Dworkin, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1991

301 N.L.R.B. 1158 (N.L.R.B. 1991)

1158
301 NLRB No. 144
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative 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 reversing the findings.
1 All dates are 1990.
Dworkin, Inc. and Daniel E. Fletcher. Case 8–CA–
22475
February 28, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On October 3, 1990, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief answering the
General Counsel’s exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Paul C. Lund, Esq., for the General Counsel.
Mark V. Webber, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Cleveland, Ohio, on July
19, 1990, pursuant to charges and amended charges filed by
Daniel E. Fletcher on February 22 and April 5, 1990, and
complaint issued on April 6, 1990, alleging Dworkin, Inc.
(Respondent) unlawfully discharged Fletcher on February 7,
1990,1 because he engaged in concerted activity protected by
the National Labor Relations Act (the Act). More specifi-
cally, General Counsel contends Fletcher was terminated be-
cause he reasonably and honestly invoked rights provided for
in the collective-bargaining agreement between Dworkin, Inc.
and Local Union No. 407, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO (the Union). Respondent denies the unfair
labor practice allegations in the complaint, and raises affirm-
ative defenses in its answer to the complaint. Those defenses
are (1) the complaint fails to state a complaint on which re-
lief can be granted, (2) Fletcher is barred from relief because
he failed to exhaust contractual remedies and the Board
should defer to the contractual grievance procedure, and (3)
Fletcher was terminated in accord with the terms of the col-
lective-bargaining agreement. Affirmative defenses (1) and
(2) are without merit because the complaint does state a
cause of action and Fletcher was a probationary employee
without access to the contractual grievance procedure. Item
(3) may be a defense if Fletcher had been eligible to and had
filed a grievance, but it is not a defense to the unfair labor
practice here alleged.
On the entire record, and after consideration of the testi-
monial demeanor of the witnesses and the posttrial briefs of
the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits, and I find Re-
spondent is an Ohio corporation with its principal place of
business located at Cleveland, Ohio, and is a common carrier
in the interstate and intrastate transportation of freight and
commodities. Annually, in the course and conduct of this
business, Respondent derives gross revenues in excess of
$50,000 from the interstate transportation of freight and com-
modities, and is now, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Relevant Facts
Fletcher, a union member, became a truckdriver employed
by Respondent on January 16 in a 30-day probationary status
as provided by a collective-bargaining agreement between
Respondent and the Union. The agreement further provides
a probationary employee may be discharged during the 30
days without further recourse.
On February 4, Fletcher was scheduled to haul steel from
Cleveland, Ohio, to Louisville, Kentucky. That same day he
read a newspaper article reporting an incident near Peebles
in southern Ohio where shots fired at a convoy of tractor-
trailer trucks resulted in the wounding of two men and dam-
age to six trucks. The trucks were traveling from Armco
Steel in Middletown, Ohio, near Dayton, to Armco Steel at
Ashland, Kentucky. It was suspected the shooting was re-
lated to a wildcat strike by independent truckers protesting
high fuel costs and low hauling rates. No arrests were made.
The article does not directly lay the incident at the feet of
the strikers.
After reading the article, Fletcher called the Kentucky
State Police and asked if there was any trouble in the Louis-
ville area. He was told there was not. On the following day,
February 5, he delivered the load to Louisville. He then
called Respondent’s dispatcher and was directed to go to
Middletown, Ohio, where he took lodging in a motel. That
night the dispatcher called him and directed him to pick up
a load at Armco Steel in Middletown and deliver it to
Lordstown, Ohio.
According to Fletcher, on February 6, as he was waiting
to be loaded at Armco’s Middletown facility, another truck-
1159DWORKIN, INC.
2 This driver’s identity is unknown.
3 Smith is no longer a Dworkin employee and did not testify.
4 I credit Little’s testimony that she proffered alternate routes to Fletcher.
Her testimony in this regard was convincing and probable. His bare denials
on this score were not convincing and are not credited.
driver2 showed Fletcher a hole in the windshield of his vehi-
cle and advised Fletcher it was a bullet hole from a shot
fired at this unnamed driver the day before as he was passing
through Warren, Ohio, on Route 5. According to Fletcher,
the other driver’s story upset him because Lordstown is close
to Warren. The two cities are located in the northeast corner
of Ohio. Fletcher and Lou Smith,3 another Dworkin driver,
had their trucks loaded at Middletown. Smith called Re-
spondent’s Cleveland offices and then told Fletcher the two
of them were to proceed to Lordstown, off-load, and proceed
to Warren and reload. Smith also told Fletcher he was not
going to Warren because there was trouble there. They
agreed to meet the following morning and drive their trucks
to Lordstown as a team because they considered that to be
safer than going alone. After arriving at Lordstown Smith
claimed equipment failure and therefore did not go to War-
ren.
That night, February 6, Fletcher called the Lordstown po-
lice who advised there was no trouble there. He then called
the Warren police who only advised there were isolated inci-
dents on Route 5 and he should use his own judgment.
Fletcher does not say what these incidents amounted to. Al-
bert Timko, the Warren Township chief of police, credibly
testified there were some pickets at a truckstop on Route 5,
his officers patrolled the area, and there were no reported in-
cidents of shots fired or any incidents involving trucks on
Route 5. Fletcher’s telephone bill shows his call was to the
police department in the city of Warren, not to the Warren
Township police whose jurisdiction covers a horseshoe-
shaped area around the city including the Route 5 area in
question. Timko testified that his department regularly talks
to the city police, and he heard no reports of any violence
in connection with the truckdrivers’ protest.
Fletcher says he became fearful, and his wife did not want
him to go to Warren. Accordingly, he delivered the load to
Lordstown, Ohio, on February 7, but refused to go to War-
ren. The sequence of events are as follows. He talked to
Robert Surlus, Respondent’s operations manager, on the tele-
phone and asked if there was any freight. Surlus instructed
him to call Leona Little, Respondent’s dispatcher, at
Austintown, Ohio, about 15 miles southeast of Warren as the
crow flies. Fletcher told Surlus he did not want to drive in
the Warren area because there was trouble there. Surlus
merely told him to call Little. Fletcher called her. She in-
structed him to go to Warren and deliver steel from there to
Elyria, Ohio, which is west of Cleveland. She dispatched 17
other drivers to Warren that day and all drove without inci-
dent. He told her that he did not want to go to Warren be-
cause he had read newspaper articles about strikes, he had
seen a bullet hole in the windshield of another driver’s truck,
and the Warren police had told him there was violence. His
previous testimony concerning what he was told does not
mention reports of violence by the Warren police nor does
his pretrial affidavit given to the Board. She told him there
were pickets at Warren, but they were bothering no one. She
further advised that he did not have to pass the picketers in
any event because he could travel on different roads and by-
pass them both going to Warren from Lordstown and from
Warren to Elyria.4 He was adamant in his refusal to go to
Warren, and Little told him to call Surlus. Fletcher called
Surlus, and recited the same reasons he had given Little for
not wanting to go to Warren. Surlus directed him to proceed
to Warren and load. Fletcher refused. Surlus told him he was
terminated and should bring the truck in if he would not go
to Warren. Fletcher drove the truck back to Dworkin’s
Cleveland terminal.
On February 10, Fletcher called Surlus, said he had made
a mistake, and asked for his job back. Surlus refused to re-
hire him.
B. Discussion and Conclusions
The issues here, as General Counsel and Respondent both
recognize, are whether Fletcher’s refusal to drive to Warren
was an honest and reasonable assertion of a right provided
for in the collective-bargaining agreement and therefore con-
certed activity as discussed in NLRB v. City Disposal Sys-
tems, 465 U.S. 822 (1984), and, if so, whether it was pro-
tected activity.
The collective-bargaining agreement contains the following
provision, in relevant part:
Under no circumstances will an employee be required
or assigned to engage in any activity involving dan-
gerous conditions of work, or danger to person or prop-
erty . . . .
An employee therefore has a contractual right to decline an
assignment involving dangerous working conditions or dan-
ger to person or property. This being so, the questions then
arise regarding whether Fletcher, as a probationary employee,
can invoke that right and thereby engage in concerted activ-
ity, and, if he can, was his refusal to drive to Warren, Ohio,
a reasonable and honest assertion of that right.
The parties agree in their posttrial briefs, and I find that
Fletcher’s status as a probationary employee does not bar
him from asserting a contract right. Considering the Plain
Dealer clipping of February 4, the unnamed driver’s claim
that someone had fired a bullet through a truck windshield
on Route 5 near Warren, Ohio, on February 5, the reluctance
of fellow driver Smith to drive to Warren for fear of vio-
lence, the noncommittal advice of the Warren city police that
there were isolated incidents on Route 5 and Fletcher should
exercise his own judgment on whether to drive there, and his
wife’s fear for his safety, it cannot fairly be said that
Fletcher’s initial decision to refuse to drive to Warren was
not based on an honest and reasonable apprehension of phys-
ical danger. Looking at the situation from his point of view
with the above information in hand, it was a reasonable con-
clusion to make in the circumstances. Accordingly, I con-
clude and find Fletcher was reasonably and honestly assert-
ing a right set forth in the existing collective-bargaining
agreement when he first called Surlus looking for freight,
and told Surlus he did not want to drive in the Warren area
because there was trouble there. City Disposal makes it clear
that by so doing Fletcher engaged in concerted activity, and
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Interboro Contractors, 157 NLRB 1295, 1298–1299 (1966).
6 As General Counsel points out, the detours would, according to the dif-
fering estimates of the witnesses, require from 2 to 30 additional miles of driv-
ing. I do not see that the length of the deviations from the shortest route is
a matter of any significance in this proceeding. It would not decrease
Fletcher’s earnings because he is paid, as he testified, ‘‘23 percent of the gross
take on the load.’’ He drove company equipment therefore incurring no addi-
tional expense to him. Whatever the actual additional mileage might be, the
maximum of 30 miles is not an unreasonably long jaunt. In any case,
Fletcher’s protest had nothing to do with the number of miles driven.
7 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 objec-
tions to them shall be deemed waived for all purposes.
Interboro5 makes it clear the concerted activity was also pro-
tected as an effort to secure relief pursuant to the contractual
provision quoted above. A discharge by Surlus at this point
for this conduct would have violated Section 8(a)(1) of the
Act, but Surlus did not then discharge him. Referred to Lit-
tle, Fletcher refused the Warren assignment on the grounds
it was not safe. Had Little not given him permission to tra-
verse different highways to and from Warren and thus avoid
contact with the pickets who were located at a truckstop on
Route 5, his refusal to take the assignment would clearly
have been protected, but she did give him permission to take
alternative routes. This raises a new problem. Was his con-
tinued refusal of the assignment protected concerted activity
after Little described what roads he could take to circumvent
the pickets and Route 5? I think not. There is no evidence
to suggest and I do not believe it can be reasonably con-
cluded that Fletcher could or did honestly and reasonably be-
lieve that the danger he had feared extended unabated to the
itinerary set forth by Little which avoided the picketing area
in particular and Route 5 in general.6
General Counsel contends that article 9, section 1 of the
collective-bargaining agreement prohibiting discharge, perma-
nent replacement, or discipline for refusal ‘‘to enter upon any
property involved in a primary labor dispute’’ is arguably ap-
plicable. I disagree. There is no evidence Fletcher based his
refusal to go to Warren on any disinclination to ‘‘enter upon
any property involved in a primary labor dispute.’’ Fletcher
does not so claim, and the most the record shows is that the
presence of the pickets on Route 5 worried him in view of
what he had heard and surmised about the behavior of strik-
ers, and that he therefore feared to drive where they were.
There is no indication he thought there was, knew there was,
or would have found a picket line at the Warren facility to
which he was dispatched.
Conclusion
Fletcher was not engaged in concerted activity when he re-
fused a trip to Warren using the route suggested by Little be-
cause he had no honest and reasonable belief harm might be-
fall him if he did so. It is not clear to me that Respondent’s
work rule to the effect a driver refusing a load for the second
time is considered a voluntary quit was properly applied to
Fletcher in this instance as Respondent claims it was, but
that issue is not properly before me inasmuch as I have con-
cluded Fletcher’s termination was not effected because he
engaged in protected concerted activity. There therefore is no
unfair labor practice remaining to be resolved and whether
Respondent correctly applied its work rules to Fletcher is not
an issue for me to decide.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Dworkin, Inc. did not commit an unfair labor practice
by terminating the employment of Daniel E. Fletcher on Feb-
ruary 7, 1990.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The complaint is dismissed.