United Parcel Service, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1977

232 N.L.R.B. 1114 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Parcel Service, Inc. and Adam Bloom. Case 5-
CA-8059
October 12, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 24, 1977, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a brief. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and, for the reasons set forth below, has decided to
dismiss the complaint in its entirety.
Respondent and 21 Teamsters Local unions are
parties to a collective-bargaining agreement covering
Respondent's operations within the jurisdictions of
said unions. The agreement, known as the Atlantic
Area Parcel Agreement, precludes strikes and lock-
outs "without first using all means of a settlement, as
provided for in this Agreement, of any controversy
which might arise." Its grievance procedure, which
culminates in binding arbitration, authorizes an
Atlantic Area Parcel Grievance Committee consist-
ing of representatives of the employer and from each
of the covered local unions, to select from its
membership arbitration panels composed of an equal
number of employer and local union representatives
who are not employer or union representatives
representing the operations involved in the proceed-
ing before the panel.
Article 18 of said agreement provides that employ-
ees are not required to operate vehicles which are
"not in safe operating condition .... It shall not be
a violation of this Agreement where employees refuse
to operate such equipment. .... The employer shall
not ask or require any employee to take out
equipment that has been reported by any other
employee as being in unsafe operating condition
until same has been approved as being safe by the
automotive maintenance department."
Tractor-trailer driver Bloom refused to drive his
assigned tractor because he concluded from his
pretrip inspection that the tires were unsafe because
of legally insufficient tread depth and the presence of
Respondent's request for oral argument is hereby denied because the
record, including Respondent's brieft adequately presents the issues and the
positions of the parties.
2 The record also shows that the tire features described by Bloom,
Waddell, and Worley as "defects' were normal features compatible with
normal tire wear and did not, in fact, indicate a safety hazard.
232 NLRB No. 179
certain tire features-a conclusion in which Union
Steward Waddell and veteran driver Worley agreed
following their examination of the tires, and which
Waddel pressed on management officials. Bloom's
refusal to drive prompted a tire examination by
Respondent's automotive maintenance department
which found no tread depth deficiency, approved the
tires as being in safe operating condition,2 and so
informed Bloom and his supervisor, who then
ordered Bloom to drive the tractor. Bloom, however,
rejected both the automotive maintenance depart-
ment's safety determination and his supervisor's
order and was suspended. He thereupon filed a
grievance alleging violation of article 18 of the
bargaining agreement.
The dispute was considered fully at an ensuing
grievance committee meeting where, on three sepa-
rate occasions and after much discussion of contrac-
tual rights and obligations, Respondent offered to
reinstate Bloom provided that he drive the tractor in
issue. Bloom rejected each reinstatement offer,
reiterating his belief that the tires were unsafe and,
along with Union Steward Waddell and the Local
union's president, took the position that "the
employee involved should be the judge as to whether
a vehicle is safe or not . .. [because] it is his safety
and he is responsible for the equipment." Bloom was
discharged following his third refusal to drive.
The dispute ultimately reached the arbitration
stage of the grievance procedure and was considered
by a duly selected arbitration panel. The minutes of
the arbitration proceeding, which are in evidence,
reveal that in all material respects the information
presented to the arbitration panel was virtually the
same as the evidence brought out at the unfair labor
practice hearing in this case, and that the same issue,
contentions, and defenses that have been raised in
the instant case also were raised and considered in
the proceeding before the arbitration panel.3
The panel upheld Bloom's suspension and dis-
charge, finding that "There have been no facts
presented to indicate any violation of Article 18 ...
the facts presented indicate that the employee
refused to work when work was offered.. . [and] his
continued refusal to work as directed was just cause
for his discharge."
The Administrative Law Judge found that Bloom's
belief that the tires were unsafe was reasonable under
the facts available to him; that his refusal to drive
was an act in implementation of the terms of the
contract and, therefore, concerted and protected,
' Those minutes also show that Bloom was present at the arbitration
proceeding and agreed that he had been represented properly by the Union,
which again took the positions that the tires were unsafe and that Bloom
should be the final judge of their coj dition.
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UNITED PARCEL SERVICE, INC.
notwithstanding the lack of merit of his complaint;
and that his suspension and discharge for engaging in
such protected activity violated Section 8(a)(1) of the
Act. Based on this predicate, the Administrative Law
Judge concluded that inasmuch as the arbitration
panel's determination that Bloom was discharged for
just cause conflicts with both Board precedent and
his determination that Respondent's conduct violates
Section 8(a)(l) of the Act, the panel's decision is
repugnant to the purposes and policies of the Act.
Accordingly, he rejected Respondent's request to
defer to the arbitration panel's award pursuant to
Spielberg Manufacturing Company, 112 NLRB 1080
(1955).
In its exceptions to the Administrative Law Judge's
Decision, Respondent contends, inter alia, that the
Administrative Law Judge erred by refusing to defer
to the arbitration award, and in its brief it argues that
the Board should defer to said award and dismiss the
complaint. We agree.
We find that the reasons advanced by the Adminis-
trative Law Judge for declining to defer does not
furnish a sufficient basis for departing from the
Board's established policy of giving binding effect to
arbitral decisions made in conformity with the
Speilberg criteria. The fact that the arbitration panel
reached a result contrary to that of the Administra-
tive Law Judge does not warrant a departure from
the policy.
We further find that the arbitration panel has met
the Spielberg standards of fairness with regard to
composition,4 and that all of the remaining criteria
and standards required for deferral under Spielberg
have been met. For these reasons, we find that the
award herein is not repugnant to the policies of the
Act; is, on its face, fair and regular; has decided
issues within the competence of the arbitration panel
and on which the deferral request was based; and
was reached by a procedure to which the parties have
agreed to be bound. Accordingly, we conclude that it
will effectuate the policies of the Act to give
conclusive effect to the arbitration award and on that
basis we shall dismiss the complaint in its entirety.
dissents in Automotive Transport, Inc., supra, and
Terminal Transport Company, Inc., supra, I would
find the award to be defective because it was
rendered by a panel without an outside neutral
member to provide impartial consideration of the
grievance and which, therefore, is incapable of
conducting a "fair and regular" procedure. Accord-
ingly, I would consider Bloom's claim on the merits.
I would find that, by rejecting the automotive
department's determination of safety and then
striking, Bloom engaged in conduct which consti-
tuted an express repudiation of specific contract
terms, and that his suspension and discharge because
of such conduct was not unlawful.
4 Automotive Transport, Inc., 223 NLRB 217 (1976); Terminal Transport
Company, Inc., 185 NLRB 672 (1970).
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge:
Upon a charge filed by Adam Bloom, an individual, on
July 12, 1976,1 the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 5,
issued the complaint herein dated September I against
United Parcel Service, Inc., Respondent herein, alleging
that Respondent had engaged in unfair labor practices
within the meaning of Section 8(aX I) and (3) and Section
2(6) of the National Labor Relations Act, as amended, by
suspending Adam Bloom on January 29 and later discharg-
ing him on February 2, because he engaged in protected
concerted activity with other employees for their mutual
aid and protection or union activities by refusing to operate
unsafe equipment and by filing a grievance with Truck
Drivers, Helpers, Taxicab Drivers, Garage Employees and
Airport Employees, Local Union No. 355, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, referred to herein
as the Union, regarding his suspension. Respondent filed
an answer denying commission of the alleged unfair labor
practices. A hearing was held before me on December 1
and 2 at Baltimore, Maryland. General Counsel and
Respondent filed posthearing briefs.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
ORDER FINDINGS OF FACT
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS, dissenting in part:
I agree that the complaint should be dismissed, but
I do not agree with my colleagues' view that this
result should be reached by deferring to the award of
the Atlantic Area Parcel Grievance Committee
arbitration panel. For the reasons noted in my
1. JURISDICTION
United Parcel Service, Inc., is and, at all times material
to this case, has been a New York corporation with an
office and warehouse at Arbutus, Maryland, where, at all
times material herein, it has engaged in the business of
storing, handling, and delivering parcels. During the 12
months preceding issuance of the complaint herein, a
representative period, Respondent received gross revenues
I Unless otherwise stated, all dates occurred in 1976.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceeding $50,000 from the interstate transportation of
freight. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Respondent admits,
and I find, that Truck Drivers, Helpers, Taxicab Drivers,
Garage Employees and Airport Employees, Local Union
No. 355, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is and, at all times material herein, has been a
labor organization within the meaning of Section 2(5) of
the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
At the time of his suspension on January 29, Adam
Bloom had been a tractor-trailer driver based at Respon-
dent's Arbutus terminal for approximately 3 years. Re-
spondent had originally hired Adam Bloom on August 16,
1971, as a package car driver, a position he held for the first
18 months of his employment. Of the approximately
230,000 miles of driving Bloom performed for Respondent,
approximately 70 percent was as a feeder driver operating
tractor-trailer equipment. Before becoming a feeder driver,
Bloom completed Respondent's 6-day training program.
Bloom reported to Respondent's Arbutus terminal on the
afternoon of January 29 for assignment to drive a tractor-
trailer rig to Petersburg, Virginia, via Richmond, Virginia.
Dispatcher McCarty assigned tractor 21635 to Bloom.
However, after hearing that this tractor suffered from
defective steering, Bloom requested and was assigned
tractor 21624.
In accordance with Respondent's requirement, Bloom
made a pretrip inspection of the assigned tractor. When he
reached the left front tire he found it defective. He
observed that the outer edge of the tire was completely
worn, that it had uneven tread wear and bald and flat spots
at different places in its center, and that it appeared to have
less than 4/32 inches of tread. He noticed that a completely
worn area on the outer edge extended from 2 to 3 inches,
measuring from the outside point to the center line of the
tire. He also noticed that there were substantially different
tread patterns in the left and right front tires. Bloom
observed that the right front tire was rounded in shape
rather than flat as was the left tire. He also noticed that the
right front tire was narrower than the left front tire.
Turning to the four tires on the rear, Bloom noticed that
on the left side the two tires were new recaps and were both
of the same type. Their tread appeared to be higher than
that of the tires on the right side and of a different tread
design. On the right side he noticed the tires were worn
down "pretty badly." He also noticed that both right rear
tires had cracks where their recapped tread was breaking
away from the wall of the tire. Bloom concluded that the
assigned vehicle was unsafe for the trip he was about to
take.
Bloom's concern for the effect of the tires on his trip
arose from three previous trips he had made the same week
using Interstate 95 and the Richmond-Petersburg Turn-
pike. Bloom had observed that approximately 15 percent of
the portion of 1-95 he would travel in Virginia was under
construction and that all of his route on the Richmond-
Petersburg Turnpike was under construction. The route
was encumbered by temporary roads, barricades, and
narrow roadways. His UPS training contributed to Bloom's
concern. Respondent's training course had taught him that
a difference in the width of front tires presented a safety
problem, and that a difference in the tread design on a
tractor's front tires would result in uneven traction,
particularily on watered surfaces. One tire might hold and
the other tire might slide, thus, causing the truck to spin or
jackknife. Respondent's training had instructed that
uneven tread suggested the presence of mechanical defect.
On an occasion 8 to 12 months earlier, Bloom had driven a
tractor with different tread designs on its front tires and his
experience was: "[tlhat it wandered over the road. In other
words, it swayed. You would be driving along and all of a
sudden the thing would start veering across the road."
Bloom also credibly testified that he did not have a similar
experience in driving vehicles which had similar treads on
their front wheels.
As a result of his inspection, Bloom returned to the
dispatch office and asked dispatcher McCarty to assign
another vehicle to him, giving as reason that the tires on
21624 were unsafe. At this point Bloom's immediate
supervisor, James A. Rast, entered the dispatching office
and observed from Mike McCarty's expression that there
was a problem. Turning to Adam Bloom, Rast learned that
Bloom's complaint was that the two front tires on his
assigned tractor, had "uneven tread wear" and "different
tread patterns." As Rast testified, he then investigated
Bloom's complaint, as follows:
I walked out. I took a look at the tires. It was not more
than 30 seconds. I saw that they were both Michelin
steel cord radial tires. .. .I was there long enough to
see that they had a different tread design. And, to the
best of my ability, they met the DOT regulations. And,
I came back.
According to his testimony, Rast was only concerned
about the tires' tread design.
Returning to the dispatch office, Rast telephoned Don
Kibler, automotive manager at Respondent's Arbutus
terminal, and asked him: "If two tires on the front of a
tractor-if the tread design was different and that was all
that was wrong with them, if they would be safe?" Kibler,
who was in charge of the tractor maintenance shop at the
Arbutus terminal, answered that the tires would be safe.
Immediately concluding his consultation with Kibler, Rast
turned to Bloom and told him that the tractor was safe to
drive. Bloom refused to take the tractor. At this point, Rast
telephoned Feeder Manager Larry Grizzle, and reported
that Adam Bloom was refusing to drive tractor 21624
because Bloom thought the front tires were unsafe.
While waiting for Grizzle's appearance at the dispatch
office, Bloom unsuccessfully requested another tractor.
When Grizzle appeared near the dispatch office, Bloom
went out to meet him. Grizzle told Bloom to look for his
shop steward, adding, "I am calling a shop supervisor and
if he says the vehicle is safe, you are going to drive it."
Bloom went looking for the Union's shop steward, Don
Waddell.
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UNITED PARCEL SERVICE, INC.
As of January 29, Waddell had been shop steward for 6
years and had been employed as a feeder truck driver by
Respondent for 7 years. In that latter capacity, he had
driven approximately 400,000 miles. Waddell's total em-
ployment with Respondent was 12 years.
According to the credited testimony of feeder driver
Walter Worley, after Grizzle arrived at the dispatch office,
Rast told Grizzle that Bloom had refused to take tractor
21624 because of the front tires. According to Worley,
Grizzle replied, "There have been too many tires refused
around here lately. We're going to put a stop to this." 2
Bloom located Waddell and the two returned to the area
near the dispatch office. Waddell conversed with Grizzle in
the dispatch office. Then, while Grizzle and Automotive
Manager Don Kibler together with Automotive Supervisor
Calvin Barber were conferring in the dispatch office,
Waddell conducted his own inspection of the tires on
tractor 21624. He observed that the left outer side of the
left tire "was extremely wore down." He also observed that
the left front tire "had high and low spots and that there
was no tread from the outer edge, almost to half of the
tire." On the inside half of the tire, Waddell noticed a high
spot "where the tire had been bumping on the road. It was
not completely hitting the road all at one time." Estimating
that the left front tire was 8 or 8-1/4 inches wide, Waddell
testified that "about three inches of it was bald from the
outside edge to the center line."
Waddell examined the right front tire and found high
and low spots on it. He noted, however, that "it did have
tread."
It was Waddell's opinion at the time of the inspection
"that the tire on the left front was not safe to be on the
road." When asked to explain his view, Waddell testified:
Because no tread on at least half of the tire. There was
nothing that could be of help to the driver. It was wore
too much beyond 4/32 on some spots on the tire.
After Waddell completed his inspection, Grizzle together
with Automotive Manager Don Kibler, Automotive Super-
visor Calvin Barber, and mechanic Herman Kuzinarski
approached the tractor. Waddell asked Grizzle to explain
why another tractor could not be provided for Adam
Bloom, adding that he, Waddell, considered tractor 21624
unsafe. Waddell also suggested the possibility of taking the
tractor to the shop and changing the left front tire.
Grizzle's response was that Adam Bloom was required to
drive the tractor because it was assigned to him. When
Waddell sought Kibler's view, Kibler responded that the
matter was in Grizzle's discretion.
2 Both Rast and Grizzle denied the remarks attributed to Grizzle by
Worley. However, in crediting Worley. I noted that during the period that
Bloom was seeking his shop steward. Grizzle was on the telephone
attempting to get in touch with a maintenance supervisor. Grizzle testified
that in making the call he went upstairs to his own office located in the same
building with the dispatch office. However, in view of the convenience of the
dispatch office I find it unlikely that Grizzle would seek the less convenient
location to make his phone call. Further doubt was cast upon Grizzle's
testimony by Waddell's undisputed and credited testimony that after
meeting Bloom, Waddell immediately proceeded to the dispatch office
where he encountered Grizzle. I have also noted that Worley, an employee
of Respondent. had no interest in the outcome of this case. In contrast. Rast
Kibler asked Waddell what he expected the Company to
do with the left front tire, indicating that in his view the tire
could not be cast aside. Waddell's response suggesting
other uses was rejected by Grizzle and Kibler.
Kibler asked Bloom what the problem was. Bloom
answered that the tires were mismatched and worn out.
Armed with a tire gauge, Kibler began checking the front
tires. He checked the tread on their main grooves, looked
them over, and told Bloom that they were safe.
After Kibler completed his check of the front tires on
tractor 21624, he asked Calvin Barber to check the same
two tires. Automotive Supervisor Calvin Barber and
mechanic Herman Kuzinarski measured the main tread of
the two front tires with the tire gauge and concurred in
Kibler's conclusion that the two front tires were safe.
Upon hearing the concurrences of Kibler's subordinates,
Grizzle directed Bloom to take the tractor 21624 "on the
road to Petershurg." Bloom refused, reiterating his claim
that the tires were unsafe and that he was responsible for
his own safety and that of the equipment. Grizzle repeated
his instruction and Bloom repeated his refusal. Grizzle
warned Bloom that his refusal to operate tractor 21624 left
Grizzle no alternative "except to suspend you indefinitely
pending an investigation of facts." At this point, Steward
Waddell told Bloom, "Take the s.o.b., and if you wreck it,
sue the s.o.b.'s." At this, Bloom acceded to Grizzle's
demand. In a few moments, however, Bloom changed his
position and refused to drive tractor 21624 because it was
unsafe. At this, Grizzle suspended him, directed him to go
punch off the clock and followed him. When Bloom
refused to punch off the timeclock, Grizzle pulled the
timecard out of Bloom's hand and punched it. Bloom then
left Respondent's Arbutus terminal.
After leaving Respondent's terminal, Bloom went to the
Union's office where he filed a grievance. The grievance, in
pertinent part, alleged that Respondent, a party to the
Atlantic Area Parcel Agreement, a collective-bargaining
agreement with the Union, had violated article 18 of that
agreement. Article 18 was as follows:
Article 18- EQUIPMENT, ACCIDENTS, REPORTS
Section I--Equipment. The Employer shall not require
employees to take out on the streets or highways any
vehicle that is not in safe operating condition or
equipped with the safety appliances prescribed by law.
It shall not be a violation of this Agreement where
employees refuse to operate such equipment unless
such refusal is unjustified. All equipment which is
refused because not mechanically sound or properly
equipped, shall be appropriately tagged so that it
and Grizzle, who participated in the confrontations which led to Bloom's
suspension and termination, appeared interested in vindicating their
treatment of Bloom. Thus, at one point Rast testified that he told Grizzle on
the phone that Adam Bloom refused to take tractor 21624 because Bloom
claimed "the front tires were unsafe." However. after uttering the word
"unsafe." Rast attempted to correct himself and said "mismatched." As for
Grizzle. his testimony from time to time seemed directed at advancing
Respondent's cause by speculation. In sum. the partisanship reflected in the
testimony of Rast and Grizzle, in contrast to Worley's more objective
attitude, persuaded me that, of the three, Worley's testimony was more
reliable.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot be used by other drivers until automotive
maintenance department has adjusted the complaint.
Under no circumstances will an employee be required
or assigned to engaged in any activity involving
dangerous conditions of work or danger to person or
property or in violation of any applicable statute or
court order, or in violation of a government regulation
relating to safety of person or equipment. The term
"dangerous conditions of work" does not relate to the
type of cargo which is hauled or handled.
Following Bloom's departure, Don Waddell, accompa-
nied by Grizzle, drove tractor 21624 into the automotive
shop for further inspection. Using a tire gauge, Supervisor
Calvin Barber measured the main gooves on the tractor's
tires. He recorded his measurements on a slip of paper as
follows:
21624
LF 5/32
RF 8/32
L-R-I 14/32
L-R-O 16-32
R-R-O 7/32
R-R-I 7/32
Barber also made a visual inspection of all the tires on
the tractor. In response to leading questions by Respon-
dent's counsel, Barber testified in essence that he found no
defects which would in his opinion create safety problems.
However, the foregoing notations merely refer to the
results of his gauging of tractor 21624's tires. He made no
report as to his other observations.
After Barber completed his measurements, Waddell
obtained the tire gauge and began measuring the tractor's
tires. His first measurement on the outer edge showed less
than 4/32 of an inch. When he attempted to call this matter
to Grizzle's attention, Grizzle made no reply, and walked
away.
Waddell also made notations reflecting his measure-
ments. His notations showed that the width of the left front
tire was 8-7/8 inches; that 3 inches of the tire's outer side
were less than 4/32 of an inch; that the width of the right
front tire was 7-3/4 inches; and, that the right and left
inner and outer sides of that tire were worn flat. As for the
left rear tire his notations showed that the width of the tire
tread was 7-1/4 inches and that the width of the right rear
tire was 7-1/2 inches. Waddell's notes reported that the left
rear tires were Michelin recapped radials and that the right
tires were Goodyear recapped radials.
Waddell concluded from his inspection in the mainte-
nance shop that the two front tires were unsafe. When
asked what led him to that conclusion, he credibly testified,
"Because of the tires being worn excessively, and especially
the left front. And, also there was some problem either with
the tractor or with the tires." When asked to explain his
testimony he answered, "Because of the way the tires were
worn. Uneven, out of round, high and low spots, bald
spots, not enough tread design on some part of the tire,
different tread design."
Having completed his inspection, Waddell sought out
and found Larry Grizzle. He remarked to Grizzle that
other drivers who had made earlier complaints similar to
that made by Adam Bloom had not suffered disciplinary
treatment at Respondent's hands. Waddell pointed out
that, in response to those complaints which included tires
and steering problems, Respondent had substituted other
tractors to satisfy the complaining driver. Grizzle asked
Waddell if he would have driven the tractor. The steward
replied that the tractor was unsafe and that he would not
have taken it on the road. Waddell's request that tractor
21624 be tagged in accordance with article 18 of the
collective-bargaining agreement went ignored. On cross-
examination, Grizzle conceded that prior to Bloom's
discharge on February 2 other drivers had questioned the
safety of tires and had requested substitution of vehicles
"several times."
Walter Worley, a feeder driver for the last 8 of his 10
years' employment with Respondent, was in the shop while
Waddell was conducting his inspection. Worley conducted
his own inspection of tractor 21624 after Waddell had
ended his. According to Worley, the left front tire on that
tractor had flat spots on the outer edge to within 3 inches
of the tire's center. He also found that: "From within three
inches of the center, approximately three inches, the tread
was worn off." Worley observed that the center tread
pattern of the left front tire was very "shallow."
As for the right front tire, Worley noticed that the right
front tire was, as was the left front tire, a Michelin, but of a
different tread design, and that the right front tire's pattern
was "worn low." I find from Worley's testimony: "There
were high and low spots on the tire and the tire depth for
tread was shallow."
When asked for his opinion as to the condition of the
tires, he testified as follows: "That the two tires on the front
of that tractor were not the type of tires that I would take
on a route." When asked to state his reason he testified as
follows: "[B]ecause of their low tread pattern. Their out of
roundness. They were what I considered to be totally
improper set of tires on a tractor for a long trip."
A grievance meeting was held between representatives of
Respondent and representatives of the Union on February
2 regarding Adam Bloom's suspension. The meeting took
place at Respondent's Arbutus facility. The spokesman for
Respondent was Albert Joseph Hobbs, division manager of
its feeder operations. The union spokesman was Business
Agent John Sullivan. Bloom held to his position that the
front tires of tractor 21624 were unsafe and he also pointed
out they had mixed tread. Respondent's representative
continued to maintain that the tires on that tractor were
safe. At three points in the meeting, Hobbs offered
reinstatement to Adam Bloom provided Bloom would
agree to drive tractor 21624 with the same tires as had been
on that vehicle on January 29. Each time, Bloom refused
the job. At the third refusal, Hobbs discharged Bloom.
When the Administrative Law Judge questioned Hobbs
as to why Respondent insisted that Bloom accept tractor
21624 as a condition of reinstatement Hobbs replied:
At that time, I had close to 500 drivers reporting to me
and that means 500 pieces of equipment. And, after I'd
gone through the evidence of letting the driver know
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UNITED PARCEL SERVICE, INC.
that that piece of equipment is safe by our standards,
and the state and federal-if I let Adam Bloom say-
I'm not taking it. Then I am opening 499 other drivers
to say-Hey, I don't like this, because I don't like
General mixed with Goodyear, or whatever it is.
At this point, the Administrative Law Judge asked: "In
other words, you had what we call a discipline problem?"
To which Hobbs answered, "Yes."
Thereafter, on March 1, the Atlantic Area Parcel
Grievance Committee found that Bloom's suspension and
discharge were for cause, and therefore proper within the
collective-bargaining agreement. The record shows that
after January 29, a succession of Respondent's drivers
operated tractor 21624 with the same tires as had been on
the vehicle on January 29 and February 2. There is no
showing that any accidents resulted from the operation of
the vehicle with those tires. Nor is there any showing that
any further complaints were voiced by Respondent's
drivers with respect to tractor 21624 after Bloom's
complaints on February 2.
B. Analysis and Conclusions
The basic issue presented in this case is whether Adam
Bloom's refusal to drive what he believed to be an unsafe
tractor was protected by Section 7 of the Act. The
teachings of Roadway Express, Inc.. 217 NLRB 278 (1975),
enfd. 532 F.2d 751 (C.A. 4, 1976), are instructive in
resolving that issue. In that decision, the Board found that
the employer violated Section 8(a)(1) of the Act when it
discharged a driver because he asserted the right to drive a
vehicle "not in safe operating condition" afforded him by a
collective-bargaining provision identical to article 18,
section 1, quoted above.
The driver, Clay D. Ferguson, while enroute refused to
operate an assigned tractor he considered unsafe after
experiencing difficulty steering it. Ferguson asked Potts, a
fellow driver, to drive the tractor. Potts drove the vehicle a
short distance. When he returned to Ferguson, Potts agreed
with Ferguson's assessment. A mechanic at a nearby
truckstop also drove the tractor and had difficulty keeping
it on the road.
The employer sent out a maintenance supervisor and a
mechanic to investigate Ferguson's complaint. They drove
the vehicle, found that it vibrated within a narrow speed
range, and told him the truck was safe. Ferguson again
refused to drive the tractor and contacted a United States
Department of Transportation inspector.
In the meantime, the employer had sent Roberts, a
replacement driver, to complete Ferguson's rounds. The
DOT inspector asked Roberts to road test the tractor. After
driving 10 to 15 miles Roberts reported "a wobble or shimy
in the front right wheel and some slack in the fifth wheel."
However, Roberts also stated that he felt that the rig was
safe to drive and thereafter completed the trip originally
assigned to Ferguson, with the same rig.
3 The Board has consistently held that Sec. 7 of the Act "protects
employees' attempts ... to implement the terms of the bargaining
agreements irrespective of whether the asserted contract claims are
ultimately found meritorious and regardless of whether the employees
Four days after Ferguson's refusal to continue driving
the assigned tractor, his employer terminated him because
of that refusal.
The Board's conclusion that Ferguson's discharge was
violative of Section 8(a)(1) of the Act was based upon two
alternate findings. The first was that Ferguson's conduct
was protected by Section 7 of the Act because he was
reasonably asserting the right to refuse to drive a vehicle
"not in safe operating condition" given him by Article 16
of his union's collective-bargaining agreement with the
employer. In reaching this conclusion the Board declared:
Upon consideration of the evidence before us in this
case, we find that Ferguson was in fact insisting on his
contract rights when he refused to drive tractor 5777 on
to Columbia. The contract clearly indicates that the
Employer shall not require employees to drive an
unsafe vehicle and that employees have a right to refuse
such a vehicle. Although Ferguson acted alone in his
refusal to drive the tractor, and he did not at the time of
his refusal specifically refer to the contract as granting
him this right, the nature of his complaint has
significance and relevance under the contract to the
interests of all of Respondent's employees whose
employment is governed under the contract.
We have held in the past that when an employee
makes complaints concerning safety matters which are
embodied in a contract, he is acting not only in his own
interest, but is attempting to enforce such contract
provisions in the interests of all employees covered
under that contract. Such activity we have found to be
concerted and protected under the Act, and the
discharge of an individual for engaging in such activity
to be in violation of Section 8(a)(I).
As the discharge of Ferguson was caused by his
refusal to drive what he believed to be an unsafe
tractor, and as such refusal was an attempt to compel
adherence to the provisions of the contract, we find that
his discharge was in violation of Section 8(a)(1) of the
Act. [Roadway Express, Inc., supra, 217 NLRB at 279-
280.1
What the Board found regarding Ferguson's attempt to
enforce article 16 of his union's collective-bargaining
agreement with his employer was also present in the instant
case. Thus, as shown above, on January 29, Adam Bloom
attempted to assert rights afforded him and other members
of the contract unit to refuse to drive a vehicle "not in safe
operating condition." Here, as in Roadway Express, "the
nature of [Bloom's] complaint has significance and
relevance under the contract to the interest of all of
Respondent's employees whose employment is governed
under the contract." Thus, Bloom's conduct no less than
Ferguson's was "concerted and protected under the Act."
Accordingly, I find that Bloom's suspension on January 29,
and his termination on February 2, were both violative of
Section 8(a)( 1) of the Act.3
expressly refer to applicable contracts in support of their actions or, indeed,
are even aware of the existence of such agreement." John Sexton & Co., 217
NLRB 80 1975)
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turning to the second ground for the Board's finding
that Ferguson's refusal was protected under Section 7 of
the Act, I note that in applying Section 502 of the Act, 4 the
Board complied with instructions contained in the District
of Columbia Circuit Court of Appeals' opinion when that
tribunal remanded Roadway to the Board. The Board
considered the court's direction "as the law of the case."
Although I am not under the direction of any United States
Circuit Court of Appeals to apply Section 502, the parties
in the instant case have urged that I apply the test adopted
by the District of Columbia Circuit Court of Appeals and
used by the Board in Roadway. I am thus urged to consider
whether Bloom's refusal to drive his tractor was protected
under Section 7 of the Act because his refusal to do so was
based on "ascertainable, objective evidence." Gateway Coal
Company v. United Mineworkers, 414 U.S. 368, 387 (1974).
Roadway Express, supra, 217 NLRB at 280. However, as I
have already found that the Company violated Section
8(a)(1) by first suspending Bloom and then discharging him
because he was complaining about the tires on tractor
21624, I deem it unnecessary to consider whether such
conduct also violated Section 8(a)(3), and further whether
Bloom's conduct was protected under Section 502 of the
Act.
However, assuming arguendo that Section 502 of the Act
must be considered before determining whether Bloom was
entitled to the Act's protection, I find that Bloom's belief
that the front tires on tractor 21624 were unsafe was
supported by "ascertainable, objective evidence." There-
fore, his refusal to drive tractor 21624 was protected under
Section 502 of the Act. Bloom's examination of the tires on
that tractor on January 29, and his assessment of their
condition was based upon 3 years' experience as a tractor-
trailer driver in Respondent's employ and his training at
Respondent's hands. His opinion was shared by Shop
Steward Waddell and employee Worley both of whom
were experienced tractor-trailer operators in Respondent's
employ. I also note that Respondent's expert witness, Vice
President Sidney Bloor, of the Michelin Tire Corporation
testified to the effect that a flat tire surface extending
around the circumference of a tire impairs its safety. The
uncontradicted testimony of Waddell, Worley, and Bloom
revealed that 2-1/2 to 3 inches of the outer portion of the
left front tire was worn flat around the circumference of
that tire. Don Kibler, who was automotive manager at
Respondent's Arbutus terminal on January 29, testified
that when a tire's tread is worn down to 4/32 of an inch
company policy requires its replacement. Here, without the
benefit of instrumentation, Bloom estimated that the tread
on the left front tire was less than 4/32 of an inch. The
Company's instrumentation on January 29 revealed that
the depth of the tread on that tire was 5/32 of an inch.
Considering the very slight difference between Bloom's
estimate and the Company's findings, after utilization of
instruments, Bloom's observation that the tread was too
thin was within reason. However, considering the thinness
of the left front tire's tread, even as shown by the
Company's instrumentation, combined with the difference
4 Sec. 502 of the Act provides in relevant part:
IN bor shall the quitting of labor by an employee or employees in good
in tread design on the two front tires, and the 2-1/2- to 3-
inch smooth strip which circumscribed the left front tire,
Bloom had ample ground for suspecting that the left front
tire was unsafe. I find that the evidence available to Bloom
on January 29, including Waddell's sarcastic advice, was
sufficiently objective to support his determination that his
tractor's condition was "abnormally dangerous" within the
intent of Section 502 of the Act. That Respondent's
automotive department determined that the two front tires
were safe and the truck was driven for some time after
January 29 with the two same tires on them without mishap
does not detract from the reasonableness of Bloom's belief
under the facts available to him. Roadway Express, Inc.,
supra, 217 NLRB at 280.
Respondent insists that Board policy, as promulgated in
Spielberg Manufacturing Company, 112 NLRB 1080, 1082
(1955), requires that the Board defer to the Atlantic Area
Parcel Grievance Committee determination that
"[Bloom's] continued refusal to work as directed was just
cause for discharge." Spielberg requires deferral to an
arbitration award when the following conditions are
satisfied: (1) the proceedings were fair and regular; (2) the
parties had agreed to be bound by arbitration; and (3) the
arbitral award "is not clearly repugnant to the purposes
and policies of the Act." Spielberg Manufacturing Co.,
supra, 112 NLRB at 1082. This doctrine does not supersede
existing statutory and case law which authorizes the Board
in the exercise of its expertise to determine the existence of
an unfair labor practice. Thus Section 10(a) of the Act
provides:
The Board is empowered . . . to prevent any person
from engaging in any unfair labor practice .... This
power shall not be affected by any other means of
adjustment or prevention that has been or may be
establsihed by agreement, law, or otherwise.
In the instant case, the bipartite panel decided that
"[w hen ... [Bloom] refused to work when work was
offered, the Company had just cause to suspend
him. . . .His continued refusal to work as directed was just
cause for discharge." In view of the Board's well-settled
policy as set forth in Roadway Express, supra, 217 NLRB at
279, and my own findings consistent with that policy, that
Bloom's suspension and discharge constituted unfair labor
practices in violation of Section 8(a)(1) of the Act, I find
that the bipartite tribunal's award did not satisfy the third
condition for applying the Board's Spielberg doctrine. For I
find that the award was incompatible with the policy
underlying Section 7 of the Act. Accordingly, I reject
Respondent's contention that the Board should defer to the
Atlantic Area Parcel Grievance Committee award in this
matter.
CONCLUSIONS OF LAW
1. The Respondent, United Parcel Service, Inc., is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
faith because of abnormally dangerous conditions for work at the place
of employment of such employee or employees be deemed a strike
under this Act.
1120
UNITED PARCEL SERVICE, INC.
2. By suspending and then discharging employee Adam
Bloom because of his refusal to drive what he believed to
be an unsafe tractor, and his attempt by such refusal to
compel adherence to the provisions of a collective-bargain-
ing agreement, Respondent violated Section 8(aXl) of the
Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(aX1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. I shall also recommend
that Respondent be ordered to offer Adam Bloom
immediate and full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position without prejudice to his seniority or other rights
and privileges and to make him whole for any loss of pay
suffered as a result of his unlawful discharge with backpay
computed as prescribed in F. W. Woohvlworth Company, 90
NLRB 289 (1950), and with interest at 6 percent per annum
as provided in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). 1 shall further recommend that Respondent be
ordered to rescind the suspension inflicted upon employee
Adam Bloom and delete from his personnel file any
reference to the suspension or the discharge. I shall further
recommend that the Respondent shall not in any other
manner interfere with, restrain, or coerce employees in the
exercise of rights guaranteed them in Section 7 of the Act.
[Recommended Order omitted from publication.]
1121