Transport Service Co.

National Labor Relations Board - Board Decisions

Sep 3, 1982

263 N.L.R.B. 910 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transport Service Co. and Charles Hennessey. Case
13-CA-19696
September 3, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 22, 1981, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, Respondent filed
an answering brief and cross-exceptions, and the
General Counsel filed an answering brief to Re-
spondent's cross-exceptions.
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 only to the extent consistent herewith.
Charles Hennessey began working for Respond-
ent in May 1979 out of its Chicago terminal, carry-
ing liquid cargo. On January 17, 1980, Respondent
assigned Hennessey to pick up a load the following
morning for delivery in Michigan, a run that re-
quired driving over the highways of Illinois, Indi-
ana, and Michigan. Hennessey arrived at the ship-
per's facility and, while waiting for the truck scale
to become available for loading, noted that the bill
of lading called for 44,000 pounds of cargo, which
he thought would make the total truck weight
exceed legal limits. He discussed this with the ship-
per's "loader," who told Hennessey to call Re-
spondent's dispatcher if there was going to be a
problem. Hennessey called the dispatcher, stipulat-
ed here to be a supervisor and agent of Respond-
ent, who told Hennessey to call him back to report
the full weight once the truck was loaded. Loaded,
without the driver, the truck weighed 73,660
pounds, thus over the 73,280-pound limits of Illi-
nois and Indiana2 and Hennessey so informed the
l We agree with the Administrative Law Judge that deferral to the de-
cision of the joint grievance committee concerning Hennessey's discharge
is not warranted for the reasons set forth by the Administrative Law
Judge and also because its decision upholding that discharge is clearly re-
pugnant to the purposes and policies of the Act. For the reasons set forth
in his dissenting opinion in Terminal Transport Company, Inc., 185 NLRB
672 (1970), Member Jenkins would find that the lack of a neutral member
on the panel constitutes an independent reason sufficient in itself to
render inappropriate deferral to the grievance committee decision in this
case.
' Official weighing normally required the driver to stay in the truck,
thus including his weight. Hennessey weighed approximately 250 pounds.
263 NLRB No. 125
dispatcher who told him to drive the truck with
that load, using a toll road in Indiana to avoid that
State's weighing station. The dispatcher stated that
this was what other drivers did, and that Respond-
ent would pay the toll necessitated by this diver-
sion.
Hennessey told the dispatcher he would not haul
an overweight load.3 The dispatcher then discussed
the matter with the terminal manager, and advised
Hennessey that the terminal manager said he
should haul the load and that, if he refused, the dis-
patcher would assign another driver to haul the
load. Hennessey refused, and the dispatcher dis-
charged him for so refusing. Later the same day,
Hennessey returned to the terminal where he left
an envelope containing copies of the Banyard court
decision and the Fitzsimmons memorandum for the
attention of the terminal manager.
The following Monday, January 21, Hennessey
called the terminal to inquire about his final pay-
check. In the course of the conversation Hennessey
was told that the terminal manager wanted to talk
with him, and an appointment was scheduled for
the next morning. At the scheduled meeting,
Hennessey asked whether, in fact, he had been dis-
$ At this time Hennessey was aware of the following developments:
(I) In McLean Trucking Company, 202 NLRB 710 (1973), a majority of
the Board, Members Fanning and Jenkins dissenting, dismissed a com-
plaint alleging that James Banyard was discharged unlawfully for refus-
ing to drive a truck that was overloaded according to state law The
Board majority chose not to entertain the complaint but rather to defer
to an award rendered by a joint grievance committee pursuant to the
Teamsters National Master Freight Agreement, denying the grievance
filed with respect to Banyard's discharge. Banyard sought review of the
Board's Decision in the United States Court of Appeals for the District
of Columbia Circuit, which held that the grievance committee's award
"grants the Company a license to violate state law and as such is void as
against public policy and repugnant to the purposes of the National
Labor Relations Act." Banyard v. N.LR.B., 505 F.2d 342, 347 (1974).
The court remanded the case to the Board for consideration of the unfair
labor practice issues. On March 6, 1975, the Board issued a Supplemental
Decision and Order affirming the original decision of the Administrative
Law Judge, who had found that the discharge violated Sec. 8(aXl), and
ordered Banyard's reinstatement with backpay. McLean Trucking Compa-
ny, 216 NLRB 925 (1975).
(2) On March 13, 1975, Frank Fitzsimmons, then president of the Inter-
national Brotherhood of Teamsters, issued a memorandum addressed to
"all Local Unions Signatory to the National Master Freight Agreement."
The memorandum concerns Federal and state laws regarding maximum
loads and states, among other things, that "If a truck is overloaded under
the laws of the state where it is to be driven, our members are not re-
quired to pull it." It further states, "It has been our position that these
laws are designed--or should be-for the safety of the driver, the indus-
try, and the general public."
(3) Sometime after the final decision in McLean Trucking, PROD (Pro-
fessional Drivers Council), a reform group of Teamsters members (see
Roadway Express,. Inc., 239 NLRB 653, 656, fn. 4 (1978)) whose attorney
had represented Banyard in court, circulated a bulletin summarizing the
proceedings and concluding with a request for support which states that
the Banyard case will "serve as a legal precedent which will enable all
other drivers to be secure in their legal rights," asks drivers to become
members of PROD, and claims PROD to be "the only organization
which is actively striving to improve the working conditions of the
American trucker."
At the time of his refusal to haul the overweight load, Hennessey was
a member of PROD.
910
TRANSPORT SERVICE CO.
charged. The terminal manager said he had, and
that a discharge letter would be in the mail. During
a discussion of overloads, the manager asked
Hennessey if he thought the few hundred pounds
involved was all that important. Hennessey said it
did not seem important enough to put his job on
the line for, but that it all could have been resolved
if the dispatcher had instructed the loader to cut
the load weight by 500 or 600 pounds. The termi-
nal manager replied that he would not be dictated
to by a driver, and reiterated that other drivers
hauled overloads and that Respondent would pay
tolls in Indiana to use the toll road.4 Hennessey
then asked him whether he had read the Banyard
decision and the Fitzsimmons memorandum, and
was told that, as to the Fitzsimmons memorandum,
Respondent was not signatory to the National
Master Freight Agreement, and that, as to the Ban-
yard decision, he was not in a position to say
whether it was good law or bad law, but that
"they ran the company by what they considered to
be the best management techniques." The same
day, the manager sent Hennessey a discharge letter,
stating, among other things, that under Illinois law
there is a 2,000-pound "tolerance," and a driver
could not be fined or ticketed for an overweight of
less than 2,000 pounds.
Discussion and Conclusion
Unlike the Administrative Law Judge, we find
that Hennessey's refusal to haul a load which ex-
ceeded the legal weight limits in two States
through which he had to drive was protected con-
certed activity. We agree with the Administrative
Law Judge that, notwithstanding the "tolerances"
in both States within which carriers and drivers
were insulated from criminal liability, Hennessey
had a reasonable basis for believing that the action
Respondent demanded of him was unlawful. Fur-
ther, although we do not require employees to be
correct in their legal opinions, we note that, while
Indiana has a 1,000-pound "tolerance" for purposes
of criminal prosecution, a driver is jointly and sev-
erally liable with the owner of the vehicle for any
damage to a public highway or bridge as a result of
violations of the standard weight limit. Indiana
Motor Vehicle Act, Sec. 9-8-1-18. Certainly Re-
spondent recognized the proposed load as being in
violation of Indiana law, and communicated its un-
derstanding to Hennessey when it directed him to
avoid the highway on which the official weighing
station was located and offered to pay an otherwise
unnecessary toll in order to do so. Similarly, and
regardless of the state of his knowledge of the pre-
4 This reference to the Indiana tolls presumably relates to the previous
suggestion to avoid that State's weighing station.
cise legal consequences, Hennessey had reasonable
cause to believe that he was being asked to violate
Illinois weight laws. His refusal to violate state
laws was, presumptively, concerted protected ac-
tivity. Varied Enterprises, Inc. d/b/a Private Carrier
Personnel, 240 NLRB 126, 131-132 (1979); Ogden &
Moffett Company, 254 NLRB 1349, 1352 (1981).
The Banyard case itself is also instructive in this
regard, for the court, albeit in connection with the
issue of deferral to an arbitration award, admon-
ished that:
Regardless of the purpose of the Ohio [weight
limit] statute, it remains axiomatic that it was
still the law; for this or any other company to
require its employees to act in violation there-
of can never be upheld by the Board or this
court. [505 F.2d at 347.]
Rather than rebut the presumption that Hennes-
sey's refusal to exceed legal limits was in further-
ance of a concerted collective interest of employ-
ees, the facts leading up to his action reinforce that
presumption. The Fitzsimmons memorandum, al-
though technically addressed only to local unions
signatory to the National Master Freight Agree-
ment, evinces a collective interest in strict compli-
ance with state load restrictions for reasons of
safety, and the PROD literature implicitly seeks to
enlist drivers to enforce the principles set forth in
the Banyard decision for the mutual protection of
drivers generally. 5
In reaching a different conclusion, the Adminis-
trative Law Judge erred by focusing on Hennes-
sey's personal motivation for refusing to haul the
overweight load instead of on the nature of his ac-
tivity. Ohio Valley Graphic Arts, Inc., 234 NLRB
493 (1978); Congoleum Industries, Inc., 197 NLRB
534, 547 (1972). Thus, Hennessey was asked on the
witness stand (without objection) why he refused
the load. He answered that there were three rea-
sons:
Number one, because it is against the law. Sec-
ondly, is because it is self-defeating for a
driver to take excess material on a truck and
thereby cut out the number of loads that are
available, and thirdly because there is a safety
problem. The more weight there is, the top-
s In Roadway Express Inc., supra, we affirmed the Administrative Law
Judge's finding (239 NLRB at 660. fn. 15) that activity on behalf of
PROD, not only with respect to union reform but also "as a vehicle for
employee expression of concerns over their conditions of employment,"
is protected concerted activity under Sec 7. See also United Parcel Serv-
ice, Inc., 252 NLRB 1015, 1018 (1980), and cases cited therein.
Member Fanning concludes that Hennessey was acting in response to
the union appeals in the Teamsters and PROD literature when he refused
to drive the overloaded truck
911
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heavier the truck is and the more difficult it is
to brake.
However, the Administrative Law Judge credited
Hennessey's explantions only to the extent that he
was motivated by the excessive weight under Illi-
nois (not Indiana) law, and by his desire to pre-
serve work for drivers. The Administrative Law
Judge concluded that Hennessey acted solely in an
individual capacity, unconcerned with safety or
any other concerted interest.
We need not labor over such questions as how it
was possible to divine that Hennessey sought to
avoid violating Illinois law but consented to violat-
ing Indiana law based on the same weight limit.
The fact is, Hennessey refused to haul the load be-
cause it was overweight and he communicated that
reason to Respondent, for which Respondent dis-
charged him. Once it has been established that the
reason is one which is of common concern to em-
ployees with respect to their terms and conditions
of employment, our inquiry into the private moti-
vations for asserting such a reason is limited to the
question of whether it was asserted in good faith or
maliciously (Varied Enterprises, Inc., supra, 240
NLRB at 132), and here we have found that it was
asserted in good faith."
We find it irrelevant that Hennessey conceded
he knew of no safety problem in hauling that par-
ticular overweight load, for this falls far short of
negating the drivers' safety interest as expressed in
the Fitzsimmons memorandum, in adhering to
weight limits generally. Moreover, even if we were
to accept the Administrative Law Judge's findings
as to Hennessey's motives, his finding that Hennes-
sey was motivated in part by work preservation for
his fellow drivers would make his refusal concert-
ed. Accordingly, we find that Respondent violated
Section 8(a)(l) of the Act by discharging Hennes-
sey because he engaged in protected concerted ac-
tivity.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies
of the Act.
Having found that Respondent unlawfully dis-
charged Charles Hennessey, we shall order Re-
spondent to offer him immediate and full reinstate-
ment to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
6 We find insufficient to establish malice Hennessey's admission that
one of the reasons he refused to violate the law for Respondent was that
"everytime I get a paycheck I find there is something wrong with it and
I have to fight to get my money."
out prejudice to his seniority and other rights and
privileges, and make him whole for any loss of
earnings suffered by reason of the discrimination
against him, plus interest. Backpay shall be com-
puted in accordance with F W. Woolworth Compa-
ny, 90 NLRB 289 (1950); interest shall be comput-
ed as set forth in Florida Steel Corporation, 231
NLRB 651 (1977).7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Transport Service Co., Chicago, Illinois, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating
against employees because they refuse to haul over-
weight loads.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Charles Hennessey immediate and full
reinstatement to his former job or, if his job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, and make him whole for lost earn-
ings in the manner set forth herein in "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Chicago, Illinois, central terminal
copies of the attached notice marked "Appendix." s
Copies of said notice, on forms provided by the
Regional Director for Region 13, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
I See, generally, Isis Plumbing & Hearing Ca, 138 NLRB 716 (1962).
In accordance with his partial dissent in Olympic Medical Corporation,
250 NLRB 146 (1980), Member Jenkins would award interest on the
backpay due based on the formula set forth therein.
I 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."
912
TRANSPORT SERVICE CO.
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise dis-
criminate against employees because they
refuse to haul overweight loads.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer Charles Hennessey immedi-
ate and full reinstatement to his former job or,
if that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and
WE WILL make him whole for lost earnings,
plus interest.
TRANSPORT SERVICE CO.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on October 30, 1980, in Chicago, Illinois.
The charge was filed on March 18, 1980. The com-
plaint in this matter was issued on April 29, 1980. The
issues concern whether Charles Hennessey engaged in
protected concerted activity in refusing to drive a truck
which had a load which was over the weight limit as
proscribed by state law or Federal regulations, and
whether Hennessey was discharged for such protected
concerted activity in violation of Section 8(a)(1) of the
Act.
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by the
General Counsel and Respondent and have been consid-
ered.
Upon the entire record in the case and from my obser-
vation of witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The facts herein are based on the pleadings and admis-
sions therein.
At all times material herein, Respondent, an Illinois
corporation, with an office and place of business in Chi-
cago, Illinois, herein called Respondent's facility, has
been engaged in the interstate and intrastate transporta-
tion of freight.
During the calendar year ending December 31, 1979,
Respondent, in the course and conduct of its business op-
erations described above, derived gross revenues in
excess of $50,000 for the transportation of freight and
commodities from the State of Illinois directly to points
outside the State of Illinois.
As conceded by Respondent and based on the forego-
ing, it is concluded and found that Respondent is, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
1. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues-Supervisory Status'
At all times material herein, the following named per-
sons occupied the positions set forth opposite their re-
spective names, and are now, and have been at all times
material herein, supervisors of Respondent within the
meaning of Section 2(11) of the Act and agents of Re-
spondent within the meaning of Section 2(13) of the Act:
Robert E. Lee, terminal manager, and John Alkofer, dis-
patcher.
B. The Facts
1. Charles Hennessey commenced employment with
Respondent in May 1979 and continued in such employ-
ment until terminated on January 18, 1980. Hennessey
was employed as a driver of tractor-trailers (tankers)
which carried a liquid cargo.2 Hennessey was based at
Respondent's Chicago (Central) terminal and did not
have a regular work assignment. Rather, Hennessey was
on the "extra board" and received his assignments in ac-
cordance with his position thereon when assignments
were to be made from the "extra board."
2. Respondent has a number of terminals and authority
to operate in many States. The only terminal involved in
this proceeding is the Chicago (Central) terminal. The
only States relevant to this proceeding are Illinois, Indi-
ana, and Michigan.
3. Respondent's operations are governed by contract,
Federal and state law, and Federal and state agency rules
and regulations.
a. The collective-bargaining agreement between Re-
spondent and Local 705, International Brotherhood of
Teamsters, provides as follows:
' The facts are based on the pleadings and admissions therein.
Sometimes referred to as trucks or tankers.
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE 14, SECTION 2:
All Truck Drivers and Owner-Drivers covered by
this Agreement shall be paid for all time spent in
the service of the Employer. Rates of pay provided
for by this Agreement shall be minimums. Time
shall be computed from time that the Employee is
ordered to report for work and registers in and until
the time he is effectively released from duty. All
time spent in loading, unloading, and delays as a
result of overloads or certificate violations involv-
ing Federal, State, or City regulations, which occur
through no fault of the Driver or Owner-Driver
shall be paid for. Drivers shall be paid for time lost
due to breakdowns or delays caused by impassable
highways on the basis of twelve (12) hours on and
twelve (12) hours off. Such payment for Driver's or
Owner-Drivers time when not driving shall be the
hourly rate.
* * * l *
ARTICLE 16, SECTION 1:
If any grievance arises during the term of this
Agreement and cannot be settled between the par-
ties, then a Grievance Board of six (6) members,
three (3) Company and three (3) Union, shall meet
monthly to satisfactorily resolve said grievances.
The decisions of the grievance board shall be final
and binding on all parties.
* * * *
ARTICLE 33:
There shall be no strike or lockout during the term
of this Agreement. The Union shall not be responsi-
ble for unauthorized acts of any person merely be-
cause he is a member of the Union, and the Em-
ployer shall not file any suit against the Union for
damages based on the claim that the Union is re-
sponsible for the unauthorized act of any person
solely because he is a member of the Union or be-
cause he is represented by the Union. The Company
shall be privileged to discipline employees responsi-
ble for or engaging in such unauthorized activities,
including the right to discharge, which discipline by
the Company shall not be subject of a grievance,
unless such grievance is filed by an authorized offi-
cer of the Union, within ten (10) days following the
effective date of the disciplinary action. If the final
decision of the Grievance Board is not lived up to,
the aggrieved parties are relieved from the no strike
or no lockout pledge made herein.
b. The applicable statutes of Illinois, Indiana, and
Michigan relating to allowable weight loads for trucks or
tractor-trailers may be summarized as follows:3
I Both the General Counsel and Respondent have filed briefs which
contain factual contentions considered hb me as proposed findings of facl
Wherein the record supports such proposed findings of fact, I haec
adopted the same as my own in total or as modified
Illinois: The Motor Vehicle Act of Illinois, chapter 95-
2, section 15-111, contains provisions that motor vehi-
cle combinations having five or more axles with a mini-
mum distance to the nearest foot between extreme axles
of 44 feet or more have a maximum gross weight of
73,280 pounds.
Further, the Motor Vehicle Act of Illinois, chapter 95-
1/2, section 15-112(a), (b), (c), (d), (e), and (f) provides
as follows:4
§ 15-112. Officers to weigh vehicles and require re-
moval of excess loads
(a) Any police officer having reason to believe
that the weight of a vehicle and load is unlawful
shall require the driver to stop and submit to a
weighing of the same either by means of a portable
or stationary scales. If such scales are not available
at the place where such vehicle is stopped, the
police officer shall require that such vehicle be
driven to the nearest available scale that has been
tested and approved by the Illinois Department of
Agriculture.
(b) Whenever an officer, upon weighing a vehicle
and the load, determines that the weight is unlaw-
ful, such officer shall require the driver to stop the
vehicle in a suitable place and remain standing until
such portion of the load is removed as may be nec-
essary to reduce the weight of the vehicle to the
limit permitted under this Chapter, or to the limit
permitted under the terms of a permit issued pursu-
ant to Sections 15-301 through 15-318 of this Chap-
ter, and shall forthwith arrest the driver or owner.
All materials so unloaded shall be cared for by the
owner or operator of the vehicle at the risk of such
owner or operator.
(c) The Department of Transportation may, at
the request of the Department of Law Enforce-
ment, erect appropriate regulatory signs on any
State highway directing second division vehicles to
a scale. Every such vehicle, pursuant to such sign,
shall stop and be weighed. Any driver of a vehicle
who disobeys such regulatory signs is guilty of a
Class A misdemeanor.
(d) Whenever any axle load of a vehicle exceeds
the weight limits permitted by paragraph (a) of Sec-
tion 15-111 of this Chapter by 2,000 pounds or less,
the owner or operator of the vehicle must shift or
remove the excess so as to comply with paragraph
(a) of Section 15-111. Whenever the gross weight
of a vehicle exceeds the weight limits of paragraph
(b) of Section 15-111 of this Chapter by 2,000
pounds or less, the owner or operator of the vehicle
must remove the excess. In either case no arrest
ticket shall be issued to the owner or operator of
the vehicle by any officer if the excess weight is
either shifted or removed as required by this para-
graph.
4 Plior to January I, 1980. the tolerance of weight was 1.000 pounds
instead of 2.000 pounds as referred to in sec 15 112(d)
914
TRANSPORT SERVICE CO.
(e) Whenever an axle load of a vehicle exceeds
axle weight limits allowed by the provisions of a
permit an arrest ticket shall be issued, but the owner
or operator of the vehicle may shift the load so as
to comply with the provisions of the permit. Where
such shifting of a load to comply with the permit is
accomplished, the owner or operator of the vehicle
may then proceed.
(f) Any driver of a vehicle who refuses to stop
and submit his vehicle and load to weighing after
being directed to do so by an officer or removes or
causes the removal of the load or part of it prior to
weighing is guilty of a business offense and shall be
fined not less than $500 nor more than S2,000.
Section 15-113 of chapter 95-1/2 was amended in 1979
with such amendments effective as of January 1, 1980. It
appears that prior to January 1, 1980. weight violations
relating to section 15-111 involved fines for weight in
excess of 1,000 pounds. The Illinois legislature in 1979
appears to have passed two amendments to the existing
section 15-113 relating to fines for violation of section
15-111. In any event, all counsel appear to agree that the
Illinois law (sec. 15-113 in existence in January 1980 pro-
vided for fines only as to excessive weights in the
amount of 2,000 pounds or more. It appears that prior to
January 1, 1980, fines were provided for violations as to
excessive weights in the amount of 1,000 pounds or
more. Considering the two "amendments," since the
question of excessive weights in this case involved
weights which were excessive but less than 1,000 pounds
excessive, it would make no difference as to the ultimate
findings as to which amendment to the law was effec-
tive.
Indiana: The Indiana Motor Vehicle Statute regarding
size and weight (Resp. Exh. 2) provides in article 8,
chapter 1, sec. 9-8-1-12(1) for a gross weight limitation
of 73,280 pounds. In addition, other sections may be
summarized to the following effect:
Section 9-8-1-13(b): vehicle found overweight to
be retained in custody of apprehending officer until
excess weight removed.
Section 9-8-1-13(c): driver responsible for noti-
fying shipper of impoundment of vehicle.
Section 9-8-1-13(d): driver who knowingly
causes truck to be overloaded is criminally liable,
and court may determine extent of liability among
driver, carrier, and shipper.
* a * * s
Section 9-8-1-17: any peace officer may require
truck to stop for weighing and require driver to go
to scale for this purpose.
Section 9-8-1-18: "Anything to the contrary
herein notwithstanding, the owner and operator of
any vehicle, object or contrivance unlawfully oper-
ated or moved on any public highway or bridge
thereon shall be jointly and severally responsible for
all damages to such highway or bridge as a result of
any violation of this act."
Section 9-8-1-22: criminal penalties for violation
of weight limitations "It is a defense to a charge of
violating any of the weight limitations in section 12
that the total of all excesses of weight under those
limitations is less than one thousand (1,000)
pounds."
c. Federal regulations relating to Respondent's oper-
ations also reveal the following provision:
Title 49-Code of Federal Regulations, Section
392.2
Every motor vehicle must be operated in accord-
ance with the laws, ordinances, and regulations of
the jurisdiction in which it is being operated. How-
ever, if a regulation of the Federal Highway Ad-
ministration imposes a higher standard of care than
that law, ordinance or regulation, the Federal High-
way Administration regulation must be complied
with.
4. There is no evidence or reason to believe that Re-
spondent, as a practice, intentionally dispatched tractor-
trailers which were overweight 5 to the extent of having
weight beyond the weight tolerance indications as in-
volved the States whose highways would be driven on.
Alkofer credibly testified that he, as a practice, had
dispatched tractor-trailers which were overweight but
within the tolerance limitations, that such tractor-trailers
had excessive weights similar to the excessive weight on
Hennessey's truck and lower weights.
The overall facts reveal that other drivers had driven
tractor-trailers with such "overweights." There is no evi-
dence of complaints by such drivers to Respondent, to
the Union, or to each other.
5. During Hennessey's employment by Respondent,
Hennessey was concerned about assignments or possible
assignments to drive tractor-trailers which had loads in
excess of weights set forth by statute as the maximum al-
lowable weights in certain States. The facts appear to in-
dicate that as to most, if not all, instances that occurred
prior to January 18, 1980, Hennessey had not been as-
signed to drive trucks which had weights that exceeded
the statutory weight limits. There may have been an oc-
casion when Hennessey did drive a tractor-trailer which
had a weight load excessive of the statutory limit set by
a State wherein Hennessey had to drive on the highways
of such State.6
s As used in this Decision, whether specifically expressed or not, the
term overweight or overload when used as describing a truck or tractor-
trailer is meant to include the weight of the truck/load driver and/or
tractor-trailer/load/and dnver.
6 Considering the totality of all of the facts, whether Hennessey on one
or two occasions had or had not driven trucks with such excessivt
weights would not affect the overall findings herein.
915
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While an employee of Respondent, Hennessey was a
member of an organization called PROD. This organiza-
tion was fully named Professional Driver's Council on
Safety. Prior to January 18, 1980, Hennessey was aware
of "leaflets" by PROD relating to court and NL.RB deci-
sions concerning a Jim Banyard. Such leaflet or leaflets
referred to PROD having pursued Banyard's case suc-
cessfully through the NLRB and having secured a deci-
sion with remedy therein of reinstatement of Banyard by
McLean Trucking Company and of a requirement that
McLean make Banyard whole for loss of backpay.
Hennessey was aware of a decision of a U.S. court of ap-
peals relating to an arbitration of Banyard's discharge,
and of the relation thereto of state law concerning truck
weight limitations. Hennessey was aware that the court
decision set forth approval of a statement by a dissenting
(NLRB) Board member in an underlying case as follows:
"No contract provision or arbitration award can permit
an employer to require his employees to violate State
laws or to create safety hazards for themselves or
others." Hennessey, during his tenure of employment by
Respondent, was also aware of a bulletin from Fitzsim-
mons (president of the International Teamsters Union) to
"All Local Unions Signatory to the National Master
Freight Agreement," dated March 13, 1975. Said bulletin
referred to Federal law allowing States to authorize cer-
tain maximum weights on trucks traveling on interstate
highways, including an overall gross weight of 80,000
pounds. Said bulletin set forth "lf a truck is overloaded
under the law of a state where it is to be driven, our
members are not required to pull it."
6. On Thursday, January 17, 1980, Respondent as-
signed Hennessey a "run" for Friday, January 18, 1980.
The "run" involved picking up a load in Chicago, Illi-
nois, from a customer-shipper called Corn Sweetner or
Marigold, and delivering the same to a customer of
Marigold in Benton Harbor, Michigan.
Marigold was the largest customer of Respondent's
Central terminal in Chicago, Illinois. In such regard
Marigold shipped five or six loads per day. It appears
that shippers in the sweetner business are strict in de-
manding specific pickup and delivery times, and that the
competitive nature of the business warrants a belief that
care should be given in meeting such demands.
On January 18, 1980, apparently between 4 and 4:30
a.m., Hennessey was dispatched and picked up his "bills"
and tractor-trailer at Respondent's Chicago Central ter-
minal. Hennessey performed a pretrip inspection, found
the tractor-trailer to be in safe condition, and completed
a preinspection report. Hennessey then drove to the
Marigold facility in Chicago, Illinois. At the Marigold
facility, Hennessey noted that the bill of lading reflected
that the load that Hennessey would be transporting
would be 44,000-pounds of corn sweetner or liquid.
Hennessey told the Marigold dispatch employee that he
thought his tractor-trailer would be overloaded with
such a load. Such employee told Hennessey that he
should call Respondent's dispatcher. Hennessey tele-
phoned Respondent's dispatch office and spoke to dis-
patcher Alkofer and indicated that he thought the trac-
tor-trailer would be overloaded with a 44,000 pound
load. Alkofer told Hennessey to wait until the tractor-
trailer with load was weighed, to report the weights at
such time, and that he would then let him know what to
do. Alkofer told Hennessey that there really was not
anything to worry about overloads, that other drivers
pulled such overloads. Hennessey had to wait for 10 to
15 minutes before the tractor-trailer was weighed. The
tractor-trailer weighed 29,600 pounds. Hennessey then
telephoned Alkofer, told Alkofer that the tractor-trailer
weighed 29,600 pounds and that if loaded with 44,000
pounds that he would end up heavy, between 500 and
1,000 pounds overweight. Alkofer told Hennessey that
he should "pu11"7 such a load. Hennessey then told Al-
kofer that if the load were heavy that he would not pull
it. Alkofer told Hennessey that other drivers pulled over-
loads, and that he should let the tractor-trailer be loaded
and weighed and then call him back. Alkofer then asked
to speak to the loader and Hennessey turned the tele-
phone over to the Marigold loader.
Dispatcher Alkofer spoke to the Marigold loader and
ascertained in fact that the Marigold load would weigh
44,000 pounds.8
Following these events, the Marigold loader loaded
Respondent's tractor-trailer. When loaded, Respondent's
tractor-trailer weighed 73,660 pounds." Hennessey had
the loader to give him a printout on scratch paper of
such weight.
Hennessey then telephoned dispatcher Alkofer and
told him that the tractor-trailer when loaded weighed
73,660 pounds. Alkofer asked Hennessey if he were
going to pull the load. Hennessey told Alkofer that he
would not pull the load. Alkofer told Hennessey that all
he had to do was to take the Indiana turnpike to Route
39 to avoid the scale in Indiana, that this was, in effect,
what other drivers did, and that Respondent would pay
his toll. 10 Hennessey told Alkofer that he would not
move an overweight load, and that he did not have to
move an overweight load, and that he did not have to do
anything for "Transport Service, a company that was
always trying to ... him."
What occurred then is revealed by the following cred-
ited excerpts from Hennessey's testimony.''
7 Drive the tractor-trailer with such load.
a Problems relating to overloading as to axles are sometimes solved by
a shifting of a load. Overall overweight problems at times are solved
sometimes by removal of certain types of equipment carried on the trac-
tor-trailer. Thus, if the receiver of the goods has "unloading" hoses, etc.,
such hoses as are normally on the tractor-trailer could be removed and
some weight be eliminated. Sometimes weight problems can be eliminat-
ed by substituting a tractor which has less weight for a heavier tractor. It
appears that Alkofer was seeking to find out if the "load" would weigh
less than expected and thus that the problem of weight might not even
exist. It is also indicated that Alkofer was postponing the moment of de-
cision with the hope that he might complete his workshift before the ulti-
mate decision had to be made and thus leave the problem for someone
else.
9 The trailer may be described as a "tank"-type trailer.
'0 The facts are based on a composite of the credited aspects of the
testimony of Hennessey and Alkofer. I credit Hennessey's testimony over
Alkofer's where in conflict. Hennessey appeared a thoroughly frank,
forthright, and truthful witness. Much of Alkofer's testimony appeared to
be based on a belief that he said or did things as a matter of practice, and
on a basis of probability that he had done or said things.
I It is clear that Alkofer telephoned the terminal manager and re-
ceived instructions as to how to handle the matter of Hennessey's refusal
Continued
916
TRANSPORT SERVICE CO.
He asked me to wait there, he told me he would
have to call Bob Lee, the terminal manager, and he
would call me back. So I waited, I think, maybe 10
or 15 minutes. Johnny called me back. He said he
had talked to Mr. Lee, and Mr. Lee had instructed
him to tell me that I should pull the load, and that
if I refused, that Johnny was to get another driver,
and that I was to wait there for him. And he asked
me one more time if I would be willing to pull the
overload, and I again refused.
He then said that he had been instructed to tell
me that another driver would be coming and that I
was supposed to come back into the terminal. I
asked him at that time if I was being discharged,
and he said he didn't know. And I said, all right,
and I sat there and waited for probably about a
half-hour, 45 minutes, till the other driver came.
Hennessey then returned to Respondent's terminal in
Respondent's pickup truck.' 2 What occurred then is re-
vealed by the following credited excerpts from Hennes-
sey's testimony.
I reported to the dispatch office. I asked Johnny if
he was going to have another load for me. It was
then he informed me that I had been discharged. I
told him that I couldn't believe it, that I didn't think
that the company was going to fire a man for refus-
ing to pull an overload. He said that those were his
instructions.
I went over to the table which is provided in the
driver's room. I made out my logs and my pay
sheets, and on the back of the pay envelope, and
wrote on all of them that I was being discharged
for refusing to pull an illegal overload. And I re-
turned the envelope to Johnny.
When I first walked in there, there were no other
witnesses. Then a Mr. Hunter, who-I,m not sure
his exact title, but I believe he is, like, in charge of
the maintenance of the equipment and that stuff, a
supervisor-was in the office, and I asked Johnny if
he would restate again in front of a witness that I
was being fired for refusing to pull an overload.
And he said yes, that he would, and he so stated.
And he kind of smiled and said, "This is the first
time I've had to fire anybody in like a year."
to pull the load. Lee's testimony as to the events appears unsure and
speculative. Whether or not Alkofer and Lee discussed the possibility of
an equipment change and adjustment or the taking of the equipment to a
nearby terminal, such would not affect the overall findings of fact. Were
there such discussion, it could be based on statements by Alkofer and not
what Alkofer had in fact done or said. Further, Lee may have instructed
Alkofer to tell Hennessey that he would be fired if he did not pull the
load. Again, if this were found. it would not affect the overall findings of
fact. Considenng Alkofer's practice concerning overweight tractor-trail-
en wherein the overweights were less than 500 pounds, 1 am persuaded
that the question of change of equipment or the taking of the tractor-
trailer to the south terminal was not discussed, and considering this and
all of the facts, I am persuaded that Alkoter did not tell Hennessey that
he would be terminated if he did not pull the tractor-trailer. I am per-
suaded, however, that Lee told Alkofer to terminate Hennessey if he did
not pull the tractor-trailer to Benton Harbor, Michigan.
"i The driver (vwho was sent to take the tractor-trailer from Marigold
to Benton Harbor) had driven Respondent's pickup truck to the Marigold
facility.
With that I turned, and I left the property.
Later, Hennessey contacted his union steward and
made arrangements to see him around 4:30 p.m. Around
4:30 p.m., Hennessey met Danny Robinson, the union
steward, and gave him two documents, a copy of a court
decision (Banyard v. N.L.R.B., reported at 505 F.2d 342,
and following pages), and a copy of a March 13, 1975,
bulletin from Teamsters International President Frank E.
Fitzsimmons to "All Local Unions Signatory to the Na-
tional Master Freight Agreement." Hennessey asked the
union steward to give the documents to Terminal Man-
ager Lee.
On Monday, January 21, 1980, Hennessey telephoned
Respondent's terminal to make inquiry about his final
paycheck. What occurred is revealed by the following
credited excerpts from Hennessey's testimony. s
Well, sometime Monday morning I had called the
terminal to find out about my final paycheck. As I
remember, I spoke with Danny. He informed me
that before I would get my final paycheck I would
have to return the safety equipment issued by the
company. And that upon doing that, they would
give me the final paycheck.
I thought he was about to hang up, and then he
told me that Mr. Lee wanted to talk to me. Mr. Lee
got on the phone. I really don't remember the sub-
stance of the conversation, but it ended up that I
was to meet him the following morning about 10:00
o'clock in his office, which I did. I was there at
10:00 o'clock the following morning.
On January 21, 1980, Hennessey met Terminal Man-
ager Lee in his office. At such time, Lee either already
had the documents Hennessey had given steward Robin-
son to present to Lee, or Hennessey had received the
same back and gave the same documents to Lee."4 In
any event the facts are clear that there was discussion of
the Banyard decision and related matter. What occurred
is revealed in composite effect by the following credited
excerpts from Hennessey's and Lee's testimony.
Excerpts from Hennessey's testimony:
Well, I had not received a copy of the discharge
letter yet, and I had asked him whether or not I
was, in fact, discharged. He said yes, that the letter
would be in the mail. He told me that two of their
trucks had been stopped that same morning that I
had been discharged on Route 39 in [sic] Indiana
state police, and asked me if I had been responsible
for it.
is The facts are based on a composite of the credited aspects of the
testimony of Hennessey and Lee. Considering the logical consistency of
all of the facts, and the lack of sureness indicated by Lee while testifying
as compared to the sureness of testimony by Hennessey, I credit Hennes-
sey's testimony over Lee's where in conflict.
24 The evidence on this point was presented in a fragmented fashion.
A finding that Lee had received the documents given to Robinson by
Hennessey and had, some way or other, associated a PROD document
with the same, or a finding that Hennessey gave Lee the same documents
on January 21, 1980, or gave the same documents with a PROD docu-
ment, or combination thereof, would not affect the overall findings in this
case.
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I told him no, that I hadn't, but I in fact had. I
had called both the Illinois and the Indiana state
police to inform them about the overload. He asked
me whether or not I thought the few hundred
pounds involved was all that important, and I told
him no, that it didn't seem important enough to put
my job on the line for, but that it all could have
been resolved if Johnny had just instructed the
loader to cut the load weight by 500 or 600 pounds.
He said that he wasn't going to be dictated to by
a driver, that the other drivers pulled the overloads,
that the company would pay the tolls on the Indi-
ana tollway, that it was a very important account
and incidents like this could have caused them some
problems.
I asked him whether or not he had read the
Court Reporter on the Banyard case and seen the
bulletin from Frank Fitzsimmons. He had pointed
out at the time that they were not signatories to the
National Master Freight Agreement, and didn't be-
lieve that had anything to do with them. And he
said he was not in a position to judge whether or
not it was good law or bad law, and that they ran
the company by what they considered to be the
best management techniques.
Upon leaving I just told him, "I'll see you in
court." Then I left.
Excerpts from Lee's testimony:
[A]nd Mr. Hennessey, I believe, sat down at that
time. And he said that possibly what he had done,
you know, he had acted a little bit hastily, and that
-he hadn't really thought it out fully what the conse-
quences could be of his, you know, of his refusing
to take this.
And that he should have also realized that we
were trying to get him, or something along those
lines, I don't remember the exact words. But that
the afternoon dispatcher, Bill Huval, who normally
dispatches the road men, had been purposely giving
him runs that were very short, and they were just
beyond the scope that would divide a city from a
mileage load, which is generally about a 75-mile
radius from Chicago, and that we were just keeping
him at a minimum as far as his earning point. And
that he should have figured that we were really out
to get him.
No, that was the first time I had ever heard of
anything of that nature. Then I said, this doesn't
really change things, you know, you refused to do
something. It was told to you several times and you
were given options and what not, and you still re-
fused to do it.
Then Mr. Hennessey became somewhat agitated
and said that I was being stupid, that the company
was going to pay for this, and that I, personally,
was going to pay for this. He became quite upset
and actually got up out of his chair and made what
I would say is a threat about, you know, I'll have
my day in court, I'm going to get you, or some-
thing to that nature, and then left my office.
On January 22, 1980, Terminal Manager Lee transmit-
ted the following letter to Hennessey:
On January 18, 1980, at 4:00 A.M., you were dis-
patched on a load to Benton Harbor, Michigan.
Before leaving the terminal, you conducted a Pre-
trip Inspection and signed a Pretrip form signifying
that the equipment assigned you, Tractor #481 and
Trailer #834, were safe and operative. You then left
the terminal at 4:15 A.M. and drove to the shipper.
At 5:05 A.M., you called the dispatcher and told
him your empty weight was 29,600 lbs. The shipper
wanted to load 44,000 lbs. The dispatcher told you
to go ahead and load after talking to the loader,
who stated he could not change the order. The
loader explained that this was due to the fact that
the product is made up in 44,000 lb. batches and he
needed the tank empty to make more product. You
called back again at 5:25 A.M. and told the dis-
patcher your weight was about 73,600 lbs. The dis-
patcher told you to go with the load. You stated
you would not run the load because it was heavy.
The dispatcher explained to you how important the
account was to the company and requested that you
handle the load. The dispatcher told you that delay-
ing the load would just antagonize the customer.
You replied that you did not care about our prob-
lems with the account. At this point, the dispatcher
told you he would call the terminal manager at
home. The dispatcher contacted me at 5:30 A.M.
The dispatcher and myself went over the new
weight law in Illinois, which allows a 2,000 lbs. tol-
erance. I had received notice of this in the Illinois
Trucking Association Newsgram, dated December
28, 1979. A letter had been written by me to my
dispatchers on January 15, 1980, explaining this tol-
erance. We discuss the fact that the driver could
not be fined nor ticketed within this 2,000 lb. toler-
ance of the gross weight. I instructed the dispatcher
to tell Mr. Hennessey to deliver the load, or be ter-
minated.
After our conversation, the dispatcher told you to
run the load as it was or you would be terminated.
Again, you refused to run the load. The dispatcher
told you that he would send another driver down to
take the load and that you were terminated.
To reiterate, your seniority as a driver at Transport
Service Company is terminated as of January 18,
1980. Please return all equipment issued to you by
Transport Service and your final check will be
issued.
7. Hennessey testified to the effect that the reason that
he refused to drive the tractor-trailer was because it ex-
ceeded the allowable weight limits and for three reasons
918
TRANSPORT SERVICE CO.
related thereto. Such reasons are as revealed from the
following excerpts from his testimony.1 5
Well, sir, there is three reasons. Number one, be-
cause it is against the law. Secondly, is because it is
self-defeating for a driver to take excess material on
a truck and thereby cut out the number of loads
that are available, and thirdly because there is a
safety problem. The more weight there is, the top-
heavier the truck is and the more difficult it is to
brake.
Hennessey later testified to the effect that he knew
that the tractor-trailer as loaded did not constitute a
safety problem. Further, Hennessey testified to the effect
that he knew that he would not be fined in Illinois for
the approximate 400 to 600 pounds of excess weight re-
vealed by the total weight of tractor-trailer/load/driver.
Such is revealed by the further credited excerpts from
Hennessey's testimony.
JUDGE STONE: Were you aware, on account of
the tolerance, what did you think would happen if
you were stopped by someone, say, in Illinois?
THE WITNESS: In Illinois, I assumed I would
have to remove whatever the excess was, you
know, call the company and they would have to
provide whatever services were necessary. In Indi-
ana, I had no way of knowing.
JUDGE STONE: But in Illinois, were you aware
that there would or would not be fines, for exam-
ple?
THE WITNESS: I knew there would not be a fine.
8. At some point of time on or after January 25, 1980,
and/or on or before January 31, 1980, Hennessey filed a
formal letter of grievance against the Transport Service
Company for illegally terminating him by letter dated
January 22, 1980. Hennessey asserted that he was illegal-
ly discharged for refusing to violate the State of Illinois
weight limit regulations.
Thereafter, a grievance committee held a hearing con-
cerning Hennessey's grievance. Hennessey unsuccessfully
attempted to get the committee to consider the Indiana
weight laws as regards his grievance. Further, Hennessey
attempted to have the committee consider the effect of
the Banyard court decision upon his grievance. The com-
mittee limited its consideration to matter of the Illinois
laws relating to weights and declined to consider the
question of law raised by the Banyard decision. The min-
utes of the grievance hearing reveal a consideration of
facts relating to Hennessey's grievance, a consideration
of the tolerances as to weights allowed by Illinois law,
and set forth the following:
After a further discussion, a motion was duly made
and seconded that the discharge be upheld based on
the following:
1s I credit Hennessey's testimony only to the effect that he was moti-
vated to refuse to drive the tractor-trailer because he knew the weight to
exceed the allowable state limit for Illinois, and that he believed it to be
self-defeating for a driver to take excess matenal and thereby cut the pos-
sible number of available loads for drivers
Evidence and testimony of the driver shows that
he admits he did haul an overload during his
employ. Also, his admission that because he was
not getting longer runs and having a dispute with
management about this, it was a major factor in
refusing the load, using overweight as an issue.
The company representatives, the union representa-
tive, and the grievant were called back into the
room and so notified.
C. Contentions-Conclusions
1. Respondent contends that this proceeding should be
deferred to the arbitration findings and decision relating
to the discharge of Hennessey for his refusal to drive an
overweight tractor-trailer on January 18, 1980. The Gen-
eral Counsel contends that the unfair labor practice
issues, involved in this case, were not considered by the
arbitration committee in its determination. t
I find merit in the General Counsel's contentions. The
principal issue in this case concerns whether Hennessey
engaged in protected concerted activity when he refused to
drive an overweight tractor-trailer on January 18, 1980.
The evidence fails to reveal that the tribunal considered
whether Hennessey's refusal to drive the tractor-trailer
because it was overweight constituted protected concert-
ed activity. Rather, the facts tend to indicate that the tri-
bunal rejected consideration of the legal issues involved
in the question of "protected concerted activities"
present in this case. Accordingly, Respondent's conten-
tions that this proceeding should defer to the arbitration
decision and findings are rejected.
2. The General Counsel contends and Respondent
denies that Hennessey was engaged in protected concert-
ed activity when he refused on January 18, 1980, to
drive on the highways of Illinois a tractor-trailer which
was overweight, but within a tolerance of 2,000 pounds,
with respect to liability for a fine. It is clear that Re-
spondent discharged Hennessey for his refusal on Janu-
ary 18, 1980, to drive a tractor-trailer which was over-
weight but within a 2,000-pound tolerance as regards lia-
bility for fines in accordance with Illinois law. If Hennes-
sey's conduct constituted protected concerted activity, it
is clear that Respondent has violated Section 8(aX1) of
the Act by its January 18, 1980, discharge of Hennessey.
If Hennessey's conduct did not constitute protected con-
certed activity, it is clear that Respondent did not violate
Section 8(a)(l) of the Act by its January 18, 1980, dis-
charge of Hennessey.
Considering all of the facts, I conclude and find that
Hennessey's conduct, in refusing to drive an overweight
tractor-trailer, within the weight tolerance (relating to
fines), did not constitute protected concerted activity.
For a proper understanding of such conclusion and find-
ing, I set forth the following:
(a) There appears some dispute in the evidence as to
whether Hennessey was motivated in his refusal to drive
the tractor-trailer on January 18, 1980, by his awareness
that the tractor-trailer was overweight as regards Indiana
"t See Varined Enrerprisesr Inc d/b/a Private Carrier Personnel, 240
NLRB 126, 132 (1979.
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
law, and that Hennessey did not know that Indiana had a
1,000-pound tolerance (for fines). Considering the overall
facts and Hennessey's grievance as filed, I am persuaded
that the question of an overweight load as considered by
Hennessey on January 18, 1980, and the basis for his re-
fusal to drive the tractor-trailer, was limited, that his
reason for refusal to drive such tractor-trailer was based
on his belief that the overweight tractor-trailer when
driven on the Illinois highways would constitute an act
violative of Illinois law. 1 7
(b) Respondent appears to argue that the driving of
overweight tractor-trailers on Illinois or Indiana high-
ways, if the overweights are within the tolerance al-
lowed by statute concerting provisions for no fines,
would not be violative of state law or laws. I reject such
contention. It appears reasonable to conclude that the
tolerance laws were intended to take care of an inadver-
tent overload (excessive weight of tractor-
trailer/load/and driver) and not to legalize an intentional
overload (excessive weight of tractor- trailer/load/and
driver).
Thus, a tractor-trailer/load/and driver might be dis-
patched from a point in the State of Michigan with a
total weight within the 80,000-pound legal weight limit
for Michigan. Such dispatch might be intended to in-
volve travel through the States of Indiana and Illinois.
Expected disposal of part of the load or usage of fuel
might reasonably be anticipated to diminish the weight
transported (of the tractor-trailer/load/and driver). As a
result of such diminishment of weight, it might reason-
ably be anticipated that the weight of the tractor-
trailer/load/and driver would be within the lawful
weight limits (73,280 pounds) by the time the dispatched
vehicle traveled on the highways of Indiana and Illinois.
In actuality, by an inadvertent mistake in judgment or
unexpected events, the total weight, as diminished, might
still exceed the lawful weight limits. In my opinion, the
tolerance laws obviously were enacted to take care of
this type of situation as a matter of reasonable under-
standing of problems. On the other hand, it simply is not
reasonable to believe that a State by enactment of weight
laws and of tolerance laws intended to prohibit and at
the same time legalize having vehicles with excessive
weights traveling on its highways.
(c) The General Counsel appears to argue that the
Banyard court decision stands for a proposition that
when a driver refuses to follow an order requiring him
to violate state law, such refusal constitutes protected
concerted activity. ' I am not persuaded that argument
is correct. Rather, as I read the Banyard decision, the
court merely set forth its basis for refusing to honor an
arbitration award and directed the NLRB to consider the
unfair labor practice issues on the merits thereof.
(d) The General Counsel argues that the Board's
policy of presuming concerted activity, if such activity is
related to benefits arising out of a safety statute legislated
for the benefit of all employees, is applicable to the facts
of this case. It was clear at the hearing of this matter that
" However, if it were found that Hennessey's refusal to drive such
tractor-trailer was because of a question of violation of Indiana law, the
ultimate findings would remain the same.
i8 Banyard v. N.LR.B., 505 F.2d 342 (1974).
"safety" was not the reason for Hennesey's refusal to
drive the tractor-trailer on January 18, 1980. The parties
were requested to brief the question of whether refusal to
obey instructions to violate state laws, unrelated to safety
or benefits, constituted protected concerted activities.
The briefs as submitted appear to allude to cases involv-
ing conduct relating to safety or statutory benefits. The
instant case involves not a benefit which enures to an
employee or employees but to a question of violation of
law by the employee. Since the overall facts reveal that
Hennessey's conduct on January 18, 1980, was not con-
certed activity, many interesting questions, as suggested
above, do not have to be answered.
(e) It is clear that Hennessey was not concerned that
he would be fined or penalized if he drove the over-
weight tractor-trailer on January 18, 1980. It is noted,
however, that Indiana law (sec. 9-8-1-18) provides for
joint and several responsibilities for damages by the
owner and operator of the overweight vehicle.
(f) The overall facts reveal that Respondent, as a
matter of practice, has dispatched tractor-trailers if the
overweights were small and within the weight tolerances
which eliminated the question of fines. The facts reveal
that, excepting for Hennessey's, there have been no com-
plaints made or grievances filed, and that other employ-
ees have simply followed Respondent's orders to drive
such tractor-trailers. Considering all of the facts, includ-
ing Hennessey's obvious interests in not driving over-
weight tractor-trailers, I find it improper to presume that
Hennessey was acting at the behest of, or in concert
with, other employees in complaining about driving an
overweight tractor-trailer. The overall facts reveal that
Hennessey's refusal to drive the tractor-trailer on Janu-
ary 18, 1980, was not based on a belief that the driving
of the tractor-trailer was unsafe. 19 Rather, I am persuad-
ed that the overall facts reveal that Hennessey refused to
drive the tractor-trailer on January 18, 1980, because he
believed from his understanding of the Banyard court
case that he had a right to refuse to drive an overweight
tractor-trailer in violation of state law. In sum, the facts
do not reveal that Hennessey's refusal to drive the trac-
tor-trailer on January 18, 1980, constituted protected
concerted activity. Accordingly, Respondent's discharge
of Hennessey for his refusal to drive the overweight
tractor-trailer on January 18, 1980, did not constitute
conduct violative of Section 8(a)(1) of the Act.20
1O Some of the General Counsel's questioning of Hennessey was di-
rected to whether he was aware of certain laws. The answers to such
questions, as an example, established a general awareness of certain Fed-
eral regulations but did not establish that Hennessey was relying on such
regulations as a basis for his refusal to drive the tractor-trailer on January
18, 1980.
20 The National Labor Relations Board is only empowered to enforce
the National Labor Relations Act. If Hennessey had acted in concert
with other employees concerning his refusal to drive an overweight
truck, such conduct would be protected. Be that as :. may, nothing in
this Decision is to be construed as condoning Respondent's apparent in-
tentional violation of state lag. It would also appear that the respective
States, or Federal agencies having responsibilities to enforce transporta-
tion and highway laws, can enforce their statutes and, if necessary, secure
additional legislation to protect their interests and protect employees or
others who may be directed to violate the laws of such jurisdictions. It
very well may be that intentional violations of Illinois, or Indiana, weight
Continued
920
TRANSPORT SERVICE CO.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
laws discussed in this case, if not remedied by removal of excess weights
upon order by state authorities, leave the driver and owner liable for
lines with respect to such overweights if such is provable.
CONCLUSIONS OF LAW
1. Transport Service Co., Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The facts do not reveal that Respondent, as alleged,
has violated Section 8(a)(l) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
921