Roadway Express, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1981

257 N.L.R.B. 1197 (N.L.R.B. 1981)

ROADWAY EXPRESS, INC.
Roadway Express, Inc. and Saint Elmo Bell, Jr. and
Albert T. Wilson and William Jerry Howard.
Cases 10-CA-15074, 10-CA-15149, 10-CA-
15568, 10-CA-15711, 10-CA-15158, and 10-
CA-I 15503
September 8, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 14, 1981, Administrative Law Judge
Abraham Frank issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' 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, Roadway Ex-
press, Inc., Atlanta, Georgia, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
ABRAHAM FRANK, Administrative Law Judge: The
original charge in this consolidated case was filed on Oc-
tober 1, 1979. Thereafter, additional charges were filed
on various dates to and including April 9, 1980. Com-
plaints and orders consolidating the cases issued from
November 2, 1979, to and including April 11, 1980. In its
final form, the consolidated complaint alleges violations
of Section 8(a)(1), (3), and (4) of the Act. The hearing
was held from April 23 to April 25, 1980, inclusive, at
Atlanta, Georgia. All briefs filed have been considered.'
Respondent's motions to reopen the record and to defer to decisions
of the Multi-State Grievance Committee with respeel to allegations of
257 NLRB No. 153
At issue in this case is the question of whether Re-
spondent interfered with, restrained, and coerced em-
ployees in the exercise of their Section 7 rights by issu-
ing disciplinary warning letters to several employees.
Also at issue is the question of whether Respondent dis-
criminated against an employee by suspending and finally
discharging him because of his union and concerted ac-
tivities and because he filed charges with the Board
against Respondent.
FINDINGS OF FACT
I. PRELIMINARY FINDINGS AND CONCLUSIONS
Respondent Roadway Express, Inc., a Delaware cor-
poration, with a terminal and office located at Atlanta,
Georgia, the only facility involved in this proceeding, is
engaged as a common carrier by motor vehicle in inter-
state transportation of freight. Respondent admits, and I
find, that it is engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Local Union No. 728, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE FACTS
A. The Collective-Bargaining Agreement and
Respondent's Work Rules
At all times material herein Respondent and the Union
have been parties to collective-bargaining contracts cov-
ering Respondent's over-the-road and local freight for-
warding, pickup, and delivery employees.
Article 16 thereof sets forth the terms and conditions
under which employees may refuse to operate Respond-
ent's vehicles, with particular emphasis on the safe oper-
ation of such vehicles.
Section I provides, inter alia, that employees are not
required to operate vehicles that are in unsafe operating
condition. A refusal by an employee to operate such
equipment is not a violation of the contract unless the re-
fusal is unjustified. "All equipment which is refused be-
cause not mechanically sound or properly equipped, shall
be appropriately tagged so that it cannot be used by
other drivers until the maintenance department has ad-
justed the complaint. After equipment is repaired, the
Employer shall place on such equipment an 'OK' in a
conspicuous place so the driver can see the same."
Section 2 provides that employees are not to be re-
quired or assigned to engage in "any activity involving
dangerous conditions of work or danger to persons or
property or in violation of any applicable statute or court
order, or in violation of a government regulation relating
to safety of person or equipment."
the complaint that Saint Elmo Bell, Jr., was unlawfully suspended on
April I. 1980. and discharged on April 9. 1980, are denied. Apart from
other considerations (See James Banyard v .. L.R.B. 505 F.2d 342 (D.C.
Cir 1974)., deferral is inappropriate where, as here, the complaint alleges.
in part. that Bell was suspended and discharged because he filed charges
with the Board against Respondent.
1197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 4 provides that employees shall immediately,
or at the end of their shift, report all defects of equip-
ment.... "The Employer shall not ask any other em-
ployee to take out equipment that has been reported by
any other employee as being in an unsafe operating con-
dition until same has been approved as being safe by the
mechanical department."
Articles 7 and 8 provide for local area and national
grievance machinery to resolve disputes and grievances
arising under the contracts and supplements thereto.
Article 45, section 1, of the Southern Area Conference
Motor Freight Supplemental Agreement provides, inter
alia: "Appeal from discharge, suspension or warning
notice must be taken within ten (10) regular working
days by written notice, and a decision reached within fif-
teen (15) days from the date of discharge, suspension or
warning notice."
It is Respondent's policy to issue warning letters to
employees for conduct deemed to be objectionable or
contrary to company rules. Two or more such letters for
the same offense may result in discharge. Letters remain
in an employee's personnel file, but are not considered
for disciplinary purposes after 6 months.
An employee who receives a warning letter may file a
grievance to protest its issuance. The Union will mail the
protest to the Employer, meet with the Company and at-
tempt to have the letter withdrawn. In the event the
Company refuses, the protest stands against the letter.
No further steps in the grievance procedure are followed
unless the warning letter also involves a loss of pay.
Where a second letter is issued for the same type of of-
fense an employee may be disciplined up to discharge. If
the employee is suspended or discharged, the entire
matter, including the earlier offense, will be considered
by the Southern Multi-State Grievance Committee in the
final steps of the grievance procedure.
Under rules of the Department of Transportation
(DOT), drivers are required to inspect their vehicles
before using them. As set forth above, the contracts pro-
vide that employees will immediately, or at the conclu-
sion of their shifts, report all defects in equipment.
Pursuant to the terms of the contracts, the Multi-State
Grievance Committee, composed of an equal number of
representatives from the Union and the Employers, has
an agreed-upon procedure to be followed when a driver
reports that equipment assigned to him is unsafe to drive.
Respondent's posted work rule directs the driver to
write up a defective unit on a form provided by Re-
spondent (M-l I for trucks: M-12 for forklifts). The
driver delivers the unit to the garage supervisor on duty,
usually a garage foreman. The driver may insist that a
Class A mechanic inspect the vehicle. If the mechanic,
upon inspection, finds that the vehicle is safe and oper-
able, the driver is required to accept the unit and drive
it. If he refuses he is subject to discharge.
Respondent has established a corollary work rule.
When the driver delivers the unit to the garage foreman,
the latter checks out the unit to determine if there is a
problem. If he agrees with the driver's report, a mechan-
ic is assigned to repair the unit. If the foreman finds no
problem with the unit he so informs the driver. At that
point the driver has two options. He can accept the fore-
man's opinion and continue his trip or he can insist that a
mechanic, a member of the Union, inspect the unit. In
the event the latter course is followed and the mechanic
finds no defect in the unit the driver will receive a warn-
ing letter for the delay of the freight and the unnecessary
expense incurred by the Company.2 Each unit is inspect-
ed by a mechanic on the Safety Lane before it is ready
for dispatch to make sure that it is road worthy. If, as a
result of the driver's complaint, a defect is found in the
unit, the mechanic who passed the vehicle as safe to op-
erate is given a warning letter for failure to discover the
defect before passing it through the Safety Lane. Drivers
are paid for downtime in the event the vehicle is found
to have a defect. Drivers are not paid for such time if no
defect is found.
B. The Warning Letter to Albert T. Wilson
Wilson, a dock worker and driver, has been employed
by Respondent since 1972. On September 7, 1979, Wilson
received a warning letter from Driver Superintendent Al
Southern for wasting time, with the comment that he
would receive further discipline for any future occur-
rence of the same nature.
Based upon my observation of the witnesses on the
stand and the natural and probable sequence of events, I
find that the letter was issued by Southern in the follow-
ing context: About a week prior to September 7, Wilson
was issued a letter for mishandling freight. The parties
agree that the letter was issued by Respondent in error.
On September 5, Wilson showed the letter to Assistant
Terminal Manager Sammy Harmon and Harmon agreed
to investigate it. The next day Wilson again asked
Harmon about the letter and whether it had been re-
moved from his file. Harmon said either that he would
take care of it or had taken care of it. Wilson thanked
Harmon and left the office. However, Wilson was appar-
ently unsatisfied with Harmon's response. The next day
Wilson asked Foreman Roy Wood and Terminal Oper-
ations Manager William Young for a job steward to
check on the disposition of the letter. They told him to
find a steward himself. Wilson contacted Steward John
Ellis. Together they then went to the City Dispatch
Office and asked Southern for permission to see Wilson's
2 Operations Manager Sasser testified that Respondent and the Union
reached verbal agreement at the local level in the fall of 1977 that this
procedure would be followed. Robert B. Edwards, a road driver for Re-
spondent and a union steward during the 6-month period prior to the
hearing, testified that the Union had agreed to a work rule establishing
such a policy and posted by Respondent on Respondent's bulletin board.
While denying that an actual agreement existed between the Union and
Respondent, Assistant Business Agent John G. Honea testified that he
was "sure" that a driver who had reported a vehicle to be unsafe would
receive a warning letter if a Class A mechanic, upon inspection, found
the unit safe and operable. In those circumstances, if the driver protested
the warning letter "he wouldn't have a case," but the Union would take
his protest and ask the Company to withdraw the letter. In the event a
second warning letter for such an offense was issued to a driver with the
discipline of suspension or discharge both letters would be considered
through the grievance procedure. Resolving credibility. I conclude that
the Union was at all times aware of Respondent's working rule as to such
warning letters and did not object to the existence of the rule but re-
served the right to consider each case on its individual merits in the
event the enforcement of the rule resulted in a driver's suspension or dis-
charge.
1198
ROADWAY EXPRESS, INC.
personnel file. Southern refused, directing them to con-
tinue checking with Harmon. Harmon was not at work
that morning, September 7. Wilson and Ellis went to the
office of Terminal Manager Carlton Shepherd and asked
to see Wilson's file. Shepherd called for Office Manager
Jerry Albertson, who was not familiar with the letter. At
about that time Southern entered the office and Shep-
herd told Southern to let Wilson see his file. Wilson,
Ellis, and Southern went back to Southern's office where
Southern showed Wilson and Ellis a card from Wilson's
file with the list of current warning letters. The list did
not include the erroneous letter. Wilson was satisfied that
the letter had been removed from his file. Shortly there-
after, Southern spoke to Harmon by phone and asked
Harmon ahout Wilson's letter. Harmon said that he had
already told Wilson that Harmon had taken care of the
letter. Southern went out to the dock and asked Wilson
whether Harmon had said that he had taken care of the
letter. Wilson said, "Yes." Southern then issued Wilson
the September 7 warning letter on the ground that
Wilson had wasted 10-15 minutes of time talking to
other management officials after Harmon had said that
he had taken care of the erroneous letter.
C. The Warning Letter to William Jerry Howard
Howard, a driver, has been employed by Respondent
for 3 years. On November 27, 1979, he was issued a
warning letter pursuant to Respondent's practice of issu-
ing warning letters to drivers who report defects in vehi-
cles which, upon inspection by a mechanic, are found to
have no defects.
Howard was dispatched from Atlanta to Memphis on
November 23, 1979. After inspection of the vehicle as-
signed to him he wrote it up on Respondent's M-l I
form, noting that the bottom brake shoe on the tag axle
was sticking out from the hub, that the brake shoe was
loose, and that air was leaking. He gave the write up to
Garage Operations Manager W. E. Hartley. Howard tes-
tified that Hartley did not inspect the unit in Howard's
presence, but read the writeup and told Howard that he
would receive a warning letter for it. However, Hartley,
with 14 years' experience as a supervisor of mechanics,
foremen, tire people, and garage service employees, testi-
fied credibly that he did, in fact, check the unit when he
received Howard's writeup. He operated the parking
brake valve and found that it did not leak. He saw noth-
ing wrong with the brakes. He then reported to Howard
that there was no problem, but if Hartley had to assign a
mechanic to inspect the unit Howard would probably re-
ceive a warning letter. Howard replied something to the
effect that he did not give a damn, that he had a bushel
of them.
The mechanic who inspected the unit in accordance
with Howard's writeup wrote: "Brake was adjusted and
in place-operates alright-parking brake operation is al-
right-released."
Both Hartley and Relay Manager Warren Sasser, who
supervises the over-the-road drivers at the Atlanta termi-
nal, testified that it was not unusual for truck brakeshoes
to protrude somewhat from the edge of the drum, that
there would be a little movement of the shoe due to
wear. Hartley estimated that out of 10 trucks checked at
random 50 percent would show the edges of the shoes
on the front side. Sasser testified that 75 percent of the
trucks would show one shoe of the four protruding.
D. The Warning Letters and Discharge of Saint Elmo
Bell. Jr.
Bell, who was employed by Respondent since October
1962, in a variety of transportation duties, exercised his
seniority in January 1979, to become a forklift operator
at the Atlanta Terminal. Prior thereto he had been em-
ployed at Respondent's Conyers terminal. In December
1978, he filed unfair labor practices against Respondent,
which resulted in a decision in his favor by an Adminis-
trative Law Judge. No exceptions were filed to that de-
cision. 3
Over the years, in addition to his letter of discharge
dated April 9, 1980, Bell has received 55 warning or dis-
ciplinary letters, most of them involving charges of tardi-
ness, failure to follow instructions, insubordination, and
wasting time. Of these, 21 warning letters were issued in
1979 and 1980. Of the latter, six, dated May 8, 1979, July
26, 1979, August 28, 1979, January 2, 1980, March 4,
1980, and April 1, 1980, are alleged to be unfair labor
practices in this proceeding.
1. The letter of May 8, 1979
On the morning of the above date, Bell arrived at
work and checked out a forklift. After operating it brief-
ly he noted that it was smoking. Bell complained to
Dock Foreman Roy Wood, who told Bell to find an-
other lift. Bell said it was not up to him to find a lift and
he wanted to see a job steward. Wood told Bell a ste-
ward was not available at that time and that Bell should
drive his lift until a steward arrived. Bell said he did not
care if a steward arrived or not, that he was going to get
Wood's ass. Wood determined that Bell had shown disre-
spect to Wood and wrote up the incident in a warning
letter. The letter was thereafter signed by Terminal Op-
erations Manager William Young and presented by
Young to Bell. Bell denied using the language attributed
to him and asked for the guidelines on insubordination. I
credit Wood over Bell. The disputed language is similar
to language admittedly used by Bell to Wood on another
occasion. Moreover, on May 8, in relation to the same
incident of the smoking forklift, Bell spoke rudely to As-
sistant Terminal Manager David Abercrombie, referring
to him as "fat boy." Bell received a second warning
letter for his disrespect to Abercrombie. This letter is not
alleged to be an unfair labor practice.
2. The letter of July 26, 1979
On the above date at 5:55 a.m., Bell parked his lift
next to a stairway leading to a restroom. He signaled
Foreman Wood and Wood acknowledged the signal that
Bell was taking a head break. Alerted by Young to
Young's concern that Bell had been taking excessive
head breaks, Wood checked his watch. Bell proceeded to
the restroom, returning at 6:27 a.m. While going to and
- Roodw,.ay Expres, Inc.. JD-858-79, adopted by the Board on January
24. 1980, unpublished.
1199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the restroom Bell talked to several employees and
bought a cup of coffee for another employee. He did not
recall how long his break lasted, but testified that it was
no longer than other occasions. Breaktime for the em-
ployees was at 6:30 a.m.
At 8:25 a.m., Bell was called to Young's office. Ste-
ward Long was present. Young told Bell that Bell had
taken 32 minutes for a head break, that it had cost the
Company $5 and was excessive. Bell asked what the
guidelines were for a head break. Young said there were
no guidelines, but that he had to start somewhere. Young
issued Bell a warning letter for wasting time.
On July 27, 1979, Bell testified in a Board hearing re-
lating to the unfair labor practice charge he had filed
against Respondent. Both Wood and Young denied that
they had knowledge that Bell had filed an unfair labor
practice charge at the Conyers terminal.
3. The letter of August 28, 1979-the refusal to pay
overtime
On the above date, Bell was directed by Wood to
move some damaged freight that had to be rebanded or
"recoopered." This process required the assistance of an-
other employee to physically handle the freight before it
could be moved. Bell had not finished this assignment
when Wood had another job for Bell at another location.
When Bell returned, he was directed to resume the re-
coopering work with no helper. Under Respondent's
work rules, a senior employee, such as Bell, is not re-
quired to do less desirable work if a junior man is availa-
ble. Bell protested the assignment and said that he
wanted to see a job steward. However, he got on the
forklift and moved some bundles. Wood called the Out-
bound dock for a steward and found that there would be
no steward available until 7 a.m. Informed of this fact,
Bell suggested that Wood call a steward at home, but
Wood refused to do so. In the course of the conversa-
tion, Bell told Wood that Wood thought he was God
and Bell was going to show Wood and was going "to
put some papers on your ass."
At 9:25 a.m., Bell and Steward Hinson were called to
Young's office. Bell was handed three warning letters,
one for insubordination to Wood as a result of Bell's
above comment to Wood, another for tardiness, and a
third for negligence. Young accepted Bell's explanation
for being tardy and rescinded that letter. Apparently, the
letter for negligence was also rescinded for Bell's record
shows only one warning letter dated August 28, 1979.
Young told Bell that disrespect to a supervisor was in-
subordination and presented Bell with a warning letter
for that reason. During the course of the conversation
Young said that Bell was a fine employee, but his extra-
curricular activity was the problem. Bell asked if Young
was talking about Bell going to the Labor Board and
Young replied, "No. I'm not referring to anything of that
nature." Young was aware that Bell was working week-
ends at other freight lines and believed Bell could have
been taking excessive head breaks for that reason. How-
ever, Young told Bell that Young did not stay around off
the clock to see what activities Bell engaged in.
The grievance conversation lasted until about 9 a.m.
At that time Bell told Young that Bell had not yet writ-
ten up his forklift. Young told Bell to punch in, write up
the forklift, and punch out. Bell did as instructed. When
Bell reported for work the next morning his timecard
had been altered from 8.7 regular hours and .7 overtime
to 8 hours only. Bell had been paid overtime for time
spent discussing his grievance relating to the May 8
warning letter. Company officials testified that it is com-
pany policy not to pay overtime for discussions relating
to grievances. Time so spent is only payable during the
employee's normal hour shift.
4. The forklift blade controversy
A forklift of the type used at Respondent's Atlanta ter-
minal is an engine powered industrial lift truck designed
to move freight by positioning two forks or blades under
the freight and, with the weight of the freight on the
blades, elevating the blades and the load for transporta-
tion on the dock from one location to another, including
trailers. The blades attach to the carriage and can be ad-
justed by the operator to be closer together or further
apart to accommodate different loads and movements.
There is a center opening or gallery on the carriage
through which the blades are installed. Clips hold the
blades to the carriage in notches spaced at regular inter-
vals.
The Atlanta terminal utilizes nine forklifts, eight of
them of Datsun manufacture and one of Clark manufac-
ture. Except for one set of Clark blades, the blades are
from Datsun. All of the forklifts at the Atlanta terminal,
carry an Industrial Truck Association (ITA) Class 2 car-
riage, handling weights from 2,000 to 5,000 pounds. At
least one manufacturer of forklift blades makes blades for
both Datsun and Clark forklifts. The blades come in dif-
ferent lengths, ranging from 42 inches to 60 inches.
However, a Class 2 ITA carriage will accommodate a
Class 2 blade. Except for the length, there is no differ-
ence between a Class 2 Datsun blade and Class 2 Clark
blade. Both Datsun and Clark forklifts are designed to
use forklift locking pins. The pins are small bolt like ob-
jects, attached to springs. They fit into the blades to pre-
vent them from sliding on the carriage. With or without
the pins, bolts or washers bolted or welded to the ends
of the carriage prevent the blades from sliding off the
carriage. The forklift locking pins permit the operator to
adjust the blades without getting off the forklift to move
them physically by kicking them into the proper notch.
Respondent's "Forklift Training Manual," issued in
January 1890, revised its previous manual by providing
in the Operator's Daily Report a column for inspection
entitled, "Attachments secured pin in blades." Prior to
the fall of 1979, the forklift operators at the Atlanta ter-
minal drove their lifts without pins.
On September 24, 1979, Bell was operating a forklift
without forklift locking pins. A blade came out of its slot
and was riding on the carriage over the entry gallery.
When Bell attempted to position the blade properly, it
slid down and caught his finger between the blade and
the carriage, injuring several fingers. Upon his return to
work after recuperating from his injury, Bell began writ-
ing up forklifts because the blades were not secured in
place.
1200
ROADWAY EXPRESS, INC.
From January 1980 to his discharge in April 1980, Bell
continued to write up forklifts because of such problems.
On a number of occasions, management officials attempt-
ed to persuade Bell that his writeup of the forklifts was
unnecessary, that the forklifts were safe to operate de-
spite the fact that the blades would move to some extent
when kicked. Bell, however, took the position that the
forklift was unsafe to operate if the blade moved at all
when the pin was in place. Terminal Operations Man-
ager Al Harrelson explained to Bell that the blades on all
the forklifts would slide with no weight on them if
kicked at the bottom. The weight of the skids, however,
would hold the pins in position and there would be no
excessive movement of the blades.
On January 4, 1980, Bell, upon his request, met with
Respondent's Safety Supervisor Richard Danford. Bell
asked Danford what the Company's policy was with re-
spect to the locking pin on the forklift blade. Danford
told Bell that the pins should be in the blades. If some
blades did not have pins attached or secured in the
blades the operations manager or the dock foreman
should allow the operator to change blades or forklifts so
that there would be locking pins on the blades. Howev-
er, if other blades or forklifts were not available, the lift
should not be deadlined (removed from service for re-
pairs) because of the absence of pins, but it should be op-
erated with caution.
5. The letter of January 2, 1980
On the morning of January 2, Bell reported for work
and deadlined two forklifts for lack of pins or adequate
locking. A third lift could not be started. Dock Foreman
Rocky Allen Davis assigned Bell to a fourth forklift,
which was being operated by employee Reeves. Reeves
was assigned to one of the units deadlined by Bell, which
Bell observed. The fourth lift required fuel. Davis ac-
companied Bell to the fueling area and stood by while
Bell fueled the lift. Bell carried on a one-sided conversa-
tion during the course of which he told Davis that Davis
should not have placed Reeves on the deadlined unit,
that Roadway had a history of safety environment, and
that Bell could sue management supervisors because they
were on profit sharing. Davis told Bell to be quiet. Bell
responded that it was just tough shit; he could say any-
thing he wanted to. Davis said that Bell had been disre-
spectful and would receive a warning letter for insubor-
dination.4
6. The letter of March 4, 1980
On the morning of the above date, Bell was assigned a
forklift and fueled it for oil. Davis directed Bell to door
112. About 15 minutes later, Davis observed Bell writing
up the lift. Bell told Davis that the blades were insecure,
that the pins did not secure the blade adequately. Bell
' In connection with this incident Bell filed a grievance with the Union
on January 11, 1980, alleging that Respondent had failed to follow its
own safety procedure by requiring Reeves to operate a forklift that had
just been deadlined by Bell. The grievance was settled with the under-
standing that the Company would not expect another employee to drive
an unsafe piece of equipment. However, according to Terminal Manager
Carlton Shepherd, he took the position, without objection from the
Union. that Respondent did not consider the pins to be an unsafe matter
kicked the bottom of the blade and the blade slid over a
notch or two. Davis checked the forklift and made sure
that the pins would go up and down and lock. Davis
told Bell that the blades were safe and operable and he
was to report to door 112 with the forklift. Bell refused
to drive the lift. Davis called Harmon. In the interim
Harrelson appeared and asked what the problem was.
Harrelson checked the pin, kicked the blade from the
top, and showed Bell the weld bars at the ends which
prevented the blades from sliding off the carriage. Har-
relson told Bell the lift was safe and instructed Bell to go
to door 112. Bell requested a union steward. Davis con-
tacted Steward Carlos Conn. Harmon also checked the
forklift and told Bell the unit was safe to operate.
Harmon explained to both Bell and Conn that the unit
was safe, that the blades would only move if they were
kicked at the bottom. They would not move if kicked at
the top. When the freight was placed on the forks, the
forks would be permanently seated and would not slide
back and forth. The pins were merely a convenience for
the lift driver. Conn said that he had seen blades slide off
the carriage. Harmon agreed that had been possible, but
that the metal strips of angle iron prevented accidents of
this type. Conn said, "Yes, you're right." Bell, however,
was not persuaded that the lift was safe to operate and
refused to drive it. The discussions lasted for about I
hour. Finally, Harmon discharged Bell.
The next day, the forklift was inspected by mechanic
Fred. W. Piper. Piper told Hartley that the Datsun lift
had Clark blades and he would not drive it on the dock.
There was considerable wear in the slots that held the
blades, and the blades were loose. Piper testified that he
did not know whether the dimensions of the Clark blades
were different from those of the Datsun blades, but as-
sumed they were because the parts numbers on the
blades were different.
Harmon, Shepherd, and Danford discussed Bell's dis-
charge. In view of Piper's doubts as to the safety of the
vehicle and the fact that Bell was an 18-year employee,
they decided that his discharge should be reduced to a
three-day suspension for wasting time. Bell was notified
of the reduced discipline.
Respondent also took steps to investigate thoroughly
the issue of the safety of the forklift if operated without
pins and the question of the interchangeability of Clark
and Datsun blades. On March 5, 1980, representatives
from Datsun and Clark came to the terminal. The latter
told Shepherd that he would not recommend using a
Datsun blade on a Clark lift. The Datsun representative
did not know the answer. About a week later, as a result
of discussions with higher supervision in the Clark and
Datsun organizations, including a design engineer at
Datsun, Respondent's officials determined that Class 2
Clark and Datsun blades were interchangeable on a Class
2 carriage and the pins were not a safety item.
7. The letter of April 1, 1980
On the morning of the above date, Bell reported for
work and was assigned to the Outbound dock as a senior
operator. He checked out the first lift assigned to him
and wrote it up as inoperative. Bell was pushed on the
1201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first lift to the Inbound dock where he was assigned to
lift 3115. Bell reported to Davis that lift 3115 was low on
oil and water and the blades were insecure. Bell said
there was another lift on the dock and asked Davis why
the Company was discriminating against him by choos-
ing a lift for him and not for everyone else. Davis said
he was not aware that another lift was available, that
Bell could drive that lift if he wanted to or he could put
oil and water in unit 3115 and even change the blades,
but it was 45 minutes after Bell's starting time and Davis
wanted Bell to get on a lift and get back to Outbound.
Bell drove lift 3115 about 100 feet to the third lift, which
had no defects. However, instead of driving the latter lift
to Outbound, Bell insisted on writing up unit 3115 on the
ground that it was his responsibility under the contract
and Respondent's manual. Harrelson appeared and joined
Davis in instructing Bell to report to Outbound without
writing up unit 3115. Harrelson told Bell that Bell had
not handled any freight with that unit and if there were
any problems with it, the next operator could write it up,
that Harrelson would have it checked out. Finally, after
about 20 minutes of argument, Bell drove the third lift to
Outbound. Bell received a letter of discharge for wasting
time.
Subsequently, Shepherd reduced the discharge to a 3-
day suspension on the ground that Bell had not actually
refused an order. Bell's conduct in wasting time was not
so serious an offense to warrant discharge of an 18-year
employee.
8. The letter of April 9, 1980
On April 8, mechanic Piper performed a preventive
maintenance check on forklift 3102. About 1:12 p.m. he
finished his inspection and repair of the unit and signed it
as safe to go back into service. He testified that the lift
was a Datsun lift with Datsun blades and Clark pins. He
parked the lift outside the garage. At 11 p.m. on April 8,
Dock Foreman Ricky R. Beasley sent an employee from
the Outbound dock to the garage to pick up unit 3102.
The employee returned with that unit about 11:30 p.m.
Between March 20 and April 7, 1980, unit 3102 had been
written up on five occasions. On four of those occasions
it had been written up by Bell. On April 7, 1980, the last
occasion, Bell had noted that the blades were not of
Datsun manufacture.
On April 8, 1980, Bell reported for work at midnight.
He was sent to the Outbound dock and assigned by
Beasley to unit 3102. Bell immediately wrote up the lift.
Bell testified that the unit was exceptionally clean, with
new oil and plenty of coolant, but he noted in his wri-
teup that the pin would not hold the blade; the mast had
oil presence; the blades were not of Datsun manufacture,
but the unit was a Datsun unit. With respect to the latter
problem, Bell testified that the blades came from the
Conyers terminal and he "believed" they were obtained
from a manufacturer he identified only as "JMP in Lith-
onia." Bell put the writeup on Beasley's desk. Beasley
read it. Beasley told Bell that the lift had just returned
from the garage and in Beasley's and the garage's opin-
ion the lift was safe to drive. Beasley instructed Bell to
drive the lift. Bell refused on the ground that the lift was
not safe to drive. Beasley consulted with Terminal Oper-
ations Manager Joe Bass and returned to again order
Bell to drive the lift. Bell again refused. Beasley told Bell
that if he continued to refuse to drive the lift he would
face disciplinary action. Bell requested a union steward
and Steward Conn was called to the site. Bell and Conn
spoke together for about 6 or 7 minutes. They then en-
tered Bass' office. Bell told Bass that the forklift was
unsafe and he would not drive it. Bass discharged Bell.
Immediately thereafter, Bass called Garage Operations
Manager Woody Coheley and asked him to bring a me-
chanic to check out a forklift. About 5 minutes later Co-
heley appeared with mechanic Donald W. Spears. Spears
read Bell's writeup of unit 3102 and checked the unit. He
operated the lift and checked the pins. Both pins were
locking. The blades were not of Datsun manufacture.
They were longer blades and did not have a part number
stamped on them. Spears wrote on Bell's writeup: "no
safety defects noted. Inspected April 9, 1980." Spears
and Coheley both signed the above statement.
ANALYSIS AND FINAL CONCLUSIONS OF LAW
1. I conclude that Respondent violated Section 8(a)(1)
of the Act by issuing a warning letter to Albert T.
Wilson on September 7, 1979, with the threat of further
discipline for the same conduct.
It is well settled that an employee attempting to en-
force a contract right is engaged in concerted protected
activity within the meaning of Section 7 of the Act.
N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d 495, 500
(2d Cir. 1967): N.L.R.B. v. Ben Pekin Corporation, 452
F.2d 205, 206 (7th Cir. 1971). As set forth above, article
45, section 1, of the Over-the-Road Supplemental Agree-
ment provides for an appeal of a warning letter within 10
days of its issuance. About a week prior to September 7,
1979, Wilson was mistakenly issued a warning letter for
mishandling freight. On several occasions he called the
matter to Harmon's attention. Assuming, without decid-
ing, that Harmon said he had taken care of the matter,
Wilson was apparently unwilling to take Harmon's word
that the erroneous letter had, in fact, been removed from
his file. Although the warning letter involved no loss in
pay, a second letter for the same offense could result in
Wilson's discharge. He was therefore understandably and
reasonably anxious to have the matter rectified with cer-
tainty. Harmon was not at work on the morning of Sep-
tember 7. Pursuing his meritorious grievance, Wilson
asked his foreman for a union steward and was told to
find one himself. He found Steward Ellis and together
they went to Southern's office. Here the whole matter
could have ended with no waste of anyone's time. How-
ever, for some inexplicable reason Southern refused to
show Wilson his file until ordered to do so by Shepherd.
In these circumstances, to discipline Wilson solely for
the reason that he continued to pursue a grievance to a
final conclusion cannot be defended on the ground that
Wilson rather than Southern was wasting Wilson's time
and that of other management officials. I find that by
such conduct and by threatening further discipline for
the same reason Respondent violated Section 8(a)(1) of
the Act.
1202
ROADWAY EXPRESS, INC.
2. I conclude that Respondent violated Section 8(a)(l)
of the Act by issuing a warning letter to William Jerry
Howard on November 27, 1979.
An employee who exercises his contractual right to
refuse to work under conditions he believes to be unsafe
is engaged in protected concerted activity under Section
7 of the Act regardless of the wisdom of his conduct
N.L.R.B. v. Washington Aluminum Company, Inc., 370
U.S. 9, 16 (1962), citing N.L.R.B. v. Mackay Radio &
Telegraph Co., 304 U.S. 333 (1938); Ben Pekin Corpora-
tion, supra; United Stove Co., 245 NLRB 1402 (1979);
Modern Carpet Industries Inc., 236 NLRB 1014, 1015
(1978), enfd. 611 F.2d 811 (10th Cir. 1979); provided he
is honestly and sincerely concerned about his safety
United Parcel Service, 241 NLRB 1074 (1979); his com-
plaint is not frivolous Youngstown Sheet and Tube Compa-
ny, 235 NLRB 572 (1978); and is for "legtimate union
purposes" and "not fabricated for personal motives"
N.L.R.B. v. Interboro Contractors Inc., supra; or "for ulte-
rior motives or as a pretext to achieve objectives unrelat-
ed to safety." Wheeling-Pittsburgh Steel Corporation, 241
NLRB 1214 (1979), enfd. in part without deciding, in
view of the reasonable nature of the employee's refusal
to work, whether his protection under Section 7 of the
Act requires such a finding 618 F.2d 1009 (3d Cir. 1980).
In the instant case Respondent enforced a working
rule against Howard to the effect that a driver who
writes up a vehicle as unsafe will receive a warning
letter if, upon inspection by a union mechanic, the vehi-
cle is found to be, in fact, safe to operate. As a corollary
to this rule, a finding by the inspecting mechanic that the
driver was correct and the vehicle is actually unsafe to
operate will result in a warning letter to the mechanic on
the Safety Lane who had certified the vehicle as safe.
Thus, the driver's inspection, required under DOT, is a
double check as to the safety of the vehicle. The driver,
however, runs the risk of possible discipline if he insists,
as the parties agree he may, that a union mechanic in-
spect the vehicle the driver claims to be unsafe. If the
driver is willing to accept the word of the garage super-
visor, generally the garage foreman, that the vehicle is
safe to operate the driver can avoid the possibility of re-
ceiving a warning letter.
The above working rule is generally known to Re-
spondent's employees, including union stewards. So far
as the record shows, the Union has interposed no objec-
tion to this rule and there is evidence that it has been
tacitly accepted by the Union, except where it results in
suspension or discharge.
It is Respondent's position that Howard acted unrea-
sonably in refusing to accept Hartley's word that the ve-
hicle was safe to operate and did not require the exper-
tise of a mechanic to check it out, thereby incurring the
expense of a mechanic's time and delay in transportation.
I recognize that this is not a case where the employee's
good faith is supported by compelling evidence that his
complaint was, in fact, meritorious as in, e.g., Roadway
Express, Inc., 217 NLRB 278, 280 (1975),5 enfd. 532 F.2d
s Accepting, as the law of the case, the decision of the Court of Ap-
peals for the District of Columbia on remand (sub nom Banyard v.
N.L.R.B., supra), that the Board consider whether the employee's belief
in the unsafe condition of his tractor was supported by "ascertainable, ob-
751 (4th Cir. 1976); N.L.R.B. v. Interboro Contractors,
Inc., supra: Wheeling-Pitsburgh Steel Corporation. supra.
Indeed, the only evidence as to the unsafe condition of
Howard's tractor is the opinion of Howard himself,
which is refuted by testimony of Respondent's expert
witnesses. Nevertheless, I cannot find, as Respondent
urges, that Howard was acting in bad faith and without a
sincere concern for his own safety. Howard had been
employed by Respondent for 3 years and there is no evi-
dence that he was an otherwise experienced over-the-
road driver with additional years of driving and me-
chanical experience. It has not been shown that he was
in the habit of writing up vehicles merely to harass Re-
spondent or to waste his time and that of others. Al-
though Hartley is a supervisor of mechanics, he is not
himself a mechanic. It may well be that Howard would
have been satisfied if the garage foreman, a mechanic,
had inspected the vehicle and assured Howard that it
was safe to operate, but that situtation, at best, is a
narrow distinction and not before me.
I appreciate Respondent's concern that unnecessary
writeups are a business expense which must be mini-
mized to the extent possible. The Union, too, is at least
aware of Respondent's problem and its efforts to reduce
business costs by its policy on writeups. My role, howev-
er, is limited to the application of Board and court deci-
sions, which, as set forth above, generally hold that con-
certed activity under Section 7 of the Act is protected
where an employee in good faith refuses to operate
equipment he believes to be unsafe, regardless of the
merits of his complaint. If, in the interest of balancing an
employer's right to conduct his business with optimum
results against the right of employees to engage in con-
certed activity, a new approach is warranted in cases of
this type that is an issue to be decided not by me, but by
higher authority.
3. I conclude that Respondent did not violate Section
(a)(l) of the Act in issuing a warning letter to Saint
Elmo Bell, Jr., on May 8, 1979.
The General Counsel argues that Bell's conduct on the
above date was protected. I cannot agree. While there
are cases where crude, even insolent language of an em-
ployee during a grievance-related discussion. (see, e.g.,
The Bettcher Manufacturing Corporation, 76 NLRB 526,
527 (1948); Socony Mobile Oil Company, Inc., 153 NLRB
1244 (1965); Ryder Truck Lines Inc., 239 NLRB 1009
(1978), while not condoned, has been found not so egre-
gious as to deny an employee the protection of Section 7
of the Act, this is not such a case. Bell's disrespectful
remark to Wood was not made in the context of a heated
discussion of the merits of Bell's grievance and was en-
tirely unprovoked. Wood had attempted to comply with
Bell's request for a union steward and told Bell that a
steward was not immediately available, that Bell should
drive his lift until a steward arrived. Bell's insolent
jective evidence" as required under the Supreme Court's interpretation of
Sec. 502 (Gateway Coal Company v. United Mine Workers of America. et
al. 414 U.S. 368 (1974) Sec. 502 provides, in relevant part. that the quit-
ting of labor by an employee or employees in good faith because of ab-
normally dangerous conditions of employment shall not be deemed a
strike under this Act. The complaint in the instant case does not allege
that Howard's conduct was protected under Sec 502
1203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remark that he would get Wood's "ass" followed. Bell's
contemptuous attitude toward management was revealed
on the same occasion when he called Assistant Terminal
Manager Abercrombie "fat boy." For this offense Bell
received another warning letter not alleged by the Gen-
eral Counsel to be violative of Section 8(a)(l). Neither
letter, in my opinion, interfered with, restrained, or co-
erced Bell in his right to engage in concerted activity,
assuming he was engaged in such activity when he asked
to see a steward and Wood replied that none was availa-
ble at the time.
4. I conclude that Respondent did not violate Section
8(a)(1), (3), and (4) of the Act by the warning letters to
Bell of July 26 and August 28, 1979, and in failing to pay
Bell overtime for time spent in discussing his grievance.
With respect to the warning letter of July 26, Bell did
not deny that he had taken a head break of 32 minutes,
suggesting, in fact, that he had spent the same amount of
time in the restroom on previous occasions. No evidence
was offered by the General Counsel to refute testimony
of Respondent's witnesses that a head break of 32 min-
utes was excessive. An employer is entitled to a full
day's work for a full day's pay. The fact that Respondent
had no published policy as to excessive time spent in the
restroom will not support the charge that the letter of
July 26 was issued to Bell for pretextual reasons. Certain-
ly, Respondent's employees were aware that Respondent
had a policy against wasting time, whether the time
wasted involved loitering on the job or taking excessive
head breaks, terminating just before a regular break
period. I find that the warning letter of July 26 was
issued solely for the stated reason and not as a pretext to
interfere with, restrain, or coerce Bell in the exercise of
his Section 7 rights.
There is not a scintilla of evidence that Respondent
was motivated to discriminate against Bell because of his
union membership. So far as the record shows, the rela-
tionship between the Union and Respondent is entirely
amicable. They are parties to a detailed and extensive
labor relations agreement, including a grievance-arbitra-
tion procedure to resolve all grievances resulting from
infractions of the contract and disciplinary actions. The
record is replete with evidence that all and other em-
ployees availed themselves of the services of stewards
with the full cooperation of management. In these cir-
cumstances, there is no basis for concluding that Re-
spondent violated Section 8(a)(3) by the warning letter
of July 26.
The only evidence adduced by the General Counsel to
support the allegation of a violation of Section 8(a)(4) is
the fact that Bell was scheduled to testify at a Board
hearing on July 27. This circumstance in and of itself is
hardly a preponderance of evidence proving that Re-
spondent admonished Bell not to spend excessive time in
the restroom for the purpose of discriminating against
him because he had filed charges and was prepared to
give testimony at a Board hearing.
With respect to the warning letter of August 28, I
find, essentially for the same reasons, that Bell was prop-
erly admonished through a warning letter not to be dis-
respectful to supervisors. Employees have rights, under
the statute, to join unions, to remain union members, and
to engage in concerted activity for their mutual aid and
protection. Those rights are carefully guarded and pro-
tected by the Board and the courts, but they do not give
an employee carte blanche authority to thumb his nose at
his supervisor in flagrant disrespect. In little over a
month Bell had told one supervisor that Bell would get
his ass or put some papers on his ass and had told a
higher management official that he was a fat boy. The
sole discipline meted out to Bell for such disrespectful
conduct were warning letters. No loss of pay was in-
volved.
I have taken into consideration Young's remark to Bell
during a discussion of the above warning letter that
Bell's extracurricular activity was the problem. The Gen-
eral Counsel argues that this comment relates to Bell's
activity in filing a charge against Respondent in Case 10-
CA-14261. Young testified that his remark was based
upon his knowledge that Bell worked for another truck-
ing company on weekends and that he told Bell, when
the latter asked if the comment related to Bell's going to
the Labor Board, that Young was not referring to any-
thing of that nature. I find Young's comment about Bell's
extracurricular activity ambiguous. In the absence of ad-
ditional probative evidence, I find it insufficient to sup-
port a conclusion that the warning letter was issued to
Bell for pretextual reasons in violation of the Act.
With respect to the allegation of the complaint that
Bell was discriminatorily denied overtime pay for time
spent discussing his grievance after working hours, unre-
futed testimony of Respondent's witnesses is that it was
not the policy of Respondent to pay employees for time
spent discussing a grievance beyond the regular 8-hour
shift. The fact that Bell may have been paid such over-
time on a previous occasion does not prove a contrary
practice or warrant a finding that Respondent violated
the Act by failing to pay Bell overtime on August 28.
5. I conclude that Respondent did not violate Section
8(a)(1) and (4) of the Act by issuing a warning letter to
Bell on January 2, 1980.
My reasons for dismissing the 8(a)(l) and (4) allega-
tions of the complaint relating to the warning letter of
August 28, 1979, are equally applicable to the warning
letter of January 2, 1980. Bell's arrogant remark to
Davis, when the latter asked Bell to cease a one-sided,
rambling conversation, that it was "tough shit" and Bell
could say anything he wanted to was not in the context
of concerted activity and did not relate to Bell's prior
concerted activity. In view of Bell's pattern of engaging
in disrespectful conduct toward his supervisors, it was a
proper admonishment and not a pretext to punish Bell
for his concerted activity or because he had filed charges
and testified at a Board hearing.
6. I conclude that Respondent did not violate Section
8(a)(l) and (4) of the Act by suspending Bell on March
4, 1980, and on April 1, 1980, and finally discharging
him on April 9, 1980.
With respect to the allegation that Bell was suspended
and finally discharged because he filed charges with the
Board and gave testimony at a Board hearing, I find, for
reasons set forth above relating to the warning letter of
1204
ROADWAY EXPRESS, INC.
July 26, 1979, that the evidence is insufficient to support
a violation of Section 8(a)(4).
The incident of April 1, resulting in Bell's discharge,
subsequently converted to a 3-day suspension, did not in-
volve a question of safety. He had decided, at his option,
not to operate unit 3115 and had driven it a short dis-
tance to reach a third, operable unit. Davis and Harrel-
son were aware of the defects in unit 3115 and had ac-
cepted responsibility for it. At that point, Bell's responsi-
bility for the unit ended. As an employee, he was not re-
quired to police Respondent's compliance with the con-
tract. He was needed urgently at the Outbound dock.
Another question would be presented if this was simply a
situation where an employee asserted for the first time,
even mistakenly, a debatable contract right. But Bell's
conduct does not fall into that category. He searched out
the cracks and crevices in Respondent's working rules to
support clearly indefensible positions. Disciplined for in-
subordination, he argued that Respondent had no posted
policy on insubordination. Similarly, he contended that
he should not be warned about wasting time in the res-
troom because there was no posted policy for such an of-
fense. At some point an employer need not put up with
lawyering of this type. The mere assertion of a contract
right does not protect otherwise unprotected conduct.
Bell's insistence on April I that it was necessary for him
to write up a forklift he had not operated and was not
scheduled to operate was not an exercise of his Section 7
rights. It fits the pattern he had established of nonco-
operation and resistance to the instructions of his supervi-
sors. I find he was lawfully disciplined on that occasion.
The allegation of the complaint that Respondent vio-
lated Section 8(a)(1) of the Act by suspending and finally
discharging Bell as a consequence of the controversy
over the safety of the forklifts assigned to him is a more
serious and difficult issue. Paragraph 2 of this section sets
forth the relevant Board and court decisions upon which
my conclusions as to this issue must be and are based.
The controlling rule of those decisions, particularly
Board decisions, which I am required to follow, is that
Bell was engaged in protected concerted activity if he in
good faith with concern for his own safety and without
ulterior motives unrelated to safety refused to operate
forklifts assigned to him on the above dates.
After a careful study of the record and based upon my
observation of Bell and other witnesses as they appeared
before me, I conclude that Bell was not in good faith
and was not solely concerned for his own safety when
he challenged the safety of the forklifts he was assigned
to operate.
Bell's employment history shows that he exhibited a
disrespectful and insolent attitude toward his immediate
supervisors and higher management officials, threatening
Wood and Davis to get their "ass" and calling Aber-
crombie derisively "fat boy." He was particularly resent-
ful of Davis, testifying that Davis acted aggressively on
the ground that Davis, a large man, walked next to Bell
and looked down on him. Yet there is no evidence that
Davis did or said anything to Bell of an aggressive
nature. Bell told Wood that Wood thought he was
"God" and that Bell was going to show Wood and have
some papers for his ass.
I cannot agree with the General Counsel that the 21
warning letters issued to Bell in 1979 and 1980 were
largely pretextual resulting from the fact that Bell had
filed charges against Respondent in the fall of 1978 and
in 1979. Only six of those letters are alleged by the Gen-
eral Counsel to be unlawful and of those I have herein-
above found three to be proper, lawful warnings and a
fourth to be proper discipline. Although Bell had re-
ceived more than two warnings for the same offense
within a 6-month period and, under Respondent's work
rules, could have been discharged in 1979, Respondent
took no strong action against Bell until March 1980.
Even then Shepherd reduced the discharges of March 4,
1980, and April 1, 1980, to 3-day suspensions in consider-
ation of the nature of the incidents and the fact that Bell
was an 18-year employee.
Bell's concern ahout the safety of the forklifts began
after the injury to his fingers on September 24, 1979. It is
entirely understandable that an employee injured on the
job would have a heightened awareness of the possibility
of future injuries. In view, however, of Bell's conduct
prior to that date and his uncompromising and uncooper-
ative attitude in the months that followed, I cannot find
that he was in good faith when he wrote up forklift after
forklift, subsequently found by Respondent's union me-
chanics to be safe to operate.
A forklift, of course, is a hazardous piece of equipment
and must be operated with extreme care under the most
favorable conditions. With or without pins, the blades
can slide together if they are at an angle when moving
freight in or out of a trailer. Testimony of witnesses for
Respondent, including its mechanics, is that the pins
were for the convenience of the operator and were not
in and of themselves safety matter. Obviously, too, fork-
lifts are subject to a certain amount of normal wear and
tear. The blades in a used forklift will not fit as tightly
and snugly as those in a new one. These are all matters
that must be taken into consideration by the operator of
a forklift and the mechanics who inspect such equipment
at regular intervals. This was explained to Bell, himself
an experienced forklift operator, by Respondent's super-
visors and mechanics.
No amount of explanation was enough to persuade
Bell to cease writing up forklifts unnecessarily. He
became something of an enfant terrible on the Atlanta
dock, holding his supervisor's feet to the fire by chal-
lenging the safety of forklifts on every possible occasion.
Between October 25 and December 19, 1979, he wrote
up as inoperable the same forklift on four different occa-
sions. On each occasion, the forklift was found safe and
operable by Shop Foreman Mecca and mechanic Wright.
He found other reasons to write up forklifts and delay
the handling of freight. On six occasions between Janu-
ary I and 18, 1980, Bell noted on his writeups that the
intercom was too loud. Forklifts do not carry intercoms.
On one occasion Bell left the date and the number of the
forklift blank on his writeup, complaining that he could
not see the number on the unit in the dark at the shop
area. Yet the shop area is illuminated with mercury
vapor lights and a photograph of the unit shows its
number clearly.
1205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have taken into consideration the fact that mechanic
Piper had expressed concern that the Datsun forklift Bell
refused to operate on March 4, 1980, was fitted with
Clark blades and Piper was not sure at that time that the
blades were of the proper dimension. However, this was
not a matter raised by Bell as a safety issue on that date
and does not relate to his good faith in challenging the
safety of the forklift. Subsequently, as set forth above,
Respondent investigated the issue and determined that
Class 2 blades were interchangeable on a Class 2 car-
riage. Moreover, at least one manufacturer manufactures
blades for both the Datsun and Clark forklifts.
The forklift Bell refused to operate on April 9 had just
been inspected and released by the shop and Bell was so
informed. It was certified by a mechanic immediately
after he refused to operate it as safe and operable.
On the basis of the foregoing, I shall recommend that
the allegations of the complaint as they relate to Bell be
dismissed.
The unfair labor practices found above are unfair labor
practices within the meaning of Section 2(2), (6), and (7)
of the Act.
ORDER6
The Respondent, Roadway Express, Inc., Atlanta,
Georgia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing employ-
ees in the exercise of their Section 7 rights by issuing
warning letters to employees because they have pursued
a grievance to a final conclusion and threatening employ-
ees with further discipline for the same conduct.
(b) Interfering with, restraining, and coercing employ-
ees in the exercise of their Section 7 rights by issuing
warning letters to employees because they have in good
faith refused to operate a vehicle they believe to be
unsafe.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind and expunge from the personnel record of
Albert T. Wilson the warning letter issued to him on
September 7, 1979.
(b) Rescind and expunge from the personnel record of
William Jerry Howard the warning letter issued to him
on November 27, 1979.
6 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 find-
ings, conclusions, and recommended Order herein shall, as provided by
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(c) Post at its terminal in Atlanta, Georgia, copies of
the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by its representatives,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notice is not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges that Respondent violated the
Act by issuing warning letters to Saint Elmo Bell, Jr., on
May 8, July 26, and August 28, 1979, and January 2,
1980; by suspending Bell on March 4 and April 1, 1980;
by discharging Bell on April 9, 1980; by denying Bell
overtime pay for the time spent discussing a grievance;
and insofar as the complaint alleges violations of the Act
other than those specifically found herein.
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, and coerce
our employees in the exercise of their Section 7
rights by issuing warning letters to employees be-
cause they have pursued a grievance to a final con-
clusion and WE WILL NOT threaten employees with
discipline for the same conduct.
WE WILL NOT interfere with, restrain, and coerce
our employees in the exercise of their Section 7
rights by issuing warning letters to employees be-
cause they have in good faith refused to operate a
vehicle they believed to be unsafe.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WII.L rescind and expunge from the person-
nel record of Albert T. Wilson the warning letter
issued to him on September 7, 1979.
WE WILL rescind and expunge from the person-
nel record of William Jerry Howard the warning
letter issued to him on November 27, 1979.
ROADWAY EXPRESS, INC.
1206