McLean Trucking Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 728 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLean Trucking Company and David Usry and
Max Ray. Cases 10-CA-14770 and 10-CA-
14813
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 31, 1980, Administrative Law Judge
Irwin Kaplan issued the attached Decision in this
proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 2
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, McLean
Trucking Company, Atlanta, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I The Respondent has requested oral argument. This request is hereby
denied as the record. the exceptions, and the brief adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc. 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
I In accordance with his partial dissent in Olympic Medical Corporation,
250 NLRB No 11 (1980), Member Jenkins would award interest on the
backpay due based on the formula set forth therein.
DECISION
STATEMENT O ITHE CASIE
IRWIN KAPLAN, Administrative Law Judge: This case
was heard before me in Atlanta, Georgia, on January 30,
1980.
The underlying charge in Case 10-CA-14770 was filed
by David Usry, an individual, on June 22, 1979. The es-
sence of the aforenoted charge which gave rise to a
complaint and notice of hearing on July 25, 1979, was
that McLean Trucking Company' (herein called
The tanae of Respondent appears as reflected bh) the record
252 NLRB No. 104
McLean or Respondent) terminated David Usry on Feb-
ruary 27, 1979, because he engaged in protected concert-
ed activity by refusing to drive a tractor-trailer which he
reasonably believed to be defective and unsafe, and that
Respondent thereby violated Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended (herein called
the Act).
The underlying charge in Case 10-CA-14813 was filed
by Max Ray, an individual, on July 6, 1979, which
charge was amended by said Max Ray on August 1,
1979. The aforenoted charge and the amendment thereto
in substance allege that Respondent terminated Max Ray
on February 28, 1979, because he engaged in union and
protected concerted activity by refusing to drive the
same tractor-trailer (with the support and assistance of
the Union) which David Usry had refused to drive on
the previous day and for virtually the same reasons and
that the Respondent thereby violated Section 8(a)(3) and
(1) of the Act. v
The aforenoted cases culminated in a complaint, order
consolidating cases and notice of hearing which issued
on August 2, 1979. While Respondent reinstated both
Usry and Ray on or about May 9, 1979, it is further al-
leged that Respondent by converting the discharge into
suspensions and written warnings, it thereby additionally
violated Section 8(a)(1) of the Act against Usry and Sec-
tion 8(a)(3) and (1) of the Act vis-a-vis Ray.
Respondent filed an answer conceding inter alia juris-
dictional facts, but denying all allegations that it commit-
ted any unfair labor practices.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after careful consid-
eration of the post-trial briefs, I find as follows:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a North Carolina corporation, is engaged
in the interstate transportation of freight and commod-
ities and in connection therewith it maintains an office
and place of business located in Atlanta, Georgia. During
the past calendar year, and at all other times material
herein, Respondent received revenue in excess of $50,000
from the interstate transportation of freight and com-
modities. Respondent admits, and I find that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
It is admitted and I find that General Teamsters Local
Union No. 728, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America (herein called the Union), is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALI.EGED UNFAIR I.ABOR PRACTICES
A. Sequence of Events
David Usry, an over-the-road truckdriver, began
working for Respondent approximately 7 years ago. On
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MCLEAN TRUCKING CO()MPANY
February 27, 1979,2 Usrv was dispatched for a trip to
Louisville, Kentucky, over 400 miles from Respondent's
Atlanta, Georgia, terminal. Usry tested the vehicle (trac-
tor-trailer unit no. 26144-7911) in the yard at the termi-
nal, a distance of approximately 450 yards, and experi-
enced the steering wheel pulling to the right. He also
discovered other problems with the vehicle and noted
these items on a "Defective Equipment Report" (G.C.
Exh. 4). The tractor was then checked out by Respond-
ent's Class A mechanics, Gregory Levette and Robert
Powell, who in turn completed a "Road Failure Report"
(G.C. Exh. 5) reflecting inter alia the repairs they made
on the vehicle.3 Usry then proceeded on his trip but
soon noticed that the vehicle was still pulling to the
right. He continued to drive the vehicle until he could
test it on the highway, Interstate 20 (herein called 1-20).
Usry drove on 1-20 for a short distance to Interstate 75
(herein called 1-75) and while on 1-75, he concluded that
the vehicle was unsafe to drive because it was pulling
too much to the right. He stopped the vehicle at the
West Paces Ferry exit on 1-75, 17 miles from the Atlanta
terminal to advise the shop supervisor of the condition of
the truck and asked for someone to check the unit out
and make the necessary repairs.
Usry testified that he waited approximately an 1-1/2
hours before Class A mechanic Roy Alberson and 3 su-
pervisors, Relay Manager Tom Pickel, Maintenance Su-
perintendent James Becher, and Safety Supervisor Bob
Harrison appeared. According to Usry, the group ar-
rived about 4:30 p.m., and Alberson and Becher then
took the alleged defective truck for a test drive in heavy
traffic for a distance of 6 to 8 miles which he, Usry as-
serted was not far enough to get an accurate picture of
the condition of the vehicle. When they returned with
the truck, Alberson acknowledged that it pulled to the
right, but stated that it was safe to drive and placed an
"OK tag" with his signature on the vehicle.
While Alberson substantially corroborated Usry, he
disagreed regarding the time and traffic conditions under
which he tested the unit. Thus, Alberson (Respondent's
witness) testified that he tested the truck about 3:30 p.m.
in medium traffic, Usry protested Alberson's conclusion
that the truck was safe to drive and stated that he would
like to call the union hall and discuss the matter with
union officials. Pickel told Usry that he would give him
5 minutes to decide whether he would drive the truck.
Usry then called the union hall to talk to Business Agent
Wayne Sheppard, but he had already left for the day.
Pickel told Usry that his time was up and the latter
thereupon got into the vehicle and continued with his as-
signment to Louisville. Usry testified that he continued
to experience difficulties steering the vehicle and keeping
it off the shoulder of the road. He stopped a second time
on Highway 92, Kennesaw, Georgia, some 22 miles from
the first stop and called first Union Business Agent Shep-
pard at home and then the Atlanta terminal for repairs.
I All dates hereinafter refer to 1979, unless otherwise indicated.
3 Mechanic Levette testified that swhen he and Powell first tested the
vehicle, the steering %wheel almost came off in his hands Even after he
and Powell made certain adjustments, he) still experienced the steering
pulling to the right but only slightly Levette testified that in testing the
vehicle he did not go more than 10 miles per hour
According to Usry the three-member supervisory team
that had come out earlier to look at his truck had not yet
returned to the terminal and Shop Supervisor Charles
Foster told him that as they were handling the problem
he would have the other supervisors call him back.
While Usry waited to hear from the company officials he
filled out another "Defective Equipment Report" noting
inter a/lia that the vehicle steers to the right and is unsafe
to drive (G.C. Exh. 6). Pickel then spoke with Usry and
ordered him to continue the trip pointing out that the
unit had already been checked out as okay for the entire
trip. Usry countered by stating that he was still having
problems with the vehicle and that it was unsafe to
drive, and again requested that a mechanic inspect it fur-
ther. Pickel rejected Usry's request for a mechanic and
declared that if he refused to drive the unit in the condi-
tion he found it, he was abandoning the job. Usry denied
that he was abandoning the job and continued to press
Pickel for a mechanic. Pickel finally told Usry to go
home; he was "no longer work[ing] for McLean Truck-
ing Company."
A couple of hours later, Pickel, along with Dock Su-
pervisor Travis Payne and driver Robert Young arrived.
Pickel told Usry to get his belongings and leave the trac-
tor. He then instructed Young to drive the truck and
that he would discuss the condition of the unit with him
after he, Young had a chance to check it out. Young
drove the truck from 6 to 8 miles at which time he in-
formed Pickel who was in an automobile closely follow-
ing the tractor that "[the] unit is pulling to the right of
the road," and a mechanic was needed. Pickel acceded
to contacting a mechanic and they drove another 8 or 9
miles to the Midway Truck Stop in Cartersville, Geor-
gia, to call for assistance. Young testified that they ar-
rived at the truck-stop approximately 11 p.m. and waited
approximately 1 to 1-1/2 hours for the mechanic to
arrive.
Frank Watford was the mechanic assigned to service
the tractor in Cartersville. He testified that inter alia he
road-tested that unit over a distance of 8 to 10 miles and
found that if he relaxed his grip on the steering wheel,
he was unable to maintain the vehicle on the road. Wat-
ford checked out the truck over 3 or 4 hours but could
not locate the cause of the "pulling" problem. In this
connection he called the terminal to tell Bob Thompson,
the night shift supervisor about the problems and re-
quested that he be permitted to rotate the front tires
which he asserted sometimes eliminated the pulling. Wat-
ford testified that Thompson would not allow him to do
anything to the unit and told him not to worry about it. 4
Watford told Pickel that he did not know what was
wrong with the truck, that it was pulling to the right and
that he, Watford, would not drive it in that condition
nor would he tell anyone else to drive it. He then "red
tagged" the unit indicating thereon that it was unsafe to
I According to Watford, the Company was applying pressure on him
to give his imprimatur on the condition of the truck Thus Watford testi-
flied that Supervisor Thompson pointed out to him even before Watfird
left the Atlanta terminal to service the unit in question, that three me-
chanics had already checked it out and found that in swas safe to drive
Further. Watford testified that Superintendent Becher told him that if he
"down[ed] the truck, he] swould make the shop look bad "
729
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drive, and does not meet factory specifications. Young
was not required to drive the truck to Louisville, but
was paid for the trip and stayed with the unit until it was
towed back to the Atlanta terminal.
On February 28, Respondent made arrangements for
Robert Allen, a shop foreman at the General Motors fac-
tory in Atlanta, to test the unit in question to determine
whether it met the "factory requirements." Allen, who
did not testify, submitted a report dated March 7 stating
inter alia that he, Allen, had road checked truck no.
26144 (unit in question) for a "steering complaint," and
had driven it with and without a loaded trailer and al-
though there was slight pulling he "didn't notice any dif-
ficulty in steering." He added inter alia that he "felt that
it was safe to operate." (Resp. Exh. 2.) 5
After the unit was road-tested on February 28, Becher
called two union shop stewards, Glen Best and Conley
Poplan into his office to hear Allen's statement concern-
ing the condition of the vehicle. Allen told them that the
vehicle had a slight pull to the right but that in his opin-
ion it was not unsafe to drive. 6 After everyone left the
office, Becher made out an "OK. tag" for the unit in
question and wrote thereon as follows:
The alleged pulling to the right problem has been
road tested by a representative of GMC in Atlanta
and deemed completely safe for operation. (Resp.
Exh. 3.)
Becher testified that he deposited the "OK tag" on the
disputed vehicle sometime late afternoon on February
28. Later that evening, Max Ray, a driver was assigned
to drive the same unit (Tractor 26144) and make the
same trip to Louisville that had been assigned to Usry
the previous day. While Ray was involved in making
preparations for the trip he became engaged in conversa-
tion about the disputed tractor with Jerry King, David
Parnell, and Mack Mock, all McLean drivers, the former
two also serving as shop stewards. King informed Ray
that two drivers had already been fired.7 over this par-
ticular unit for safety defects. Pickel approached the
group and asked Ray to talk to him privately. King ad-
vised Ray that he did not have to talk with Pickel with-
out a union representative present. He also told Ray in
Pickel's presence that the truck had been "red-tagged"
and taken out of service in Cartersville and had not been
recertified by a Class A mechanic. He added that
5 Becher testified that it was his decision to have General Motors test
the unit. He also testified that he accompanied Allen while the latter road
tested the vehicle which involved a distance of approximately 10 miles at
a highway speed of 45 to 58 miles an hour. According to Becher, Allen
who assertedly was in his presence at all times did not make any repairs
but merely inspected the front end of the unit before he drove it. Becher
also testified that Allen had previously done "very little" work for Re-
spondent and this was the first time that he, Becher, accompanied Allen.
6 Best testified that this was the first and only occasion that he had
spent any time with Allen. Best who is also a Class A mechanic asserted
that a tractor may perform differently depending upon the weight of the
trailer While Becher testified that Allen tested the tractor with the origi-
nal load to Louisville attached thereto, he also conceded that the original
trailer was disconnected from said tractor at least twice prior to Allen
testing the entire original unit.
7 The record however, does not substantiate that anyone other than
Usry was terminated for refusing to drive the vehicle at the time of this
conversation
McLean has refused to let the Company's mechanics in-
spect or otherwise check the unit out. During this en-
counter, Ray charged that Respondent was not in com-
pliance with article 16 of the National Master Freight
Agreement 8 and section 394.6 (sic) of the Federal regula-
tions (Department of Transportation or DOT).9 Pickel
asked Ray whether he was going to drive the truck to
which he responded "If the truck was safe and in safe
operating manner, I would be glad to drive the truck,"
Pickel advised Ray that a General Motors' engineer
checked out the truck and that Becher had placed an
"OK tag" in the vehicle. On the other hand he conceded
to Ray that he did not have the documentation to sub-
stantiate that the truck was inspected.
Ray, Pickel, and the others in the group went over to
the vehicle in question. Ray then got into the tractor cab
with his overnight bag, radio, and other belongings.
Once inside the truck, Ray discovered that the tag was
not signed by anyone. He then pressed Pickel for a sig-
nature from a Class A mechanic and Pickel in turn
promised to get the tag signed. They all proceeded to
Becher's office where Supervisor Bill Rollin was present
in addition to Becher. When Ray asked Becher for his
signature, King interjected that Becher was not a Class
A mechanic. According to Ray, Becher then passed the
tag to Rollin who gave it right back to Becher when
someone also noted that Rollin's was not a Class A me-
chanic. According to Ray, the tag was not signed in his
presence nor had he ever seen the tag signed. to Ray left
Art. 16, inter alia, provides 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 appliances prescribed by law. It shall not be
a iolation of this Agreement where the employees refuse to operate
such equipment 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 maintenance department has adjusted the
complaint. After the 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 required 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 to safety
of person or equipment . . .
. .The Employer shall not ask or require any employee to take
out equipment that has been reported by any other employee as
being in an unsafe operating condition until same has been approved
as being safe by the mechanical departments . (GC Exh. 2, pp.
53-54.)
DOT regulation 396.4 mandates that carriers refrain from permitting
or requiring drivers to drive unsafe motor vehicles. (G.C. Exh. 3.) The
parties stipulated, and I find that Respondent is a regulated carrier under
the Federal Motor Carrier Regulations as prescribed by the U S Depart-
ment of Transportation, Federal Highway Administration.
'o Becher testified at first that after his meeting with Shop Stewards
Best and Poplan, he made out an OK tag, signed it, and deposited the tag
in the vehicle. When cross-examined however, Becher testified that the
tag which he made out earlier and left on the steering wheel was without
a signature and was not signed until he was asked to do so by Ray. While
Becher maintained that he signed the tag in the presence of Ray and the
others at the session, this is somewhat at odd's with Pickel's testimony
who could not recall a signature on the tag until after Ray had gone
home. Moreover Pickel could not state whether Ray had ever observed a
signature on that tag. Still further, Pickel corroborated Ray's testimony
in other material respects. Thus Pickel confirmed Ray's testimony that
Continued
730
MCLEAN TRUCKING COMPANY
the office and walked through the shop whereupon he
met Union Business Agents Sheppard and Profit who as-
sertedly told him that they supported his position and
maintained that he would get his job back with backpay
if he were terminated. Pickel then approached Ray and
again asked him whether he was going to drive the vehi-
cle. Ray indicated that he was receptive, provided the
shop personnel certified the vehicle as safe. Pickel main-
tained that the truck was safe and declared, "You have
abandoned your job, and you no longer work for
McLean Trucking Company." Ray denied that he was
abandoning the job and offered to drive the unit, but
only if it was repaired or another tractor was made avail-
able. He told Pickel that he would wait in the drivers'
room for further instructions. About 20 minutes later
Ray was told he was terminated.
On or about March 2, both Ray and Usry received let-
ters of termination on the basis that each had abandoned
their jobs. Both filed grievances and were ultimately re-
instated without backpay. Respondent converted the dis-
charges into warning letters and suspensions.
B. Discussion and Conclusions
The General Counsel asserts that Usry and Ray were
engaged in protected concerted activity on February 27
and 28, respectively, when they refused to drive the as-
signed tractor because they honestly and reasonably be-
lieved that the vehicle was unsafe to drive, a right which
he asserts they were at liberty to exercise under article
16 of the collective-bargaining agreement." He there-
fore contends that Respondent by discharging, suspend-
ing, and issuing warning letters to Usry and Ray because
they engaged in the aforementioned protected concerted
activity, it violated Section 8(a)(1) of the Act. The Gen-
eral Counsel further maintains that Respondent by taking
the aforenoted adverse action against Ray, who also
acted with the advice and support of the Union, thereby
discourages union activity in violation of Section 8(a)(3)
of the Act.
Respondent in its brief, states that it "understands and
concedes that complaining about safety problems or
safety violations is a protected concerted activity." How-
ever Respondent contends that Usry and Ray were not
justified in maintaining that the assigned vehicle was
unsafe to drive. Respondent also professes profound con-
cern that a decision in favor of Usry and Ray in the cir-
cumstances of this case would obviate article 16 of the
collective-bargaining agreement. According to Respond-
ent "in effect the driver would be permitted to substitute
his judgment for that of the mechanic .... In any
event, Respondent denies that Usry and Ray were dis-
charged as alleged but contends that they "abandoned
their jobs, or refused to carry out their work assignments
the tag was passed back and forth from Becher to Rollin and "discrepan-
cies" arose as to which one would sign. In these circumstances. I credit
Ray's testimony that Becher did not sign in his presence, and that at no
material time did he see a signature on the OK tag Further, I find on the
basis of responsiveness, plausibility, consistency of testimony, and demea-
nor, that neither Becher nor Pickel was a reliable witness and I reject
their testimony where it conflicts with the General Counsel's witnesses
II Article 16 is set forth in part. infra. fn. 8
as they were instructed to do by supervisors at the
time."
I. David Usry
As noted above, Respondent contends that Usry was
not justified in maintaining that the vehicle in question
was unsafe to drive. In support thereof. Respondent
points out that three Class A mechanics had inspected
the alleged defective tractor, and "none of the three had
determined that it was unsafe to drive." Thus Respond-
ent argues, as none of the Class A mechanics had red
tagged the vehicle, Usry was obligated under article 16
to continue his trip to Louisville. Article 16 states inter
alia "It shall not be a violation of this Agreement where
employees refuse to operate [ostensibly unsafe] equip-
ment unless such refusal is unjustified." (Emphasis sup-
plied.) I am not persuaded, however, that Respondent's
reliance on the fact that none of the Class A mechanics
had red tagged the vehicle before Usry's refusal to drive
it, compels the conclusion that he was obligated under
article 16 to complete his assignment without still further
inspection and/or repairs. Thus, article 16 also signifi-
cantly states as follows:
Under no circumstances will an employee be re-
quired or assigned to engage in any activity includ-
ing 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 govern-
ment regulation relating to safety of person or
equipment. [Emphasis supplied.]
It must be determined therefore whether under all the
"circumstances" Usry was "justified" in refusing to drive
the vehicle. The credited testimony discloses that Usry
experienced problems of various magnitude insofar as the
vehicle consistently pulled to the right throughout the
afternoon and early evening hours on February 27. Fur-
ther, the record discloses that on the same date and even
before Usry first checked out the assigned unit, Chris
Leslie, another driver also experienced "pulling to the
right" with the same tractor. In connection therewith,
Leslie made out a "Defective Vehicle Report" noting
therein inter alia that at times it was difficult to maintain
the vehicle on the road. (G.C. Exh. 7.)
With regard to Usry's assignment to Louisville on
February 27, the record discloses that at about 1 p.m., he
tested the tractor trailer in question in the yard at the
Atlanta terminal and discovered inter alia "steering pull-
ing right" which gave rise to Usry's first "Defective Ve-
hicle Report" that day. (G.C. Exh. 4.) Respondent with
record support points out that the two mechanics who
checked this unit (and made some adjustments) did not
red tag it nor did they otherwise determine it unsafe. On
the other hand, it is also noted that one of them, Greg-
ory Levette, testified that the steering wheel almost
came off in his hands. Levette also experienced some
pulling to the right and in this regard it is noted that by
his own estimate at no time did he test drive the vehicle
more than 10 miles an hour. Even Usry had not tested
the vehicle (before engaging on his trip to Louisville) at
a speed greater than 20 miles per hour and that was in
731
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the yard over a relatively short distance of approximate-
ly 450 yards. On the other hand when Usry attained the
highway speed of 55 miles per hour on 1-75, he credibly
testified that the tractor pulled so hard to the right that
he had serious difficulty controlling the vehicle and
keeping it on the road.
In disputing Usry's appraisal vis-a-vis the operating
condition of the vehicle, Respondent points out that a
third Class A mechanic, Roy Alberson, tested the vehi-
cle under road conditions and while he found some pull-
ing to the right, he still deemed the vehicle safe to drive.
According to Respondent, when Alberson placed an
"OK tag" on the vehicle, Usry was obligated to continue
the assigned trip to Louisville. Usry on the other hand
asserted that Alberson could not get an accurate reading
because he road-tested the vehicle in "real heavy rush-
hour traffic, I mean, bumper to bumper." t 2 In any event
as Alberson, a Class A mechanic had placed an "OK
tag" on the vehicle,' 3 Usry climbed into the tractor cab
and continued his trip to Louisville, albeit with serious
misgivings.
The record discloses that Usry drove another 22 miles
to Kennesaw, Georgia, before he stopped a second time
and called Respondent, again requesting that the unit be
checked out further by a mechanic. Usry expressed the
drive to Kennesaw as follows:
That it would pull too bad to drive and that I was
constantly fighting it, pulling it back off the shoul-
der of the road. And I felt that the public and
myself both were unsafe-that it would be best not
to drive the truck any further without repairs.
Pickel refused Usry's request to send a mechanic
pointing out that that vehicle had already been checked
out as okay for the entire trip. Pickel then gave Usry an
ultimatum, either drive the truck or a refusal to do so
would be construed as an abandonment of the job. Usry
insisted that the truck was unsafe and stated that he was
not quitting or abandoning the job. Pickel told Usry to
get his belongings and go home.
Usry remained with the unit for 2 hours until Pickel
appeared along with Tractor-Driver Robert Young and
Dock Supervisor Travis Payne. In the meantime Usry
had completed a second "Defective Equipment Report"
noting again inter alia that the steering was pulling to the
right and "is unsafe to drive." (G.C. Exh. 6.) Pickel or-
dered Usry to leave the vehicle stating that he no longer
worked for McLean Trucking Company. He then com-
manded Young to drive the unit, and he, Pickel followed
in an automobile. Young drove the unit for several miles
and then complained to Pickel that the truck was pulling
too far to the right also stating, "I would need a mechan-
12 Alberson first asserted that he tested the vehicle at around 3:30 to
3:45 p.m. and that the traffic was about medium for that time of day.
However, when pressed by counsel for the General Counsel regarding
the time of the test. Alberson admitted that he was unsure adding, I
don't know anything definite about the time." Given Alberson's admit-
tedly uncertain recollection and as I found Usry to be an impressive and
credible witness, I credit his account regarding the time and road condi-
tlions over that supplied by Alberson.
13 Under art. 16 of the collective-bargaining agreement the "OK tag"
(which was signed by Alberson). represents that the maintenance depart-
ment has made the necessary repairs and has adjusted the complaintL
ic to O'Kay it before I drive it." Pickel acceded to
Young's request, agreeing to summon a mechanic once
they reached a nearby truckstop.
Frank Watford, a Class A mechanic, was dispatched to
service the unit. He drove the unit some 8 to 10 miles
and found as follows:
I could not let go of the steering wheel at all. I had
to hold it to the left at all times. You could never
relax your hands. It was pulling so hard. If I ever
relaxed, I would have went (sic) off the road.
Watford told both Young and Pickel that he did not
then know what was wrong with the unit but "[he]
would not drive it and [he] would not tell any other
driver to drive the truck." That evening, Watford red
tagged the truck and it was towed back to the Atlanta
terminal.
The testimony of Young and Watfordt 4 largely con-
firm the validity of Usry's contention that the vehicle
was unsafe to drive. They experienced substantially the
same problems with the unit in question, as had Usry.
Thus the fact that Young and Watford expressed to man-
agement that they would not drive the truck without fur-
ther adjustments or repairs and further that Watford
would not tell anyone else to drive the truck, tend to
buttress the reasonableness of Usry's course of action.
While on the other hand the record discloses that three
mechanics had not red tagged the vehicle or determined
that it was unsafe to drive, the record also reveals factors
tending to militate against the validity of their findings.
Thus the record disclosed that the first two mechanics
(Levette and Powell) did not test the vehicle at a speed
greater than 10 miles per hour. Further, the credited tes-
timony discloses that the third mechanic (Alberson)
tested the vehicle during rush hour in "very heavy traf-
fic, bumper to bumper," hardly a fair simulation of the
road conditions faced by Usry at 55 miles per hour.
Moreover, the record discloses that mechanic Watford
spent substantially more time with the unit in question, a
factor further tending to support the reliability of his
findings.t s This is not a case involving an individual
with a history of malingering or insubordination, but
rather one in which the great weight of the evidence
tends to establish, and I so find, that Usry acted in good
faith out of a reasonable belief that the vehicle was
unsafe. Pickel testified to only one other incident during
the 7 years in which Usry has been employed by Re-
spondent whereby he refused to drive a truck, and that
was because there were an insufficient number of lights
on the trailer and even on that occasion, Usry made the
trip.
14 It is noted that both Young and Watford were still employed at the
time of the hearing. As such they testified adversely to their own pecuni-
ary interest, a factor tending to support their credibility. See e.g., Federal
Sluinless Sink Div. of Unarco Industries. Inc., 197 NLRB 489, 491 (1972);
Gateway Iransportation. Co., Inc., 193 NLRB 47, 48 (1971); Georgia Rug
Mill, 131 NLRB 1304, 1305, fn. 2 (1961)
iS The record disclosed that Watford has worked as a mechanic for
10-1/2 years, and was classified by Respondent as "main mechanic."
732
MCLEAN TRUCKING COMPANY
The case at hand is strikingly similar to the factual pat-
tern set forth in Roadway Express. Inc.,' 6 cited by re-
spective counsel. Even Respondent concedes that Road-
way is a "similar case" although he notes some differ-
ences which he contends supports a different result.
In Roadway, an over-the-road driver named Ferguson
refused the dispatcher's instructions to drive a tractor ap-
proximately 50 miles from a truckstop to the Company's
"tire bank" where a tire could be changed and where
possibly front end alignment work could be done. It was
not possible to make these repairs at the truckstop. Fer-
guson refused because he did not believe that the truck
was safe to drive. Earlier that day Ferguson had substan-
tial difficulties operating the vehicle, including experienc-
ing trouble holding the truck cn the road while on the
highway. Another company driver also experienced simi-
lar results after driving the same vehicle at Ferguson's
request, and told Ferguson that he did not feel it was
unsafe. The Company sent one of its safety supervisors
along with a mechanic to the truckstop to check over
the tractor. They road-tested the unit and found some vi-
brations in the front end at around 40 miles, but it dimin-
ished when driven above and below that speed. They ad-
vised Ferguson that they considered the vehicle safe to
drive but he refused to drive it. The Company dis-
patched a replacement driver who safely drove the trac-
tor to its destination approximately 400 miles away. Fer-
guson was terminated for refusing to drive the vehicle.
The contractual provision in Roadway which the
Board found supported Ferguson's refusal is the indenti-
cal article 16 contained in the collective-bargaining
agreement in the instant case in which McLean is a party
thereto. The Board found that Roadway discharged Fer-
guson in violation of Section 8(a)(1) of the Act for refus-
ing to drive what he believed to be an unsafe tractor.
The rationale was expressed as follows:
The contract clearly indicates that the Employer
shall not require employees to drive an unsafe vehi-
cle, and that employees have a right to refuse to
drive such a vehicle. Although Ferguson acted
alone in his refusal to drive the tractor, and he did
not at the time of his refusal specifically refer to the
contract as granting him this right, the nature of his
complaint has significance and relevance under the
contract to the interests of all of Respondent's em-
ployees whose employment is governed under the
contract.
We have held in the past that when an employee
makes complaints concerning safety matters which
are embodied in a contract, he is acting not only in
his own interest, but is attempting to enforce such
contract provisions in the interest of all the employ-
ees covered under the contract. Such activity we
have found to be concerted and protected under the
Act, and the discharge of an individual for engaging
in such activity to be in violation of Section 8(a)(1).
[Citations omitted.] ?
'6 217 NL.RB 27R (1975)
Id. at 279
In the instant case, for reasons previously stated, I
have found that Usry refused to drive the vehicle in
question because he honestly and reasonably believed it
to be unsafe. Applying the principles of Roadway to the
instant case, this was a right Usry was at liberty to exer-
cise under article 16 even though at the time of the re-
fusal, he had not made any specific reference to the con-
tract. In Roadway, the Board found such activity to be
concerted and protected under the Act.' 8 On the total
state of this record, I therefore find that Respondent by
first discharging Usry and then converting said discharge
into a suspension and written warning because he en-
gaged in protected concerted activity, Respondent there-
by violated Section 8(a)(l) of the Act as alleged.
2. Max Ray
The record disclosed that on the evening of February
28, Ray was assigned a trip to Louisville with the same
unit which I had previously found Usry to refuse in
good faith to drive because he believed the tractor to be
unsafe. Ray, while making arrangements for the trip,
learned from Union Shop Stewards King and Parnell
inter alia that Usry complained about the same unit being
unsafe and that he was discharged because he refused to
drive it. Union Shop Steward King also informed Ray,
in Pickel's presence that the truck had been "red tagged"
and had not been recertified by a Class A mechanic. Fur-
ther, King told Ray that Respondent refused to let any
of its own mechanics inspect or service the unit. Ray,
while still in Pickel's presence charged that Respondent
was not in compliance with article 16 of the National
Freight Agreement which provides, inter alia:
. . . 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 maintenance 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.
. The Employer shall not ask or require any em-
ployee to take out equipment that has been reported by
any other employee as being in an unsafe operating
condition until same has been approved by the me-
chanical department. [Emphasis supplied.]
According to Respondent, it met its contractual obli-
gation by arranging for a General Motors engineer to
test drive the vehicle and he deteimined that the truck
was safe to drive. Pickel passed this information on to
Ray and accordingly Respondent contends that Ray was
"unjustified" in asserting that it was unsafe. I find this
contention without merit and not supported by the
record. Thus according to Watford, whom I found to be
credible, he wrote on the red tag "backward and for-
ward. The tractor is unsafe to drive, and it does not meet
factory specifications." Watford further specified that the
'" Id See also & T Industries. Inc., 235 NLRB 517, 520 (1978);
Woodings Verona Tool Works, 243 NLRB 472 (1979)
733
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vehicle was "pulling to the right." While article 16 re-
stricts the Employer from assigning equipment which has
been refused "because not mechanically sound" to other
drivers "until the maintenance department has adjusted
the complaint," the record reveals that the maintenance
department was excluded from working on the unit after
it was red tagged. Instead, the vehicle was declared safe
to drive by a General Motors representative who only
road-tested the truck but made no repairs.19 Pickel ex-
plained that Respondent's maintenance department was
not utilized because 3 of its mechanics checked the vehi-
cle and "[e]veryone said that the tractor was O'kay."
According to Pickel as it was written on the "red tag"
that the vehicle "does not meet factory specifications"
the General Motors factory representative was brought
in to check whether said vehicle met the specifications.
However, Watford credibly testified that he also red
tagged the truck because it was "pulling to the right"
and was "unsafe."
In the aforenoted circumstances, and in the absence of
any evidence tending to show that it was Respondent's
standard operating procedure to have a factory repre-
sentative rather than its own maintenance department
certify the condition of the "red-tagged" vehicle, I am
unpersuaded Respondent was in compliance with the
contract. Moreover, given Watford's credited testimony
that he inter aia spent 3 to 4 hours with the unit before
he red tagged it, that he told Respondent that he would
not drive the truck (without the necessary repairs or ad-
justments) nor would he tell anyone else to and that
Becher told him that he, Watford, would make the "shop
look bad" by red tagging the unit, all tend to reflect ad-
versely on Respondent's sincerity with regard to main-
taining the vehicle in a safe operating manner. In the
same meeting with Pickel and the union shop stewards
referred to previously, Ray made it clear that he was
willing to drive the truck if he could safely do so. When
Pickel told Ray that Becher had deposited an "OK tag"
in the vehicle, Ray appeared ready to engage on his as-
signment. Thus he climbed into the tractor cab with his
overnight bag, radio, and other belongings, but once
inside, discovered that the "OK tag" was not signed. He
then pressed Pickel, who had accompanied him to the
tractor, for a signature from a Class A mechanic which
Pickel promised to do. However, the credited testimony
discloses that the "OK tag" was never signed by a Class
A mechanic, but rather was signed by Becher and only
after Ray had gone home.
According to Respondent, Ray by electing not to
follow his supervisor's instructions and drive the vehicle
in question in effect abandoned his job. Respondent also
denies that Ray was discharged. I find Respondent's po-
sition untenable and not supported by the record. On the
contrary, the credited testimony persuades me that Ray
was prepared to fulfill his assignment and drive the trac-
tor until informed by union represenatives about the
events of the previous day including the fact that the
same tractor was "red-tagged" as unsafe to drive. Ray
then expressly asserted his rights under the contract by
1g It is noted that the General Motors representative's written report is
dated March 7, 7 days after Ray was terminated. (Resp. Exh. 2.)
refusing to drive the tractor unless certified as safe to op-
erate with a signed "OK" tag by the maintenance depart-
ment. Instead, the Respondent elected to ignore its own
maintenance personnel and invited a representative from
another company to make the decision as to whether the
vehicle was safe to drive. The uncontroverted testimony
discloses that Ray told Pickel that he was not abandon-
ing the job and demonstrated his good faith by volunter-
ring to drive another tractor or even the assigned tractor
if the appropriate repairs were made as required under
the contract. Respondent elected to do neither and termi-
nated Ray.
On the basis of the entire record, I am convinced that
Ray had a good-faith and reasonable belief that the vehi-
cle was unsafe to drive. As the contract clearly insulates
employees from driving unsafe vehicles, Ray's refusal is
clearly concerted and protected. 20 Moreover, the Board
has consistently held that the protection accorded under
the Act does not depend on the merits of the asserted
contractual claims but rather that it be made in good
faith and reasonably related to the provisions in the con-
tract. 2t I therefore find that Respondent by first dis-
charging Ray and later converting the discharge into a
suspension and warning notice because he engaged in
protected concerted activity as described above, Re-
spondent thereby violated Section 8(a)(l) of the Act. 22
In addition the record discloses that Ray acted largely
with the advice and support of the Union. Respondent
concedes as much by contending that Ray's refusal to
drive the tractor "was based on union pressure." In these
circumstances I find that the adverse action taken by Re-
spondent described above because he acted in reliance on
the union contract in concert with union officials tends
to discourage union activity, and Respondent thereby ad-
ditionally vioiated Section 8(a)(3) and (1) as alleged. 23
CONCLUSIONS OF LAW
1. Respondent 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. Respondent discharged David Usry and then con-
verted the discharge into a suspension and written warn-
ing because said Usry engaged in protected concerted
activity by refusing to drive a tractor-trailer which he
reasonably and in good faith believed to be unsafe to op-
erate, a right which he could assert under the contract
and Respondent thereby violated Section 8(a)(1) of the
Act.
4. Respondent discharged Max Ray and then convert-
ed the discharge into a suspension and written warning
because said Ray engaged in union and protected con-
20 Roadway Express Inc.. supra, and cases cited in fn. 18 infra.
2L See, e.g., Wheeling-Pittsburgh Steel Corporation, 241 NLRB 1214,
1221 (1979); Woodings Verona Tool Works. supra; T T Industries, Inc..,
supra.
22 As noted previously Respondent also contends that findings in favor
of Usry and Ray will effectively obviate art. 16. I am unpersuaded that
by holding employees to act in good faith and reasonably with regard to
safety complaints will prove detrimental to the contract rights of Re-
spondent.
23 See Wheeling-Pirttsburgh Seel Corporation, supra.
734
MCLEAN TRUCKING C()MPANY
certed activity by refusing to drive a tractor-trailer
which he reasonably and in good faith believed to be
unsafe to operate, a right which he expressly asserted,
and Respondent thereby violated Section 8(a)(3) and (1)
of the Act.
THE Rt EMl)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent cease and desist therefrom and that it take certain af-
firmative action to effectuate the policies of the Act.
Thus, it having been found that Respondent unlawful-
ly discharged David Usry and Max Ray and then rein-
stating them by unlawfully converting the discharges
into suspensions and warning notices, I shall recommend
that Respondent be ordered to make them whole for any
loss of earnings, with interest in the manner set forth
below, which they may have suffered by reason of Re-
spondent's unfair labor practices and I shall recommend
that the warning notices be rescinded and expunged from
Usry's and Ray's personnel files and other records. Back-
pay shall be computed in accordance with the Board's
formula set forth in WU Woolworth Company, 90
NLRB 289 (1950). Payroll and other records in possesion
of the Respondent are to be made available to the Board,
or its agents, to assist in such computation. Interest on
backpay shall be computed in accordance with Florida
Steel Corporation, 231 NLRB 651 (1977).24
On the basis of the above findings of fact, conclusions
of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 25
The Respondent, McLean Trucking Company, Atlan-
ta, Georgia, its officers, agents, successors, and assigns,
shall:
1,. Cease and desist from:
(a) Discharging, suspending, issuing warning notices,
or otherwise disciplining its employees because they
refuse to drive vehicles which they in good faith and
reasonably believe to be unsafe to operate, a right which
they are free to assert under the collective-bargaining
agreement.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
24 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (19h2)
25 In the event no exceptions are filed as provided b Sec. 10246 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, he adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived fior all purposes
(a) Make David Usry and Max Ray whole in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Rescind and expunge the warning notices %which
were issued to David Usry and Max Ray because they
engaged in union and/or protected concerted activity as
found herein, from their personnel files and other re-
cords.
(c) P'reserve and, upon request, make available to the
Board and its agents, for examination any copying, all
payroll records and reports, and all other records neces-
sary to ascertain the backpay due under the terms of this
Order.
(d) Post at its Atlanta. Georgia, facility copies of the
attached notice marked "Appendix."2 " Copies of said
notice on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's au-
thorized representative shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced. or covered by any other material.
(e) Notify the Regional Director for Region 10. in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
2', In the event that this Order is enforced h a Judgment of the
United States Court of Appeals, the ords in the notice reading "Posted
bh Order f tile National ahor Relations Board" shall read " Po,std I'ur-
suant Io a Judgmenlt of the United States Court of Appeals Eknt irc ing anld
)rder f the National Labor Relations Board
APPENDIX
NoTICi T-o EMPLOYEiIS
POS I I) BY ORDER OtF I'HE
NAlONAI. LABOR RELATIONS BOARI)
An Agency of the United States Government
WE WILI. NOT, discharge, suspend, issue warning
notices or otherwise discipline our employees be-
cause they refuse to drive vehicles which they in
good faith and reasonably believe to be unsafe to
operate.
WE WI1.t NOT, in any like or related manner in-
terfere with, restrain or coerce our employees in the
exercise of the rights guaranteed them in Setion 7 of
the National Labor Relations Act, as amended.
WE Wltl. make David Usry and Max Ray whole
for any loss of earnings, with interest resulting from
the unfair labor practices against them.
WtI WiLL rescind and expunge the warning no-
tices issued against David Usry and Max Ray be-
cause they engaged in union and/or protected con-
certed activity from their personnel files and other
records.
MCLEAN TRUCKING COMPANY
735