McLean Trucking Co.

National Labor Relations Board - Board Decisions

Mar 23, 1973

202 N.L.R.B. 710 (N.L.R.B. 1973)

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLean Trucking Company and James Banyard. Case
8-CA-5706
March 23, 1973
DECISION AND ORDER
On July 23, 1970, Administrative Law Judge Harry
H. Kuskin i issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting' brief.
On December 22, 1971, the Respondent filed a
motion to reopen the record herein, a supporting
brief, a supporting affidavit, and certain exhibits
thereto On April 4, 1972, the National Labor
Relations Board issued a Notice To Show Cause that
unless cause be shown to the contrary the Board
would grant the motion to reopen, admit the affidavit
and documents into evidence, and take such further
action as is warranted. On May 2, 1972, the General
Counsel filed a memorandum in response to the
notice and a supporting brief. On May 8, 1972, the
Respondent filed a reply to the General Counsel's
memorandum.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light of
the Respondent's exceptions and brief, the motion to
reopen the record and supporting brief, the General
Counsel's memorandum and brief, and the Respon-
dent's reply to the General Counsel's memorandum,
and has decided, for the reason set forth below, to
dismiss the complaint in its entirety.
1. The Respondent moved to reopen the record to
admit evidence that, subsequent to the hearing
before the Administrative Law Judge, a grievance
involving the Charging Party herein was denied by
the National Grievance Committee, the final step in
the grievance procedure contained in the applicable
collective-bargaining agreement. Included in the
documents submitted by the Respondent in support
of its motion were the grievance award of the
National Grievance Committee and the transcript of
the grievance proceeding taken at a meeting of the
Central Conference of the Joint Area Committee, an
earlier stage in the applicable grievance procedure.
In its response to the Board's Notice To Show Cause,
the General Counsel specifically did not oppose the
admission into the record of the two named
documents.
Accordingly, the Respondent's motion to reopen
the record is granted in part, the record is reopened,
and the two named documents are hereby received
into evidence.
2. The Respondent, which operates a truck
The title "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
terminal , has had since 1966 a policy of requiring its
drivers to carry overloads in company vehicles. In
1966, Banyard had protested the hauling of over-
loads, had refused to do so on two occasions, was
discharged after each refusal, and was subsequently
reinstated after filing grievances. That year Banyard
also filed a grievance seeking an interpretation of a
provision of the collective-bargaining agreement that
no employee shall be required to engage in any
activity involving dangerous conditions of work. A
point grievance committee left the interpretation of
the provision to be determined by negotiation
between the contracting parties. The 1967-70 agree-
ment continued the particular provision without
change. In the fall of 1969, after a lapse of nearly 3
years during which time he drove overloads, Banyard
informed Respondent that he would no longer pull
overloads, claiming doing so would be dangerous
and contrary to the collective-bargaining agreement.
On October 6 he was ordered to pull an overload and
refused. The next morning he was discharged.
Banyard grieved his discharge, and the grievance
was considered, in turn , by the Joint Local Area
Committee, the Joint State Committee, and the Joint
Area Committee, each of which was deadlocked.
Subsequent to the hearing herein, Banyard's griev-
ance was referred to the National Grievance Com-
mittee which met and issued the following award:
Please be advised that the National Grievance
Committee on December 2, 1971, adopted a
motion, that based on the transcript, the claim of
the Union be denied.
Article 43 of the applicable collective-bargaining
agreement states, "The Unions and the Employers
agree that there shall be no strike, lockout, tie-up, or
legal proceedings without first using all possible
means of settlement , as provided for in this Agree-
ment, and in the National Agreement, if applicable,
of any controversy which might arise." Article 43
further provides for the processing of grievances
through several stages: (1) the employer and local
union involved, (2) the Joint Local Area Committee,
(3) the Joint State Committee, and (4) the Joint Area
Committee The various committees are composed of
an equal number of management and labor repre-
sentatives with no neutral third party present. A
majority decision at any stage is final and binding,
and a deadlock provides for appeal to a higher stage.
Article 8 of the National Agreement sets forth the
manner of processing all grievances or questions of
interpretation arising under the national or supple-
mental agreements and provides for two stages-the
Multi-Conference Committee and the National
Grievance Committee. A majority decision at either
202 NLRB No. 102
McLEAN TRUCKING CO. 711
level is final and binding, and a deadlock at the
Multi-Conference level is referred to the national
level. If the National Committee is deadlocked, "then
either party shall be entitled to all lawful and
economic recourse to support its position in the
matter."
In its exceptions to the Administrative Law Judge's
Decision, the Respondent contended, inter aka, that
the Administrative Law Judge erred by refusing to
defer to the grievance procedure contained in the
applicable collective-bargaining agreement. In its
brief and reply, filed subsequent to the award of the
grievance committee, the Respondent contends that
the Board should defer to the committee's award and
dismiss the complaint herein. We agree.
Banyard was present at the Joint Area Committee
hearing on his grievance and testified at length. The
transcript of that proceeding reveals that in all
material respects the information presented to the
grievance committee was the same as the evidence
brought out at the unfair labor practice hearing in
this case. Included in the evidence presented to the
committee were (1) the history of Banyard's griev-
ances contending that the collective-bargaining
agreement prohibited employers from requiring
drivers to haul overloads because doing so would be
dangerous; (2) a description of the vehicle which
Banyard had been told to, but refused to, drive and
that it was overloaded in violation of state law; (3)
Banyard's claim that, if he hauled the overload, he
could be subject to criminal negligence; (4) Ban-
yard's statement that the most important reason he
was there concerned the Employer's not wanting to
uphold the contract; and (5) Banyard's following
statement of position:
I am also not so naive to think you people will sit
in good conscious [sic] knowingly [sic] that this
company is violating the law, by their own
admission violating the law, spending your time
and spending my time going through this same
thing over and over.
Now it's gone through here three times. We are
not getting anywhere with it. And you taking the
thing to Washington. They have testified here that
they haven't any problems with any other driver
but Jim Banyeard [sic]. Now Jim Banyeard [sic]
2 Our dissenting colleagues would apparently resolve the issues submit-
ted to the National Grievance Committee in a different manner They have
seemingly concluded not only that the alleged overweight was a hazard to
the safety of the driver (without examining whether limits may be
established more with a view to protecting the longevity of state or local
highways) but that the order of the Employer would also have forced the
driver to commit a crime (despite record evidence that points are not even
assessed against the operator 's chauffeur's license as a result of overloads
which occur through no fault of the driver) They also conclude that the
driver is legally entitled to refuse a load, rather than to file a grievance, a
matter which is much less clear to the parties The parties here did not find
any of the issues as simple as do our colleagues The record demonstrates
that the matter of driving loads which exceed the legally specified limits has
happens to be the union steward. I am the oldest
man there. They would be more than happy to get
rid of me. I know this and I'm very well aware of
it.
Furthermore, members of the grievance committee
are involved in and have an intimate knowledge of
the trucking industry. This is illustrated by the
following colloquy between the chairman of the
committee and the person appearing for the Compa-
ny, occurring after a description of the vehicle but
with no description of the weight the vehicle could
properly haul:
CHAIRMAN RANNEY: Would it be overloaded
with 40,000 pounds on it? I mean , was this rig
overloaded?
MR. ALFRED: To answer your question,when
it was returned the vehicle was weighed and
weighed 17,500 on the drive, weighed 35,800 on
the tanden.
CHAIRMAN RANNEY: Which is overweight.
From the foregoing, it is clear that the issues raised,
repeatedly in different ways, before the grievance
committee encompassed the issue presented in the
unfair labor practice complaint; namely, was Ban-
yard discharged because he engaged in protected
concerted activity? This is especially so here since the
unfair labor practice issue is so entwined with the
contract question as to be virtually inseparable.
The award of the National Grievance Committee is
brief, but it states that it is based on the transcript,
namely, the transcript taken before the Joint Area
Committee. Although Banyard was not present at the
meeting of the National Committee, half of that
committee consisted of union representatives, and
the Union, by its pursuit of the grievance through its
lengthy course, indicated its interest in the,successful
prosecution of Banyard's grievance. For these
reasons, we are satisfied that the National Grievance
Committee, in denying the grievance, fully consid-
ered the issues involved in this case.2
In the circumstances of this case, none of the
factors cited by the General Counsel or the Adminis-
trative Law Judge furnish sufficient basis for depart-
ing from the Board's established policy of giving
binding effect to arbitral determinations made in
been a matter of discussion between the parties for some time , that the
contract itself contains provisions which contemplate at least occasional
hauling of overloads (pay for time lost due to overloads or certificate
violations ) and that the Central States Joint Area Committee, a group of
truly knowledgeable persons in the industry , found in 1966 that the subject
was worthy of further negotiation and "in the meantime , Companies will
operate on the same basis as in the past and not be in violation of the
contract " We are not persuaded that the issues are either as simple or
dramatic as our colleagues assert , and are thus less anxious than they to
rush to substitute our judgment for that of an experienced Committee,
composed of experienced union and management representatives, or to
accuse that Committee of sanctioning the creation of safety hazards
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceedings to which all parties have acquiesced,
where the proceedings are fair and regular on their
face, and where the results are not clearly repugnant
to the purposes and policies of the Act.3 The Board
has held that joint grievance committees of the type
here involved, though operating without neutral
arbitrators, meet the Spielberg standards of fairness.4
In fact Terminal Transport is similar to the instant
case. In that case the Board deferred to a joint
committee award which set up a test of the
discharged employee's ability as a mechanic. The
employee was not present at the grievance hearing,
but the person appearing on behalf of the union read
into the record a letter from the employee which
claimed, inter aha, that he was discharged in reprisal
for his activity in connection with an earlier
grievance, the issue raised in the unfair labor practice
hearing.
In the circumstances of this case, we do not view
the time it took to reach a decision on the grievance
to be of significance. What is significant is that the
National Grievance Committee decided the griev-
ance. Nor do we find that the result reached is clearly
repugnant to the Act, as claimed by the General
Counsel. Although the grievance committee reached
a result contrary to the decision of the Administra-
tive Law Judge, that decision was not a final decision
of the Board since timely exceptions had been filed.
For these reasons, we find that the award herein of
the National Grievance Committee is not repugnant
to the policies of the Act, is, on its face, fair and
regular, and was reached by a procedure to which the
parties have agreed to be bound.5 Accordingly, we
conclude that it will effectuate the policies of the Act
to give conclusive effect to the grievance award and,
on that basis, we shall dismiss the complaint in its
entirety.6 '
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint herein be,
and it hereby is dismissed in its entirety.
MEMBERS FANNING AND JENKINS, dissenting:
Respondent admittedly had a practice of requiring
its drivers to operate overloaded trucks, in violation
of state laws. This practice also, as the Admmistra-
3 Spielberg Manufacturing Co, 112 NLRB 1080. 1082
a Denver-Chicago Trucking Company, Inc, 132 NLRB 1416, Roadway
Express, Inc, 145 NLRB 513, Terminal Transport Company, inc, 185 NLRB
672
5 That employees, as well as the Employer and the Union, are bound by
the bargaining agreement is fundamental to collective bargaining
6 Our colleagues ' dissent is , for the most part, a compendium of recent
Board decisions in the Collyer and Spielberg areas, together with commenta-
ries thereupon Our disinclination to take issue with our colleagues'
characterization of individual cases, or with the implications they draw
therefrom , should not be taken for agreement The decisions speak for
tive Law Judge found, created safety hazards for the
drivers and others. Banyard, a union steward, on
behalf of the drivers, had sought, with no success, to
have the practice corrected through the grievance
procedure and by protests to Respondent. Finally, he
himself refused to drive an admittedly overloaded
truck. For this refusal he was discharged. His
grievance over the discharge was denied at the
arbitration, and he now asserts his discharge violated
Section 8(a)(1) and (3) of the Act.
Our colleagues find the arbitration procedure fair
and regular,7 and its outcome "not repugnant to the
Act."
In our opinion, however, the arbitrator's award,
permitting Banyard's discharge to go unremedied, is
clearly repugnant to this Act and should be disre-
garded by this Board. No contract provision or
arbitration award can permit an employer to require
his employees to violate state laws or to create safety
hazards for themselves or others. Such a contract
provision or employer practice is void, and any effort
to force employees to conform to it is unlawful under
this Act. Other contract provisions or employer
practices can be hypothesized, such as requiring
drivers to meet schedules which necessitate exceed-
ing speed limits consistently by 20 miles an hour, or
requiring drivers to force a competitor's truck off the
road once a month; but none of them is worse in
principle, and perhaps in practice, than requiring
drivers to operate severely overloaded trucks and
thereby to commit crimes and endanger themselves
and the public.
Employees who protest the imposition of such
unlawful hazardous conditions, and who refuse to
accept them are protected by Section 8(a)(1) of the
Act, and if they do so by union activity, are protected
also by Section 8(a)(3). No arbitration award
-whether by a neutral tribunal, whether purporting
to decide the statutory issue , or whether based solely
on an interpretation of the unlawful contract
provision-can validate the employer's imposition of
such unlawful terms and conditions of employment,
nor remove the protection of the Act from the
employees when they concertedly protest and reject
such conditions. Simply put, they cannot be fired for
such protest and rejection, regardless of what an
arbitrator or this Board says. This is what the statute
themselves
7 Member Jenkins , as he stated in dissenting in Terminal Transport
Company Inc, 185 NLRB 672, regards an arbitration tribunal which has no
neutral member as lacking in fairness in his view, the majority 's assumption
that the tribunal is neutral because the particular employer and local union
involved in the dispute are excluded from sitting on the tribunal is
unfounded The employers and local unions who do sit on the tribunal are
bound by the same contract as the disputants , and their participation in
decisions which govern their own rights and duties is the classic example of
conflict of interest
MCLEAN TRUCKING CO. 713
requires, and is precisely the purpose for which it was
enacted. It is this protection which the majority now
eliminates.8
We have repeatedly noted our dismay at the rapid
reduction in statutory protection as the majority has
expanded its Collyer principle. To say, as does the
majority, that this arbitration award is not repugnant
to the Act is to reduce the statute to nothing but an
arbitration clause in a contract. Where an arbitration
clause exists, little or nothing is left of the protection
afforded by Section 8(a)(1) and (3) after this
decision.
Our majority colleagues, in their eagerness to defer
cases to arbitration, either before arbitration has
been sought as in Collyer Insulated Wire, 192 NLRB
No. 150, or after an award has been made and is
evaluated under Spielberg Manufacturing Co., 112
NLRB 1080, as here, have indicated a willingness to
allow arbitrators to decide that there has been no
wrong committed in cases in which there is a plain
violation of the Act.
The Collyer principle, initially limited to cases in
which interpretation of a contract provision was
necessary or germane to determining whether a
violation of the Act had occurred, has rapidly
expanded far beyond this area, and in doing so has
eliminated most of the protection of Section 8(a) of
the Act, and a substantial part of Section 8(b). A
brief survey of some of the cases applying the
principle will make this plain.
Under Collyer, an employer's unilateral revocation
of a substantial employee benefit, parking privileges,
was deferred to arbitration on the ground that a
contract clause providing that "working conditions
shall be maintained" at not less than existing
standards, plus an arbitration clause, removed the
issue from the statutory prohibition of unilateral
change contained in Section 8(a)(5) and Section 8(d),
and reduced it to a question of contract interpreta-
tion. Thus a contract clause designed to reinforce the
statutory protection by adding contractual protec-
tion ends up eliminating the statutory protection
Section 8(a)(5) had previously afforded against such
unilateral changes, and removes the existing benefit
from the field of mandatory bargaining by the
employer, leaving the arbitrator free to find that such
unilateral change was valid rather than unlawful.9
Great Coastal Express, Inc., 196 NLRB No. 129.
Likewise, a union's unilateral termination of what
the majority describes as "for more than twenty years
a practice" of route drivers making cash collections
from customers was deferred to arbitration on the
ground a contract interpretation was invoked be-
cause a clause in the contract provided "All past
practices . . . shall remain in full force and effect."
Thus a contract clause designed to protect against
unilateral changes and clearly so stating becomes the
instrument by which an arbitrator is given authority
to validate such a change.10 In this way the
protection which Section 8(b)(3) previously gave an
employer is eliminated. The fact that either party
could block the arbitration, so that the tribunal did
not in fact exist, did not deter the majority. Thus the
sufficient fact seems to be the appearance of the
word "arbitration" in the contract, and nothing
more. National Biscuit Company, 198 NLRB No. 4
Similarly, the Collyer principle has permitted an
employer to disrupt or abrogate the agreed-upon
seniority system by unilaterally assigning part-time
employees to jobs theretofore reserved to full-time
employees if they so elected. By deferring this issue
to an arbitrator who might validate the employer's
action, the majority opened the door to destruction,
without bargaining, of the seniority system which is
one of the principal subjects of bargaining. South-
eastern Bell Telephone Company, 198 NLRB No. 6.
The majority identified no contract provision which
required interpretation by an arbitrator, thus indicat-
ing that a question of contract interpretation was not
prerequisite to the Board's refusal to determine
whether a violation of the Act had occurred.
That there was no need for any contract interpreta-
tion to be submitted to an arbitratior in order for the
Board to refuse to decide whether the Act had been
8 In in 2 , above , our colleagues make several assertions
(a) They speculate that the establishment of truck load limits by state law
may be directed to the preservation and longevity of highways , assert that
points are not assessed against a driver for overloads compelled by his
employer , and infer from this that safety is not an objective of the state law
The suggestion that overloads are not related to safety of the driver and
others on the highway , despite the greater difficulty of braking and control,
defies reason , and damage to highway surfaces , shoulders , and bridges can
hardly be unrelated to safety The provision in the contract for pay during
the time a driver 's license is suspended for overloads , which the majority
cites to support its view , seems to us to indicate the state regards overloads
as dangerous and the contract contemplates that the drivers commit a
crime The Administrative Law Judge 's explicit findings (6 ALJD 11-34) on
the safety issue and his citation of the record evidence (which our colleagues
do not question ) seems to us to be dispositive The fact that points are not
assessed against a driver if his employer forced the overloading , and that the
employer rather than the driver is fined , appears to show , contrary to the
majority , that safety of person and property is involved and the state is
simply seeking to reach the true culprit
(b) Our colleagues reject our conclusion that the driver is legally entitled
to refuse an overload rather than file a grievance they do so apparently
because the employer and union tolerated overloading and even permitted it
by contract in certain occasions This is , of course , contrary to N L R B v
Washington Aluminum Company, Inc, 370 U S 9, which gives employees the
right to refuse , without penalty , to work in unsafe conditions Sec 8(a)(1)
and (3) protects the employees ' rights in this respect , not the rights of unions
or employers, and unions and employers cannot agree otherwise The
majority's view that an arbitrator can allow these employee rights to be cut
down by contract illustrates the undermining of the statute by deferring to
arbitration , and the basic fallacy in Collyer
9 If the Board's reservation of jurisdiction in Collyer means that the
Board will disregard any award which reaches this result , there is nothing to
arbitrate, for the outcome can go only one way , and the Board would do
better to make that determination now instead of after a costly and lengthy
arbitration proceeding
10 See In 2, above
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated, and to allow an arbitrator to decide it
instead, became explicit in Peerless Pressed Metal
Corporation, 198 NLRB No. 5, in which the Collyer
proponents conceded that no contract interpretation
was involved, yet deferred to arbitration the employ-
er's unilateral institution of incentive wages. And in
Urban N. Patman, Inc., 197 NLRB No. 150, the
majority deferred to arbitration the employer's
unilateral change of wage rates in one department
even though the contract provided that "no contro-
versy regarding hours of wages shall be subject to
arbitration hereunder." The majority avoided this
prohibition by stating that the "dispute is arguably
one over whether the contract covers the precooked
food department employees, and not one of wages,"
in the face of the employer's admission that the
contract applied to these employees. In overriding
both the contract prohibition of arbitration and the
employer's admission the contract applied, the
majority has extended Collyer to mean that, in any
case in which the contract contains an arbitration
provision, unilateral change violations must be
arbitrated and the Board will not enforce Section
8(a)(5) and 8(b)(3). Even after arbitration is complet-
ed and the arbitrator finds facts showing an unfair
labor practice of a unilateral change not involving
any contract interpretation-as the case of increasing
employee work assignments after bypassing the
union and bargaining individually with the employ-
ees, a clear violation of Section 8(a)(5) without
regard to any contract provision-but issues an
award unenforceable in the courts because it finds
only that the employer "violated the contract," the
Board will refuse to remedy the violation, contrary to
those court decisions" which require that, where a
violation is found, a remedy must be issued. Malrite
of Wisconsin, Inc., 198 NLRB No. 3.
By allowing arbitrators to decide that a unilateral
change in terms and conditions of employment does
not violate the Act, and particularly by opening the
door to such a decision where no contract interpreta-
tion issue exists, the Board has eliminated the
protection against unilateral changes in or repudia-
tion of the bargained contract hitherto afforded the
parties by Section 8(a)(5) and (b)(3). In so doing, it
has undermined the effectiveness and stability of
collective bargaining which it is the purpose of the
Act to foster.
Collyer has also effectively eliminated the protec-
tion by which Section 8(a)(3) and (b)(2) previously
sheltered employees against discrimination. The
majority, in deferring such cases to arbitration, held
that an arbitrator's decision that "good cause"
11 International Woodworkers of America, Local 3-10 (Long Lake Lumber
Co) v N L R B, 380 F 2d 628, 630, 631 (C A D C , 1967), see also Eichleay
Corporation v N L R B, 206 F 2d 799, 805 (C A 3, 1953), International
existed for the discharge meant that there was no
discrimination. National Radio Company, Inc., 198
NLRB No. 1; Terminal Transport Company, 185
NLRB 672. Thus Collyer forecloses an examination
of whether the "good cause" was the real reason or a
pretext for the discharge-usually the principal
inquiry, in discrimination cases. And in Joseph T.
Ryerson & Sons, Inc., 199 NLRB No. 44, Collyer was
held to mean that inclusion in a contract of a clause
incorporating much or most of the 8(a)(3H2)
prohibitions of discrimination made a discriminatory
discharge a contract question for an arbitrator to
determine. Thus in any case where "good cause"
exists for a firing-and it does, or can be created, in
every case and the finding of it by an arbitrator will
not be reviewed by the Board-a discriminatory
discharge will go unremedied. Thereby the Board has
effectively deprived employees of protection against
discrimination by the employer or union. It has gone
further and permitted a union and employer, by
writing Section 8(a)(1) and (3) into their contract, to
contract employee rights out from under the statute if
an arbitrator finds-as in Banyard's case before
us-that the contract permitted the discharge even
though the statutory violation is plain.
From these areas the Collyer rule has expanded so
as to defer to arbitration principles of law having no
connection with any contract interpretation issue.
Thus, Collyer has allowed an arbitrator to determine
that a "zipper" clause constituted a waiver of all
matters not mentioned specifically in the contract, in
the face of Board and court decisions holding
uniformly to the contrary. Radioear Corporation, 199
NLRB No. 137. Collyer has also relegated to
arbitration the legal issue of what constitutes
employer condonation of employee misconduct in
concerted activities, and has thereby allowed the
arbitrator to reach a result the Board would not
reach on this legal issue. Tyee Construction Co., 202
NLRB No. 34. Similarly, in Norfolk Portsmouth
Wholesale Beer Distributors Association, 196 NLRB
No. 165, where the employer refused to honor
checkoff authorizations after determining unilateral-
ly that they were invalid, plainly a legal issue
dependent on principles other than the checkoff
clause in the contract, the majority deferred to
arbitration even though they stated "whether the
authorizations were valid will determine the ultimate
question . . . whether Respondents did or did not
violate the agreement." Thus Collyer has empowered
an arbitrator to hold the employer's action lawful,
even though no contract interpretation is involved
and even though the legal principles established by
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America (UA W) v N L R B, 427 F 2d 1330, 1332-33 (C A 6, 1970)
McLEAN TRUCKING CO. 715
the Board and courts might indicate the action was
clearly unlawful. In this case, the only relation of the
contract to the alleged violation of the Act was to
create the condition of employment; the unilateral
action thereafter which constituted the alleged
violation arose out of separate and independent
unilateral actions governed by clear legal principles
not involving any interpretation of the contract.
Collyer has now removed the protection heretofore
afforded by those principles. If a legal issue is
deferable to an arbitrator merely because a contract
creates or establishes the condition of employment
which is changed unilaterally, every such change
becomes a contract issue, for all employment
conditions are established or recognized by contract,
and Sections 8(a)(5), 8(b)(3), and 9(d) are rendered
meaningless.
Indeed, the contract at this point, under the
ministrations of Collyer, becomes a license for the
employer (or perhaps the union) to violate the
statute. Thus discharges under a contract clause
giving the employer the right to discharge employees
engaged in an "unauthorized" strike was deferred to
arbitration, despite the fact that the strike might have
been protected under the Act and might even have
been an unfair labor practice strike as to which a no-
strike clause is inapplicable. National Tea Company,
198 NLRB No. 62. To allow an arbitrator to
determine that such discharges are valid, as does the
Collyer principle in that case, allows the employer to
commit with impunity actions which in the absence
of the contract clause would be plain violations of
the Act.12
Collyer's reduction of statutory protection to a
contract right has also impaired the protection
previously afforded the employer by Section
8(b)(l)(B), prohibiting union interference with his
relations with his own supervisors. In Houston
Chronicle Publishing Company, 199 NLRB No. 69, a
union's fine of a supervisor for acting within his
supervisory authority in selecting an employee to
work overtime, alleged to have violated Section
8(b)(l)(B), was deferred to arbitration as a question
of contract interpretation because the contract
contained a provision substantially the same as
Section 8(b)(1)(B). The reason, said the majority, is
that "Nothing in the statutory scheme prohibits an
employer from voluntarily resolving . . . how this
broadly stated legislative policy should function
. . . . Thus was the statutory protection of Section
8(b)(1)(B) converted into a contract issue merely
because the contract repeated Section 8(b)(1)(B).
Subsequently, in A. S. Abel! Company, 201 NLRB
No. 5, with substantially the same contract embodi-
ment of Section 8(b)(1)(B), Collyer was extended
further to defer to arbitration the unlawful fine a
union imposed on a supervisor because he worked
during a period the employer required him to work,
instead of yeilding to the union's demand that a
more senior employee be given the work. Because the
union's demand raised only a contract issue resolva-
ble elsewhere and was not a part of the alleged
violation, it was simply the statutory issue of the
violation of Section 8(b)(1)(B) which the majority
deferred to arbitration, without even the color of any
connection with contract interpretation. Thus Collyer
has effectively removed the 8(b)(1)(B) protection
from those parties who agree to an arbitration clause.
And it matters not that the incorporation of Section
8(b)(1)(B) into the contract was for the purpose of
adding contract remedies to statutory protection.
Extension of the Collyer principle to those cases
above where no contract interpretation issue exists
permits, and indeed requires, the arbitrator to write a
new contract for the parties, contrary to Porter v.
N.L.R.B., 397 U.S. 99. Collyer thus means that an
arbitration clause alone, without any dispute over the
meaning of any contract term, suffices to prevent the
Board's determination of an alleged and even plain
violation of the statute. Also, Collyer imposes
compulsory arbitration on the parties even in those
cases, such as Great Coastal and National Biscuit,
supra, where the contract expressly prohibits unilater-
al changes of the type made, or even, as in Patman,
expressly excludes the subject from arbitration. For
those unions which would have the employees they
represent continue to be protected by Section 8(a),
and for those employers who want for themselves
and their employees the continued protection of
Section 8(b), Collyer offers them only two choices,
under existing Board law: (1) delete arbitration from
the contract, or (2) give either party the power to
block arbitration.13 We fail to see how either course
will serve the asserted goal of Collyer, to further the
use of arbitration to settle disputes.
When Congress thought it desirable that the Board
defer its statutory duties to arbitration, it knew how
to say so clearly, and did so in Section 10(k) of the
Act, dealing with jurisdictional disputes. But even in
this instance of an explicit prescription of arbitration,
the Board's attempt to remit jurisdictional disputes to
private tribunals by refusing to decide, as it is now
12 N L R B v Mastro Plastics Corp, 350 U S 270, San Juan Lumber from being deferred , on the ground it was a dispute over whether the
Company, 154 NLRB 1153 contract applied to that group of employees If it did apply, it is difficult to
13 Indeed , giving either side the right to prevent arbitration may not save see how the contract could permit arbitration in the face of that clause, if it
the question from arbitration In Putman, supra, a provision excluding wage did not apply, there is no contract interpretation involved and nothing to
disputes from arbitration did not suffice to prevent a contested wage change arbitrate
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doing in Collyer, was cut short by the Supreme
Court. N.L.R.B. v. Radio Engineers Union (CBS), 364
U.S. 573. Thus it seems obvious that Congress
wanted no deferral of matters arising under other
sections of the Act, and that such deferral has been
foreclosed. This conclusion is reinforced by the
observation of the Supreme Court in N.L.R.B. v.
Strong, 393 U.S. 353, 360, that the Board's authority
to remedy unfair labor practices "is not `affected by
any other means of adjustment or prevention that
has been or may be established by agreement, law or
otherwise . . . ."'Plainly, the Collyer rule is directly
at odds with the principle and purpose of the preemp-
tion doctrine of Building Trades Council v. Garmon, 359
U.S. 236, and related cases, to secure the paramount-
cy of the Act and uniformity in its application.
For these reasons, and for those set out in our
dissents in the cases cited, we would not defer this
case to arbitration. As the Chairman has proclaimed,
Collyer has indeed "grown up." 14 It has overgrown
and smothered most of the protection afforded by
Section 8(a) of the Act, and much of that afforded by
Section 8(b). Its overturn is overdue.
Accordingly, we would affirm the Administrative
Law Judge's finding that Respondent violated
Section 8(a)(1) and (3) of the Act by discharging
Banyard. It is particularly ironic that it was Ban-
yard's efforts to use the grievance-arbitration process
which has led to his undoing by that selfsame
process.
14 Remarks of Chairman Miller before Industrial Relations Research
Associates , Oakland , California, September 12, 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner: This case was heard
at Cleveland, Ohio, on May 21, 1970. The complaint issued
herein on February 11, 1970, based on a charge filed on
January 2, 1970. The complaint alleges that Respondent
has violated Section 8(a)(1) and (3) of the Act by
discharging employee James Banyard on or about October
7, 1969, and by thereafter failing and refusing to reinstate
him. Respondent's answer denies that it has violated the
Act in any respect alleged herein, contending that the
discharge was for cause; it also contends as a separate
defense that the grievance procedure of the existing
bargaining agreement between it and International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 407, herein called Local 407 or
the Union, which agreement is applicable to Banyard, has
been invoked but not exhausted and that it "will be bound
by the decision of the committee established by contract
grievance procedure."
Upon the entire record, including my observation of the
1 Respondent rested its case without summoning any witnesses in its own
behalf
witnesses , including their demeanor while on the witness
stand ,' and after due consideration of the briefs of the
General Counsel and Respondent , I make the following:
FINDINGS OF FACT2
1. THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent adnuts, that it is
a North Carolina corporation with headquarters and
principal offices in Winston-Salem , North Carolina, where
it is engaged in interstate transportation of goods by truck;
and that at its Cleveland , Ohio, terminal , which alone is
involved herein , Respondent receives gross revenues
annually in excess of $50 ,000 from the interstate transpor-
tation of goods by truck . I find upon the foregoing, as
Respondent also admits , that Respondent is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent also admits, and I find , that International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 407, is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Applicable Provisions of the Contractual
Relationship
Respondent's city drivers have been represented by
Local 407 at all times material herein, and Respondent and
Local 407 have entered into successive collective -bargain-
ing contracts as to these employees . At the time of
Banyard 's discharge on October 7, 1969 , there was in effect
between Respondent and Local 407 the National Master
Freight Agreement and the Central States Area Local
Cartage Supplemental Agreement, covering the period
from April 1, 1967, to March 31, 1970. The prior
contractual relationship was also for a 3-year period and
expired on March 31, 1967.
Article 16 of the National Master Freight Agreement of
the recent agreement, like the prior agreement , provides, in
relevant part, as follows:
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
relating to safety of person or equipment. The term
`dangerous conditions of work ' does not relate to the
type of cargo which is hauled or handled.
Section 2 of article 36 of the recent National Master
Freight Agreement provides that, if an employee has his
chauffeur's license suspended or revoked because of size
and weight penalties, while complying with his employer's
instructions to him, such employer "shall provide employ-
ment for such employee at no less than his regular earnings
at the time of such suspension for the entire period thereof,
2 The findings hereinafter are, in all instances , based on uncontroveried
testimony, which I credit
MCLEAN TRUCKING CO 717
subject however, to the seniority and lay-off provisions
applicable to him at the time of such suspension."
Article 42 of the recent supplemental agreement sets
forth the composition of the grievance machinery commit-
tees and provides in each instance for an equal number of
committeemen "appointed by the Employers and the
Unions."
Article 43 provides for the processing of grievances
through the following stages : ( 1) the employer involved
and the local union, (2) the Joint Local Area Committee,
(3) the Joint State Cartage Committee , and (4) the Joint
Area Cartage Committee . It also provides , in substance,
that if a dispute is settled by a majority vote of any of the
above committees , no appeal will lie therefrom and the
decision of that committee will be final and binding on
both parties. Additionally , it provides that the Joint State
Cartage Committee or the Joint Area Cartage Committee,
if it is deadlocked after considering the grievance, may
submit the matter for "umpire handling," if a majority of
that committee so determines.
Article 8 of the National Master Freight Agreement sets
forth the manner of processing all grievances or questions
of interpretation arising under the master agreement or
supplemental agreement . It provides, in part:
If such Supplemental Agreements provide for arbitra-
tion of discharges , such procedure shall be continued.
If upon the completion of such Supplemental grievance
procedure , the matter is deadlocked and, as a result, a
work stoppage is threatened , which could involve more
than one Conference Area, the matter shall be
submitted to a Multi-Conference Committee composed
of two employer representatives and two union
representatives from each Conference Area involved.
In the instance of a deadlocked factual grievance or
interpretation arising under a Supplemental Agreement
or a deadlocked factual grievance arising under the
National Master Agreement , the decision of the Multi-
Conference Committee shall be based solely upon the
provisions of the applicable Supplemental Agreement
or the National Master Agreement, whichever is
applicable
If the Multi-Conference Committee resolves the dis-
pute by a majority vote of those present and voting,
such decision shall be final and binding upon the
parties. If the Multi-Conference Committee is dead-
locked on the disposition of the dispute , the dispute
shall be referred to the National Grievance Committee
.. . which shall be composed of five members
designated by the' Employers and five members
designated by the union.
If the National Grievance Committee resolves the
dispute by a majority of those present and voting, such
decision shall be final and binding upon the parties. If
the National Grievance Committee is deadlocked on
the disposition of the dispute then either party shall be
entitled to all lawful recourse to support its position in
the manner.
Any provision in the grievance procedure of any
Supplement hereto which would require deadlocked
disputes to be determined by any arbitration process
shall be null and void as to any agreements involving
interpretation of the Supplemental Agreement or this
National Master Agreement . The decision of the
National Grievance Committee as to whether a
grievance involves an interpretation which is subject to
this procedure shall be final and conclusive.
B. Some Background Data With Respect to
Banyard's Employment History
Banyard began working at the Cleveland , Ohio, terminal
involved herein as a city driver about 1947 . As a city driver
he operated his vehicle on local and interstate highways in
the Cleveland area. During the period antedating about
1966, he was employed in that capacity by Hayes Freight
Lines; thereafter Respondent purchased the terminal from
the latter and continued his employment . For the last 14
years or so, Banyard has been a member of Local 407. He
was appointed a steward by the executive board of Local
407 about 14 years ago and continued in that union office
until his discharge on October 7, 1969 . Among his duties as
steward were the checking of dues books; providing
grievance forms to, and helping , anyone who wishes to file
a grievance ; and attending committee hearings under the
grievance procedure with representatives of Local 407 in
the absence of the grievant . Among the grievance matters
handled by him were those relating to wages and to
overloading . According to Kalnicki , the president of Local
407, grievance committee meetings are held each month
and Banyard has been in attendance at about eight of these
during the last 3 or 4 years
It is apparent from the record that , during the period of
his employment by Respondent , a bone of contention
between Respondent and Banyard has been the matter of
driving overloaded tractor- trailers. The first situation of
this type revealed by the record occurred on March 1,
1966. On that day, Banyard was in the yard of Respon-
dent 's terminal when one Eddie Schrecengost , a city driver
for Respondent , arrived with a loaded 40-foot road trailer
pulled by a tractor , which was damaged . After observing
the relative positions of the front and rear of the trailer,
Banyard inquired from Schrecengost and learned that his
trailer was then carrying a load of 45,000 pounds . At this,
Banyard approached Charles Mise, Respondent's terminal
manager and an admitted supervisor . Present at the time
was a Mr Lether, the immediate supervisor of Mise.
Banyard then asked Mise why he had Schrecengost pick up
45,000 pounds, as this was violative of article 16 of the
collective -bargaining agreement with Local 407. To this,
Mise replied that "it wasn't any of [Banyard 's] business
whatever he did . . . that when he tells [ Banyard ] to pick
up an overload or an excess heavy load or-whatever you
want to call it-that [he , Banyard ] would either do it or
[he] would have to find a new job." Whereupon , Banyard
filed a grievance as to this matter in his own name.
Nothing came of this grievance , although it reached the
third level of the grievance procedure, because Schrecen-
gost had not signed the grievance himself.
Thereafter , also during 1966, Banyard filed four griev-
ances against Respondent , namely, in March or April, in
June or July, in September, and on November 1. The first
grievance involved an overloading by the customer after
Banyard was dispatched to make the pickup . As soon as
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Banyard returned to the terminal, the excess weight was
removed. The claim was apparently denied at the third step
of the grievance procedure. In the second instance,
Banyard was directed by Frank McGruder, a dispatcher,
to pick up a load of 41,000 pounds of welding rods from
Lincoln Electric Company, one of Respondent 's custom-
ers Thereafter, Banyard telephoned McGruder from the
pickup point and asked for permission to reduce the load
by leaving two pallets of welding rods, each weighing 2,500
pounds, for the peddle man to pick up.3 Although
McGruder granted the request, it was countermanded
during that telephone call by Mise, who broke in on
Banyard's conversation with McGruder. Mise ordered
Banyard to load the 41,000 pounds and not argue about it.
Banyard, in turn, offered either to load 37,000 pounds on
his trailer and bring in the merchandise or to load 41,000
pounds and drop the trailer at the pickup point. Mise' reply
was that he wanted the 41,000 pounds loaded on the trailer.
Banyard followed these instructions and then called Mise
on the telephone and informed him that the trailer was
loaded . Mise's instructions were again to bring the load in,
but Banyard said that he could not do so because the load
was too heavy. Whereupon, Mise directed Banyard to drop
the trailer and return the tractor to the yard of the
terminal. Banyard complied. Shortly thereafter on the
same day, Mise discharged Banyard. The grievance, which
Banyard filed shortly thereafter, was resolved at the third
step of the grievance procedure described above. Banyard
was reinstated without any backpay but with full seniority
and backpayment by Respondent for him into the health
and welfare fund for a 3-week period. In the third instance,
which occurred in September, shortly after Banyard's
return to work upon resolution of the last-mentioned
grievance, Banyard again refused to pull a trailer because it
was overloaded and he was discharged. This grievance also
reached the third step. In response to instructions from the
Joint State Cartage Committee to Respondent and Ban-
yard to endeavor to settle the matter, a compromise was
reached that Banyard be reinstated with full seniority and
full backpayment into the health and welfare fund, but
with backpay of $500 in lieu of the $800 in lost earnings.
The last grievance requested an interpretation of article 16
and article 6 of the 1964-7 agreement "in regard to driver
being forced to pull overloads," the complaint being that
"the Company claims you must or you will be voluntarily
quiting [sic] your job." The grievance stated as a frame of
reference the Schrecengost grievance filed by Banyard, and
Banyard's own grievance of June or July and of Septem-
ber. The grievance reached the fourth step, where the Joint
Area Cartage Committee recommended that "this be a
subject for negotiations to determine by interpretation the
meaning of this particular Article 16; in the meantime,
Companies will operate on the same basis as in the past
and not be in violation of the contract, pending clarifica-
tion of Art. 16 in coming negotiations ." So far as appears
such negotiations as took place thereafter for the 1967-70
agreement referred to above did not result in any
3 A peddle man makes a series of pickups and deliveries on a small city
trailer
4 See reference in text supra to sec 2 of art 36
1 Posante named McGruder and could not remember the other
interpretation of article 16, and article 16 was carried over
into this agreement without change. Some provision was,
however , made in article 36 of this agreement for company
responsibility to provide employment to a driver at no less
than his regular earnings in case his chauffeur's license is
suspended or revoked because of size and weight penalties
while complying with his employer 's instructions to him.4
Since 1966, Banyard has pulled overloads , on occasion,
as have other city drivers of Respondent . According to
Banyard , he pulled overloads "because at the time [he]
wasn 't sure what the union 's position was above the local
level," and because without pulling overloads he had to
work 6 days a week in order to earn what other drivers
earned in 5 days. According to employee Philip A . Posante,
he drove the overloads without complaining because
Banyard's experiences in 1966 when Banyard refused to
pull overloads "had [him] kind of scared " and [he] didn't
want to lose [his] job."
C. Respondent 's Practice With Respect to
Overloading and the Attendant Risks Deriving
Therefrom
That there was a practice by Respondent of overloading
its trailers is apparent not only from the testimony of
Banyard, but also from that of other city drivers. Thus,
employee Luther Hawk testified that he had discussions
with Mise regarding picking up and delivering overloaded
vehicles and , at one time in 1969 , Mise told him to pull the
load and not get caught ; and that McGruder and Hagen,
dispatchers at the terminal, told him to pull such loads,
after he had called the matter of the overload to their
attention . In this connection, Hawk recalled complaining
to Hagen about a load which scaled 26,000 pounds on the
drive axle. In addition, Posante recalled being told by two
dispatchers5 of Respondent over a period of years to pick
up an overload, and that as recently as a month before the
instant hearing he wasp told by one of Respondent's
dispatchers, named Toy, to pick up an overload. He also
recalled picking up overloads from the Lincoln Electric
Company "on several occasions," and that one of the
loads, picked up in 1969, weighed over 40,000 pounds.
Finally, employee Harold N. Crable testified that he, too,
has been told to pull overloads. He recalled pulling one
overload of about 44,000 pounds in 1969 on a trip from
Chicago to Cleveland and of pulling a couple of overloads
of 40,000 pounds during 1969 out of the Specialty Products
Company plant in Cleveland.
As to the attendant risks in driving an overload , Posante
testified (1) that he had trouble trying to keep up with the
traffic "on the Interstate ," explaining " it wasn 't the speed
you just couldn't pull;"6 and (2) that if there was too much
weight on the front or drive axle (i .e. where the tractor and
trailer are conjoined), "if an emergency arose [he ] wouldn't
have a chance," as the equipment would not brake that
load to a stop as it would with a legal load. In this
connection , Crable testified that the effect of an overload is
dispatcher's name
6 At another point , Posante testified that the equipment , namely, the
single-axle tractor and 40-foot trailer attached " is too light for the load " All
references herein are to this type of tractor- trailer
McLEAN TRUCKING CO 719
that "it is pretty rough to stop." And Banyard testified that
an overloaded vehicle puts excess strain on the tires 7 and
braking mechanism, with the result that it is "hard to stop
an overloaded vehicle or to control it as far as maneuvera-
bility goes." He testified further that, whether you load the
front end heavy or the back end heavy, the vehicle is
unsafe to operate; and that overloading the drive axle
makes the vehicle harder to maneuver, while overloading
the back affects the steering of the front end and may
cause swaying back and forth.
It is apparent from all the foregoing, and I find, that
Respondent has, at all relevant times, had a practice of
requiring its city drivers to pull overloads, notwithstanding
the fact that such overloading rendered the vehicle
involved (a) more difficult to bung to a stop by braking it,
and (b) more difficult to steer and maneuver than a
properly loaded vehicle, creating thereby an unsafe
condition for the driver involved, the vehicle and its
contents, and the persons and property of others in and
near the highways over which the vehicle traveled.
D. Banyard's Discharge on October 7, and an
Incident Prior Thereto
The record shows that Banyard again refused to pull an
overload on October 6, 1969, and was discharged therefor
the next day. It is apparent that Banyard reached a
decision at the end of September or early in October not to
pull any more overloads after having pulled an overloaded
trailer weighing about 42,000 pounds from the Glidden
Company into Respondent's terminal. Thus, Banyard
testified that the morning after, at about 8 o'clock, he
brought the matter to the attention of the day dispatcher,
Bastian, in front of four or five other drivers. Banyard then
said that "as far as [he] was concerned [he] didn't intend to
pull any more overloads for McLean Trucking Company."
To this, Bastian replied, "We will cross the bridge when we
get to it."
As to the discharge incident itself, Banyard testified as
follows- After he emptied his trailer by delivering a load
from Respondent's terminal to a point in Cleveland, Ohio,
he inquired by telephone from Bastian as to his next
assignment Bastian instructed him to go to the Specialty
Products Company and pick up 40,000 pounds which was
going to a point in New England. Although he replied that
a 40,000-pound load would be too big for the equipment he
was driving, Bastian said "to go and pick up the load and
bring it in." Upon reaching the premises of Specialty
Products Company, he learned from the manifest fur-
nished him by a man in the general office8 that the load he
was to pick up consisted of 800 bags of 50 pounds each,
containing some kind of breading. He alerted this
individual to the overloading problem and suggested
cutting the load back to 720 bags. He was told, in turn, that
this would be all right if agreeable to Respondent, since
7 According to Banyard, the warranty on each tire is 5,000 pounds, so,
technically speaking, you can load 20,000 pounds on the drive axle which
has four tires, and 40,000 pounds on the back of the trailer which has eight
tires
" This individual is not identified in the record
The bags contained 50 pounds of breading and the bags themselves
weighed one pound each, the net weight was thus 40,000 pounds, and the
Respondent's drivers had hauled loads like the present one
before. Whereupon, he called Bastian and informed him of
this conversation. Bastian refused to cut back the load,
however, and instructed him "to load the front end light
and the back end heavy and to bring it in ." He protested,
saying that the load would then be too heavy and that he
was not going to bring the load in. Bastian 's final orders
were, "You just load the trailer." He complied with these
orders, loading the front end light and the back end heavy.
He also marked the bill of lading 40,800 pounds9 and 2,900
pounds overloaded. When he telephoned the terminal
again to advise that the trailer was loaded as per
instructions, he spoke to Hayden, the dispatcher on the
next shift after that of Bastian. Hayden called Mise to the
telephone. During his conversation with Mise, Mise told
him, after being informed of developments on this
shipment, to "bring it in," but he refused to do so.
Whereupon, Mise directed him to "drop the trailer and
bobtail in." 10 He thereupon returned the tractor to the
terminal around 5:30 p in., and was told to check out. And
upon inquiry as to when to report for work the next
morning, he was told to report at 8 a.m., which is his
regular starting time.
In regard to the claim of Banyard that the October 6
shipment was overweight, the parties stipulated that the
equipment driven by Banyard on that date would be
overweight in accordance with Ohio law if the drive axle
weight exceeded 19,000 pounds plus 3-percent tolerance
and/or the trailer axle weight exceeded 32,000 pounds plus
3-percent tolerance.ii It is further apparent from the
testimony of Banyard that the foregoing figures would
mean that "the most you can scale out" is under 38,000
pounds. Banyard also explained, in effect, that with the
back of the trailer loaded heavy, Respondent could then,
after he arrived at the terminal, take 3,000 pounds off the
back of the trailer, thereby leaving the front and back ends
of the trailer legal and reducing the scaling out figure to an
allowable weight under 38,000 pounds. It is thus apparent,
and I find, that the October 6 shipment was in excess of the
lawful weight under Ohio law and that Banyard did, in
fact, refuse to pull an overload on that date.
On the morning of October 7, Banyard reported for work
a few minutes before 8 Although drivers were dispatched
on the basis of seniority, and about seven drivers were
dispatched by 9 o'clock, Banyard's seniority was not
recognized and he received no assignment. Upon inquiring
from the dispatcher, Banyard was told to repair to the
basement of the terminal and await the arrival of a union
business agent summoned by Respondent At about 10
o'clock, John Kalnicki, the president of Local 407 and its
business representative, arrived at the terminal. After
Kalnicki spoke with Banyard, both of them went to Mise's
office. According to the mutually corroborative testimony
of Kalnicki and Banyard, Mise then informed them that
Banyard had been discharged for refusing to follow
gross weight was 40,800 pounds
10 Bobtailing is a term for separating the trailer from the tractor and then
returning to the terminal with the tractor
I i The parties also stipulated , in this connection , that under Ohio law no
penalties would be assessed against a driver's license but that any
overweight was the obligation of the owner of the company involved
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instructions; and their efforts to get into a discussion of the
matter with Mise was foreclosed by Mise's insistence that
his mind was made up. Mise also declared the case
deadlocked. Whereupon, it was taken to the grievance
procedure under the contract. As of the date of the
hearing, the grievance was still unresolved. The gnevance
had been considered by the Joint Local Area Committee,
the Joint State Cartage Committee, and the Joint Area
Cartage Committee, and each committee, bipartisan in
structure, deadlocked on the matter; it was then referred to
the Multi-Conference Committee, but no meeting had as
yet been scheduled.
E. Discussion and Concluding Findings
I have heretofore found, in substance, (1) that since 1966,
Respondent has had a policy of requiring its city drivers to
carry overloads in company vehicles; (2) that the carrying
of overloads is fraught with danger to the safety of the
driver, his cargo, and to other persons and property; (3)
that, in 1966, Banyard challenged Respondent's position
on overloads by protesting an overload situation involving
another driver and by twice refusing on his own to carry
overloads; (4) that Banyard's refusal resulted in discharges
in each instance, but he was subsequently reinstated with
full seniority as the result of his filing and the processing of
a grievance under existing grievance procedures, (5) that
Banyard saw Respondent's position on overloads as a
violation of his and other city drivers' rights under article
16 of the 1964-67 National Master Freight Agreement
between Respondent and Local 407, and he filed a
grievance in November 1966 seeking an interpretation of
that clause as it applied to the three overload situations dust
described, but this matter was not resolved as the
committee handling the grievance at the state level decided
to leave the interpretation of article 16 to be determined by
negotiation between the contracting parties; (6) that the
ensuing 1967-70 master agreement continued article 16
without change and without the parties having negotiated
any interpretation thereof, 12 (7) that Banyard, after a lapse
of almost 3 years, during which period he did pull
overloads,13 warned Respondent at about the end of
September or early October 1969, that he would not pull
overloads any more, and then shortly thereafter, on
October 6, refused to carry out an assignment of pulling an
overload, for which he was again discharged; and (8) that
the grievance procedure of the current agreement was
invoked and the grievance has reached the Multi-Confer-
ence Committee level and is still pending and unresolved.
Respondent's initial contention in its brief is, in effect,
that because the matter of Banyard's discharge has
proceeded through various stages of the grievance proce-
dure to the Multi-Conference Committee level and
Banyard has not withdrawn his grievance and it is still
pending, the Board should defer to the grievance-arbitra-
tion procedure under the collective-bargaining agreement
12 Indeed, although sec 2 was added this time to art 36 thereof and
related to overloads, it provided, in substance, only that an employee who
lost his license because he carved an assigned overload would be saved by
his employer harmless from any loss of earnings occasioned by his being
disabled from driving
13 Banyard explained, as already found, that he pulled the overloads
And then addressing itself to the merits of the allegations
of the complaint, Respondent contends, in substance, that
(1) Banyard was neither engaged in concerted or union
activity when he refused to follow instructions to pull the
overload and (2) in taking unilateral action in refusing to
obey instructions, instead of completing his assignment
and then filing a grievance, Banyard exceeded his authority
under the bargaining agreement, and his consequent
discharge was thus for cause. I shall first treat with the
latter two contentions.
The Board has held that where an employee files a
grievance in which he attempts to enforce or implement an
agreement which is applicable to him as well as to other
employees, he is engaging in protected concerted activity
which is but an extension of the concerted activities that
gave rise to that agreement. 14 It is evident from all that
transpired in 1966 and thereafter, and I find, that when
Banyard refused to pull an overload in 1969, he was again
asserting his position that by requiring city drivers to pull
overloads, Respondent was violating its agreement with
Local 407. He was, in this connection, relying on article 16
of the National Master Freight Agreement of 1967-70,
which was identical to the same numbered article of the
1964-67 agreement involved in his challenges in 1966. As
dust noted, however, Respondent contends, in effect, that
by first refusing to obey instructions to pull the overload,
instead of completing his assignment and then following
the grievance route, Banyard exceeded his authority under
the bargaining agreement and rendered himself vulnerable
to discharge and lost the Act's protection. In assessing
Respondent's position, it is important to note (1) that
Banyard was being ordered by Respondent, over his
protests, to perform an illegal act, since to operate the
overloaded vehicle would be to violate an Ohio statute
respecting allowable weights on this type of vehicle, and (2)
that the unchallenged credible testimony herein establishes
that an overloaded vehicle, as here, creates problems as to
its proper braking and maneuverability, and creates unsafe
conditions for the driver, as well as for his cargo and for
persons and property on the highways. And it is not a
sufficient answer to say that Respondent has, in section 2
of article 36 of the 1967-70 National Master Freight
Agreement, committed itself to save harmless from loss of
wages any city driver who suffers a loss or suspension of
his chauffeur's license in the course of operating an
overloaded vehicle pursuant to its instructions, for this
would not thereby save such city driver harmless from all
the consequences, physical and otherwise, which might
flow from an accident occurring in the course of such
operation. In these circumstances, and since it would
contravene sound public policy for the Board so to
interpret the Act as to force a driver, if ordered by his
employer, to drive an unsafe overloaded vehicle on the
highways and to violate state law in the course thereof as a
prerequisite to asserting his Section 7 rights to attempt via
the grievance route to enforce or implement an applicable
because he did not know the position of his union above the local level on
overloads and that, without pulling overloads, he had to work 6 days a week
in order to earn what other drivers earned in 5 days
i4 See A S Hubbs d/b/a Hubbs Contracting et a!, 163 NLRB 292. 296,
and cases cited therein See also The John K/ann Moving and Trucking
Company, 170 NLRB 1207, and Harlnell Company, Inc, 169 NLRB 412
MCLEAN TRUCKING CO. 721
bargaining agreement relating to overloading , I conclude,
and find , that Respondent 's defense is lacking in merit.
Accordingly, since Banyard did not forfeit his aforemen-
tioned Section 7 rights by refusing to obey Respondent's
order to drive the overloaded vehicle on October 6 , 1969, I
find that Respondent 's discharge of Banyard for such
refusal to obey interfered with his rights to engage in
protected concerted activity , in violation of Section 8(a)(1).
And this is so whether or not Banyard was acting in his
capacity as steward in challenging Respondent 's position
on overloads.15
I turn now to the contention that the Board should
withhold its processes and defer this matter to the
grievance and arbitration procedure under the collective-
bargaining agreements . It is true that the Board has
exercised its discretion in the past in recognizing an
arbitration award which appears to have been conducted
pursuant to fair and regular proceedings , with all parties
agreeing to be bound and where the decision is not clearly
repugnant to the Act.16 However , that is not the situation
here. There is no arbitration award at hand for the Board
to recognize . In the latter connection , the Board recently
pointed out in the case of Eastern Illinois Gas and Securities
Company, 175 NLRB 639, that while it has at times
deferred to an arbitration proceeding which has not
reached the point of arbitration , 17 it would not do so in
that case The Board there said , "Our decision to entertain
this complaint does not turn on the fact that the parties
invoked but then failed to exhaust the grievance procedure,
as the Trial Examiner implies. Although, in appropriate
circumstances , the Board has discretion to defer to the
grievance arbitration procedure , we do not regard the
controversy before us as one which falls within the special
competence of an arbitrator to determine . Rather, we find
that the dispute is primarily one which calls for resolution
under the provisions of the statute which we are charged
with enforcing (See Hoerner-Waldorf Paper Products Co,
163 NLRB [772]; Pontiac Motors Division, General Motors
Corp., 132 NLRB 413, 415)." In the instant case, it is patent
that the issue raised by the allegations of the complaint,
namely, whether Banyard has been discharged by Respon-
dent because of his concerted or union activity , is not one
which falls within the special competence of an arbitrator,
but is primarily one for resolution under the provisions of
the Act which the Board has been mandated by Congress
to enforce . Moreover , resolution of the grievance by
arbitration is not a likelihood in this case . As already
indicated , Respondent and Local 407 have deadlocked at
all steps of the grievance procedure available under the
supplemental agreement . And subsequent steps of the
grievance procedure , including the Multi-Conference
Committee step , where the grievance is now pending, are
governed by article 8 of the National Master Agreement
which would preclude the submission to arbitration of
Banyard's grievance insofar as it would involve the
interpretation of article 16 and any other article of the
National Master Agreement. In all these circumstances, I
conclude, and find, that the availability of the contractual
grievance procedure and the fact that Banyard's grievance
as to his discharge has already been through various steps
of that procedure do not warrant the withholding by the
Board of its processes in this case.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 407 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging James Banyard on October 7, 1969,
because he engaged in concerted activity protected by the
Act, Respondent has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act and has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged, and is
engaging, in unfair labor practices violative of Section
8(a)(1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action, as set
forth below, including the posting of an appropriate notice,
all of which are designed to effectuate the policies of the
Act. Having found that Respondent discriminatorily
discharged James Banyard, I shall recommend that
Respondent remedy such unlawful discrimination by
offering him immediate and full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights, privileges, or working conditions, and make
him whole for all earnings lost by reason of the discrimina-
tion against him, by paying to him a sum of money equal
to the amount he would have earned from October 7, 1969,
the date of his discharge, to the date of a proper offer of
reinstatement, less his net earnings during such period.
Backpay, with interest at the rate of 6 percent per annum,
shall be computed in the manner set forth in F. W
Woolworth Company, 90 NLRB 289; and Isis Plumbing &
Heating Co., 138 NLRB 716.
[Recommended Order omitted from publication.]
15 As the remedy would in any event be the same , I find it unnecessary
to decide whether the discharge also violated Sec 8(a)(3) of the Act
16 See Spielberg Manufacturing Company, 112 NLRB 1080, 1082
17 See, in this connection , Dubo Manufacturing Corporation , 142 NLRB
431