Private Carrier Personnel

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 126 (N.L.R.B. 1979)

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Varied Enterprises, Inc. d/b/a Private Carrier Person-
nel and Loren E. Crowder, Jr. Case 30-CA-4413
January 24. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On August 15, 1978, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent. Varied Enterprises, Inc.
d/b/a Private Carrier Personnel, Milwaukee, Wis-
consin, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
DECISION
STATEMENT OF THE CASE
ELBERT D GADSDEN, Administrative Law Judge: This
proceeding was initiated upon a charge filed on November
1, 1977, by Loren E. Crowder, Jr., an individual, herein
called the Charging Party, against Private Carrier Person-
nel (PCP), herein called Respondent. Pursuant thereto, a
complaint and an amendment thereto were issued by the
General Counsel on December 5, 1977, and February 22,
1978, respectively, which, in substance, alleges that Re-
spondent discharged and since then has refused to reinstate
to his former position the Charging Party herein because
said party engaged in protected concerted activity, in viola-
tion of Section 8(a)(1) of the Act.
Respondent filed an answer and an amended answer on
December 14, 1977, and January 31, 1978, respectively, de-
nying that Respondent has violated the Act in any respect.
The hearing in the above matter was held before me in
240 NLRB No. 12
Milwaukee, Wisconsin, on March 29, 1978. Briefs have
been received from counsel for the General Counsel and
counsel for Respondent, respectively, which have been
carefully considered.
Upon the entire record in this case, and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein, a Wisconsin corporation engaged in providing in-
terstate and intrastate truckdriving services from its Mil-
waukee, Wisconsin, location. During the past calendar
year, a representative period, Respondent provided truck-
driving services valued in excess of $50,000 directly to cus-
tomers located outside the State of Wisconsin.
The complaint alleges, Respondent admits, and I find
that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
'he complaint alleges, Respondent admits, and I find
that Teamsters Local 916, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III THE ALLECiED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent is engaged in providing interstate and in-
trastate truckdriving services from its facility located in
Milwaukee, Wisconsin. In carrying out its business opera-
tions, the Respondent employs a number of truckdrivers
and semitruckdrivers who operate several kinds of trailer
trucks, the trailers varying in length from 44 feet to 57 feet
4 nches. The drivers, operating the above-described equip-
ment, haul various goods for distributing concerns having
contracted the Respondent to provide such truckdriving
services.
Respondent and its truckdriver employees are parties to
a collective-bargaining agreement (G.C. Exh. I(k-l)), effec-
tive for the period June 29, 1975, through and including
September 14, 1977. Among other things, in part, as perti-
nent herein, article 7 of the agreement sets forth grievance
procedures for ". . . differences arising out of the interpre-
tations of application or any provision of this Agreement
. . shall follow a step I or a step 2 procedure as mandat-
ed by the agreement. If a satisfactory settlement cannot be
achieved upon the two-step procedure, the parties should
then select a mutually agreeable and impartial arbitrator
within 5 days after disagreement. If the parties are still
unable to agree, the matter shall be referred to the Federal
Mediation and Conciliation Service on the next day.
Article 9 of the current collective-bargaining agreement
VARIED ENTERPRISES, INC. 127
provides in part, as pertinent herein, that Respondent shall
not discharge any employee without just cause.
Article 18 provides in part, as pertinent herein, as fol-
lows:
Under no circumstances will an employee be required or
assigned to engage in any activity involving dangerous
conditions of work or danger to person or property or in
violation of any applicable statute or court order, or in
violation of a government regulation relating to safety of
persons or equipment. The term "dangerous conditions
of work" does not relate to the type of cargo which is
hauled or handled or weather conditions. [Emphasis
supplied.]
On May 24, 1977, the Charging Party, Loren E. Crow-
der, Jr., was assigned to drive a tractor trailer which ex-
ceeded the legal length in some states through which the
destination of his assignment required him to drive. Crow-
der refused to carry out the assignment on his undisputed
contention that the truck's trailer length exceeded the legal
limitations in several of the states enroute to his assigned
designation. After considerable di:scussion with his supervi-
sory personnel, Crowder refused to drive the truck and was
ordered to return to headquarters in Milwaukee where he
was discharged. The issues in this case presented by the
pleadings and the evidence for determination are as fol-
lows:
1. Whether an individual employee's refusal to carry out
a work assignment which, if in fact carried out by the indi-
vidual employee, would result in a violation of the statu-
tory laws of a state consititutes concerted activity on the
part of the employee which is protected by the Act;
2. If such employee and the employer are parties to a
collective-bargaining agreement which binds them to sub-
mit contractual disputes to arbitration, and the employee's
refusal herein is such a contractual dispute, is the Board
precluded by Spielberg Manufacturing Company, 112
NLRB 1080 (1955), from assuming jurisdiction to litigate
the facts of such dispute which in fact, or arguably, consti-
tutes a violation of Section 8(aX)(1) of the Act, even where
the 8(aXI) issue in the dispute did not undergo a determi-
nation by the arbitrator; and
3. If the employee's refusal heretofore described consti-
tutes protected concerted activity and his submission of the
dispute to arbitration does not preclude the Board from
assuming jurisdiction to litigate the dispute, does the
employer's (Respondent) discharge of the employee for re-
fusing to carry out the assignment constitute a violation of
Section 8(aXl) of the Act.
The parties stipulated that the statutes of the Common-
wealth of Pennsylvania (G.C. Exh. 2), the States of Illinois
(G.C. Exh. 3), Indiana (G.C. Exh. 4), and Wisconsin (G.C.
Exh. 5), in essence, all provide as follows:
§ 4923. Length of vehicles
(a) General Rule.-No motor vehicle, including
any load and bumpers, shall exceed an overall length
of 40 feet, and no combination, including any load
and bumpers, shall exceed an overall length of 55 feet.
(b) Exceptions.Not pertinent or applicable
herein] 75 Pa.C.S.A.
B. Loren Crowder's Refusal To Accept the Driving
Assignment From the Dispatcher
Loren E. Crowder, Jr., an over-the-road truckdriver, has
driven for Mobile Chemical Distribution Service of Jack-
son, Wisconsin. In his driver capacity, he has driven from
coast to coast except for the far West. He is a member of
the Teamsters Local 916 and was first hired by Respondent
as a semitruckdriver in 1975.
About 3:30 p.m., on May 24, 1977, Crowder was given a
dispatching assignment by Mobile Chemical's dispatcher,
Ed Bittner. The assignment was oral and in writing and it
directed Crowder to drive a 45-foot trailer, which when
joined to the cabin extended the length of the vehicle to 57
feet 4 inches in length. With respect to the accuracy of
Crowder's contended length of the vehicle, he testified as
follows:
Q. How do you know that that's how long it was?
A. Because just prior to that I was-I can't recall
[the] specific date. But just prior to this May 24th inci-
dent I was stopped in the State of Iowa at the state
police weigh station as I came into the state, And they
came out with a tape measure and asked me person-
ally to hold one end of it while the man ran it the full
length of the trailer. And he told me that at that time
that it was 57 feet, four inches, long, which was two
feet and four inches over the legal length prescribed
by law in the State of Iowa. And he also wrote it on
the citation. So I knew right to the inch what it mea-
sured out, because I was fined for it.
Crowder said he then proceeded to explain to dispatcher
Bittner that he would have to make some changes in the
dispatch before he would take it. Dispatcher Bittner aked
him what kind of changes and he (Crowder) said he would
accept the dispatch from Midland, Pennsylvania, to Mc-
Kees Rocks, Pennsylvania, and would take a 40-foot trail-
er, but he would not pull the overlength trailer out of Pitts-
burgh. Dispatcher Bittner asked him why and Crowder's
testimony is as follows:
. .And I explained to him that the company had
sent a letter out quoting that they would take-assume
liabilities and responsibilities where an accident
or fine or whatever should occur. What's the word I'm
looking for?-concerning or involving one of these 45-
foot trailers. And so he said, well, are you refusing
dispatch, he asked me? And I said, well, I don't know,
I don't want to put it that way. I didn't want to put
myself out on a limb. I said, may I use the phone? And
he said, for what? And I said, I'd like to call the union
hall in Springfield and ask the business agent where I
stand legally. You know. What I should do or what I
have to do. And at that time Ken Falk, I believe,
walked into the room and said you can use it if you
charge the phone call to your home phone. He said,
we're not going to pay you for calling the union hall.
To which I agreed.
I called the union hall and had it billed to my home
The facts set forth above are undisputed and are not in conflict in the
record
VARIED NTERPRISES, NC.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phone. And I talked to Mr. Fitch, the business agent.
And our discussion was rather brief. I just asked him
where I stood. I explained the situation to him. I said
they assigned me a 45-foot trailer to pedal points west
out of Pittsburgh, it's overlength, and it's just like the
one that I was involved in the accident with. I said, do
I have to pull it? And Mr. Fitch replied, well,-it was
something to the effect of Loren, if it's illegal and you
refuse to do it-in other words, what he was saying,
if-was if I refused to break the law, that the job as a
business agent he would have to back up my deci-
sion. In other words, the union would have to stand
behind me if I refused to go out here and do some-
thing illegal for any company.
Crowder further testified that he was to drive the vehicle
from McKees Rocks, Pennsylvania, to Pittsburgh, Pennsyl-
vania, and from Pittsburgh to Hammond, Indiana, with
one stop in Chicago, Illinois, and the final destination at
Milwaukee, Wisconsin. The particular trailer he was dis-
patched to drive through the States of Ohio and Indiana
exceeded the legal limitations in both Ohio and Indiana,
with a possible exception on the turnpike if there is a com-
bination of two trailers. Thus, he contends it would have
been illegal for him to transport the load in Pennsylvania,
Ohio, Indiana, Illinois, and Wisconsin, which States limit
the length of such trucks to 55 feet.
After the dispatcher hung up the telephone, in the pres-
ence of a higher official, Ken Falk, in the dispatcher room,
Crowder said they asked him what did he decide to do and
he told them that he was advised by the Union's business
agent (Byron Fitch) that he did not have to pull the as-
signed trailer and he was not going to pull it. He offered to
pull the load if the dispatcher would transfer the load to a
40-foot trailer which would have been legal in the States of
his destination. However, dispatcher Bittner declined to do
that since the subject of transport was already loaded on a
45-foot trailer, and Bittner told Crowder that was the way
it was going to be, and he (Crowder) could take it or leave
it. When Bittner and Falk asked him why he refused to
drive the dispatch, Crowder said he told them he felt he
had been "cheated, shafted if you will," because he got
shortchanged on the delivery involving a 45-foot trailer on
April 5, 1977, when he had an accident in Clarksville, Indi-
ana. At that point, Mr. Ken Falk got Mr. Maxwell, presi-
dent of Respondent, and Mr. Gavron, vice president, on
the telephone.
When Crowder asked what did President Maxwell and
Vice President Gavron say to him on the telephone, he
testified as follows:
A. Well, I don't remember. Mr. Gavron asked me if
I was sure that's what I wanted to do. Asked me if I
was sure. I could be jeopardizing my job or something
to that effect, as best I recall. And I said no, I don't
think it will because I've already talked to the union
hall and the business agent informed me that if it was
against the law or illegal, that I didn't have to do it
and that the union would have to stand behind me.
And at which time he or Mr. Maxwell told me that if
I had been dispatched with that trailer, that's the trail-
er that I should pull, to go ahead and do it. And I
declined again. I said no, I-I got a chargeable acci-
dent for a-what I would consider a minor accident
that I had in a parking lot of a motel in Clarksville,
Indiana. And I said this is this charge just me that
the company is not assuming the responsibilities for
these overlength units like they said they would. And
so he said-I think it was Mr. Gavron. May have been
Mr. Maxwell that asked me-if I was trying to black-
mail them. To which I did not directly say yes or no. I
said I don't think you could call it blackmail. I said, I
think it's protecting myself because I got burnt. I got a
chargeable accident on my record. I lost my safety
award for this year. Which at the time I was working
on my third consecutive year. And I said, it's not
going to happen again through any fault of my own.
Thereafter, Ken Falk told Crowder to get all of his per-
sonal belongings out of the truck because they had ar-
ranged for his transportation home, and dispatcher Bittner
took him to the airport. The next day he received a Mailo-
gram advising that he was discharged for refusing to work.
A day or two later, he received a certified letter from Re-
spondent (PCP) confirming termination of his employment
for blatant refusal to work.
(rowder went on to testify how he had been fined for
pulling overlength trucks in March in the State of Iowa,
anc on other occasions in Ohio and Indiana, and on num-
erous other occasions. He said Ken Falk told him on May
24 that Mobile Chemical had always assumed liabilities
and paid the fines for drivers operating overlength units by
reimbursing the drivers. He said Falk also said that if he
got fined and paid the ticket, that was in essence his license
to continue the trip without further violation. Crowder said
he voiced his disagreement with that position, pointing out
that he had received a safe driving award from Mobile
Chemical in the amount of $25 or $50 for the first year.
and $25 for every succeeding year without an accident. He
denied he refused to pull the load on May 24 in an effort to
force Respondent to rescind the April 5 chargeable acci-
dent from his record, because if he wanted that charge
rescinded, he would have filed a grievance, which he did
no do. He denied he told anyone that that was the basis of
his refusal. Crowder acknowledged that he was partially at
fault for the accident on April 5, and that he had told
Respondent unless it was going to assume responsibility
and liability as it had previously agreed to do, he was not
going to pull another 45-foot trailer.
On cross-examination. Crowder said the April 5, 1977,
accident occurred on the motel lot as he was leaving a
layover in Clarksville, Indiana. There was some fog or
steam on his outside mirror and when he proceeded to pull
out of his parking place, there was an aluminum light pole
between his truck and the truck next to his. As he pulled
out and started to turn right, he cut a little too short, and
the rear section of the 45-foot trailer clipped the light pole,
causing it to fall against the truck next to his. Crowder
admitted that if he had to pull the 45-foot trailer out of the
parking lot today, he could do it without striking the light
pole; and he also admitted that more than the last 2 feet 4
inches of the truck had actually struck the pole on April 5.
Crowder further testified that between April 5 and May
VARIED ENTERPRISES, INC. 129
24, 1977, he did not pull any more 45-foot trailers. How-
ever, he changed his testimony when he was confronted
with dates between April 5 and May 24, on which he pulled
trailers in excess of 45 feet, stating, that he might have been
mistaken. He further admitted that between January 1977
and April 5, 1977, he pulled 45-foot trailers on a regular
basis and that up to that date, April 5, Respondent had
always assumed the responsibility for fines.
Crowder would not say that the length of the trailer was
the cause of the accident on April 5, at least not the total
cause, but he said it was a contributing factor. He acknowl-
edged that had he driven the assigned load he would have
traveled on interstate highway the majority of the way after
leaving Pittsburgh. In response to a question, Crowder said
when a driver is cited for driving a trailer in excess of the
legal length limit, the driver generally has to pay the fine
right out of his pocket on the spot, or wire to Midland,
Pennsylvania, for the money, but that Mobile gives them
an advance to cover such eventualities.
After Crowder received the chargeable accident letter
(Resp. Exh. 1) from Mobile on May 19, 1977, he said, in
the presence of Jacksonville termi al manager Lee Shuster
and his assistant manager, Jack Welch, that he was not
going to pull any more trailers in excess of 55 feet if that
was the way the Company was going to do business. He
said dispatching assignments are given to the drivers by
Mobile Chemical and not by PCP (Respondent) with
which Mobile Chemical contracts for drivers.
Robert Maxwell, president of Respondent, testified that
Respondent, Private Carrier Personnel, provides or sup-
plies truckdrivers to private carriers on a permanent assign-
ment basis, and that the driver supplied is under the direc-
tion and control of the customer-client. He said a private
carrier is a company that hauls its own goods and Mobile
Chemical Company is one of its customers.
Mr. Maxwell further testified that Loren Crowder was
hired by Respondent on July 17, 1975, as a semitruckdriver
and that prior thereto he was employed in the same capaci-
ty with Respondent's predecessor, Universal Coordinators.
He acknowledged that on May 24, 1977, he received a call
from dispatcher Bittner and Assistant Vice President Wally
Gavron, who advised him that Crowder had refused to
haul a 45-foot trailer. He said Crowder said "if the chargea-
ble accident letter involving the April 5 accident Here removed
from his record file or rescinded, that could change the situa-
tion. " He said he asked Crowder if he (Crowder) was trying
to bribe Respondent but Crowder did not respond. He and
Mr. Gavron also asked Crowder to utilize the grievance
procedure and Crowder said he was at Mobile Chemical
headquarters and was taking action there because he could
get results. He said he and Mr. Gavron then told Crowder
any fines assessed against drivers were always paid by Re-
spondent and would not go against the drivers' records. He
said they talked to Crowder about 25 minutes and pleaded
with him to accept his dispatch because if he did not, Re-
spondent had no choice other than to terminate him.
Mr. Maxwell admitted that prior to May 24 he had
heard of employees' concern about pulling 45-foot trailers
in a letter (dated December 15, 1975:; Resp. Exh. 5) from
the Union's business agent, Byron Fitch, which read as
follows:
Dear Mr. Maxwell:
The drivers working out of the Jacksonville, Illinois,
Terminal are presently pulling units that are in viola-
tion of the DOT Regulations (over length).
Each driver is requesting a letter to himself from the
Company releasing him from any liability if he should
be involved in a serious accident and the cause of said
accident be due to the over length of the unit.
This does not mean a simple going around the cor-
ner etc., where a dnvers professional ability would be
involved.
Very truly yours.
/s/ Byron Fitch
Byron Fitch
Secretary-Treasurer
Teamsters Local No. 916
Respondent's reply to the above letter is as follows (Resp.
Exh. 3):
January 27, 1976
To: All Jacksonville Drivers
In the past few weeks questions have arisen concern-
ing Mobil's responsibilities to drivers. The D.O.T. and
courts have always held the operating company re-
sponsible for the actions of truck drivers on the road.
There are few exceptions, and those resulted when a
driver committed an act which was clearly against
company rules and accepted practice and done with-
out the knowledge of the company, such as felony.
Drivers are frequently named in law suits. The usual
procedure is for the driver to agree to cooperate with
the trucking company. The trucking companies in turn
petition to have the driver's name removed from legal
action and accept his liability.
Mobil as an operator of trucks is well aware of its
responsibilities. On those occasions when the compa-
ny finds itself in violation of a regulation and through
no fault of the driver, the company has always accept-
ed responsibility. In fact, Mobil has had to accept le-
gal responsibility when drivers have done things which
are clearly against our rules. What has been stated
above is a general condition. Obviously, the way the
company would react in vanous circumstances may
vary and they will have to be considered on their own
merits.
/s/ R. A. Drennan
R. A. Drennan
The latter communication was distributed to all of Re-
spondent's employees. Maxwell received notice about the
April 5 accident from Bob Drennan of Mobil to Respon-
dent and he sent Crowder a letter (Resp. Exh. 4) notifying
Crowder that the accident was being investigated. The in-
vestigation showed that the driver (Crowder) was at fault
and President Maxwell said he sent a chargeable accident
letter so advising Crowder, and further cautioning him that
if he was involved in any more accidents it could result in
serious disciplinary action, including possible suspension
or discharge.
V A R I E D E N T E R P R IS E S . I N C . 1 29~~~~~~.
... .. _ _ A, ... .. .
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallace Gavron confirmed the conversation of the tele-
phone discussion with President Maxwell and Crowder on
May 24. In essence, Gavron's testimony specifically cor-
roborates the testimony of President Maxwell as follows:
Q. Based on your recollection of this telephone
conversation, what did you understand Mr. Crowder's
concern to be? Was it with the future operation of
45-foot trailers, or was it with the letter charging him
with the accident?
A. It's my opinion that it was the letter that charged
him for the accident of April 5th and a guarantee that
he would be released from all responsibility for oper-
ating the 45-foot trailer.
Robert Drennan, personnel and safety supervisor, has
been employed by Mobil Chemical for over 4 years. He
was established to be an expert on safety and testified that
of the 200 accidents he has investigated with Respondent,
none of the accidents was due to the 45-foot length of a
trailer. He further testified that Crowder told him the im-
pact of the accident was at the front of the tendems which
is 8 feet from the rear of the trailer, resulting in damage of
$2,020. Drennan further testified that Crowder pulled a
tractor trailer in excess of 55 feet on over 70 occasions (72
times) between January 1, 1977, and May 24, 1977. Other
drivers pulled such trailers 627 times. Crowder pulled a
tractor trailer exceeding the 55-foot limitation on 13 occa-
sions since his April 5 accident, but on no occasion has he
pulled such trailers since his receipt of the chargeable acci-
dent letter on May 19, 1977.
After Respondent discharged Loren Crowder on May
24, 1977, it received a Mailogram from Local 916 protest-
ing the discharge of Crowder and notifying it of a formal
grievance to follow (Resp. Exh. 9). On June 5, 1977, a for-
inal grievance was filed by Crowder and the dispute pro-
ceded to arbitration (Resp. Exh. 11).
Loren Crowder futher testified that a 45-foot trailer is a
little more difficult for maneuverability. He further testi-
fied that the procedure in most states is to have the driver
pay the fine and the driver may then get reimbursed from
his employer.
When Crowder was asked did he state during the tele-
phone conversation on May 24 that if the chargeable acci-
dent letter were removed from his files this would change
things, Crowder said:
I don't recall putting it in those words. I did say had
it not been for the chargeable accident I received, that
this situation or this particular set of circumstances
would not have come about. If I did, indeed, tell them
that if it was lifted that I would go ahead and pull the
trailer, I don't remember saying it that way.
When Crowder was asked did he give President Maxwell
and Mr. Gavron a reason why he refused to pull the trailer
on May 24, he testified as follows:
JUDGE GADSDEN: What did you tell them?
THE WITNESS: As to why I wouldn't pull it?
JUDGE GADSDEN: Yes.
THE WITNESS: Was because the-by giving me this
chargeable accident that happened previous to this,
that it didn't seem to me like the company was-was
assuming the liabilities and responsibilities like they
said they would. In other words, I got charged for an
accident that happened with a 45-foot trailer where
they were going to assume liabilities. And I told them
that I wouldn't pull them again until such time as they
were legal or in case of a complication, I not be at
fault.
While Crowder admitted that he felt the accident was
partly his fault, he said he also believed the length of the
trailer was a contributing factor.
He further stated that violations for driving an oversized
or overlength truck does not go on a driver's record, cause
points to be assessed against his record, or result in suspen-
sion of the driver's license.
Analysis and Conclusions
The testimonial and documentary evidence is essentially
consistent and involves little or relatively insignificant con-
flict. Perhaps the most notable dispute in the testimonial
evidence occurs in the May 24, 1977, conversations be-
tween Crowder and management with respect to Crowder's
subjective and objective motives for refusing to drive the
assigned dispatch at Midland, in violation of state statutes.
In essence, the dispute in large part in this proceeding in-
volves the Act's technical and all encompassing meaning of
the language "protected concerted activity" as interpreted
and applied by the Board and the courts.
Section 7 of the Act provides as follows:
Employees shall have the right to self-organization,
to form, join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutu-
al aid or protection, and shall also have the right to
refrain from any or all of such activities except to the
extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment as authorized in section
8(a)(3).
Section 8(a)(l) provides as follows:
8(a) It shall be an unfair labor practices for an em-
ployer-
(1) to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in Section 7
Respondent herein contends that Crowder's refusal to
drive the assigned dispatch was not related to group action,
but rather, was an action engaged in solely by and on his
own behalf, and, therefore, he was not engaged in concert-
ed activity protected by Section 7 of the Act. Respondent's
restricted construction of "protected concerted activity" in
this regard, is at variance with cited Board and court au-
thority on the precise question of such independent action
by an employee, not acting in concert with other employ-
ees.
In Alleluia Cushion Co., Inc. andJack Henley, 221 NLRB
999 (1975), employee Henley constantly complained to the
employer about allegedly unsafe working conditions, with
VARIED ENTERPRISES, INC. 131
dissatisfactory response from the employer. Finally, Hen-
ley filed a complaint with the Occupational Safety and
Health Administration (OSHA) sending a copy of the
OSHA letter to Respondent's home office. The evidence
failed to show that the complaining Henley had ever dis-
cussed the safety problems with any of his fellow employ-
ees or that he had requested their assistance in the prepara-
tion of the letter. Thereafter, the complaining Henley was
reprimanded by the employer for sending the letter and
copy thereof, and was advised that if so ordered by the
home office, he would be fired. Other supervisors of Hen-
ley told him he would not receive a promised raise because
the money allotted therefor would now be expended for
safety corrections. Employee Henley accompanied the
OSHA inspector on a tour of the employer's plant pointing
out the safety deficiencies. During the course of the tour,
the supervisor asked the inspector whether employee Hen-
ley could be discharged, and the inspector said he could
not be terminated for filing the complaint, but he could be
dismissed for not doing his work. On the following day,
Henley was discharged. The Board held that such safety
concern manifested by Henley's complaint to OSHA was
of great and continuing concern for all within the employ-
er's work force; that his action was in frtherance of a
benefit to all employees; and that, therefore, such action
on the part of Henley was concerted activity within the
meaning of Section 7 of the Act.
The Board went on to point out that the absence of a
manifestation of support of other employees for Henley's
action was not sufficient to establish that Respondent's
other employees did not share the same interest and con-
cern in working within the scope of state law (legal working
conditions).
In concluding, the Board said:
Accordingly, where an employee speaks up and seeks
to enforce statutory provisions relating to occupation-
al safety designed for the benefit of all employees, in
the absence of any evidence that fellow employees dis-
avow such representation, we fill find an implied con-
sent thereto and deem such activity to be concerted.
1221 NLRB at 1000.] [See also Air Surrey Corporation,
229 NLRB 1064 (1977).j
In considering the above-cited authority along with the
facts in the instant proceeding, it is particularly observed
that Respondent contends that Charging Party Crowder's
individual refusal to carry out the May 24 assigned dis-
patch was motivated solely upon wholly personal and selfish
reasons (his desire to have the chargeable accident letter
(Resp. Exh. I) expunged from his personnel (driving) rec-
ords). However, a close examination of the record does not
support this contention. Here, unlike the employee in Allel-
uia Cushion Co., Respondent (President Maxwell) acknowl-
edged that prior to May 24, 1977, he received a letter
(Resp. Exh. 5) from its employees citing the violation of
state laws as a result of their pulling trailers in excess of the
legal length, and demanding a release from any liability
should they be involved in a serious accident as a result of
the overlength unit. Respondent's letter (Resp. Exh. 3) in
reply gave the employees a general, but not an absolute,
release from liability with Respondent retaining some dis-
cretion to assume or not to assume all of such liability. It is
therefore clear from the above evidence that Respondent's
employees were left with a manifested residual concern
about liability resulting from driving trailers in excess of
the legal limitations imposed by state laws. Consequently,
it cannot be reasonably maintained that Crowder's May 24
refusal to drive the dispatch in violation of such laws was
not shared by, or was not a mutual concern of, his fellow
employees for working conditions which fell within the le-
gal scope of the law. Under such circumstances. Crowder's
individual refusal constituted concerted activity protected
by the Act, of which Respondent had knowledge. in accor-
dance with Alleluia Cushion Co., Inc. and Jack Henley, and
Air Surrey Corporation. supra.
However, assuming arguendo that Crowder's fellow em-
ployees had not manifested any' concern or support by
their letter (Resp. Exh. 5) for Crowder's opposition to driv-
ing in violation of the legal limitations, the record is barren
of any evidence that such other employees did not share
the same interest and concern, or that they had manifested
any opposition to Crowder's refusal to drive in violation of
the statutes of the several subject states. Therefore, in the
absence of such evidence, Crowder's refusal was still within
the pale of protected concerted activity under the Act. Al,-
lehia Cushion Co.. supra. In an effort to urge a finding that
Crowder's refusal of May 24 did not constitute "protected
colncerted activity," Respondent not only argues that it was
not carried out with the object of enforcing Article 18 of
the current collective-bargaining agreement (which gave
Crowder such right of refusal). I hope that Respondent's
latter argument does not contend that "protected concert-
ed activity," is confined to employees' efforts to enforce
specific provisions of the collective-bargaining agreement.
Certainly, while the undersigned willingly concedes that
Crowder's exercise of such employee right of refusal pur-
suant to article 18, unquestionably constitutes protected
concerted activity, so does his refusal to violate the statutes
of the several states in question, even if the current collec-
tive-bargaining agreement did not contain such a provision
as article 18. Walls Manufacturing Company, Inc.. 137
NLRB 1317 (1962). Moreover, while "motive" and "in-
tent" are sometimes essential elements in establishing a vi-
olation under a statute malum in se, such elements are gen-
erally, if not wholly, immaterial in establishing a violation
under statutes which are malum prohibitum such as the
state statutes herein limiting the lengths of tractor trailers.
Even more insignificant than "motive" as an essential ele-
ment in establishing a violation of law is "motive" for
Crowder's (or any employee's) exercising the right to refuse
under article 18, or the right to refuse to violate the statutes
of the subject states. It is not shown that either article 18 of
the current collective-bargaining agreement, or the statutes
of any of the subject states herein, imposes any condition
on Crowder's (or any employee's) right under the agree-
ment to refuse to violate a state statute, or more important-
ly, on his or their obligation not to violate a state statute.
Hence, Respondent contends that Crowder refused to
drive the dispatch because Respondent included the
chargeable accident letter (Resp. Exh. I) in his personnel
file, and not because he desired not to drive the dispatch in
violation of the laws of the subject states.
VARIED NTERPRISES, INC. i i 1
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above-cited legal authorities make it clear that an
employee's right to refuse to carry out an order which
would result in a violation of law was protected unless it is
established that the refusal was based upon a malicious
motive to frustrate the business operations of the employer.
The record does not establish any such motive on the part
of Crowder but rather, shows that Crowder was merely
seeking to escape personal liability and charges, and to
have Respondent comply with legal standards (safety, eco-
nomic, or otherwise) with which Respondent was already
under a legal obligation to comply. Moreover, Crowder's
discharge on May 24 was a clear indication to other em-
ployees of Respondent that there was a danger of them
exercising their Section 7 right, pursuant to article 18 of the
collective-bargaining agreement, to refuse to violate state
laws and guarantee to themselves legal working conditions.
Walls Manufacturing Co., Inc., supra. To construe "protect-
ed concerted activity" in the manner urged by Respondent
would frustrate the purpose of the protective legislation
and through its administration of the Act put the Board in
a position of an aider and abettor os such violations. Cer-
tainly, neither the Congress nor the Board intended such a
result.
Respondent also argues that the afordescribed state
statutes limiting the length of tractor trailers were unconsti-
tutional and had nothing to do with the safety of the par-
ticular trucks. Respondent supports this contention by cit-
ing the case of Raymond Motor Transportation, Inc. v. Rice,
98 S.Ct. 787 (1978), in which the Wisconsin Supreme Court
declared a Wisconsin statute limiting the legal length of
tractor trailers to 55 feet unconstitutional, because it was
not shown that such statute made more than a speculative
contribution to highway safety and was placing a substan-
tial burden on interstate commerce. It is noted that the
Raymond case was decided in 1978 and Crowder's refusal
to violate the statutes of the subject states occurred on May
24, 1977, at which time even the Wisconsin statute was
presumed to have been constitutional. Respondent failed
to establish that the limiting length statutes of any of the
other states involved were declared to be unconstitutional.
In the absence of such evidence, it is the general rule of law
that a state statute is presumed to be constitutional until it
is repealed by the legislature, or until its nullity is declared
by a court of competent jurisdiction. [Citation of legal au-
thority unnecessary.]
Based upon the foregoing facts, cited legal authority,
and reasons, I conclude and find that Crowder's refusal to
drive the assigned dispatch on May 24, 1977, constituted
"protected concerted activity" within the meaning of arti-
cle 18 of the collective-bargaining agreement, as well as
within the meaning of Section 7 of the Act.
Respondent also contends that Crowder's allegations in
this proceeding should be dismissed under the authority of
Spielberg Manufacturing Company, 112 NLRB 1080 (1955),
because his discharge had been submitted to arbitration by
agreement pursuant to the effective collective-bargaining
agreement. General Counsel, on the other hand, contends
that since the issue of whether Crowder was terminated for
considerations unlawful under the National Labor Rela-
tions Act had never been submitted to, nor decided by the
arbitrator, deferral under Speilberg would be improper. Al-
though the arbitrator's award had been made a part of the
evidence as General Counsel's Exhibit l(k-2), all parties
agreed that neither a record of the arbitration proceedings
nor the notes of the arbitrator were available for examina-
tion, and that the text of the arbitrator's decision does not
reveal that the issue involving the lawfulness of Crowder's
termination under the Act was ever discussed by the arbi-
trator. Under these circumstances, counsel for the General
Counsel argues, and the undersigned agrees with him, that
deferral under Spielberg requires that: (1) the proceedings
be fair and regular; (2) all parties agree to be bound; (3)
the decision not be repugnant to the purposes and policies
of the Act; and (4) that the Spielberg doctrine was further
extended by the Board by requiring that the issue involved
in the unfair labor practice case before the Board must
have been presented to and considered by the arbitrator.
Raytheon Company, 140 NLRB 883 (1963), and Monsanto
Chemical Company, 130 NLRB 1097 (1961).
The evidence of record clearly shows that the question as
to whether Crowder was unlawfully discharged because he
was involved in protected concerted activity, by refusing to
drive the overlength vehicles, was not submitted to nor
considered by the arbitrator, and that Respondent's dis-
chaige of Crowder for failure to do so constituted a viola-
tioq of Section 8(a)(1) of the Act. Monsanto Chemical Com-
pany, supra.
?ursuant to the above-cited and discussed authority,
along with other authority cited in the posthearing briefs of
counsel for the General Counsel and counsel for Respon-
delt, I conclude and find that Board law does not require
the issues presented in the current complaint to be deferred
to arbitration, or that the extent to which allegations in the
current complaint were submitted to the arbitrator does
not bar the Board from assuming jurisdiction and litigating
the current dispute. I further conclude and find that
Crowder's refusal to drive the overlength vehicles through
states in which it would have been unlawful constituted
protected concerted activity; that the lawfulness of his dis-
charge for exercising protected concerted activity was not
submitted to or considered by the arbitrator pursuant to
the collective-bargaining agreement; and that, therefore,
hi discharge for refusing to drive such assigned dispatch
constituted discrimination against him for exercising such
right in violation of Section 8(a)(1) of the Act.
Accordingly, since Respondent discharged Loren E.
Crowder, Jr., for engaging in protected concerted activity,
such discharge constituted a discriminatory interference
with, restraint upon, and coercion against an employee in
the exercise of his Section 7 rights, in violation of Section
8(a)(1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VARIED ENTERPRISES, INC. 133
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
It having been found that Respondent discriminated
against Loren E. Crowder, Jr., for exercising his section 7
protected rights, in violation of Section 8(aXI) of the Act,
the recommended Order will provide that Respondent of-
fer Loren E. Crowder, Jr., immediate reinstatement to his
job, and make him whole for any loss of earnings within
the meaning of, and in accord with, the Board's decisions
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977),2 except as
specifically modified by the wording of such recommended
Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any other manner
interfering with, restraining, or cercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N. LR.B. v. Entwistle Manufacturing Conpany, 120 F.2d
532, 536 (4th Cir. 1941).
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Varied Enterprises, Inc. d/b/a Private Carrier Per-
sonnel, Respondent, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local 916, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is, and has been at all times mate-
rial herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By discharging Loren E. Crowder, Jr., on May 24,
1977, because he exercised a working citizen's right and a
right pursuant to the collective-bargaining agreement, to
refuse to drive a tractor trailer in violation of the statutory
laws of several states limiting the length of such vehicles,
Respondent discriminated against Crowder in regard to his
tenure of employment, and has engaged in, and is engaging
in, unfair labor practices condemned by Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 3
Respondent Varied Enterprises, Inc. d/b/a Private Car-
rier Personnel, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of Teamsters, Local 916, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
by discharging employees or otherwise discriminating
against them in any manner with respect to their tenure of
employment or any term or condition of employment in
violation of Section 8(aXI) of the Act.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Loren E. Crowder, Jr., immediate and full re-
instatement to his former position held on May 24, 1977,
or, if such position no longer exists, to a substantially
equivalent position without prejudice to his seniority or
other rights previously enjoyed, and make him whole for
any loss suffered by reason of the discrimination against
him, with interest, in the manner described in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sart to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at all of Respondent's terminals and all of Re-
spndent's customer carriers' terminals, particularly at
Midland, Pennsylvania, and Milwaukee, Wisconsin, copies
of the attached notice marked "Appendix."n Copies of
said notice, on forms provided by the Regional Director
for Region 30, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
2 See. generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, e adopted b the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
'In the event that this Order is enforced by a judgment of the United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
V A R I E D ~~ E N E P R S S I N C 1 33.._ _ _ . _
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act,
as amended, and has ordered us to post this notice.
WE WILL NOT discourage membership in, or activities
on behalf of, Local 916, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor
organization, by discharging employees, or otherwise
discriminating against them in any manner in respect
to their tenure of employment or any term or condi-
tion of employment.
WE WILL NOT in any manner interfere with, restrain,
or coerce employees in the exercise and enjoyment of
rights guaranteed them by the effective collective-bar-
gaining agreement, or by Section 7 of the National
Labor Relations Act, except to the extent that such
rights may be affected by lawful agreement in accord
with Section 8(a)(3) of the Act.
WE WILL offer Loren E. Crowder, Jr., immediate re-
instatement to his former position or, if such position
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights previ-
ously enjoyed, and make him whole for any loss of
pay suffered by reason of our discrimination against
him, with interest.
All our employees are free to become, remain, or refuse
to become or remain members of said Union, or any other
labor organization, except to the extent that such rights
may be affected by lawful agreements in accord with Sec-
tion 8(a)(3) of the Act.
VARIED ENTERPRISES. INC d/b/a PRIVATE CARRIER
PERSONNEL