Roadway Express, Inc.

National Labor Relations Board - Board DecisionsApr 25, 1973

203 N.L.R.B. 157 (N.L.R.B. 1973)

ROADWAY EXPRESS , INC. 157 Roadway Express , Inc. and Clay Donald Ferguson. Case I I-CA-4888 April 25, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY , AND PENNELLO and 8(a)(3), I see no need to consider whether the arbitration award of the Carolina Joint Bi-State Com- mittee satisfied the standards of acceptability set forth in the Spielberg Manufacturing Co.3 and Airco Indus- trial Gases-Pacific cases.4 DECISION STATEMENT OF THE CASE On December 1, 1972, Administrative Law Judge John M . Dyer issued the attached Decision in this proceeding . Thereafter , counsel for the General Counsel filed exceptions and a supporting brief, Charging Party filed exceptions and a supporting brief, and Respondent filed a brief in opposition to counsel for the General Counsel 's exceptions and Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three -member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings , findings ,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the instant complaint be, and the same hereby is , dismissed. MEMBER FANNING , concurring: I concur in my colleagues' adoption of the Admin- istrative Law Judge 's independent findings that Ferguson 's discharge was not a result of his limited advocacy of Professional Drivers Association (PROD) or of his general complaints on safely. The record indicates that Respondent 's sole motivation for discharging Ferguson was not his complaint but rather his refusal to drive a truck which Ferguson had argued was unsafe and which the Respondent, after an investigation , considered safe. Since the record does not indicate any motivation in Ferguson 's discharge violative of Section 8(a)(1) i Charging Party's motion for consideration of a new Labor Department regulation and correction of an error in its brief is granted. The Administrative Law Judge inadvertently referred to Iowa 's senior Senator as Howard Hughes , rather than Harold Hughes. 3 112 NLRB 1080. 4 195 NLRB 676 JOHN M. DYER , Administrative Law Judge : Clay D. Fer- guson was discharged by Roadway Express, Inc., herein called Roadway, Respondent, or the Company , on March 20, 1972,' for the Company's stated reason that he refused to carry out his work assignment and drive a tractor -trailer from Nashville , Tennessee , to Columbia , South Carolina. Ferguson filed a charge in this case on April 7,2 alleging that his discharge violated Section 8(a)(1) and (3) of the Act, but this charge was amended on July 27 to delete the 8(a)(3) allegation and instead allege infringement of his Section 7 rights and violation of Section 8(a)(1) by his discharge. The Regional Director for Region 11 issued the com- plaint in this case on July 28, alleging in addition to the requisite jurisdictional and commerce facts that Respon- dent had terminated Ferguson because he engaged in con- certed activities and that Respondent through Driver Supervisor C. B. Crim had violated Section 8(a)(1) by a statement he made to Ferguson on December 27, 1971. Respondent's answer of August 23 admits the service and commerce allegations , the positions of various Respondent supervisory personnel , and the March 20 termination of Ferguson , but it denies that Respondent has in any way violated the Act. Respondent moved to dismiss the com- plaint because on the same facts an independent arbitral tribunal had held against Ferguson and Respondent argues that the Board should defer to that decision . Specifically Respondent is a party to the National Master Freight Agreement with the Carolina Freight Council and with the Teamsters . Pursuant to that contract Ferguson filed a griev- ance concerning his discharge which was processed with the Company and then before the Carolina Joint Bi-State Grievance Committee, herein called the Committee, which body heard the grievance on April 11 and denied Ferguson 's claim that he had been wrongfully discharged. The answer asserts that this decision of an impartial arbitral panel is final and binding on all parties and should be deferred to and the complaint should be dismissed. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses , and to argue orally at the hearing held on August 30 and 31 in Winston -Salem, North Carolina. General Counsel and Respondent have filed briefs which have been carefully considered. The parties are in basic agreement as to the occurrence of the events but disagree as to whether tractor 5777, which i Unless otherwise stated all the events herein occurred during 1972. 2 Ferguson also filed charge I1-CB-349 against Local Union 391, Interna- tional Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America , herein variously called the Local, Teamsters , or the Union, the bargaining agent for Respondent 's employees , which charge he later with- drew at the request of the Regional Office on the grounds of insufficient evidence 203 NLRB No. 25 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ferguson was driving on March 20, was safe to drive. The evidence produced before me is basically the same evidence which was presented to the Committee with the exception that the manner of presentation differed. At the Board hear- ing witnesses were examined and cross-examined and vari- ous documents offered in evidence. At the Committee hearing, oral presentations were made by Driver Supervisor Crim for the Company and Representative Mabe for the Union. They read selected portions from affidavits and doc- uments and made those affidavits and documents available to the Committee . Ferguson was present and was permitted to make any remarks he thought pertinent to the proceeding and asked if he had any evidence he felt should be adduced. After making some statements Ferguson said he had noth- ing further to offer. It appears that the first question to be answered is the deferral question and I find that the answer to that question disposes of this proceeding. I have determined that under applicable Board law, even though it be possible I might not reach the same conclusions as did the Committee, I should defer to their decision and dismiss this complaint, and I will so find and recommend. On the entire record in this case, I make the following: FINDINGS OF FACTS I THE BUSINESS OF RESPONDENT AND THE UNION INVOLVED Respondent is a corporation engaged as an interstate car- rier of motor freight operating in a number of States in the United States with terminals located in North Carolina, South Carolina, Tennessee, and Virginia. During the past year Respondent received revenues in excess of $50,000 from its interstate freight operations. Respondent admits and I find that it is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. Local Union 391, International Brotherhood of Team- sters , Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 11 THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Undisputed Facts Clay Ferguson started to work for Respondent as an over-the-road driver in August 1963. In December 1971 Ferguson was assigned a trip from Danville, Virginia, to a Pennsylvania destination and had some conversations con- cerning it with his supervisors since his wife was due to have an operation. After encountering some difficulties due to the tractor and due to the trailer load being off-center (a large packing box on a flatbed trailer), Ferguson refused to proceed and was discharged. He filed a grievance which went to the Committee which reinstated him but did not grant any backpay. Ferguson testified without contra- diction that after the Committee 's decision , and in the pres- enco of Respondent's Driver Supervisor C. B. Crim, one of the panel management members of the Committee told him that he had a good job with Roadway and should appreciate working for them and that they didn't want to see him down there anymore. During the several phone calls between Ferguson and Driver Supervisor C. B. Crim, concerning this Danville trip, Crim apparently lost his patience and told Ferguson he was tired of his little jabs and schemes . Crim did not recall the remark , but I do not think that under the circumstances this remark violated the Act. It was not directed to any union or concerted activities of Ferguson . I therefore dismiss para- graph 6 and 6A. On March 20 Ferguson was assigned tractor 5777 for a run from Nashville, Tennessee , to Columbia, South Caroli- na. After reporting to work around 10 a.m., he inspected the tractor and found the seat was loose . A mechanic was as- signed to fix it and he did so. Ferguson mentioned to the mechanic that something was wrong with the transmission in that the gears seemed to be set too close together and didn' t change right. The gear shift was checked and the mechanic reported that nothing was wrong with it. Fergu- son left stating that they would probably have to come after him since on a previous occasion he had a tractor whose gears felt like that and it had broken down on the road. After going a short distance Ferguson noticed some slack in the fifth wheel (the coupling connection between the tractor and the trailer) which caused a jerking motion when the gears were changed or the brakes applied. After getting out on Interstate 40, he noticed a jerking and twisting motion in the tractor cab which started around 25 or 30 miles per hour and got progressively worse through 40 to 45 miles an hour . He testified he was having trouble holding the truck in the road , felt it was extremely unsafe, and stopped after going 5 or 6 miles. He signaled another Roadway truck and asked the driver , Roy Potts , to drive tractor 5777 and tell him what if anything was wrong with it. Potts agreed and drove off in tractor 5777, while Fergu- son followed in Potts' tractor . After driving a short distance Potts pulled over and, according to both Potts and Fergu- son, told Ferguson there was something wrong with the tractor in the way it was jerking around , and he didn't feel it was safe and advised Ferguson to take it back to Nash- ville. Ferguson said he would continue to the nearest truck stop (Hageman's) where Ferguson pulled in and Potts went on to his destination. It was then about noontime and Ferguson called the Nashville dispatcher and told him something was wrong with the tractor . The dispatcher told him to have the me- chanic at Hageman 's check out the tractor and call back. Hageman's mechanic John Buckliew is a small -statured in- dividual with some 4-5 years , experience as a truck mechan- ic. After being told by Ferguson that the tractor was jerking around, Buckliew "road-tested " it, testified he could barely hold it on the road , and reported this to Ferguson and told him that he could not remedy the problem . Ferguson called the Nashville dispatcher , reported what Buckliew said, and put Buckliew on the phone with the dispatcher. Buckliew said it appeared to him that the front end was out of line and the right front tire was cupped , and he couldn 't effect the repairs . The dispatcher then asked Ferguson to carefully drive to Cooksville some 50 or so miles further on where Respondent had a "tire bank " and a man who could change the tire and possibly align the front end. Ferguson refused, saying the tractor wasn't safe on the road. ROADWAY EXPRESS, INC. Ferguson also talked to the main office in Winston-Salem and said that something was wrong with the tractor and that he wouldn't move it . It was decided that the Nashville termi- nal would send a mechanic and a safety man to Hageman's to check the tractor . Mechanic Joe Caudill , who operates a mobile repair business for trucks , and Merritt Williams, Respondent 's safety supervisor for its District 5 , arrived at Hageman 's around 1:30 or 2 o 'clock , conferred with me- chanic Buckliew and Ferguson , and then took the tractor- trailer for a road test . Both Caudill and Williams testified that there was some vibration in the front end around 40 to 42 miles an hour but that it diminished above or below that speed, and they considered the vehicle safe and so advised Ferguson after performing the road test . Ferguson again refused to continue the trip and further phone calls were made. Ferguson contracted Safety Investigator Claude Gatlin, Jr., of the Department of Transportation (DOT) and asked him to check the vehicle . Gatlin , the DOT man got to the truck stop late in the evening of March 20 . In the meantime Respondent had sent driver C. J. Roberts ( 15 years as a company driver) to Hageman 's to take the vehicle on to Columbia , South Carolina , since Ferguson refused to drive it. Gatlin inspected the tractor visually , as had Caudill, and could find nothing visibly wrong with it . Gatlin refused to drive it himself , saying he was not a truckdriver and asked replacement driver Roberts to roadtest it and tell them what if anything was wrong with it . Roberts testified he drove it some 10 to 15 miles , reported to Gatlin and Ferguson that there was a wobble or shimmy in the right front wheel, demonstrated to them some slack in the "fifth wheel" cou- pling between the tractor and the trailer , and said he felt it was safe to drive. Roberts after making this report drove the vehicle on to Columbia , South Carolina, and wrote up a vehicle report stating that there was some slack in the "fifth wheel" and some shimmying in the right front wheel . Roberts testified that the shimmying and wobbling occurred at 35 to 40 miles an hour and that above that speed it stopped. Ferguson was given a bus ticket and left for Winston- Salem . On the following day he received a letter from Re- spondent stating that based on his actions of March 20 his seniority was terminated which in effect meant he was dis- charged. After the unit arrived in Columbia, South Carolina, it was taken over by driver March Logan , who had driven for the Company some 14 years and had been an over-the-road driver for 24 or 25 years . Logan drove the tractor -trailer with the same load to Charleston , South Carolina, where the trailer was dropped . After laying over for 12 hours Logan drove tractor 5777 with another trailer to Winston -Salem, arriving there on March 22. Logan testified that he had spoken to driver Roberts who brought the unit from Hageman's and asked how it was steering, and Roberts told him that it drove alright as far as he was concerned. Logan said he considered the vehicle safe for the road or he would not have driven it. Edward D . Ray, a journeyman mechanic at Respondent's Kernersville shop , has worked some 14 years as a garage- man and mechanic for the Company . On March 22, Ray received a work order on tractor 5777 which had been writ- 159 ten by his maintenance shop foreman , Gary Bennett. The work order stated that he was to repair the clutch which was hard to push , check the fifth wheel for slack , and check the steering and the front end. Ray testified he checked the slack in the fifth wheel with a pin on a handle and found that it did not seem to need adjustment , and so on the work order he wrote in code number 1 indicating that it had been checked and no repairs or adjustments were necessary. He also found that the clutch operated normally and wrote code number I in as the action opposite that direction for repair. Ray testified that in checking the steering he checked the front end and the rear springs and hangers and found the rear spring hangers and pins excessively worn and in his opinion needing replacement . He showed the worn condi- tion to Foreman Gary Bennett and Fleet Manager Healey who was in the garage . A short time later Foreman Bennett told Ray to put the vehicle on the ready line, rating it as serviceable , and not replace any parts . Thereafter Supervi- sor Bennett added to the work order "rear pins and han- gers" and "Road Test OK" and inserted code number 1 beside each . The vehicle was not "road-tested" by either Ray or Supervisor Bennett and was only driven inside the "yard." Tractor 5777 was sent out on another assignment later that day. Ferguson filed a grievance concerning his discharge, which came before the Committee on April 11. A copy of the transcript of that proceeding was received in evidence as General Counsel 's Exhibit 4. A review of the transcript (17 single-spaced typed pages) shows that the Company's position was set forth by Driver Supervisor Crim and Ferguson 's position was given by Union Representative Mabe and amplified by Ferguson . In the Company 's pres- entation Crim said that the mechanic who checked tractor 5777 was journeyman mechanic Ray, who had been a shop steward for the Union , and he offered the drivers' reports and the mechanic 's report . This submission does not indi- cate that some of the code checks were made by Supervisor Bennett and not by mechanic Ray. Mabe for the Union set forth Ferguson 's case including citing from and making available to the Committee statements from Ferguson, from driver Potts , who drove the tractor at Ferguson 's request, from Buckliew , Hageman's mechanic , and from Respondent 's mechanic Don Ray stating he had found the rear spring hangers and pins badly worn and in need of replacement . After this Ferguson was allowed to supple- ment his statement, and he was questioned by the panel concerning the events. Ferguson and Mabe were asked by the Committee if they had anything further to offer and they replied that they did not. The Committee then met in execu- tive session and later announced its decision denying the grievance. B. General Counsel 's Positions Ferguson testified that he had picked up some literature in Cincinnati from an organization known as PROD (pro- fessional drivers), which was begun by Ralph Nader follow- ing hearings before Senator Howard Hughes and whose purpose is to stress safety in the trucking and bus industries. He brought the pamphlets to Respondent's Kernersville ter- 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minal and one of them was placed on the bulletin board. Ferguson did not testify that he sought in any other way to promote PROD or that Respondent had any knowledge of any connection between him and PROD, and he admitted he did not join PROD. A company driver named Merrill who had testified before Senator Howard Hughes' commit- tee pushed PROD and his efforts were known by Respon- dent. General Counsel assumes and seeks a finding that Re- spondent and the Union would be inclined against PROD because of the attacks made by that organization on the safety records of the trucking and bus industries and the attitudes or inaction of management and the Union. There is no proof of the attitude of either Respondent or the Union and such an assumption would have to be made on the basis of PROD's pamphlets. From this.position General Counsel urges that Respondent took a dimmer view of those who made safety objections to equipment than it had prior to PROD's organization. Respondent was aware of PROD and various Respon- dent supervisors may have seen its literature; however, the incidents cited by General Counsel do not establish that Respondent has changed its view of employees complaining about safety conditions. In each of the cited incidents Re- spondent sought to ascertain whether the condition was unsafe or not, sometimes urging drivers to proceed with their equipment, but in each case making the repairs (found necessary) before requiring the driver to proceed. Similarly here Respondent made an effort to determine whether the vehicle was roadworthy or not and determined to its satis- faction that it was. The fact that two experienced drivers drove the vehicle some 800 miles without untoward prob- lems would seem to bear out Respondent's view. I cannot say that Respondent sought to retaliate against Ferguson for anything he may have done in behalf of PROD since there is no evidence that he did anything of which Respondent might be aware, if indeed it is opposed to PROD. From the evidence before me I cannot conclude that Respondent treated driver complaints about safety in a dif- ferent manner after the organization of PROD. It seems clear that in each instance of a complaint concerning safety some attempt was made to determine the validity of the complaint and the problem was remedied before the vehicle was ordered to proceed. Therefore I cannot find that there is any disparity in the way driver's safety complaints were treated after the organi- zation of PROD and I conclude that PROD had nothing to do with the treatment accorded Ferguson. Nor do any of General Counsel's cited events indicate an untoward difference in the manner safety complaints were treated as against other contract violation complaints. Gen- eral Counsel urged that there was a disparity in that one driver was discharged for refusing to take a load of freight directly to a destination, claiming that under the contract the freight should be taken to the Raleigh terminal and then dispatched on a local or "peddle" run by a small truck to its destination . Respondent reinstated this driver after he filed a grievance and granted him backpay without going to the Committee. General Counsel concludes from this, and urges, that personnel discharged for things other than safety complaints were treated more generously by Respondent and accordingly safety complainants were accorded dispa- rate treatment. This seems too much of a jump to me. The facts seem rather to suggest that, where the contract specifically pro- vides what is a "peddle" run and what is not, Respondent may have reviewed the contract, found itself in error, and settled the matter as quickly as possible. The question in the instant case appears to be one of expert opinion, possibly mixed with results, that is, whether the vehicle was roadwor- thy. The issue as to whether a run is a "peddle" run or an over-the-road one would seem clear cut by comparison. I can find no evidence of disparate treatment in comparing these two events. Article 16 of the National Master Freight Agreement provides in part as follows: 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 appli- ances prescribed by law. It shall not be a violation of this Agreement where employees refuse to operate such equip- ment unless such refusal is unjustified. All equipment which is refused because not mechanically sound or properly equipped, shall be appropriately tagged so that it cannot be used by other drivers until the mainte- nance department has adjusted the complaint. After equipment is repaired, the Employer shall place on such equipment an "OK" in a conspicuous place so the driver can see the same. Under no circumstances will an employee be re- quired or assigned to engage in any activity involving 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 government 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. [Emphasis supplied.] This article, particularly the emphasized part, appears to set the stage for the grievance proceeding before the Com- mittee. For, having concluded that the General Counsel's arguments concerning disparate treatment are ill-founded, we come to the last contention, that Ferguson was dis- charged for asserting his Section 7 rights and insisting on performance of the contract. Here Ferguson under the con- tract is asserting his right not to be required to drive an unsafe vehicle. The question then devolves on whether his refusal (again under the contract term ) is justified or not, or further if he is being penalized for asserting his right. But this right must include the obligation of Ferguson being substantially correct in his assessment of the safety factors and not "crying wolf." In essence this is the question that was presented to the Committee. That Committee in reaching its conclusion to deny the grievance had to conclude that Ferguson's refusal to drive the vehicle was unjustified . Possibly bolstering its conclusion is the fact that the tractor was driven some 800 miles without any repairs by experienced drivers after Ferguson 's refusal. It appears then that the Committee considered and decid- ed in essence the same question that I would have to resolve; ROADWAY EXPRESS, INC. that is, whether Ferguson was discharged for enforcing a contractual right . In this circumstance and under the Board's law in Spielberg Manufacturing Co., 112 NLRB 1080, it seems that I should defer to the Committee's deci- sion if the elements set forth in Spielberg are met. In inverse order, the decision of the Committee is not clearly repugnant to the purposes and policies of the Act. The facts are closely balanced and one could conclude either that the truck was safe or unsafe depending on one's assessment of those inspecting the vehicle and its subse- quent use. The parties had agreed to be bound by the Committee decision as evidenced by the contract terms and the partic- ipation of Ferguson, the Union,3 and the Company in the proceeding. The remaining question is whether the proceedings of the Committee were fair and regular. The General Counsel con- tends that they were not because witnesses were not pre- sented for their individual testimony and the therapeutic effects of cross-examination . General Counsel maintains that where confrontation and cross-examination are not present, the traditions of Anglo-Saxon law are so distorted as to make the proceeding not fair or regular and this, he claims , deprived Ferguson of due process. Neither the General Counsel nor Ferguson claims that the hearing was unfair or not regular in any other manner such as was claimed in Denver-Chicago Trucking Company, Inc., 132 NLRB 1416. There the Joint Committee was com- posed of an equal number of management and union repre- sentatives and had functioned in the same manner for some 18 years in disposing of grievances. In the Denver-Chicago case the grievants claimed they had not received a fair hear- ing by having their witnesses interrupted and reprimanded and evidence refused, and by their not being given the rea- sons for the decision after they were requested. No such claims are made in the instant case. The Board in the Denver-Chicago case, despite these greater problems, decided to defer to that arbitral process and in essence passed on the sufficiency of the manner in which the case was held . There was no allegation of collu- 7 The General Counsel appears to hint that the Union did not exert itself in Ferguson 's behalf because of his association with PROD, but nowhere was it alleged or was evidence offered that the Union was dishonest or misleading in its treatment of Ferguson or even that it opposed him or PROD Therefore, that question under Humphrey v. Moore, 375 U. S 335, has no place here. 161 sion between management and union representatives there, nor is there here. It does not appear feasible for the Board or me to estab- lish what is a proper form and manner of arbitral process and determine that without presentation of witnesses and cross-examination an arbitral proceeding is not fair and regular . The Committee has been in existence for a number of years and apparently has developed and followed a pro- cedure which has allowed it to settle grievances and disputes under the contract to the satisfaction of those parties. It would seem presumptuous at this time on the state of this record to tell those parties their procedures are not fair and regular unless there is confrontation of witnesses and cross- examination , and I will not so presume 4 There is no explicit statement by the Committee that it was not dealing with the unfair labor practice aspects of the matter, such as was made by the arbitrators in Airco Indus- trial Gases, 195 NLRB 676, and Kalamazoo Gazette, 193 NLRB 1065. In fact I have found that the Committee's decision is on the same facts on which an unfair labor practice finding would depend . A decision on those facts has been made by an arbitral body whose impartiality has not been attacked . On those facts the Committee found that Respondent was justified in discharging Ferguson for his refusal to continue his assigned trip to Columbia, South Carolina, and in effect found that the vehicle was roadwor- thy. The requisite showings having been made , I hereby grant Respondent 's motions to dismiss the complaint and to defer to the April 11 decision of the Carolina Joint Bi-State Com- mittee regarding Ferguson. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:5 ORDER The complaint is dismissed in its entirety. ° In Honolulu Siar •Bulletm, Lid., 123 NLRB 395, 408, fn. 45, the Board acknowledged that the strict standard of a Board hearing is not necessary before the Board will defer to an arbitration award. 5 In the event no exceptions are filed as provided by Sec. 102 .46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.