, who in turn reported to General Sales
Manager Charles Andres. 2
2The complaint alleges, the answer admits, and I find that Wright and
Andrews were supervisors within the meaning of Sec. 2(11) of the Act.
870
RAINBO BREAD CO.
In the early morning of April 12, 1982, Davis was
driving a truck with a 50-foot trailer between Ft. Collins,
Colorado, and Laramie, Wyoming. He had stopped at
Ft. Collins, Colorado, to unload some bakery products
and racks. Davis testified that he was carrying a heavier
load than on other nights, but the truck was less than a
quarter full and he had a "light load."
About I a.m. on April 12 Davis was about 10 miles
out of Ft. Collins driving on Route 287 toward Laramie,
which was still about 39 miles away. He was driving at
30 to 35 miles an hour in a 40-mile-an-hour speed limit
area when the wind caught his tractor-trailer and lifted it
so that its left wheels were off the ground and he was
put in the path of an oncoming truck. His truck then set-
tled down and the other truck passed without incident.
Davis spoke to the other truckdriver on a CB radio and
the other driver told him that the winds were worse
going further north toward Laramie. Davis turned his
truck around and returned to the Ft. Collins' warehouse.
These findings are based on the testimony of Davis.
Davis did not know the name of the other truckdriver
and there were no witnesses who were in a position to
contest or corroborate Davis' testimony in this regard.
As indicated below I have serious reservations concern-
ing Davis' credibility, but it is certain that something
turned Davis around and even though it may have been
exaggerated, his testimony concerning adverse wind con-
ditions did appear plausible. The Company called several
witnesses with regard to wind conditions that night.
Austin Hamilton is a truckdriver for Continental Baking,
a competitor of the Company. He testified that he was
driving a truck similar to Davis' about the same location
and time as Davis, that there were 30- to 40-mile-an-hour
winds, that he did not have any problems, and that he
made his delivery on schedule. He also averred that,
when there are high winds, he simply slows down and
proceeds at a reduced speed. Bob English was truckdriv-
er for the Company for 15 years. He testified that he was
driving similar equipment to Davis' about the same time
and place on April 12, that the wind was blowing
enough to cause him to slow down a little, but he made
his deliveries close to schedule. Donald Flynn is trans-
port and shipping superintendent for Wonder Bread, a
competitor of the Company. He testified that part of his
job was to monitor travel advisories and to make sure
that roads were passable and trips could be made safely.
He also testified that his trucks were similar to those of
the Company; that his trucks operated on April 12 with
no shutdowns; and that he called the Highway Patrol on
the morning of April 12 and was told that there were
high winds but that the roads were not shut down. He
averred that he was not advised to pull his trucks off the
road. Though the experiences of those witnesses were
different from Davis' on the night of April 12, their testi-
mony does not necessarily contradict that of Davis. A
typical gust of wind could very well have caught Davis
and not affected other trucks in the nearby area. Howev-
er the testimony of the other witnesses makes it clear
that the overall conditions in the area at the time in ques-
tion were not in fact unsafe and that many trucks did
follow Davis' route with no untoward incidents.
Davis arrived at the Ft. Collins warehouse between 1
and 1:30 a.m. From the warehouse he called the High-
way Patrol dispatcher's office and spoke to a dispatcher
named Jay.3 The Highway Patrol dispatchers (referred
to as dispatchers) are state employees who communicate
messages and relay policy for the Colorado Highway
Patrol. One of their functions is to give information
about weather advisories to members of the public who
call. The dispatchers are not sworn officers and cannot
give orders to drivers.
Davis testified that he told dispatcher Jay that he was
a driver for the Company, described his truck, and said
that the wind was blowing pretty hard where he was.
He testified that he asked Jay what the wind conditions
were further north and that Jay answered by saying that
the wind conditions were a lot worse, that the highway
was shut down to light loads, mobile homes, and emp-
ties, and that Davis was to "shut it down" and call back
in 2 hours. Jay did not testify. Lieutenant Phillip Tipton
of the Colorado State Patrol did testify. He averred that
under a travel advisory the State Patrol can restrict cer-
tain traffic and can enforce that restriction by giving ci-
tations or requiring a vehicle to park. He also averred
that a dispatcher is not a sworn officer and has no au-
thority to give orders. Tipton wrote a letter to Davis
dated April 23, 1982, which stated:
On April 12, 1982, there was a travel advisory on
Colo. 287 due to high winds. This advisory applied
to semi's, campers, towed vehicles, and house trail-
ers. When there is an advisory discouraging travel,
we expect compliance.
According to our records, you called and were told
by our dispatcher not to move your truck until the
winds subsided. We appreciate your cooperation in
complying with the travel advisory.
I have reservations concerning the accuracy of Davis'
testimony. It is unlikely that the dispatchers, whose duty
was simply to pass on information, would have made an
evaluation of whether a 50-foot trailer with a partial load
of produce and racks constituted a light load or not. De-
spite these reservations, on the basis of Tipton's letter, I
credit Davis' testimony that he was told by the dispatch-
er to "shut it down."
About 2 a.m. that day Davis called his supervisor,
George Wright, at Wright's home. Davis said that there
were high wind conditions, that the dispatcher had said
to shut the truck down, and that he was shutting down
at Ft. Collins. Wright told him to sit tight at Ft. Collins
until he got back to him.
Immediately after speaking to Davis, Wright made
three telephone calls. He called the Laramie port of
entry, the Ft. Collins port of entry, and the Colorado
Department of Highways in Ft. Collins. On each call he
asked about road conditions and he was told that there
were high winds. None of the state officials indicated
that there were any road closures. The Laramie port of
S Davis did not know Jay's last name.
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entry told him that the wind was blowing but traffic, in-
cluding high profile trucks, was still going through.
About 3 a.m. Wright called Davis. Wright said that he
had verified the road conditions, that Route 287 as well
as 1-25 was open, and that Davis was to choose one of
the routes and continue on his run. Davis said that he
would see what he could do about it. At that point
Wright had the impression that Davis would continue
the run.'
Davis stayed at Ft. Collins and about 4 a.m. once
again called dispatcher Jay. Jay told Davis that the
winds were not dying down and if anything were getting
worse, and that he should keep right where he was.
Davis asked about conditions on Route 1-25 and Jay said
that the wind restrictions were there as well and that
Davis should stay where he was and call back about
sunup. Davis stayed at Ft. Collins and he did not call
Wright about that conversation with Jay.
Shortly before 6 a.m. that day the Company's general
sales manager, Charles Andrews, was informed by super-
visors in Laramie, Wyoming, that Davis' truck was still
in Ft. Collins and that it had been there for some time.
Andrews called the port of entry in Ft. Collins and was
informed that there were wind restrictions but traffic had
been moving all night on both Route 287 and 1-25 to
Cheyenne. He then called the port of entry in Cheyenne
and was told that traffic had been moving all night on I-
80 between Cheyenne and Laramie, and that the only re-
striction the highway department had placed was on traf-
fic involving trailer homes. Andrews also called the port
of entry in Laramie, Wyoming, to determine the status of
Highway 287 from Laramie to Ft. Collins and was told
that traffic had been moving in a normal manner to
Route 287 all night. At that point Andrews called Davis
at Ft. Collins to see whether Davis was going to proceed
with the run. Andrews told Davis what he heard from
the ports of entry. Davis said that as long as the winds
were blowing, he was not going to continue on his
scheduled run. Davis then said that he had two previous
employee conferences involving accidents, that he was
not going to jeopardize his job by driving, and that if
Andrews gave him a guarantee that he would not lose
his job if the truck blew over, he would go ahead and
drive. Davis began to use foul language directed at An-
drews and Andrews hung up the phone.
5
4 These findings are based on the testimony of Wright. Davis, in his
testimony, did not refer to this conversation. Wright's testimony was in-
ternally consistent and his demeanor on the stand was such as to instill
confidence in his veracity. As indicated by the discussion of Davis' subse-
quent conduct with regard to his remarks to Andrews, his failure to
attend meetings with company officials, and his antagonism to his own
union representatives, which matters are set forth below, it appears that
Davis was an emotional man whose passions were capable of overruling
his judgment and clouding his perceptions. Where his testimony conflicts
with that of Wright, I credit Wright.
' These findings are based on the testimony of Andrews as well as
some admissions by Davis. Davis testified that Andrews told him to make
the run; he told Andrews that he would go when it was safe; Andrews
told him to take 1-25; he told Andrews that there were wind restrictions
there as well and that the highway patrol had told him to shut down;
Andrews said that he did not "give a damn" what the highway patrol
said and that he should go or else; he said that he would not go unless
Andrews guaranteed him that he would not lose his job if the truck blew
over; Andrews told him that he better not wreck the truck; and he said
he would not go until the highway patrol said it was safe. As indicated
After speaking to Davis, Andrews called Wright. He
told Wright that he had spoken with Davis, that Davis
was not going to continue the run; and that Wright
should take another employee, Jess Larkin, to Ft. Col-
lins, and have Larkin complete the trip. He also told
Wright to bring Davis back with him.
After speaking to Andrews, Wright called Ft. Collins
and spoke to Davis. Wright told Davis to get the truck
on the road on either route that Davis thought safest but
to get it rolling. Davis said that he would not move the
truck because of the high winds. Wright repeated to
Davis the information he had received from the state au-
thorities. Davis asked what would happen to him if he
did not drive and Wright said there would be discipli-
nary action taken and possible termination. Wright then
told Davis that Wright would pick up a relief driver and
meet Davis in Ft. Collins. Davis agreed to that. These
findings are based on the testimony of Wright. Davis tes-
tified that he had two conversations at or about 6 a.m.
with Wright rather than the one conversation testified by
Wright. I credit Wright. Davis testified that in the first
conversation he called Wright and Wright said that An-
drews was threatening to fire Davis. Davis testified that
after talking to Andrews, he again called Wright and
said that he had decided to go ahead with the run. Davis
averred that Wright told him they already had a driver
there to replace him and that he was fired. Davis also
averred that he asked Wright if Wright was going to
bring him back to Denver; that Wright told him it would
not look right if he brought him back, and that Davis
should find his own way. Wright specifically denied tell-
ing Davis that Davis was fired and specifically denied
telling Davis that Davis could not ride back with him.
Wright averred that he told Davis that he would bring a
relief driver to relieve him and that they would talk
about it when they got back to Denver. I credit Wright's
version of the conversation and I do not credit Davis.
6
About the time of his conversations with Andrews and
Wright, Davis once again called the dispatcher's office.
This time he talked to a dispatcher named Elsie Schnor.
The dispatcher said the travel advisories were still in
effect and that if he did drive it was at his own risk.
Davis asked whether that meant he should shut down
and the dispatcher told him not to move the truck.
When Wright arrived with the replacement at Ft. Col-
lins, Davis was no longer there. He had hitchhiked back
to Denver.
Shortly after his 6 am. call to Davis, Andrews called
the Union. He spoke to Paul Rummage, who was secre-
tary-treasurer and business agent of the Union.7 He ex-
above, I have serious doubts with regard to Davis' credibility based both
on his demeanor and the substance of his testimony. I have no reason to
doubt Andrews. Where their testimony conflicts, I credit Andrews.
6 As is set forth below, later that morning Andrews called the Union
to arrange a meeting with company representatives, union representa-
tives, and Davis. It appears that Andrews was contemplating disciplinary
action of some kind against Davis. If Davis had already been fired as he
claimed, it is unlikely that the Company would have been the one to ar-
range the meeting. It is also noted, as is set forth more fully below, that
later that morning when Davis spoke to his union business agent he told
the business agent that Wright had told him he probably would be termi-
nated if he did not move the truck. He did not tell the business agent that
he had been fired.
I Rummage died sometime prior to the hearing.
872
RAINBO BREAD CO.
plained the situation concerning Davis to Rummage and
scheduled a meeting for that morning, which the Union
and Davis were to attend.
After talking to Rummage, Andrews filled out part of
a "Conference With Employee Record" form and signed
it. The initial section of that form sets forth the details of
Davis' refusal to make the delivery. The next section,
which was entitled "Employee's Viewpoint or Side of
the Problem Expressed During the Conference," was left
blank. The final section, which was entitled "Basis On
Which the Employee Conference Was Finalized," stated:
Since the State Patrol has not closed the Highways
and had only issued high wind warnings and ad-
vised caution it is Rainbo Bread Co. decision that
Larry should have continued his scheduled deliv-
ery, due to his refusal-termination of employment
will be effective 4/12/82.
Andrews testified that that form was typed up in antici-
pation of the meeting that was scheduled between the
Company, the Union, and Davis for that morning and
that it was to be used only in the event that the decision
after the interview was to terminate. As indicated below
the meeting was never held. Andrews averred that the
form was not used and that Davis was not terminated on
April 12. The Company's employment records show that
Davis' last day worked was April 11, 1982, and also
show his termination as of that day. In one employee
record the reason given for termination is "terminated."
On another record the reason for separation is given as
"terminated." Andrews testified that in all company
forms the word "termination" is used whether an em-
ployee quit or was discharged. There was no evidence to
refute that contention and I believe that Andrews was a
credible witness. I credit both his assertion that the
"Conference With Employee Record" was prepared as a
draft to be used in case a final decision was made to dis-
charge Davis after the interview with Davis and his
union representative. I also credit Andrews' assertion
that the word "termination" on the employee records
was neutral and did not indicate either discharge or quit.
About 8 a.m. on April 12, Davis called the Union and
spoke to Business Agent Edward Modecker. He told
Modecker of the problem he had with high winds. Mo-
decker then called Andrews and learned that a meeting
had been scheduled to take place whenever Davis came
back from his route. About 9:30 a.m., Davis appeared at
the union office and told Modecker that he did not want
to meet with the Company that morning because he was
too nervous and upset. Modecker then called Andrews
and canceled the meeting. Davis told Modecker that he
almost had an accident; that he went back to Ft. Collins;
that he called the dispatcher, Jay Lawrence, who told
him to shut down his vehicle due to wind restrictions;
that later he spoke to another day dispatcher named
Elsie; and that he had called Wright and said that he
would not move his vehicle because of what the High-
way Patrol had said. Modecker credibly testified that
Davis told him that he had been informed by Wright
that if he did not move the vehicle, he would probably
be terminated. Modecker also credibly testified that
Davis did not tell him that he had already been fired.
Because Davis did not want to meet with the Compa-
ny on April 12, Modecker rescheduled the meeting with
the Company for April 14, 1982.
Sometime between his April 12 conversation with
Davis and the meeting that had been scheduled for April
14, Modecker undertook an investigation of the situation.
He called dispatcher Elsie on the telephone and asked
her what she had told David. Elsie replied that she had
told Davis that there were wind restrictions on the road.
He asked her if she told Davis to shut down a vehicle
and that she had just told Davis that there were wind re-
strictions on the road. Modecker then called dispatcher
Jay Johnson and asked him the same thing. Johnson said
that he had told Davis that if possible Davis should wait
for daylight to move the vehicle and that it would be
safer if he could wait until morning. Johnson said that he
did not have authority to tell Davis to shut down.
The meeting between Davis, the Union, and the Com-
pany had been scheduled for 9 a.m. on April 14. Shortly
before 9 a.m. that day Davis met with Modecker and
Union Secretary-Treasurer Rummage in the company
parking lot. Rummage told Davis that they had checked
with the dispatchers and had talked to drivers from Con-
tinental Baking who had made the run and there could
be a problem. Davis replied that that was what he
thought they were going to say; that he had been driving
for 18 years; that he could find a job any place he
wanted to; and that he did not want to meet with An-
drews. 8
Davis got into his car and drove off. Modecker and
Rummage then went into the company facility and met
with Andrews and Wright. Rummage told Andrews and
Wright that Davis said that he was not going to attend
the meeting and was going to quit."
Davis filed a grievance dated April 16, 1982, in which
he complained that he was unjustly terminated for failing
to run when he had been told by the highway patrol not
to move his truck. About a month later Andrews met
with Davis and Modecker to discuss the grievance. An-
drews took the position that Davis had voluntarily quit
and that the Company was under no obligation to rein-
state him. 10
On October 8, 1982, Davis filed the charge in the in-
stant case. He also filed a charge against the Union
claiming that the Union had unlawfully failed to fairly
I These findings are based on the testimony of Modecker. Davis testi-
fied that Rummage told him that he was going to the meeting and ar-
range to have it called a voluntary quit instead of a firing and that he
(Davis) became angry and said "I don't need this job, forget it." I credit
Modecker and I do not credit Davis.
I This finding is based on testimony of Andrews and Wright. Mo-
decker testified that he did not recall saying that Davis told him that he
was going to quit. He averred that Andrews said that as far as he was
concerned, Davis had quit because he had not attended the meeting. Al-
though I believe all three witnesses were honestly trying to recall the
event, Wright's corroboration of Andrews persuades me that Andrews'
recollection of the incident was more accurate than Modecker's.
'o This finding is based on the testimony of Andrews. Davis testified
that Andrews said that he (Davis) had not attended the first meeting and
the firing stood. I credit Andrews and not Davis.
873
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represent him. That charge was dismissed by the General
Counsel and is not an issue in this case.
About a week or two prior to the April 12 incident
Davis told another company truckdriver, Bob English,
that he (Davis) was not happy with his job and that he
would like to leave.
B. Analysis and Conclusions
The complaint alleges that Davis was discharged in
violation of the Act. The threshold question is whether
Davis was in fact discharged. If he were not, then the
complaint must fail.
The issue turns on credibility. Davis testified that
Wright told him that he was fired. Wright, in his testi-
mony, denied that he either fired Davis or told Davis
that he was fired. Davis' testimony is buttressed by the
language of the Company's "Conference With Employee
Record" which states as the "basis on which the employ-
ee conference was finalized" that due to Davis' refusal to
drive, his termination would be effective on April 12,
1982. In addition the use of the term "terminated" on
other company records tends to support Davis' conten-
tion. However, the "conference" on which the "Confer-
ence With Employee Record" was to be based never
took place and Andrews' testimony that that document
was simply an unused draft that was made up in anticipa-
tion of the conference was credible. Andrews' testimony
was also credible concerning the company policy of uni-
formly using the word "termination" on company
records to indicate both "quit" and "discharge." As indi-
cated in more detail in the discussion above, there were a
number of other reasons to credit Andrews and Wright
over Davis, not the least of which was their testimonial
demeanor. The Company and the Union maintained and
enforced a collective-bargaining agreement covering em-
ployees in Davis' classification. That contract contained
a detailed grievance procedure. The Company took the
position, in effect, that before it was going to take a final
personnel action regarding Davis, company officials
were going to meet with the Union and Davis. That po-
sition is not inherently unbelievable. It is clear from the
"Conference With Employee Record" as well as
Wright's and Andrews' remarks to Davis that they were
seriously considering taking action against Davis. Davis
quite correctly perceived that his job was in jeopardy.
However, it was the Company and not the Union who
set up the meeting with Davis and the Union for April
12, 1982. It is likely it would have been the other way
around if Davis had been discharged. Modecker credibly
testified that Davis informed him that Wright had said
that Davis would probably be fired. That language
would not have been used if Davis had already been no-
tified of a discharge. On April 14 Davis was apparently
upset with his own representatives because they had in-
vestigated the situation and found facts that were not
very favorable to him. He showed his pique at both the
Company and the Union by telling his representatives
that he did not need the job and by failing to attend the
scheduled meeting, as he had failed to attend the meeting
on April 12. His actions and statements as a whole were
more indicative of his belief that he was likely to be fired
than that he had already been fired. A few weeks before,
he had told an employee that he was unhappy with
working for the Company. When the August 12 incident
happened he simply walked away from the situation. The
company officials may have been very pleased by Davis'
action because it relieved them of the necessity to make
a decision whether to effectuate his discharge. However,
that did not constitute a discharge. In sum, I find that
the General Counsel has not established by a preponder-
ance of the credible evidence that the Company dis-
charged Davis and therefore, the allegation that Davis
was discharged in violation of the Act must be dismissed.
Moreover, even if the General Counsel had established
that the Company discharged Davis, under the particular
facts of this case, I do not believe that the discharge
would have been in violation of the Act.
Section 7 of the Act protects employees in their right
"to engage in ... concerted activities for the purpose of
collective bargaining or other mutual aid or protection
.... " There has been extensive litigation and many
conflicting Board and court decisions relating to the
question of when an action by an individual can be con-
structed as protected concerted activity. For the pur-
poses of this case there are two primary lines of ap-
proach. The first relates to situations where there is no
attempt to enforce a collective-bargaining agreement but
the individual action is keyed to the common concern of
employees. This area of the law is rapidly evolving and
is far from clear. See Administrative Law Judge William
J. Pannier III's discussion of this issue, Enterprise Prod-
ucts, 264 NLRB 946, 948 (1982), also see the analysis en-
titled "Rejection of Doctrine of Constructive Concerted
Activity," 112 LRRM Analysis 45, March 21, 1983.
However, in situations similar to the instant case, where
fellow employees do not share the concern of an individ-
ual who complains about the safety of a truck, where the
condition of the truck is of moment to the individual
alone and there is no evidence on which an inference can
be made that other employees made common cause with
the individual, then the individual's activity would not be
considered protected activity. Comet Fast Freight, 262
NLRB 430 (1982). The second situation arises where the
individual's activity relates to an attempt to enforce a
contract provision regarding employee rights not to be
compelled to operate unsafe equipment. The Board has
held that in such circumstances an employee's refusal to
operate the equipment, where that refusal is based on the
employee's reasonably held good-faith belief that the
equipment is unsafe, is an activity protected by the Act.
American Freight System, 264 NLRB 126 (1982). See also
Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388
F.2d 495 (2d Cir. 1967). That conclusion is based on the
premise that the employee is acting not only in his own
interest but is attempting to enforce the contract provi-
sion in the interest of all the employees covered by the
contract. Some court of appeals have agreed with the
Board and others have not. The issue is now before the
United States Supreme Court in NLRB v. City Disposal
Systems, No. 82-960, cert. granted March 28, 1983
(appeal from 683 F.2d 1005 (6th Cir. 1982)), denying en-
forcement to 256 NLRB 451 (1981). As the Supreme
Court has not yet ruled, I am bound by Board precedent.
874
RAINBO BREAD CO.
However, that precedent indicates that the individual's
action in attempting to enforce the contract claim is only
protected where it is based on the employee's reasonably
held good-faith belief that the driving would be unsafe. I
do not believe that the evidence supports the contention
that Davis' actions were based on such a good-faith
belief.
Davis was driving at 30 to 35 miles an hour when the
side of his truck was lifted by the wind. He was told by
another truckdriver that the wind was stronger down the
road. He turned his truck around and went back to Ft.
Collins. Upon calling the state highway dispatcher, he
learned that there was a wind advisory and that the road
was shut down to light loads. He was advised to shut it
down and call back later. Up to that point there is no
questioning concerning Davis' good faith. When he
called, Supervisor Wright then checked the situation
with three different state authorities that had knowledge
of the road conditions. The information he received indi-
cated that there was nothing to prevent Davis from car-
rying out his assignment. Wright relayed that informa-
tion to Davis, but Davis still did not continue the trip.
Davis made other calls to the highway dispatcher and
received advice similar to that he obtained from the first
dispatcher. In the meantime, Andrews made a number of
calls to state officials and found that there was no prob-
lem with Davis continuing the run. Andrews reported
those conversations to Davis, but Davis still refused to
make the delivery. At that point there is still a serious
argument that Davis was acting in good faith. There
were conflicting reports with regard to matters that
could affect his safety and the sincerity of his belief
rather than the fact of danger was controlling." Many
other drivers made the run without difficulty, but that in
itself did not affect the question of Davis' good faith.
However, as Davis was a driver with 18 years' experi-
ence, there is some question whether Davis' evaluation
of the situation was really different from that of the
other experienced drivers who did successfully make the
trip. There is even some question whether he really be-
lieved he had a "light load" that was subject to the wind
advisory. Other drivers indicated when they ran into dif-
ficulty with wind conditions they merely slowed down
and avoided any problem. 12 Davis made no effort to
continue his run at a lower rate of speed. He told An-
drews that he had had two previous employee confer-
ences involving accidents and he demanded a guarantee
that he would not lose his job if the truck blew over.
" American Freight Systems, 264 NLRB 126 (1982).
t1 State Patrol Lt. Tipton testified that in his experience the speed of a
truck could be irrelevant with regard to wind problems and that a parked
truck could be blown over. However, the speed of a truck does cause
one of the vector forces acting on the stability of the truck and the
strength of that force does depend on the speed of the truck.
That statement indicated that Davis' real concern was his
dissatisfaction with the Company's actions regarding his
previous accidents and not with his personal safety. If
Davis really thought that he would put himself in danger
of injury by driving the truck, it is not likely he would
have said he would continue to drive with that type of
guarantee. Many of Davis' subsequent actions indicated
that he was not really interested in the safety question or
even in his job, but that he was merely expressing his
personal animosity toward his employer. Instead of wait-
ing to be picked up by Wright and returning for a con-
ference with Andrews, he left the truck and hitchhiked
to Denver. He told his union representative he did not
want to meet with Andrews that morning. On April 14,
before the next scheduled meeting, he expressed his re-
sentment against his own Union when union officials told
him the results of their investigation of the incident. He
also expressed a lack of interest in his job and refused to
attend the scheduled meeting with the company officials.
Article XIV of the collective-bargaining agreement
states that the employer shall not require an employee to
operate any vehicle that is not safe. There is no evidence
that the vehicle in question here was in itself usafe. I be-
lieve the contract clause broad enough to cover situa-
tions where! the driving of the equipment is unsafe be-
cause of external conditions such as high winds. Howev-
er, viewing all the circumstances and Davis' actions as a
whole, I do not believe that it can be fairly said that his
continued refusal to drive the truck was based on his rea-
sonably held good-faith belief that the driving would be
unsafe and that he was simply attempting to enforce a
contract provision. I therefore find that his refusal to
drive the truck was not a protected activity.
CONCLUSIONS OF LAW
I. The company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has not established by a pre-
ponderance of the credible evidence that the Company
violated the Act as alleged in the complaint.
On these findings of fact and conclusions of law, and
on the entire record, I issue the following recommended
ORDER l s
The complaint is dismissed in its entirety.
II If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
875