Meyers Industries

National Labor Relations Board - Board Decisions

Jan 6, 1984

268 N.L.R.B. 493 (N.L.R.B. 1984)

MEYERS INDUSTRIES
Meyers Industries, Inc. and Kenneth P. Prill. Case
7-CA-17207
6 January 1984
DECISION AND ORDER
On 14 January 1981 Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel and the Charging Party
each filed cross-exceptions with supporting briefs,
after which the General Counsel filed a brief in re-
sponse to the Respondent's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,1 findings, 2
and conclusions only to the extent consistent with
this Decision and Order. 3
On 4 November 1980, after the hearing and before the judge's deci-
sion, the General Counsel, with the Charging Party's concurrence,
moved to amend the complaint to include an additional allegation that
the unl*aful nature of Prill's discharge is supported by Sec. 502 of the
National L'bor Relations Act. The relevant portion of that section states:
INlor shall the quitting of labor by an employee or employees ingood faith because of abnormally dangerous conditions for work at
the place of employment of such employee or employees be deemed
a strike under this Act.
The judge, after considering the arguments of all parties, denied the Gen-
eral Counsel's motion by telegram of II November 1980. The General
Counsel and the Charging Party cross-except. We note that counsel for
the General Counsel engaged in lengthy argument at the hearing con-
cerning the theory of her case both before as well as after the presenta-
tion of evidence, but gave no indication that Sec. 502 formed the basis
for any portion of the General Counsel's case. In addition, although
counsel for the Charging Party took the position at the hearing that Sec.
502 was applicable, counsel for the General Counsel thereafter reiterated
that the theory of her case rested on Alleluia Cushion Co., 221 NLRB 999
(1975), and at no time adopted the Charging Party's position. Thus, al-
though we agree with the judge that the General Counsel's motion to
amend the complaint should be denied, we do so for the reason that the
General Counsel neither raised nor litigated the Sec. 502 issue at the
hearing. Accordingly, we affirm the judge's ruling and therefore do not
reach the issue discussed in fn. 6 of the attached decision of whether Sec.
502 protects an employee in the circumstances of this case.
2The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The Respondent also asserts that the judge's decision is the result of
bias. After a careful examination of the entire record, we are satisfied that
this allegation is without merit. There is no basis for finding that bias and
partiality existed merely because the judge resolved important factual
conflicts in favor of the General Counsel's witnesses. As the Supreme
Court stated in NLRB v. Pittsburgh Steamship Co, 337 U.S. 656, 659
(1949), "IT]otal rejection of an opposed view cannot of itself impugn the
integrity or competence of a trier of fact." See generally Jack August En-
terprises, 232 NLRB 881 (1977).
3 The Charging Party urges, as part of its cross-exceptions, that it be
awarded a reasonable attorney's fee for this litigation. When a respond-
ent's defense is dependent upon resolutions of credibility and hence is
"debatable" rather than "frivolous," the Board has consistently refused to
award litigation costs, even if the respondent has "engaged in 'clearly ag-
gravated and pervasive misconduct,' or in the 'flagrant repetition of con-
duct previously found unlawful."' Heck's Inc., 215 NLRB 765, 767
(1974); see also Tiidee Products, 194 NLRB 1234 (1972). Upon a review of
the record, we cannot say that the Respondent's defenses were frivolous.
268 NLRB No. 73
Relying on Alleluia Cushion Co., 221 NLRB 999,
the judge concluded that the Respondent violated
Section 8(a)(1) of the Act when it discharged em-
ployee Kenneth P. Prill because of his safety com-
plaints and his refusal to drive an unsafe truck after
reporting its condition to the Tennessee Public
Service Commission. Upon careful consideration,
and for the reasons set forth below, we reject the
principles the Board adopted in Alleluia, and do
not agree with the view of protected concerted ac-
tivity which that decision and its progeny advance.
We, therefore, find that the Respondent did not
violate Section 8(a)(l) by discharging Prill.
I. THE CONCEPT OF PROTECTED CONCERTED
ACTIVITY
The concept of concerted action has its basis in
Section 7 of the Act, which states in relevant part:
Employees shall have the right to self-organi-
zation, to form, join, or assist labor organiza-
tions, to bargain collectively through 'repre-
sentatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other
mutual aid or protection ....
Although the legislative history of Section 7 does
not specifically define "concerted activity," it does
reveal that Congress considered the concept in
terms of individuals united in pursuit of a common
goal. The immediate antecedent of Section 7 was
Section 7(a) of the National Industrial Recovery
Act of 1933, 4 the purpose of which was, as then
Congressman Boland suggested, to "afford [the la-
boring person] the opportunity to associate freely
with his fellow workers for the betterment of
working conditions . . . [and it] primarily creates
rights in organizations of workers."5
A review of the language of Section 7 leads to a
similar united-action interpretation of "concerted
activity." The wording of that section demon-
Accordingly, we deny the Charging Party's request for reasonable attor-
ney's fees.
' 48 Stat. 195, 198.
See also § 2 of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 102.
The Supreme Court has stated that "Congress modeled the language of §
7 after that found in § 2 of the Norris-LaGuardia Act . . which de-
clares that it is the public policy of the United States that 'workers shall
be free from the interference, restraint, or coercion of employers of labor,
or their agents, in the designation of . .. representatives or in self organi-
zation or in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection....' Easrex, Inc. v. NLRB.
437 U.S. 556, 565 fn 14 (1978).
a 79 Cong. Rec. H 2332 (daily ed Feb. 20, 1935) (statement of Rep.
Boland), reprinted in 2 Leg. Hist. of the National Labor Relations Act of
1935, at 2431-32 (1935).
Boland's analysis of the "collectivist" antecedents of what became Sec.
7 of the Act was recognized by others. See, e.g., William H. Spencer,
Collective Bargaining Under Section 7(a) of the .Vational Industrial Recovery
Act 3-6 (1935)
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strates that the statute envisions "concerted" action
in terms of collective activity: the formation of or
assistance to a group, or action as a representative
on behalf of a group. Section 7 limits the employee
rights it grants to the examples of concerted activi-
ties specifically enumerated therein-"self-organiza-
tion"; forming, joining, or assisting labor organiza-
tions; and bargaining collectively ,through repre-
sentatives-and to engaging in "other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection." (Emphasis added.)
Thus, the statute requires that the activities in ques-
tion be "concerted" before they can be "protect-
ed." Indeed, Section 7 does not use the term "pro-
tected concerted activities," but only "concerted
activities." 6
Consistent with this interpretation, the Board
and courts before Alleluia generally analyzed the
concept of protected concerted activity by first
considering whether some kind of group action oc-
curred and, only then, considering whether that
action was for the purpose of mutual aid or protec-
tion.7 In a 1951 case, Root-Carlin, Inc.,8 the Board
addressed the issue of what was required in order
for activity to be "concerted." The case involved
only conversation among employees about the need
for a union in their workplace. The Root-Carlin
Board stated:
Manifestly, the guarantees of Section 7 of the
Act extend to concerted activity which in its
inception involves only a speaker and a listener,
for such activity is an indispensable prelimi-
nary step to employee self-organization. [Em-
phasis added. 92 NLRB at 1314.]
Significantly, the Board described concerted activi-
ty in terms of interaction among employees.
Several years later, the Board again considered
what constituted concerted activity in Traylor-
Pamco.9 That case involved the discharge of two
men who consistently ate their lunch in the "dry
shack" even during a concrete pour, while every-
one else ate in the less pleasant surroundings of the
tunnel so as to minimize "downtime." The trial ex-
aminer, with Board approval, declined to find the
6 The Act does not protect all concerted activity. It is not a violation
of the Act to restrain or coerce an employee because he engages in con-
certed activity that is not protected-either, for example, because such
activity contravenes another section of the Act or another statute, or be-
cause it was not engaged in "for the purpose of collective bargaining or
other mutual aid or protection." See Eastex, 437 U.S. at 568 fn. 18. See
generally Gregory, Unprotected Acrivity and the NLRA, 39 Va. L. Rev.
421 (1953).
7 See, e.g., Texas Textile Mills, 58 NLRB 352 (1944); Lion Brand Mfg.
Co., 55 NLRB 798 (1944), enfd. in relevant part 146 F.2d 773 (5th Cir.
1945); Globe Co., 54 NLRB 1 (1943); M. F: A. Milling Co., 26 NLRB 614
(1940), enfd. in relevant part 115 F.2d 140 (8th Cir.).
8 92 NLRB 1313 (1951).
9 154 NLRB 380 (1965).
employees' refusal to eat in the tunnel to be con-
certed, stating: "There is not even the proverbial
iota of evidence that there was any consultation be-
tween the two in the matter, that either relied in
any measure on the other in making his refusal, or
that their association in refusing to eat in the tunnel
was anything but accidental." 154 NLRB at 388.
Thus, in Traylor-Pamco, the Board continued to
define concerted activity in terms of employee
interaction in support of a common goal.
Thereafter, the Board decided in Continental
Mfg.,10 in which employee Ramirez prepared and
signed, on her own, a letter that she handed to re-
spondent's owner. The letter stated that a majority
of employees were disgusted with their treatment,
that a supervisor played favorites, and that a jani-
tor was needed for the women's bathroom. The
letter concluded, "We all want to continue work-
ing here with you; please help us to improve our
working conditions." The Board reversed the trial
examiner's finding that Ramirez' letter constituted
concerted activity, stating:
The letter, which was directed only to the
Respondent, was prepared and signed by Ra-
mirez acting alone. She did not consult with
. . .any other employee, or the Union about
the grievances therein stated or her intention
of sending the letter to DeSantis [an owner of
respondent]. There is no evidence that the
criticisms in the letter reflected the views of
other employees, nor is there evidence that the
letter was intended to enlist the support of
other employees. This letter received no sup-
port from union representatives. . . . [155
NLRB at 257.]
Once again, the Board defined concerted activity
in terms of interaction among employees. ''
In recent years, but before Alleluia, the Board
often decided the circumstances under which ap-
parently individual activity may properly be char-
acterized as "concerted." One of these cases, G. V.
R.. Inc.,12 is factually indistinguishable from Alle-
luia, but equivocal in its reasoning. Glace and
Curry were two employees who reported to the
United States Army and the Department of Labor
that their employer forced them to "kick back"
portions of their wages. The judge found that
Glace and Curry were discharged in violation of
Section 8(a)(l) of the Act because they concertedly
made complaints to United States agencies about
'O 155 NLRB 255 (1965).
J The Board's analysis of the facts in Continental Mfg., which were
similar to those in Alleluia, was directly contrary to the Alleluia Board's
reasoning.
12 201 NLRB 147 (1973) (former Chairman Edward Miller dissenting).
494
MEYERS INDUSTRIES
their wages, hours, and working conditions.13 At
footnote 2 of its decision, the Board majority
noted:
The Administrative Law Judge found, in
substance, that even in the absence of concert-
ed activity, "Public policy would be frustrated
if employees . . . could not, with full protec-
tion of the Act, make complaints to public
agencies about wages, hours, etc., without fear
of reprisals."
The Board majority specifically disavowed the
judge's language, stating:
We do not adopt this improper extension of
our enunciated principle that it would be con-
trary to public policy to hold that the making
of complaints to public authorities in the course
of concerted activity removes the protection of
the Act from the concerted activity .... [201
NLRB 147 at fn. 2.]
Despite the Board's rejection of the judge's ex-
tension of the concept of concerted activity, the
Board majority stated:
We also find, in addition to these reasons [the
evidence of Glace's and Curry's actual con-
certed activities], that an employee covered by
a federal statute governing wages, hours, and
conditions of employment who participates in
a compliance investigation of his employer's
administration of a contract covered by such a
statute, or who protests his employer's non-
compliance with the contract, is engaged in
concerted activity for the mutual aid and pro-
tection of all the employer's employees similar-
ly situated. [Emphasis added. 201 NLRB at
147.]J'
Thus, with G. V R., the Board apparently declined
to extend its concept of concerted action as a
matter of policy, but did so as a matter of law. The
distinction is a difficult one to discern.
II. ALLELUIA, ITS PROGENY, AND THE
DEVELOPMENT OF THE PER SE STANDARD OF
CONCERTED ACTIVITY
With Alleluia, the transformed concept of con-
certed activity was at last revealed. In that case,
maintenance employee Jack Henley registered
safety complaints with respondent. Henley was
'3 The judge and the Board majority found evidence that Glace and
Curry had actually acted in concert during the course of the investiga-
tion.
t' The "contract" referred to in the decision was not a collective-bar-
gaining agreement, but a contract for services entered into between re-
spondent and the United States Army.
later transferred to another facility,' 5 where he en-
countered similar safety problems. Not satisfied
with Alleluia's response to these problems, Henley
wrote a letter of complaint to the California OSHA
office (Occupational Safety and Health Administra-
tion), with a copy to the respondent. The Board
found no evidence that, before complaining to re-
spondent or writing to California OSHA, Henley
discussed the safety problems with other employ-
ees, sought their support in remedying the prob-
lems, or requested assistance in preparing the letter.
Henley accompanied the OSHA inspector on a
plant tour and was discharged the following day.
The judge dismissed the complaint in its entirety,
finding no outward manifestation of group action.
The Board disagreed and found concerted activity.
The Board reasoned from the premise that "(s]afe
working conditions are matters of great and con-
tinuing concern for all within the work force." In
support of that premise, the Board noted that both
the Federal Government and the States had made
known their concern with this area of industrial life
through occupational safety and health legislation.
The Board, therefore, reasoned that because Con-
gress and the States made manifest the apparent na-
tional will in the area of industrial safety, "the con-
sent and concert of action emanates from the mere
assertion of such statutory rights."
Under the Alleluia approach, an observable mani-
festation of "group will" in the workplace (as distin-
guished from the legislature) was no longer re-
quired to find concert of action. The existence of
relevant legislation and its invocation by a solitary
employee became sufficient to find concerted activ-
ity. The practical effect of this change was to
transform concerted activity into a mirror image of
itself. Instead of looking at the observable evidence
of group action to see what men and women in the
workplace in fact chose as an issue about which to
take some action, it was the Board that determined
the existence of an issue about which employees
ought to have a group concern. Stated another
way, under the Alleluia analytical framework, the
Board questioned whether the purpose of the activ-
ity was one it wished to protect and, if so, if then
deemed the activity "concerted," without regard to
its form. This is the essence of the per se standard
of concerted activity. We emphasize that the
Board, in Alleluia, presumed to divine the rel-
evance of the safety issue to the "theoretical" em-
ployee group by pointing to the existence of legis-
lation in the health and safety area. Alleluia's prog-
eny, however, dropped even the requirement of
legislative action, and the Board ultimately decided
I5 The transfer was not at issue.
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what ought to be the subject matter of working
persons' concern when the statutory manifestation
of such "group concern" was slim or nonexist-
ent. 16
Another aspect of the Alleluia doctrine warrants
scrutiny. Perhaps in an attempt to retain some ele-
ment of the previous requirement of observable
evidence of group support, the Board stated:
Accordingly, where an employee speaks up
and seeks to enforce statutory provisions relat-
ing to occupational safety designed for the
benefit of all employees, in the absence of any
evidence that fellow employees disavow such rep-
resentation, we will find an implied consent
thereto and deem such activity to be concert-
ed. [Emphasis added. 221 NLRB at 1000.]
This is yet another mirror image turn that the defi-
nition of concerted activity has taken. In the past,
we required the General Counsel to prove support
by other employees in order to find activity con-
certed. With Alleluia, the Board seemed to require
a respondent to submit evidence that other employ-
ees disavowed the activity to prove that it was not
concerted. This is a clear shift in the burden of
proof, not countenanced by either the legislative
history or judicial interpretation of Section 7.17
The courts of appeals that have reviewed the
post-Alleluia cases have rejected the per se stand-
ard of concerted activity. 8 In Krispy Kreme, the
Fourth Circuit summarized the response of the
courts as follows:
The Board cites no circuit decision support-
ing its theory of presumed "concerted activi-
ty" in this case. The only courts which have
considered it have flatly rejected any rule that
where the complaint of a single employee re-
lates to an alleged violation of federal or state
safety laws and there is no proof of a purpose
enlisting group action in support of the com-
plaint, there is "constructive concerted action"
meeting the threshold requirement under Sec-
tion 7. [635 F.2d at 309.]
For all the foregoing reasons, we are persuaded
that the per se standard of concerted activity, by
I' In Air Surrey Corp., 229 NLRB 1064 (1977), enf. denied 601 F2d
256 (6th Cir. 1979), and Pink Uoody. Inc., 237 NLRB 39 (1978), Alleluia
was expanded to include state banking statutes and motor vehicle laws,
respectively.
In Steere Dairy, Inc., 237 NLRB 1350 (1978), and Ontario Knife Co.,
247 NLRB 1288 (1980), enf. denied 637 F.2d 840 (2d Cir. 1980), the stat-
utory element of Alleluia was not present, and individual conduct was
deemed to be concerted solely on the theory that it involved a matter the
Board considered to be of concern to the group.
II Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304, 310 (4th Cir
1980).
': E.g., Ontario Knife Co. v. NLRB, 637 F.2d 840 (2d Cir. 1980); Krispy
Kreme Doughnut Corp. v. NLRB, 635 F.2d 304 (4th Cir. 1980); N'LRB v.
Dawson Cabinet Co., 566 F.2d 1079 (8th Cir. 1977)
which the Board determines what ought to be of
group concern and then artificially presumes that it
is of group concern, is at odds with the Act. The
Board and courts always considered, first, whether
the activity is concerted, and only then, whether it
is protected. This approach is mandated by the
statute itself, which requires that an activity be
both "concerted" and "protected." A Board find-
ing that a particular form of individual activity
warrants group support is not a sufficient basis for
labeling that activity "concerted" within the mean-
ing of Section 7.19
III. INTERBORO DISTINGUISHED FROM
ALLELUIA
The Board's decision in Interboro Contractors2 0
holds that actions an individual takes in attempting
to enforce a provision of an existing collective-bar-
gaining agreement are, in effect, grievances within
the framework of that agreement. 21 It is not our
intention to set forth the parameters of Interboro in
this case, but rather to distinguish Interboro from
Alleluia.
The focal point in Interboro was, and must be,
the attempted implementation of a collective-bar-
gaining agreement. By contrast, in the Alleluia situ-
ation, there is no bargaining agreement, much less
any attempt to enforce one, and we distinguish the
two cases on that basis.
IV. DEFINITION OF CONCERTED ACTIVITY
Based on the foregoing analysis, we hold that the
concept of concerted activity first enunciated in Al-
leluia does not comport with the principles inher-
ent in Section 7 of the Act. We rely, instead, upon
the "objective" standard of concerted activity-the
standard on which the Board and courts relied
before Alleluia. Accordingly, we hereby overrule
Alleluia and its progeny.
Although the definition of concerted activity we
set forth below is an attempt at a comprehensive
19 Southern Steamship Co. v. VLRB, 316 U.S 31 (1942), cited by the
Board in Alleluia, is not to the contrary. That case involved a strike on
board a ship moored in an American port. The strike, which was found
to be in violation of the Federal mutiny statutes, would otherwise have
been protected by the National Labor Relations Act. The Supreme Court
resolved the conflict between the Act and the mutiny statutes by instruct-
ing the Board that it could not order the reinstatement of strikers who,
under the circumstances, had engaged in a criminal act. In short, the
Board was required to accommodate its own mandates to those of an-
other statutory scheme. Such accommodation, we emphasize, had the
effect of narrowing the scope of the National Labor Relations Act. The
"accommodation" the Alleluia decision compelled, however, involved
nothing less than using other statutes to create rights that do not exist
under the Act.
20 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (2d Cir. 1967).
2 1 The issue of the validity of the Interboro doctrine is presently pend-
ing before the Supreme Court. Citry Disposal Systems, 256 NLRB 451
(1981), enf denied 683 F.2d 1005 (6th Cir 1982), cert. granted 51
U S L.W. 3703 (U.S. Mar. 28, 1983) (No. 82-960).
496
MEYERS INDUSTRIES
one, we caution that it is by no means exhaustive.
We acknowledge the myriad of factual situations
that have arisen, and will continue to arise, in this
area of the law. In general, to find an employee's
activity to be "concerted," we shall require that it
be engaged in with or on the authority of other
employees, and not solely by and on behalf of the
employee himself.2 2 Once the activity is found to
be concerted, an 8(a)(1) violation will be found if,
in addition, the employer knew of the concerted
nature of the employee's activity, the concerted ac-
tivity was protected by the Act, and the adverse
employment action at issue (e.g., discharge) was
motivated by the employee's protected concerted
activity. 2 3
We emphasize that our return to a pre-Alleluia
standard of concerted activity places on the Gener-
al Counsel the burden of proving the elements of a
violation as set forth herein. It will no longer be
sufficient for the General Counsel to set out the
subject matter that is of alleged concern to a theo-
retical group and expect to establish concert of
action thereby.
We also emphasize that, under the standard we
now adopt, the question of whether an employee
engaged in concerted activity is, at its heart, a fac-
tual one, the fate of a particular case rising or fall-
ing on the record evidence. It is, therefore, impera-
tive that the parties present as full and complete a
record as possible.
V. APPLICATION OF THE DEFINITION OF
CONCERTED ACTIVITY TO THE FACTS OF THE
INSTANT CASE
As the judge found, Charging Party Kenneth P.
Prill drove trucks for a number of years and was
an owner-operator for the 4 years before his em-
ployment by the Respondent. The Respondent as-
signed Prill to drive what was described as the
"red Ford truck" and its accompanying trailer,
with which he hauled boats from the Respondent's
facility in Tecumseh, Michigan, to dealers through-
out the country. Prill's equipment, particularly the
brakes and steering, gave him difficulty on a
number of occasions, and he often lodged com-
plaints with the Respondent concerning malfunc-
tions.
12 See Ontario Knife Co. v. NLRB, 637 F.2d 840, 845 (2d Cir. 1980);
Pacific Electricord Co. v. NLRB, 361 F.2d 310 (9th Cir. 1966).
a2 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (Ist
Cir. 1981), cert. denied 455 U.S. 989, approved in NLRB v. Transportation
Management Corp., 103 S.Ct. 2496, 97 LC * 10,164 (1983).
Under this standard, an employee "may be discharged by the employer
for a good reason, a poor reason, or no reason at all, so long as the terms
of the statute are not violated." NLRB v. Condenser Corp. of A/merica, 128
F.2d 67, 75 (3d Cir. 1942). Thus, absent special circumstances like NLRB
v. Burnup & Sims, 379 U.S. 21 (1964), there is no violation if an employ-
er, even mistakenly, imposes discipline in the good-faith belief that an em-
ployee engaged in misconduct.
Although the red Ford truck and trailer were as-
signed to Prill on what might fairly be described as
a permanent basis, during the first 2 weeks of June
1979 Prill's fellow employee, Ben Gove, was as-
signed that equipment while Prill was absent from
work. On a trip to Sudberry, Ontario, Gove experi-
enced steering problems which nearly caused an
accident. On Gove's return, he informed Supervi-
sor Dave Faling of difficulties with the truck. Prill,
who had by then returned to work, was also in
Faling's office to receive paperwork for an upcom-
ing trip. Prill was present when Gove told Faling
that he "wouldn't take the truck as far as Clinton
and back, until they had done some repair on it.
Until someone repaired it. I [Gove] didn't care
who done it, but I wasn't going to drive it no far-
ther."
The Respondent's mechanic, Buck Maynard,
made an unsuccessful attempt to correct the prob-
lems. Thereafter, on a trip to Xenia, Ohio, during
which the brakes malfunctioned, Prill voluntarily
stopped at an Ohio State roadside inspection station
where the trailer was cited for several defects,
some relating to the brakes. Prill forwarded the ci-
tation to the Respondent's officials.
In July 1979, while driving through Tennessee,
Prill was involved in an accident caused by the
malfunctioning brakes. Prill telephoned the Re-
spondent's president, Alan Beatty, who instructed
Prill to have a mechanic look at the equipment, but
to get it home as best he could. The following
morning Prill again called Beatty. The Respond-
ent's vice president, Wayne Seagraves, joined the
conversation on an extension telephone. Both
Beatty and Seagraves were upset with Prill for not
having left Tennessee, and a decision was made to
send Maynard to Tennessee to examine the equip-
ment.
Thereafter, Prill, of his own volition, contacted
the Tennessee Public Service Commission to ar-
range for an official inspection of the vehicle. The
following morning a citation was issued, and the
unit was put out of service due to bad trailer
brakes and damage to the hitch area of the truck.
The citation mentioned several Department of
Transportation regulations, including 49 C.F.R. §
396.4, which prohibits the unsafe operation of a ve-
hicle. A commission representative instructed Prill
that certain repairs would have to be made before
the vehicle could be moved.
When Maynard arrived in Tennessee, Prill
showed him the citation. Maynard called Beatty,
and it was decided to sell the trailer for scrap. Prill
then drove the truck back to Tecumseh.
The judge found that when Prill reported in on 5
July 1979 he turned in his paperwork and was sum-
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moned to Seagraves' office. Seagraves questioned
him about the accident and the damage to the
truck. He asked why Prill did not chain the truck
and trailer together and drive back. Prill responded
that he did not believe it was safe to drive the ve-
hicle. Seagraves then said that Prill would be ter-
minated because "we can't have you calling the
cops like this all the time." Beatty, who had en-
tered the office during the conversation, also asked
why Prill did not chain the truck and trailer. Prill
responded that it would have been 'unsafe and un-
lawful in view of the citation.
The judge concluded that Prill was discharged
for two reasons: (1) his refusal to drive an unsafe
vehicle after filing the report with the Tennessee
Public Service Commission, and (2) his earlier
safety complaints, including a complaint to Ohio
authorities. The judge held that Prill's discharge
was unlawful, relying on Alleluia, which he noted,
"established a presumption that an individual em-
ployee engages in concerted activity where his
conduct arises out of the employment relationship
and is a matter of common concern among all em-
ployees." (Decision of the administrative law
judge, sec. II,B, par. 2.)24 The judge further noted
in support of his Alleluia analysis that Prill's refusal
to drive the equipment was mandated by Depart-
ment of Transportation regulations, which require
that an inspection be made after an accident to de-
termine the extent of damage, and also that a vehi-
cle cited as unsafe not be operated until it is re-
paired. 25
The judge found that Prill, by contacting local
authorities and refusing to drive the vehicle, was
enforcing the cited provisions of the national trans-
portation policy, and that his invoking the Tennes-
see Public Service Commission's inspection appara-
tus was the legal equivalent of a safety complaint
to OSHA. See Alleluia. The judge concluded his
analysis by stating that the Respondent was "free,
under Alleluia Cushion, to rebut the inference that
Prill's activity inured to the benefit of all employ-
ees. It could have been shown, for example, that
Prill's protests and complaints were not made in
good faith or were simply the idiosyncrasies of a
super sensitive individual whose concerns could
not have been shared by other truckdrivers in simi-
lar circumstances. This Respondent failed utterly to
accomplish." (ALJD, sec. II,B, par. 10.)
Rejecting, as we do, the judge's reliance on Alle-
luia we find that the Respondent did not violate
Section 8(a)(1) of the Act when it discharged Prill
for refusing to drive his truck and trailer and for
24 The judge additionally relied on Ontario Knife Co., 247 NLRB 1288
(1980), enf. denied 637 F.2d 840 (2d Cir.); Steere Dairy, 237 NLRB 1350
(1978); and Pink Moody, Inc., 237 NLRB 39 (1978).
24 Citing Federal Motor Carrier Safety Regulations, 49 C.F.R. § 396.4.
contacting state authorities. Prill alone refused to
drive the truck and trailer; he alone contacted the
Tennessee Public Service Commission after the ac-
cident; and, prior to the accident, he alone contact-
ed the Ohio authorities. Prill acted solely on his
own behalf. It follows that, without the artificial
presumption Alleluia created, the facts of this case
do not support a finding that Prill engaged in con-
certed activity.
There is one other point that warrants consider-
ation. The judge stated that "Prill's complaints
about the trailer brakes prior to the accident were
clearly concerted since they were joined by driver
Gove who made similar complaints, in Prill's pres-
ence, to management officials about the safety of
Prill's vehicle when he, Gove, was assigned to
drive it for 2 weeks." (ALJD, sec. II,B, par. 8.) It
is not certain whether the judge cited this evidence
in support of his Alleluia analysis, or in support of
an alternative pre-Alleluia rationale. To the extent
that the judge appears to have concluded that this
record evidence would lead to a finding of con-
certed action under a pre-Alleluia analysis, we
reject his conclusion.
The record is clear that Prill merely overheard
Gove's complaint while in the office on another
matter, and there is no evidence that anything else
occurred. The record reflects, and the judge found,
only that Prill stood by when Gove made his com-
plaint; the judge correctly made no factual finding
that Prill and Gove in any way joined forces to
protest the truck's condition. Indeed, the most that
can be inferred from this scenario is that another
employee was individually concerned, and individ-
ually complained, about the truck's condition.
Taken by itself, however, individual employee con-
cern, even if openly manifested by several employ-
ees on an individual basis, is not sufficient evidence
to prove concert of action.
In this regard, the Alleluia presumption has only
engendered analytical confusion. Thus, under Alle-
luia, concern is presumed unless otherwise rebutted;
to affirmatively show that another employee is in-
dividually concerned, or even lodges a complaint,
adds not one whit to an Alleluia analysis. Yet, evi-
dence of individual concern by more than one em-
ployee has come to be viewed as evidence of con-
cert itself, and has so blurred the distinction be-
tween the two types of evidence that the Board
has lost sight of what is required of a pre-Alleluia
analysis.
In its pre-Alleluia days the Board had, in fact,
considered factual patterns similar to that presented
herein and had declined to find concerted activity.
See, e.g., Traylor-Pamco and Continental Mfg., dis-
cussed above. As with the employees who ate their
498
MEYERS INDUSTRIES
lunch together in Traylor-Pamco, there is no evi-
dence here that there was any concerted plan of
action between Gove and Prill, or that either relied
in any measure on the other when each refused to
drive the truck. In addition, as in Continental Mfg.,
there is no support for a finding that either Gove's
or Prill's refusal was intended to enlist the support
of other employees. Prill's refusal to drive the
truck and trailer and his report to the Tennessee
Public Service Commission were made by himself
and for himself alone, and thus cannot be deemed
concerted.
One might nonetheless fairly argue that Prill's
situation is a sympathetic one that should cause us
concern. We do not believe, however, that Section
7, framed as it was to legitimize and protect group
action engaged in by employees for their mutual
aid or protection, was intended to encompass the
case of individual activity presented here. Al-
though it might be argued that a solitary over-the-
road truckdriver would be hard pressed to enlist
the support of coworkers while away from the
home terminal, the Board, to paraphrase former
Chairman Edward Miller's dissent in G. V R., is
neither God nor the Department of Transportation.
Outraged though we may be by a respondent
who-at the expense of its driver and others travel-
ing on the nation's highways-was clearly attempt-
ing to squeeze the last drop of life out of a trailer
that had just as clearly given up the ghost, we are
not empowered to correct all immorality or even
illegality arising under the total fabric of Federal
and state laws.
In conclusion, we acknowledge that there are
few areas of the law that are entirely free of uncer-
tainty or disagreement. We are persuaded, howev-
er, that Alleluia and its progeny have been an un-
fortunate deviation from the objectives and pur-
poses of the Act, as defined by its legislative and
judicial history, and it will not serve us well, nor
those whom we are charged to protect, to continue
to adhere to Alleluia's precepts.
Accordingly, based on all the foregoing reasons,
and the record as a whole, we shall dismiss the
complaint.
ORDER
The complaint is dismissed.
MEMBER ZIMMERMAN, dissenting.
My colleagues today reject the theory of implied
concerted activity developed in Alleluia Cushion
Co., 221 NLRB 999 (1975). Their ruling allows the
Respondent to lawfully discharge employee Prill
for filing a complaint with the Tennessee Public
Service Commission (Tennessee Commission) after
having an accident due to faulty brakes. My col-
leagues admit there may be something outrageous
about an employer who is willing to endanger its
employees by attempting to force the use of a trail-
er which had "clearly given up the ghost." They
also concede that a solitary over-the-road truck-
driver would be hard pressed to enlist the support
of coworkers while away from the home terminal.
Nevertheless, they find this employee unprotected
by the Act because no other employee expressly
joined him in lodging the complaint with the Ten-
nessee Commission.
My colleagues report today that the Board is not
God. If only their expectation of employees cov-
ered by this Act were equally humble. Protection
for such employees, they now announce, will be
withheld entirely if in trying to ensure reasonably
safe working conditions they happen not to be so
omniscient as to rally other employees to their aid
in advance. No matter that the conditions com-
plained of are highly hazardous, or that they are a
potential peril to other employees, or that they are
the subject of Government safety regulation. This
is a distortion of the rights guaranteed employees
by the Act. The historical roots of "concerted ac-
tivity" lie in the movement to shield organized
labor from the criminal conspiracy laws and the in-
junctive power of the courts. It goes against the
history and spirit of Federal labor laws to use the
concept of concerted activity to cut off protection
for the individual employee who asserts collective
rights. It is my colleagues who use mirrors on Sec-
tion 7 and not the Board which decided Alleluia
Cushion Co.
I. THE ALLELUIA DECISION IS BASED ON TWO
RATIONALES
Alleluia involved the discharge of an employee
for filing a complaint with the California office of
the Occupational Safety and Health Administration
(OSHA). It was undisputed that the employee
acted alone in protesting the lack of safety precau-
tions. The Board nevertheless found this individual
action to be concerted and protected by the Act on
the ground that it must be presumed that other em-
ployees shared the interest in safety and supported
the single employee's complaint. The Board's deci-
sion contains two rationales for the presumption of
concerted action. First, reference is made to safe
working conditions as "matters of great and con-
tinuing concern for all within the work force"' and
occupational safety is identified as "one of the most
important conditions of employment." 2 In addition,
221 NLRB at 1000.
2 Id.
499
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board emphasized that the nature and extent of
the employee's complaints demonstrated that while
the employee was concerned for his individual
safety, his object also encompassed the well-being
of his fellow employees. Second, the Board pointed
to the public policy enunciated in the Occupational
Safety and Health Act and made the following
analysis:
[S]ince minimum safe and healthful employ-
ment conditions for the protection and well-
being of employees have been legislatively de-
clared to be in the overall public interest, the
consent and concert of action emanates from
the mere assertion of such statutory rights. Ac-
cordingly, where an employee speaks up and
seeks to enforce statutory provisions relating
to occupational safety designed for the benefit
of all employees, in the absence of any evi-
dence that fellow employees disavow such
representation, we will find an implied consent
thereto and deem such activity to be concert-
ed.3
The two rationales are discrete: the first pre-
sumes concert from the presence of a matter of
"great and continuing concern" to the work force
and requires an analysis of the specific complaint to
determine whether it goes beyond individual con-
cerns; the second presumes concert from the legis-
lative declaration of public interest in a matter re-
lating to the workplace and requires the assertion
of a statutory right. Neither rationale was articulat-
ed with precision. Though these two approaches
are different, the Alleluia decision intertwined
them, treating them as one. This mixture of ration-
ales undoubtedly created conditions for court op-
position to the concept of concerted activity in Al-
leluia. Criticism of the opinion is therefore under-
standable. But that alone is not sufficient ground
for rejecting the principles established in the deci-
sion.
The case before us involves only one of the prin-
ciples embodied in Alleluia-that an employee's as-
sertion of an employment-related statutory right
can be presumed to be activity covered by the
NLRA. As such it requires no consideration of
general arguments concerning a presumption of
concert in the assertion of a matter of common
concern to the work force.
I would find in this case, as did the Board in Al-
leluia, that the presumption of concert in the asser-
tion of an employment-related statutory right is
proper and valid. This position is based on the
Board's recognized authority to apply presump-
tions and on the finding that the presumption of
3 Id.
concerted activity in the individual assertion of a
statutory right concerning the workplace is consist-
ent with the legislative history of Section 7 of the
Act, is supported by the policies of the Act, and
fulfills the Board's responsibility to accommodate
the Act to other employment legislation.
II. THE POLICIES OF THE ACT AND THE
HISTORICAL USE OF THE TERM "CONCERT"
INDICATE THAT SECTION 7 PROTECTS THE
INDIVIDUAL ASSERTION OF A WORK-RELATED
STATUTORY RIGHT
The central purpose of the Act is to avoid or
minimize industrial strife which interferes with the
normal flow of commerce. Section l(b) of the
Labor Management Relations Act (29 U.S.C.
141(b)) asserts that this purpose can be achieved if
employers, employees, and labor organizations
"each recognize under law one another's legitimate
rights in their relations with each other, and above
all recognize under law that neither party has any
right in its relations with any other to engage in
acts or practices which jeopardize the public
health, safety or interest." Section 1 of the Act fur-
ther declares that it is "the policy of the United
States to eliminate the causes of certain substantial
obstructions to the free flow of commerce . . . by
protecting the exercise by workers of full freedom
of association . . . for the purpose of . . . mutual
aid or protection." Section 7 of the Act then sets
forth the boundaries of employees' protected
rights, establishing the right "to engage in other
concerted activities for the purpose of. . . mutual
aid or protection."
There is no question that the assertion of a work-
related statutory right by two or more employees
falls within the above-described policies and pro-
tections of the Act. It involves association for the
purpose of mutual aid or protection and opposes an
act or practice by the employer which may jeop-
ardize public health, safety, or interest. However,
an individual employee's assertion of such a statu-
tory right raises a question concerning the applica-
bility of the Act because it is not taken in physical
and simultaneous concert with at least one other
employee and the language of Section 7 specifical-
ly mentions "concerted activity."
Opposing courts have taken the view that "con-
certed" means literal group action. The legislative
history of the Act neither supports nor refutes this
interpretation. It is virtually silent as to the precise
meaning and applicability of "concerted activities."
But the likely explanation for this silence is that, in
view of the history leading up to enactment of Sec-
tion 7, there existed, at the time of enactment, no
need for precise definition of the term.
500
MEYERS INDUSTRIES
A. The Earliest Use of the Term Concerted was
in Opposition to the Application of the Doctrine
of Criminal Conspiracy to Employees'
Organizing Efforts
The earliest attempts of American labor to orga-
nize in order to improve working conditions were
met by judicial application of the doctrine of crimi-
nal conspiracy as established in England in the 18th
century.4 That doctrine permitted individual con-
duct, but proscribed the same conduct by two or
more persons acting together:
As in the case of journeymen conspiring to
raise their wages; each may insist on raising
his wages if he can; but if several meet for the
same purpose, it is illegal and the parties may
be indicted for a conspiracy. Rex v. Mawbey, 6
T.R. 619, 636 (1796).
In a 19th century case, Justice Holmes noted the
anomaly which allowed individual action but found
criminal the same action taken collectively by a
group. He took issue with the conspiracy doctrine
in a dissenting opinion in Vegelahn v. Gunter:5
But there is a notion which latterly has been
insisted on a good deal, that a combination of
persons to do what any one of them lawfully
might do by himself will make the otherwise
lawful conduct unlawful. It would be rash to
say that some as yet unformulated truth may
not be hidden under this proposition. But in
the general form in which it has been present-
ed and accepted by many courts, I think it
plainly untrue, both on authority and on prin-
ciple.
Despite use of the conspiracy doctrine and the
attendant labor injunction, the movement toward
organized labor continued and eventually made an
impact on the legislative process. Some of the earli-
est labor legislation was directed toward insulating
organized labor from the criminal conspiracy doc-
trine and the injunctive power of the courts. It is in
this context that the term "concert" first appeared.
The Clayton Act of 1914 provided that "no . . .
injunction shall prohibit any person or persons,
whether singly or in concert, from . . . ceasing to
perform any work or labor .... ". The term ap-
peared again in the Norris-LaGuardia Act both in
a clause prohibiting injunctions7 and in a clause
4 See generally Russell A. Smith, Leroy S. Merrifield, and Theodore J.
St. Antoine, Labor Relations Law (4th ed. 1968) at 1-54 and Robert A.
Gorman and Matthew W. Finkin, The Individual and the Requirement of
"Concert" under the National Labor Relations Act, 130 U. Pa. L. Rev.
286.
5 167 Mass. 92, 44 N.E. 1077 (1896).
5 38 Stat. 738 (1914), 29 U.S.C. § 51 (1946).
47 Stat. 70 (1932), 29 U.S.C. § 104 (1946).
which is similar to the language used in Section 7
of the Act: "it is necessary that [the individual un-
organized worker] shall be free from the interfer-
ence, restraint or coercion of employers . . . in
self-organization or in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection . . . ."8 Identical lan-
guage was used in Section 7(a) of the National In-
dustrial Recovery Act,9 and subsequently in Sec-
tion 7 of the NLRA, providing that "concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection" shall not be inter-
fered with. It thus appears that the concept of con-
certed activities which first emerged in the Clayton
Act of 1914 as a check against the use of the crimi-
nal conspiracy doctrine was picked up, without
comment, in subsequent labor legislation.
B. "Concerted Activities" May Reasonably be
Contrued as Supplementing an Individual
Employee's Rights
Given this history, it is reasonable to construe
the term "concerted" in the Act as expanding pre-
existing employee rights concerning the workplace,
assuring that acts lawfully undertaken by an indi-
vidual could not be deemed unlawful when under-
taken as a group. While the Act focuses on collec-
tive action, there is no indication that the term ap-
plies only to literal collective action or was intend-
ed by Congress to limit the assertion of employee
rights.1 0 Rather, the term appears to limit only the
assertion of individual rights which have no rela-
tionship to any collective effort to improve work-
ing conditions or to extend aid or protection to
fellow workers.
C. The Assertion of a Work-Related Statutory
Right Falls Within the Meaning of "Concerted
Activity"
A work-related statutory right is not in essence
an individual right; instead, it is a right shared by
and created for employees as a group through the
legislative process at the Federal or state level. In
such a case, the legislature determines that mainte-
nance or establishment of a particular condition of
employment is in the public interest. The statute is
addressed to the needs of employees as a class or
strata within the society at large. When viewed
against the historical background of the Act, an in-
dividual employee's assertion of this type of statu-
tory right is fully consistent with the literal group
action of employees requesting higher wages for
8 47 Stat. 70 (1932). 29 U.S.C. § 102 (1942).
' 48 Stat. 198 (1938).
'O Congressman Bolard's remarks, cited by the majority, provide no
such indication, as they merely focus on the expansion of rights.
501
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all. In both instances, the action concerns employ-
ees as a group constituting an opposing force to the
economic power of employers, the very type of
action that the earliest uses of the term "concert-
ed" were designed to protect.
III. THE SUPREME COURT HAS LONG
ACKNOWLEDGED THE BOARD'S AUTHORITY TO
USE PRESUMPTIONS IN ADMINISTERING THE
ACT
The Alleluia decision makes the presumption that
the individual assertion of an employment-related
statutory right is a concerted act. The creation of
presumptions by the Board based on the realities of
the workplace is not a unique phenomenon. In
1945 the Supreme Court approved the Board's use
of such a presumption in Republic Aviation Corp. l
That case involved the presumption that a rule pro-
hibiting union solicitation by employees outside of
working hours is an unreasonable impediment to
self-organization and hence unlawful. In rejecting
the attack on the Board's use of this presumption,
the Court stated:
An administrative agency with power after
hearings to determine on the evidence in ad-
versary proceedings whether violations of stat-
utory commands have occurred may infer
within the limits of the inquiry from the
proven facts such conclusions as reasonably
may be based upon the facts proven. One of
the purposes which led to the creation of such
boards is to have decisions based upon eviden-
tial facts under the particular statute made by
experienced officials with an adequate appre-
ciation of the complexities of the subject
which is entrusted to their administration. [Ci-
tations omitted.] 1 2
The Court found no error in the Board's adoption
of the presumption, noting that it was "the product
of the Board's appraisal of normal conditions about
industrial establishments. Like a statutory presump-
tion or one established by regulation, the validity,
perhaps in a varying degree, depends upon the ra-
tionality between what is proved and what is in-
ferred." 13
Here, it is undisputed, and therefore proven, that
a right concerning the workplace has been estab-
lished by a legislature and an individual has suf-
fered adverse consequences from asserting that
right. Unlike my colleagues, I would infer that the
assertion of the right is, at its core, a concerted act.
Thus, a matter concerning conditions of employ-
" Republic Aviation Corp. v NLRB, 324 U.S. 793 (1945).
12 Id. at 800.
'a Id. at 804-805.
ment which legislatively has been deemed in the
public interest may certainly be presumed a matter
of concern to all the employees for whom the stat-
ute has been enacted. 4 For the reasons set forth in
section II, this inference of concert is one rational-
ly drawn from the proven facts and is, therefore,
valid under the standards of Republic Aviation Corp.
IV. THE INFERENCE OF CONCERT IN THE
INDIVIDUAL ASSERTION OF A WORK-RELATED
STATUTORY RIGHT IS SUPPORTED BY THE ACT'S
POLICIES AND THE BOARD'S MANDATE TO
ACCOMMODATE OTHER EMPLOYMENT
LEGISLATION
As shown above, there is a rational connection
between the assertion of a statutory right govern-
ing the workplace and the inference that all em-
ployees whose rights are protected by the statute
support the individual assertion of those rights. Not
only is this presumption of concerted action sup-
ported by the historical use of the term "concert-
ed," but also by the Act's policies and by the
Board's mandate to administer the Act in accom-
modation with other employment legislation.
The Act specifically states that the purpose of
avoiding and minimizing industrial strife can be
achieved if employers, employees, and labor orga-
nizations "above all recognize under law that nei-
ther party has any right in its relations with any
other to engage in acts or practices which jeopard-
ize the public health, safety or interest."1 5 The Act
therefore contemplates a concern by employees for
matters affecting the public health, safety, or inter-
est. Further, the Board has been admonished to
recognize the purposes of other employment legis-
lation and to construe the Act in a manner support-
ive of the overall statutory scheme. The Supreme
Court stated in Southern Steamship Co. v. NLRB,
316 U.S. 31, 47 (1942):
[T]he Board has not been commissioned to ef-
fectuate the policies of the Labor Relations
Act so single-mindedly that it may wholly
ignore other and equally important Congres-
sional objectives. Frequently the entire scope
of Congressional purpose calls for careful ac-
commodation of one statutory scheme to an-
other, and it is not too much to demand of an
administrative body that it undertake this ac-
commodation without excessive emphasis upon
its immediate task.
i" See, e.g., Bethlehem Shipbuilding Corp. v. NLRB, 114 F.2d 930, 937
(Ist Cir. 1940), petition for cert. dismissed on motion of petitioner 312
U.S. 710 (1941) (involving unlawful interference with employee efforts to
secure favorable workmen's compensation legislation).
15 29 U.S.C. 141(b)
502
MEYERS INDUSTRIES
Given these policies and admonitions, it is rea-
sonable to presume that when an individual em-
ployee invokes a statute governing a condition in
the workplace he is within the scope of employee
action contemplated by the Act (i.e., a challenge to
an employer's practice concerning the public
health, safety, or interest). Further, it would be in-
congruous with the public policy embedded in em-
ployment-related legislation-and indeed inconsist-
ent with the very act of passage-to assume that, in
the absence of an express manifestation of support,
other employees do not collectively share an inter-
est in an attempted vindication of the statutory
right created for their benefit. Presuming concert
in the individual assertion of an employment-relat-
ed statutory right running to all employees, there-
fore, accommodates the Act to the overall legisla-
tive policy regarding the workplace and working
conditions.
Conclusion
For all the reasons set forth above, it is appropri-
ate to presume that the individual assertion of an
employment-related statutory right is concerted.
Making this presumption does not end the matter;
it merely shifts the burden to the employer to show
that, in a particular case, the employees, for what-
ever reasons, opposed the individual's assertion of
that interest or that the individual specifically acted
in his own interest."' The presumption is no less
valid, and the employer's burden no heavier, than
in cases involving, as did Republic Aviation, solicita-
tion rules.
Considering the facts of this case, as found by
the judge, I conclude that Prill was discharged in
violation of Section 8(a)(l). The judge found that
Prill was discharged because of his complaints
about the safety of equipment he was required to
drive, including a complaint to the Tennessee Com-
mission following an accident, and because of his
refusal, for safety reasons, to drive the equipment
following the accident. By reporting to the Tennes-
see Commission, Prill invoked laws regulating
motor carriers, and initiated an investigation which
resulted in issuance of a citation by the Tennessee
Commission based on Department of Transporta-
tion regulations. I would find that in resorting to
this legislation Prill engaged in concerted activity.
Although the Department of Transportation reg-
ulations concern the safety of public highways gen-
erally, they also regulate, among other things, the
safety of equipment that drivers for motor carriers
are required to operate and the obligations of driv-
'6 See Comet Fast Freight, 262 NLRB 430 (1982), for an example of
such a demonstration that the individual did not act in the interest of his
fellow employees.
ers in case of accidents. Since the highways they
regulate are the workplace of commercial drivers,
they, in effect, concern conditions of employment
for such drivers of motor carriers. In these circum-
stances, it is appropriate to presume that other
drivers support the assertion of those regulations.
The presumption is validated by the record. Em-
ployee Gove drove Prill's regularly assigned truck
and trailer for a 2-week period while Prill was
absent. Prill was present when Gove reported
problems with the steering and told Supervisor
Faling that he would not drive the truck until
someone repaired it. It is, therefore, indisputable
that two employees were concerned with the
safety of the truck and trailer and tried to do some-
thing about it. It is certainly valid to presume, at
the very least, that Gove supported Prill's com-
plaint to the Tennessee Commission. Yet my col-
leagues allow Prill's fate to be dictated by such
happenstance as the failure to make a phone call.
If, after the accident in Tennessee, Prill had
phoned Gove, discussed the problem, and received
his likely approval to contact the Tennessee Com-
mission, his action would have been concerted and
he would be working today. Because he failed to
make such a call, and instead individually invoked
regulations designed to protect commercial drivers
as a group and others using the highways, his case
is dismissed. Surely the concerted activity provi-
sion in Section 7 was not intended to produce such
anomalous results when the safety of employees'
working conditions is at issue.
My colleagues' concern with the need to draw a
line in this area is, like the criticism of Alleluia, un-
derstandable. But, wherever the line should be
drawn it assuredly should not be drawn at such a
point where it creates a safe zone for employers to
retaliate against employees who protest over mat-
ters which strike at the heart of the economic rela-
tionship between employer and employee. To do
so runs against one of the central aims of the Na-
tional Labor Relations Act: to guarantee that em-
ployees do not lose their jobs because they chal-
lenge an employer on a matter concerning group
wages, hours, or terms and conditions of employ-
ment. The use of the term "concerted" in this
arena merely ensures that collective action cannot
be subject to charges of criminal conspiracy and
that the Act's protection extends only to matters
addressed to employees as a class or group. I dis-
sent from my colleagues' use of the term to distort
the fundamental principles of the statute they are
charged to enforce.
503
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge:
This case was tried in Adrian, Michigan, on August 1,
1980. The complaint alleges that the Respondent violated
Section 8(a)(l) of the Act by discharging truckdriver
Kenneth Prill because he engaged in protected concerted
activity, i.e., making complaints about the safety of his
trailer, contacting the Tennessee Public Service Commis-
sion about the safety of his vehicle after it was involved
in an accident, which contact resulted in the issuance of
an out-of-service notice, and refusing thereafter to drive
the vehicle. The Respondent denies the essential allega-
tions in the complaint. The Respondent and the Charg-
ing Party filed briefs.
Based upon the entire record in this case, including the
testimony of the witnesses and my observation of their
demeanor, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation, is engaged
in the manufacture, sale, and distribution of aluminum
boats, canoes, jeep tops, and related products at several
locations in Michigan. Its principal office and place of
business is located at 9133 Tecumseh-Clinton Road in
Tecumseh, Michigan, the only facility involved herein.
During a representative I-year period, the Respondent
manufactured, sold, and distributed at its Tecumseh,
Michigan facility products valued in excess of $2 million,
of which products valued in excess of $500,000 were
shipped from its Tecumseh facility to points located out-
side the State of Michigan. Accordingly, I find that the
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
Kenneth Prill was hired by the Respondent on April
24, 1979, as a skilled driver. He had driven trucks for a
number of years before being hired. He was an owner-
operator for the 4 years prior to his employment by the
Respondent. His employment application notes that he
had "good driving experience" and had 2 years of
schooling as a mechanic.
Prill was assigned to drive what was described as the
red Ford truck and its accompanying trailer. He hauled
boats from the Respondent's facility in Tecumseh, Michi-
gan, to dealers throughout the country. His supervisor,
Dave Faling, had no complaints about Prill's work and
he testified that Prill took "very good care of his equip-
ment." Prill was never given a disciplinary warning
during his employment with the Respondent which
lasted until his discharge on July 5, 1979.'
I It is uncontested that Prill never received a written warning. The Re-
spondent's president, Alan Beatty, testified that he never orally repri-
manded Prill. Vice President Wayne Seagraves testified that he did, but
Prill credibly denied receiving any such oral warnings before his dis-
charge.
Prill experienced a number of problems with his equip-
ment. The most significant problem was the failure of the
brakes on the trailer to operate properly. On one trip, as
he was driving through Chicago, Prill experienced a
brake failure which almost caused an accident. Prill also
noticed a steering problem on his equipment. Fellow
driver Ben Gove drove Prill's equipment for the first 2
weeks in June 1979. Gove noticed the steering problem
on a trip to Sudberry, Ontario. The steering problem
nearly caused an accident on that trip. When Gove re-
turned, he told Faling about the problem and stated, in
Prill's presence, that he would not take the truck out
again until it was repaired. Faling promised to make the
needed repairs.
Prill made numerous complaints about the deficiencies
in his equipment. He made these complaints to President
Alan Beatty, mechanic Buck Maynard, and his supervi-
sor, Dave Faling. Faling corroborated Prill's testimony
that he made complaints to Faling. Faling transmitted
these complaints to Maynard. Maynard also corroborat-
ed Prill's testimony that complaints concerning the
brakes on the trailer were made to him.
During his employment, Prill made 11 trips in his
truck and he complained after several of them. Most of
his problems were with the trailer's brakes. He testified
credibly and in detail about each of these complaints.
Buck Maynard made some repairs on the brakes after
one of Prill's complaints, but the problem was still not
fully resolved. Maynard told Prill that the axles were so
old that replacement parts could not be secured. Prill in-
sisted that new parts should be purchased. On Prill's next
trip, the brakes continued to give Prill trouble, to the
point of causing him to take longer on the trip than
planned even because he had to drive slower. Prill asked
Faling when the brakes would be repaired but Faling
simply referred him to Maynard.
On a subsequent trip to Xenia, Ohio, the brakes contin-
ued to be inoperative. Prill stopped at a roadside inspec-
tion conducted by the Ohio State Highway Patrol. As a
result of that inspection, the truck was issued a citation
for a number of defects, including problems with the
brakes. Prill turned the citation in to the Respondent's
officials.
The brake problem was never resolved and-the truck
continued to give its driver problems.
In late June 1979, Prill was assigned to drive a load to
Jacksonville, Florida. The brakes gave him trouble on
that trip. He described them as inoperative. On the
return trip with an empty trailer, he had an accident in
Athens, Tennessee.
The accident took place on Sunday, July 1, 1979. It
was caused when a pickup truck struck the left rear of
Prill's trailer causing it to jackknife. Prill's trailer ended
up off the road and immobile. The Respondent concedes
that the accident was not Prill's fault and was not a con-
sideration in his discharge. The equipment was towed to
a nearby truckstop in Knoxville, Tennessee.
The night of the accident, Prill called the Respond-
ent's president, Alan Beatty, at his home. Prill advised
Beatty of the damage to the trailer, more specifically, the
hitching areas of the truck and trailer. Beatty asked Prill
504
MEYERS INDUSTRIES
to chain the tractor and trailer hitches together and to
tow the trailer back to Tecumseh. Prill told Beatty that
this would be dangerous since the hitch area was
cracked. Beatty told Prill to have a mechanic in Tennes-
see look at the equipment but to get it home as best he
could.
The following morning, Prill called Beatty again.
Wayne Seagraves, the vice president of production, also
got on the phone. They were upset with Prill for not
having left Tennessee. Seagraves said, "Why in the hell
haven't you come back?" Prill said that the vehicle was
unsafe. He cited the brake problem and said the hitch
was damaged. Toward the end of the conversation,
Beatty and Seagraves decided to send mechanic Buck
Maynard to Tennessee to look at the vehicle.
After the phone call, Prill decided to call the Tennesee
Public Service Commission and have an official inspec-
tion of the vehicle. The next morning, Tuesday, a Cap-
tain Charles Bain inspected the vehicle and issued a cita-
tion. The unit was put out of service because of the bad
trailer brakes and the damage to the hitch area of the
truck. The citation mentioned several Department of
Transportation regulations, including 49 C.F.R. § 396.4
which prohibits the unsafe operation of a vehicle. Bain
told Prill that, before the vehicle could be moved, cer-
tain repairs had to be made. Prill turned the citation over
to the Respondent with is paperwork.
When Maynard arrived later in the day on Tuesday,
Prill showed him the citation. Maynard called Beatty
and they agreed that the trailer was not worth returning
to Tecumseh or even being repaired. They decided to
leave the trailer behind and sell it for scrap after remov-
ing the tires. Prill then drove the truck back to Tecum-
seh.
On Thursday, July 5, Prill reported for work and
turned in the paperwork on his trip. Seagraves sum-
moned Prill to his office. Seagraves questioned him
about the accident and the damage to the truck. He
asked why Prill did not chain the truck and trailer to-
gether and drive back. Prill responded that he did not
believe it was safe to drive the vehicle. Seagraves then
said that Prill would be terminated because "we can't
have you calling the cops like this all the time." Beatty,
who had come into the office during the conversation,
also asked why Prill did not chain the truck and trailer.
Prill responded that it would have been unsafe and un-
lawful in view of the citation.
Beatty testified that he was not in Seagraves' office
when Prill was terminated but he met Prill afterwards.
He testified that they talked briefly about the incident
but his version of their conversation is different from
Prill's. To the extent that Beatty's testimony differs from
that of Prill on this or any issue, I credit Prill. He im-
pressed me as a candid and honest witness who testified
in meaningful detail about all the issues in this case. His
recollection was lucid and precise. Beatty, on the other
hand, was not a reliable witness. He dissembled when he
tried to intimate that Prill was both laid off and dis-
charged. He exaggerated Prill's alleged work deficiencies
in order to strengthen his case. On numerous occasions
he went far beyond the scope of the question to deni-
grate Prill as an employee, even though there is no evi-
dence of written reprimands against Prill. Moreover, he
was unable to be specific when recounting Prill's alleged
deficiencies. After stating that probationary employees,
like Prill, are not issued written reprimands, he conceded
that he himself had never even orally reprimanded Prill.
Indeed, the Respondent's written rules provide for writ-
ten reprimands and they make no exception for proba-
tionary employees. This is significant because there are
specific references in the rules to permanent employees
where such references are thought to be necessary. In
my view, Beatty was unable to give objective testimony
about Prill.
Seagraves also gave a different version of the July 5
termination interview. To the extent his version differs
from Prill's I also discredit Seagraves' testimony because
I found him to be an unreliable witness. Seagraves testi-
fied that, after he terminated Prill, Prill asked him if he
was being fired because "I called the cops." Seagraves
said he was not, but he interjected, in his testimony, "I
had no knowledge that he did call the police." Later, he
conceded he told Prill he did not appreciate him calling
the police but it was not the reason for his termination.
Actually it is quite likely that Seagraves did know that
Prill notified the police in Tennessee. Mechanic Maynard
testified he told Beatty about the citation and it is reason-
able to assume that Beatty spoke to Seagraves prior to
Prill's discharge. Significantly, Seagraves did not tell
Prill that he and Beatty had decided, before Prill's trip to
Jacksonville, to terminate him. This lack of candor was
reflected in Seagraves' testimony. Moreover, Seagraves
attempted to show that he orally reprimanded Prill. But
he was not specific in his testimony. In contrast, Prill
was candid and detailed in his testimony. In these cir-
cumstances, I credit Prill over Seagraves where their tes-
timony conflicts.
The same day that Prill was discharged, the Respond-
ent hired Glenn Bolduc as a driver. Bolduc did not take
his first trip until about a week and a half later.
In late July, Faling had a conversation with Beatty
about Prill's termination. Faling, who was returning from
a 2-week layoff, asked where Prill was. Beatty said he
had "let him go." Faling asked the reason for the termi-
nation. He testified that Beatty said "he had an accident
or what had happened, and he was a little upset because
he had to send another man down there to get the equip-
ment." Beatty also said that Prill refused to drive the
truck back to Tecumseh.2
B. Discussion and Analysis
It is well settled that an employer violates Section
8(a)(1) of the Act when he discharges an employee for
engaging in protected concerted activity within the
meaning of Section 7 of the Act. Protected activity in-
cludes a refusal to work in protest of a working condi-
tion. NLRB v. Washington Aluminum Co., 370 U.S. 9
(1961). In such cases the Board does not inquire into the
reasonableness of the work-related complaint. It only re-
quires that the complaint or protest be undertaken in
2 The above is based on the credited testimony of Faling, a supervisor
of the Respondent. Beatty did not contradict this testimony.
505
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good faith. See E. R. Carpenter Co., 252 NLRB 18
(1980).
Although concerted activity is often undertaken by a
group of employees3 or by a single employee enforcing a
collective-bargaining agreement which is the ultimate
result of concerted group action,4 the Board has also
held that even the activity of a single worker may be
concerted if it inures to the benefit of all employees.
Thus, a single employee's refusal to work to protest a
change in terms and conditions of employment for all
employees may be concerted notwithstanding that other
employees do not join in that refusal. See Ontario Knife
Co., 247 NLRB 1288 (1980); Steere Dairy, 237 NLRB
1350 (1978). The Board has established a presumption
that an individual employee engages in concerted activi-
ty where his conduct arises out of the employment rela-
tionship and is a matter of common concern among all
employees. Alleluia Cushion Co., 221 NLRB 999 (1975).
Indeed, in a decision which is almost on all fours with
the instant case, the Board found that an employer who
discharges a single employee for refusing to drive an
unsafe vehicle, about which he and other employees had
complained, violates Section 8(a)(1) of the Act. See Pink
Moody, Inc., 237 NLRB 39 (1978).
The following is an excerpt from the Pink Moody deci-
sion (237 NLRB 39-40):
In Alleluia Cushion, supra, we held that where an
employee speaks up and seeks to enforce statutory
provisions relating to occupational safety designed
for the benefit of all employees, in the absence of
any evidence that fellow employees disavow such
representation, we will find implied consent thereto
and deem such activity to be concerted. In Air
Surrey, supra, we found as concerted activity an em-
ployee's individual inquiry at his employer's bank as
to whether the employer had sufficient funds on de-
posit to meet the upcoming payroll, because the
matter inquired into by the employees was of vital
concern to all employees. And in Dawson Cabinet
Company, Inc., 228 NLRB 290 (1977), we extended
the Alleluia Cushion principle in order to find as
concerted activity a female employee's individual
refusal to perform a certain job unless she was paid
the same wages as a male employee doing the same
job, because the employee was attempting to vindi-
cate the equal pay rights of the female employees.'
In the instant case, the facts clearly establish that
Salinas' refusal to drive truck 25 on March 5 was
concerted activity within the meaning of Alleluia
Cushion, Air Surrey, and Dawson Cabinet. Respond-
ent acknowledged its own concern over the brakes
on truck 25 when it took the truck out of service
for a few nights in January after the brakes had
malfunctioned while Salinas was driving his route.
In March, Respondent became aware that other
drivers besides Salinas were concerned about the
malfunctioning brakes on truck 25. Thus, on March
3, Salinas had a telephone conversation with Horn,
3 See Washington Aluminum, above.
See Interboro Contractors, 157 NLRB 1295, 1298 (1966), enfd. 388
F.2d 495 (2d Cir. 1967).
who had driven truck 25 that day and had experi-
enced the malfunctioning brakes. Horn stated that
he (Horn) would not drive truck 25 again. The next
day, when directed by Respondent to drive truck
25, Horn refused. Nothing happened, however, be-
cause another truck became available before Horn
started his run. The very next day, Salinas refused
to drive truck 25 back to the garage when ordered
to do so by Respondent. Thus, at the time Respond-
ent suspended Salinas, it was on notice that on suc-
cessive days two of its drivers had refused to drive
truck 25 because of the brake problem.
In addition, compliance with an order to drive a
motor vehicle with malfunctioning brakes would
clearly violate traffic regulations, 2 and thus any
benefits resulting from Salinas' refusal to drive such
an unsafe vehicle would inure to the benefit of all
of Respondent's drivers.
In light of these facts, it is clear that Salinas' ac-
tions on March 5 were part of a continuing effort
by Salinas and at least one other employee to have
Respondent repair the brakes on truck 25, that Re-
spondent was fully aware of such effort as well as
the specific problem with the brakes on truck 25,
and, thus, that Salinas' activity was concerted. Inas-
much as Respondent suspended Salinas for engaging
in protected concerted activities, we find that his
suspension violated Section 8(a)(1) of the Act.
I Thus, the Administrative Law Judge's conclusion that Sali-
nas' refusal to perform his normal work tasks distinguished this
case from the Alleluia Cushion line of cases is clearly incorrect.
2 An employer's ordering of a commercially licensed driver to
violate traffic regulations and ordinances would be a matter of
grave concern to all drivers.
Applying these principles and the Board's reasoning in
Pink Moody and Alleluia Cushion, I find that the Re-
spondent's discharge of Prill was violative of Section
8(a)(1) of the Act.
The General Counsel has made a prima facie showing
that Prill was discharged for refusing to drive his truck
and trailer back to Tecumseh, Michigan, and, by his in-
sistence that the truck was unsafe to drive, causing the
Respondent to dispatch its mechanic to Knoxville, Ten-
nessee. This finding is supported by the uncontradicted
testimony of Supervisor Dave Faling. Faling testified
that President Alan Beatty said that this was the reason
for the termination. He mentioned no other reasons. This
admission by the highest ranking official of the Respond-
ent is confirmed by the circumstances of Prill's termina-
tion. He was fired the day after he reported to work fol-
lowing his return from Knoxville, Tennessee. He was
told by Seagraves that the Respondent could not have
him "calling the cops all the time," an obvious reference
to the fact that Prill had asked local authorities in Ten-
nessee to inspect the vehicle which resulted in a citation
being issued that prevented the trailer from being moved.
The timing of the discharge makes it clear that what
happened in Tennessee precipitated the discharge. The
Respondent conceded that Prill was not discharged be-
cause of the accident itself. Seagraves and Beatty were
clearly insistent on Prill's driving the vehicle back to Te-
506
MEYERS INDUSTRIES
cumseh and were upset when Prill balked. In these cir-
cumstances, the inference is clear that Prill was fired for
refusing-for safety reasons-to drive the truck and trail-
er back to Tecumseh. The credited testimony also shows
that the Respondent was concerned with Prill's earlier
safety complaints, including a complaint to Ohio authori-
ties which resulted in a citation of the vehicle for safety
violations, and that this too formed a basis for the dis-
charge. Thus, Seagraves told Prill, when he fired him,
"we can't have you calling the cops like this all the time"
(emphasis added). In view of the many earlier problems
with the trailer brakes which were not satisfactorily re-
solved and of the citation of the Tennessee authorities di-
recting that the trailer not be moved unless repaired,
Prill's refusal to drive the equipment back to Tecumseh
was made in good faith.
At the hearing, the Respondent attempted to show,
through the testimony of Seagraves and Beatty, that it
decided to lay off Prill for economic reasons prior to the
Jacksonville trip and that he was fired for being a poor
employee. Apart from the inconsistency and contradic-
tion of these two reasons, they fly in the face of the un-
contradicted testimony of Supervisor Faling which made
it clear that Beatty conveyed the view to him that Prill
was fired for refusing to drive the truck back to Tecum-
seh. Beatty did not mention any other reasons to Faling.
Moreover, the reasons related at the hearing are based
on the discredited testimony of Beatty and Seagraves. I
have discussed some of this testimony above as well as
my reasons for discrediting it. In addition, the assertion
that Prill was to be laid off for economic reasons prior to
the Jacksonville trip is implausible. Why would an em-
ployer who has allegedly decided to lay off a particular
employee send him on a lengthy trip without even tell-
ing him he was going to be laid off? And why would an
employer then hire another driver the same day Prill was
discharged and not give Prill the opportunity to handle
the job? As I have indicated, the testimony concerning
Prill's alleged poor work performance was unreliable.
Prill received no written warnings although the Re-
spondent's rules require written warnings before a dis-
charge. Probationary employees are not excluded from
such rules. Beatty did not even orally reprimand Prill.
There is no evidence that Faling, his immediate supervi-
sor, ever did. Seagraves' testimony as to oral warnings
was undetailed and ambiguous. The testimony was point-
edly and credibly rebutted by Prill. Faling's testimony
also controverts Seagraves since he had no problems
with Prill.
In these circumstances, I find that the Respondent's
reasons for the termination, advanced by its officials at
the hearing, were pretexts. The Respondent has thus
failed to rebut the General Counsel's evidence or show
that Prill would have been discharged notwithstanding
his safety complaints and his refusal to drive an unsafe
vehicle after reporting its condition to the Tennessee
Public Service Commission.
The question then becomes whether Prill's safety com-
plaints and his refusal to drive an unsafe vehicle in the
circumstances of this case constituted protected concert-
ed activity under Section 7 of the National Labor Rela-
tions Act. Prill's refusal to drive the vehicle was mandat-
ed by Department of Transportation regulations which
require that an inspection be made after an accident to
determine the extent of damage and also require that a
vehicle cited as unsafe not be operated until it is re-
paired. 5 Prill was, by contacting local authorities and re-
fusing to drive the vehicle, enforcing these provisions of
the national transportation policy. This policy obviously
reflects concern not only for the safety of the general
driving public but also for particular drivers. Obeying
the Respondent's orders to drive an unsafe vehicle would
have caused a violation of DOT regulations. Moreover,
Prill's refusal to drive the vehicle was also based, in part,
on his earlier experience which had resulted in numerous
complaints about the inoperative trailer brakes on this
same vehicle. The Tennessee citation mentioned the in-
operative trailer brakes as one of two deficiencies which
rendered the vehicle inoperable. Prill's complaints about
the trailer brakes prior to the accident were clearly con-
certed since they were joined by driver Gove who made
similar complaints, in Prill's presence, to management of-
ficials about the safety of Prill's vehicle when he, Gove,
was assigned to drive it for 2 weeks. These concerted
complaints were thus a sufficient basis on which a refusal
to drive the truck could be made. See Pink Moody,
above.
Prill's effort to have the Tennessee Public Service
Commission to inspect the damaged trailer was the
equivalent of a safety complaint to OSHA. Indeed, the
application of Department of Transportation regulations
in this respect is mandatory. After an accident, a driver
must report the accident, and, if a citation is issued
which states that the truck not be driven, the citation
must be complied with. In contrast, the processes of
OSHA are voluntary: An employee may or may not take
a work-related safety complaint to OSHA. Furthermore,
the safety of a driver's vehicle is at least the equivalent
of a workplace safety problem which affects all employ-
ees. A truckdriver's place of work is behind the wheel of
a truck just as the manufacturing employee's place of
work is the plant environment. An employee who com-
plains about the safety of a particular truck speaks for
the safety of any employee who may drive that truck
I The Federal Motor Carrier Safety Regulations provide, in 49 C.F.R..
as follows:
Section 396.4 Unsafe operations forbidden.
No motor carrier shall permit or require a driver to drive any
motor vehicle revealed by inspection or operation to be in such con-
dition that its operation would be hazardous or likely to result in a
breakdown of the vehicle nor shall any driver drive any motor vehi-
cle which by reason of its mechanical condition is so imminently
hazardous to operate as to be likely to cause an accident or a break-
down of the vehicle. If while any motor vehicle is being operated on
a highway, it is discovered to be in such unsafe condition, it shall be
continued in operation only to the nearest place where repairs can
safely be effected, and even such operations shall be conducted only
if it be less hazardous to the public than permitting the vehicle to
remain on the highway.
Section 396 6 Damaged vehicles, inspection.
No motor carrier shall permit or require a driver to drive nor shall
any driver drive a motor vehicle which has been damaged in an ac-
cident or by other cause until inspection has been made by a person
qualified to ascertain the nature and extent of the damage and the
relationship of such damage to the safe operation of the motor vehi-
cle, nor shall such motor vehicle be operated until such person has
determined it to be in safe operating condition.
507
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and for any employee who has an interest in the safety
of his vehicle. It is not a remote inference that an em-
ployer who seeks to have one driver drive an unsafe ve-
hicle may do likewise with another driver or another ve-
hicle. Indeed, the evidence in this case shows that the
Respondent had dispatched another driver, Gove, to op-
erate Prill's vehicle. Gove expressed his reluctance to
drive the vehicle in the future. Thus, under the rationale
of Alleluia Cushion and Pink Moody employee Prill's re-
fusal to drive an unsafe vehicle was. tantamount to
making a work-related safety complaint which would
inure to the benefit of all employees and the activity of
Prill was thus presumptively protected.
The Respondent was, of course, free, under Alleluia
Cushion to rebut the inference that Prill's activity inured
to the benefit of all employees. It could have shown, for
example, that Prill's protests and complaints were not
made in good faith or were simply the idiosyncrasies of a
supersensitive individual whose concerns could not have
been shared by other truckdrivers in similar circum-
stances. This the Respondent failed utterly to accom-
plish. Indeed, three witnesses, Maynard, Faling, and
Gove, essentially corroborated Prill on the safety prob-
lems of the vehicle Prill was driving. The Respondent
did not even attempt to return the trailer from Tennes-
see, thus confirming Prill's judgment and that of the Ten-
nessee Public Service Commission that the vehicle was
unsafe. In these circumstances, I find that the Respond-
ent has not rebutted the presumption that Prill's safety
complaints and refusal to drive an unsafe vehicle inured
to the benefit of all employees and thus constituted pro-
tected concerted activity.6
6 The General Counsel and the Charging Party allege that the illegal-
ity of Prill's discharge is buttressed by reference to Sec. 502 of the Act
which states, in pertinent part, "nor shall the quitting of labor by an em-
ployee or employees in good faith because of abnormally dangerous con-
ditions for work at the place of employment of such employee or em-
ployees be deemed a strike under this Act." In my view, Sec. 502 has no
applicability to this case which must be decided under Sec. 7 and Sec.
8(aXl) of the Act. Sec. 502 offers no particular help in defining the con-
tours of protected concerted activity in the circumstances of this case.
Sec. 502 does not define either an unfair labor practice or concerted pro-
tected activity. And it adds nothing to the existing body of law interpret-
ing the phrase "protected concerted activity." Sec. 502 is, of course,
useful in helping to determine the rights of employees who refuse to per-
form work in unsafe situations where a contractual no-strike provision
would make such activity unprotected. Thus, in a case where an individ-
ual's refusal to work is prima facie protected and concerted because,
under the Inrerboro rationale, he seeks to enforce a cnntractual provision.
such as the specific provision that an employee may refuse to drive a ve-
hicle he believes to be unsafe, reference to Sec. 502 may rebut an em-
ployer's defense that such refusal is unprotected because it is a "strike" in
CONCLUSIONS OF LAW
1. By discharging employee Kenneth Prill for engag-
ing in protected concerted activity, the Respondent com-
mitted an unfair labor practice in violation of Section
8(aX1) of the Act. 7
2. This unfair labor practice affected commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in the
unfair labor practice set forth above, I will recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act. The Respondent will be ordered to reinstate Ken-
neth Prill to his former job or, if that job no longer
exists, to a substantially equivalent job, and to make him
whole for any losses of wages and other benefits he may
have suffered as a result of his unlawful discharge. Such
losses are to be computed in the manner prescribed in F.
W Woolworth Co., 90 NLRB 289 (1950), with interest as
set forth in Florida Steel Corp., 231 NLRB 651 (1977).8
[Recommended Order omitted from publication.]
violation of a contractual no-strike clause. See Banyard v. NLRB, 505
F.2d 342, 348 (D.C. Cir. 1974), citing Gateway Coal Co. v. United Mine
Workers, 414 U.S. 368 (1974). The instant case is distinguishable. The pro-
tected concerted activity here is not based on the enforcement of a con-
tractual clause under the Interboro rationale. Here there is no contract in-
volved, no representative, and no no-strike clause. The concertedness of
the activity must be established by reference to Washington Aluminum,
Alleluia Cushion, and its progeny.
The Respondent alleged that the State of Michigan Department of
Labor dismissed a complaint filed by Prill alleging that the discharge vio-
lated the Michigan Occupational Safety and Health Act. I have consid-
ered the evidence submitted by the Respondent in support of this allega-
tion and I conclude that it does not detract from my findings in this case.
The statutory procedure under which the Michigan Department of Labor
operates does not result in a final determination which can be equated
with the result obtained under the Labor Act. Indeed, the department es-
sentially conducts investigation which may result in the issuance of a
complaint which is then taken to a local court. No hearing was held. The
department's standard for issuing a complaint is that the "over riding
factor" in the employee's discharge be his "safety related" complaint. In
these circumstances, the department's refusal to issue a complaint is of
scant relevance in determining whether the General Counsel has proved,
by a preponderance of the evidence, in an adversary hearing where an
administrative law judge must assess the credibility of witnesses, that Prill
was fired for engaging in activity which was, under the Labor Act, pro-
tected and concerted.
8 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
508