American & Efird Mills

National Labor Relations Board - Board Decisions

Apr 19, 1984

269 N.L.R.B. 1077 (N.L.R.B. 1984)

AMERICAN & EFIRD MILLS
American and Efird Mills, Inc. and Addle L. Jus-
tice. Case 11 l-CA-9973
19 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 27 May 1982 Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. The General Counsel filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the attached decision
and the'record in light of the exceptions and brief
and has decided to affirm the judge's rulings, find-
ings, and conclusions as modified below and to
adopt the recommended Order.
In affirming the judge's ultimate determination
that employee Addie Justice was not engaged in
concerted activity when he refused to drive tractor
number 88 on 18 February 1981, we do not agree
with all of the judge's reasoning and discussion.
Rather, in finding that Justice was acting only for
his own benefit and was not engaged in concerted
activity, we rely solely on the lack of evidence that
Justice discussed his concerns with any fellow
worker and secured their support.
In Meyers Industries,' the Board stated as fol-
lows:
In general, to find an employee's activity to be
"concerted," we shall require that it be en-
gaged in with or on the authority of other em-
ployees, and not solely by and on behalf of the
employee himself.
Thus, the Board no longer finds the activity of an
individual employee to be concerted based on a
presumption that the issue involved is of interest to
other employees.
Justice's refusal to operate a truck was clearly
not concerted activity within the definition set
forth in Meyers. We therefore agree with the judge
that Respondent did not violate Section 8(aXl) of
the Act by discharging Justice.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 268 NLRB 493, 497 (1984).
269 NLRB No. 186
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was heard at Charlotte, North Carolina, on
March 22, 1982. The charge was filed on March 20,
1981,1 by Addie L. Justice, an individual, herein called
Justice, alleging that American and Efird Mills, Inc.,
herein called Respondent or the Company, violated Sec-
tion 8(aX1) of the National Labor Relations Act, herein
called the Act, in the discharge of Justice on or about
February 18. The complaint in the matter issued on June
17 alleging that Respondent violated Section 8(aX)(1) of
the Act by discharging Justice because he had engaged
in concerted activities with other employees for the pur-
pose of collective bargaining and mutual aid and protec-
tion. Respondent filed a timely answer denying that it
had engaged in any violations of the Act attributed to it.
The issue presented by the pleadings and the evidence is
whether Justice was engaged in protected activity under
the Act when he refused to perform his work as a truck-
driver claiming that the truck emitted nauseating and
noxious fumes and asserting it would be against the law
to require that he drive such a truck.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the positions and arguments of the parties, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with a plant in
Mt. Holley, North Carolina, where it is engaged in the
manufacture of textile products. Respondent during the
calendar year preceding the issuance of the complaint
purchased and received goods and materials valued in
excess of S50,000 from points directly outside the State
of North Carolina. During the same period Respondent
manufactured, sold, and shipped goods valued in excess
of $50,000 directly to points outside North Carolina. The
complaint alleges, Respondent admits, and I find, that it
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Material Facts
The facts in this case are not in substantial dispute.
Justice was employed by Respondent as a truckdriver
and had been so employed for a period of 10 or 11
months prior to his discharge on March 10. Justice, who
had about 24 or 25 years of prior driving experience, was
suspended on February 18 as a result of his refusal to
drive Respondent's tractor No. 88. Justice credibly testi-
fied that he had been assigned to drive tractor No. 88 on
February 17,2 and during his driving of the tractor that
I All dates are in 1981 unless otherwise specified.
' Respondent's drivers are not assigned specific trucks. Thus, a driver
may drive one truck one day and a different one the next.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day he noticed some fumes which he found nauseous.
Justice, assuming that the fumes were coming from the
gear shift well, attempted to rearrange some cloth waste
material in the gear well to block the fumes. Justice con-
tinued to smell fumes, however, which, besides making
him nauseous, made him feel lethargic and drowsy.
When he returned to Respondent's plant he reported the
problem to Jimmy King, Respondent's traffic manager
and an admitted supervisor within the meaning of the
Act. Justice testified without contradiction that he told
King the fumes were excessive and were making him
sick. King responded, however, that they had a heavy
workload that day and he could not take the truck out of
service; he asked Justice to go ahead and drive it that
day and after one additional run the following morning
King would take the truck to Diesel Alignment & Serv-
ice, a repair shop under contract with Respondent, to
repair its trucks. Accordingly, Justice continued to drive
tractor No. 88 for the remainder of the day.
On the morning of February 18 during his first trip out
in tractor No. 88 to Lenoir, North Carolina, Justice con-
tinued to smell the fumes that he had smelled the preced-
ing day. As a result he rolled the windows down and
when he returned to the plant he was given some addi-
tional dispatches by the individual acting for King who
was not in at the time. Justice protested that King had
told him the day before that when he had gotten back in
from that trip he could take the truck and have it re-
paired. He was then told to wait until King returned and
talk to him about it. When King returned, Justice re-
minded him of their conversation the preceding day
when King had said that, on his return to Mt. Holley,
Justice could take the truck to have it repaired. Howev-
er, King responded that they had another heavy work
schedule that day and they could not take the truck out
of service since the work had to be done. Justice stated
he did not feel like he could take it another day but King
replied that he would have the truck fixed as soon as
they had a slack day. Justice asked King not to force
him to drive tractor No. 88 and suggested that they let
him drive tractor No. 89 which was sitting on the yard.
King replied that they did not want to use that truck, but
he nevertheless got a key and went out to tractor No. 89
and unsuccessfully tried to unlock it. King then told Jus-
tice that he would just have to drive tractor No. 88 or
go home. Justice then stated that there were state laws
and Federal laws that prohibited the Company from
forcing an employee to drive a truck in the condition
that tractor No. 88 was in. Justice testified that he made
that remark twice to King and also added that he said it
was against the laws of common decency to make him
drive something unhealthy and which was making him
sick. Nonetheless, King persisted stating that he would
either have to drive No. 88 or go home, and that if he
did go home he should not come back because he was
"through."
Justice admittedly refused to drive the truck. Instead
he went to the office of the plant manager, William
Boaz, where he related the problem to Boaz and asserted
to Boaz that he told King that it was against the law to
force anybody to drive a truck like that, and expressed
the hope to Boaz that Boaz could change King's mind.
Boaz, according to Justice, stated, however, that when
Justice had refused an order from his superior he volun-
tarily quit. Justice asked if he would not reconsider let-
ting him keep his job and Boaz responded that he would
put Justice on a 14-day leave of absence at the end of
which time King, who had given notice of resigning to
accept other employment, would be gone and he would
take the matter up with the new traffic manager. How-
ever, Boaz then changed the leave period from 14 days
to 21 days after explaining he did not believe that the
new traffic manager would be on hand at the expiration
of the 14-day period.
At the conclusion of the 21-day period on March 10
when Justice again went in to see Boaz, Boaz stated that
Justice would not be able to return to work. Boaz ex-
plained that he had talked to 10 or 12 people who had
said that Justice was hard to get along with and that he
should not be allowed to return to work. Moreover,
Boaz added that Justice had refused an order and volun-
tarily quit. There was further discussion about inadequa-
cy of Justice's work performance but at the conclusion
of the conversation Justice specifically asked if his dis-
charge was not based on his refusal to drive the truck.
Boaz' reply was that because he had refused to drive the
truck he had voluntarily quit. Justice testified that he
again told Boaz that he thought that there were state and
Federal laws against forcing an employee to drive in an
unsafe or unhealthy situation to which Boaz replied,
"You will just have to sue us."
Although Respondent through Boaz asserted other
grounds for the discharge of Justice, i.e., inability to get
along with other employees, it is clear that it was Jus-
tice's refusal to drive tractor No. 88 which immediately
resulted in his suspension and the investigation that sub-
sequently ended with his discharge on March 10. Plant
Manager Boaz admitted as much. However, Respondent
defends the suspension and discharge on grounds that the
truck was not unsafe and that Justice was not engaged in
concerted activity under the Act when he refused to
drive the truck.
With respect to the safety of the truck, Respondent
presented its employee and truckdriver Vernon Jennings
who testified that he drove tractor No. 88 on February
16, and noticed no fumes or problems. His testimony was
supported by his drivers' log3 which reflected he had
driven tractor No. 88 for 378 miles on February 16. Jen-
nings further testified, credibly I find, that he had also
driven tractor No. 88 on February 23 and 24, after Jus-
tice's suspension, and again noticed no fumes. Respond-
ent's former traffic manager, James King, testified that
he had driven tractor No. 88 around noon on February
18, and had not smelled any fumes. On cross-examination
he admitted, however, that his driving had involved only
moving the truck around the parking lot.
Finally, Roy Sullens, owner of Diesel Alignment &
Service, testified that he had been called on February 19
to pick up tractor No. 88 and check it out. Sullens credi-
bly testified that he drove tractor No. 88 from Respond-
3 R. Exh. I.
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AMERICAN & EFIRD MILLS
ent's plant to his shop, a distance of some 8 miles. 4 He
detected no fumes during this drive. In making general
repairs on the truck, he found nothing which would con-
tribute to extraordinary or unsafe odors or fumes. While
he found a small oil leak in the fuel pump he testified
that such leak would not be the basis for any odor.
There was no fuel leakage found. His invoice on which
Respondent was billed corroborated Sullens' testimony
as to the repairs made.
B. Arguments and Conclusions
The General Counsel, relying primarily on the Board's
decision in Pink Moody, Inc., 237 NLRB 39 (1978), con-
tends that Justice's complaint about fumes involved a
safety matter, and although there was no evidence of
actual support of his fellow employees with respect to
Justice's complaint, the requisite employee support to es-
tablish concerted activity could be inferred because reso-
lution of the complaint would inure to the benefit of all
employees. In this regard, the General Counsel also
relies on Alleluia Cushion Ca, 221 NLRB 999 (1975),
cited in Pink Moody, Inc., supra, as holding that "where
an employee speaks up and seeks to enforce statutory
provisions related to occupational safety designed for the
benefit of all employees, in the absence of any evidence
that fellow employees disavow such representation, we
will find implied consent thereto and deem such activity
to be concerted."
While not specifically cited by Justice at the time of
his suspension of discharge, the General Counsel urges
that the statutory provisions relating to Justice's safety
complaint are found in 49 CFR §§ 392.3, 393.84 (1981).
The first provision, captioned "I11 or fatigued operator,"
reads as follow:
No driver shall operate a motor vehicle, and amotor
carrier shall not require or permit a driver to oper-
ate a motor vehicle, while the driver's ability or
alertness is so impaired, or so likely to become im-
paired, through fatigue, illness, or any other cause,
as to make it unsafe for him to begin or continue to
operate the motor vehicle. However, in a case of
grave emergency where the hazard to occupants of
the vehicle or other users of the highway would be
increased by compliance with this section, the
driver may continue to operate the motor vehicle to
the nearest place at which the hazard is removed.
The second provision simply captioned "Floors," read as
follow:
The flooring in all motor vehicles shall be substan-
tially constructed, free of unnecessary holes and
openings, and shall be maintained so as to minimize
the entrance of fumes, exhaust gases or fire. Floors
4 In a statement given the Board during the investigation of the case,
Sullens asserted he had not driven tractor no 88. He explained this as
simply a mistake and reaffirmed that he had driven the truck to the shop.
I find Sullens to be a candid and forthright witness and, notwithstanding
the contradiction by his pretrial statement or the fact that he could not
be regarded as totally unbiased in the case because of his business rela-
tionship with Respondent, I credit him.
shall not be permeated with oil or gasoline, and
shall have the interior surface in good condition.
Since these provisions or regulations are maintained in
part for employee safety, the General Counsel argues, it
would be reasonable to presume that Justice's fellow em-
ployees would agree with his efforts to insure com-
plaince by Respondent with such regulations. As the
Board said in Alleluia Cushion, supra at 1000, "[T]he con-
sent and concert of action emanates from the mere asser-
tion of such statutory rights."
Respondent argues that tractor No. 88 was, in fact, not
unsafe and that Justice's action and refusal to drive it
was not a protected activity under the Act.
Based on the testimony, which I credit, of Roy Sul-
lens, a qualified mechanic, I must conclude that tractor
No. 88 was not, in fact, unsafe. The absence of a safety
problem is also indicated by the testimony of Jennings
who drove tractor No. 88 substantial distances both
before and after Justice's suspension. But the testimony
of neither Sullens or Jennings can preclude the possibili-
ty of some operational quirk or condition which might
have given temporary rise to a fume problem on tractor
No. 88 which could possibly have warranted Justice's
complaint. Thus, and because Justice, as a witness, con-
veyed the impression of truthfulness while testifying, I
conclude that he did believe he detected fumes which he
found were nauseating to him on February 17 and 18.
Further, in this regard, there was no apparent motivation
shown on the record for Justice to have lied about the
fumes. Moreover, his good faith in the matter is shown
by his willingness to drive another truck. Finally, be-
cause of his 24 or 25 years of experience as a truckdriv-
er, Justice's complaint about the fumes cannot be disre-
garded as the concern of a novice. Accordingly, I con-
clude that Justice had a subjective good-faith belief that
there were fumes present in the operation of tractor No.
88 which made it unsafe to continue driving it over an
extended period of time. I further conclude that he genu-
inely believed that Federal or state statutes protected
him from having to drive a tractor which he perceived
to be unsafe because of fumes. The question presented
then is whether Justice's refusal to drive tractor No. 88
under these circumstances was a concerted activity pro-
tected under the Act.
The Board has long held that a single employee's ef-
forts to enforce the provisions of a collective-bargaining
agreement constitute concerted activity protected under
Section 7 of the Act. See, e.g., McLean Trucking Co.,
252 NLRB 728 (1980); Woodings Verona Tool Works, 243
NLRB 472 (1979); Roadway Express, Inc., 217 NLRB 278
(1975), enfd. 532 F.2d 751 (4th Cir. 1976); Eric Strayer
Co., 213 NLRB 344 (1974); C & I Air Conditioning Inc.,
193 NLRB 911 (1977), enf. denied 486 F.2d 977 (9th Cir.
1973); Interboro Contractors, 157 NLRB 1295 (1966),
enfd. 388 F.2d 495 (2d Cir. 1967); Bunney Bro& Construc-
tion Co., 139 NLRB 1516 (1962). The rationale for this
principle is that implementation of the agreement by an
employee is but an extension of the concerted activity
which had given rise to the agreement. The protection
remains even if other employees are unconcerned with
the asserted violation of the agreement. Woodings Verona
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tool Works, supra. Further, the merit of the employees'
complaint under the agreement is irrelevant to the exist-
ence of protection under the Act so long as the com-
plaint is not frivolous or asserted in bad faith. ARO, Inc.,
227 NLRB 243 (1976). Here again it would appear that
the rationale is that the conduct is concerted because it
arises under the contract. However, it is not necessary
that the employees refer to the applicable contractual
provisions before protection can attach. Woodings Verona
Tool Work, supra; T & T Industries, Inc., 235 NLRB 517
(1978).
The Board has also held that, even in the absence of a
collective-bargaining agreement, individual employee
action may be considered as concerted and, thus, pro-
tected if such action relates to conditions of employment
that are matters of mutual concern to all affected em-
ployees. Pace Motor Lines, 260 NLRB 1395 (1982), Allen
M. Campbell Co., 245 NLRB 1002 (1979); U.S. Stove Co.,
245 NLRB 1402 (1979); Air Surrey Corp., 229 NLRB
1064 (1977), enf. denied 601 F.2d 256 (6th Cir. 1979); Di-
agnostic Center Hospital Corp., 228 NLRB 1215 (1977);
Alleluia Cushion Co., supra. Moreover, the Board has
held that efforts by an employee to insure compliance of
his employer with statutory provisions or Federal regula-
tions relating to working conditions and designed for the
safety and benefit of all employees are protected. See
Pink Moody, Inc., supra; Lloyd A. Fry Roofing Co., 237
NLRB 1005 (1978); U.S. Stove Co., supra; Diagnostic
Center Hospital Corp., supra; G. V R., Inc., 201 NLRB
147 (1973).
The foregoing case law suggests that the action of Jus-
tice in the instant case would be considered as concerted
and therefore protected when he refused to drive tractor
No. 88 on his good-faith, even if mistaken, belief, that it
was unsafe under applicable statutory or regulatory pro-
visions because of fumes. A recent decision of the Board,
Washington Cartage, 258 NLRB 701 (1981), on the other
hand, appears to indicate a contrary result. Thus, in
Washington Cartage, a truckdriver was discharged when,
based on his personal past experience, and the experience
of fellow drivers with whom he had talked, he refused to
drive a particular tractor for a safety reason, its propensi-
ty to "drop trailers." While the administrative law judge
in Washington Cartage found that the driver's "concern
was real enough" and that there existed an objective
basis for the driver's "reasonable concern" over safety of
the tractor, he concluded, with Board approval, that the
concern was based largely on the driver's own inexperi-
ence, and that the problem with the tractor was not a
matter of common concern and interest to other drivers.
Accordingly, the administrative law judge found, again
with Board approval, that notwithstanding the driver's
good faith in his safety concerns his refusal to drive the
tractor did not constitute concerted activity under the
Act. His discharge for refusing to drive the tractor did
not violate Section 8(a)(1) of the Act.
The Washington Cartage case therefore appears to hold
that even safety-related complaints may be unprotected if
such complaints are based on concerns wholly personal
or peculiar to the employee making the complaint. The
"good faith" of the employee in Washington Cartage in
asserting the safety complaint on the belief that others
were also concerned was insufficient to make the com-
plaint concerted and protected.
Washington Cartage can be distinguished from the sub
judice on the basis that in that case the employee in
making his safety complaint did not invoke or allude to
any Federal or state statute. 5 That appears to be a dis-
tinction without a difference, however, since Justice in
the instant case cited no specific statutory provision or
regulation in his refusal to drive. It was only after the
charge was filed that the previously quoted CFR provi-
sions were concluded to have possible application to the
case. Moreover, there is no evidence that Justice was
suspended or discharged because he made a generalized
reference to statutory provisions on safety. Thus, unlike
the case of Alleluia Cushion, supra, or Bighorn Beverage,
236 NLRB 736 (1978), this is not a case of a discharge
for filing a claim, or the expression of an intention to file
a claim, with some governmental body under a statute
relating to, or regulating, conditions of employment.
Rather, Justice was suspended and discharged because he
refused to drive the tractor. Accordingly, I conclude this
case is distinguishable from Alleluia Cushion, supra, and
to that line of cases, and is more in line factually with
Washington Cartage. But see Air Surrey Corp., supra. I
conclude that the mere reference to unspecified statutory
provisions on safety does not ipso facto make Justice's
refusal to drive tractor No. 88 a concerted activity under
the Act. It provided Respondent no knowledge of the
concerted nature of Justice's action which is a necessary
element to the establishment of a violation of the Act.
Diagnostic Center Hospital, supra at 1216. Accordingly, I
conclude that the concerted nature of Justice's conduct
must be based on some other evidence reflecting that his
action was actually, or implicitly, in the common interest
of his fellow employees.
As already indicated, the Board has found that merit
of an employee's complaint arising under a collective-
bargaining agreement is irrelevant to the issue of wheth-
er the employee is engaged in protected concerted activi-
ty. Similarly, the' Board and the courts have held that,
even in the absence of a collective-bargaining agreement
where employees are engaged in concerted action mani-
fested by group activity, the merit of the group com-
plaint is immaterial. NLRB v. Washington Aluminum Co.,
370 U.S. 9 (1962); Union Boiler Co., 213 NLRB 818
(1974). It would appear, however, that where there is no
collective-bargaining agreement the merit of a single em-
ployee's complaint on a safety matter must be corrobo-
I It seems reasonable to assume that operating a tractor which has an
unremedied propensity to "drop trailers" as was the situation in Washing-
ton Cartage would be contrary to some statutory proscription regarding
safety if not a violation of traffic laws. An inference to this effect would
appear to have been appropriate in Washington Cartage in view of dicta
in Pink Moody, supra. There, while no specific statutory provision was
cited by an employee in making a safety complaint regarding malfunc-
tioning truck brakes, the Board observed, 237 NLRB 39, 40:
[C]ompliance with an order to drive a motor vehicle with malfunc-
tioning brakes would clearly violate traffic regulations' and thus any
benefits resulting from [the driver's] refusal to drive such an unsafe
vehicle would inure to the benefit of all of Respondent's drivers.
2 An employer's ordering of a commercially licensed driver to
violate traffic regulations and ordinances would be a matter of grave
concern to all drivers.
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AMERICAN & EFIRD MILLS
rated by at least some objective criteria establishing a
basis for a reasonable belief of the existence of a danger-
ous condition so as to make it a likely concern to more
than just the complaining employee. Washington Cartage,
supra; U.S. Stove Co., supra. Cf. Union Boiler Co., supra;
Tamara Foods, 258 NLRB 1307 (1981). I conclude that,
in the absence of objective evidence of an unsafe condi-
tion, concerted, and thus protected, activity must be
shown by evidence that fellow employees share the
acting employee's concern and interest in the safety com-
plaint. There is no such evidence in the instant case.
No general hazard to employees was shown to exist in
the instant case through the "fumes" detected and ob-
jected to by Justice. No objective criteria existed to cor-
roborate Justice's claim of a dangerous condition. No ob-
jective evidence was presented to show a reasonable
basis for the belief that other employees would be endan-
gered if they were required to operate tractor No. 88 or
that they would be concerned about any fumes from
tractor No. 88. On the contrary, other evidence in the
form of credited testimony of Jennings and Sullens
would reflect no actual hazard present in tractor No. 88.
Jennings detected no fumes either before or after Jus-
tice's suspension, and Sullens could find nothing wrong
with the tractor which would provide a source for the
fumes. There was no evidence that any driver other than
Justice refused to drive tractor No. 88 or that any other
driver experienced nausea or became lethargic while
driving tractor No. 88. Accordingly, although I have
previously concluded that Justice acted in good faith and
had a real concern, I am persuaded that his reaction as
well as his concern was entirely personal and subjective
as was that of the employee considered in the Washing-
ton Cartage case. Accordingly, no basis exists for requir-
ing the inference to be drawn that Justice's complaint in-
volved a general hazard to employees and that he there-
fore was acting for the common good of his fellow em-
ployees and in concert with them when he refused to
drive tractor No. 88. 1 find that Justice's refusal to drive
tractor No. 88 did not constitute protected concerted ac-
tivity, and I therefore find no violation of the Act in Jus-
tice's suspension and discharge. Accordingly, I shall rec-
ommend dismissal of the complaint.
Having found that Respondent did not violate Section
8(a)(l) of the Act in its actions with respect to Justice, I
shall recommend that the complaint be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not committed any unfair labor
practices within the meaning of Section 8(a)() of the
Act with respect to the suspension and discharge of
Addie L. Justice.
On the basis of the foregoing findings of fact and con-
clusions of law and on the entire record, I issue the fol-
lowing recommended 6
ORDER
The complaint is dismissed in its entirety.
6 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 ail objections to them shall be deemed waived for alil pur-
poses.
1081