Yellow Freight System, Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1980

247 N.L.R.B. 177 (N.L.R.B. 1980)

YELLOW FREIGHT SYSTEM. INC.
Yellow Freight System, Inc. and Stanley H. Novak.
Cases 3-CA-8827 and 3-CA-9025
January 8, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On October 3, 1979, Administrative Law Judge
Robert Giannasi issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
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 has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
' No exceptions have been taken to the Administrative Law Judge's finding
that deferral to an arbitration award concerning employee Novak's discharge.
here alleged to violate Sec. 8(aX1) of the Act, is unwarranted. Accordingly,
Members Penello and Truesdale adopt such finding proforma.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard on May 9, 1979, in Albany, New York. The
complaint alleges that Respondent violated Section 8(aX)(1)
of the National Labor Relations Act, as amended, by
terminating the employment of Stanley Novak because he
engaged in protected concerted activity under Section 7 of
the Act and by refusing his request to have a union
representative present during a confrontation he had with
Respondent's dispatcher over a job assignment. Respondent
denies the essential allegations of the complaint. The parties
submitted proposed findings and conclusions and supporting
memoranda.
' Prior to his employment at the Newburgh terminal. Novak had been
employed at Respondent's Lancaster, Pennsylvania, terminal.
247 NLRB No. 28
Based on the entire record in this case, including the
testimony of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Kansas corporation engaged in the
business of interstate shipment of general commodities by
motor vehicle. It maintains facilities throughout the United
States, including a terminal in Newburgh, New York, which
is the location of the alleged unfair labor practices. During
the past year, Respondent had gross revenues in excess of
$50,000 of which over $50,000 were received for the
transportation of goods from New York to other states.
Accordingly, I find, as Respondent admits, that Respondent
is an employer within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION
Local 707, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (herein-
after, referred to as the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At the time of his discharge, Stanley H. Novak was
employed by Respondent as a road driver at its Newburgh,
New York, terminal.' Road drivers at the Newburgh
terminal are represented exclusively by the Union. At the
time of Novak's discharge, the Union and Respondent were
parties to a collective-bargaining agreement comprised of the
National Master Freight Agreement and the New York-
New Jersey Supplemental Agreement for the period of April
1, 1976, to March 31, 1979 (hereinafter the referred to as
contract), and the Newburgh Local Rules and Regulations.
As a common carrier engaged in interstate transportation
by motor vehicle, Respondent is subject to the Federal
Motor Carrier Safety Regulations issued by the United
States Department of Transportation (hereinafter referred to
as DOT regulations), which provide, in Section 395.3, that:
. . .no motor carrier shall permit or require any driver
nor shall any such driver drive more than 10 hours
following 8 consecutive hours of duty.
This regulation is incorporated in the applicable labor
contract. Article 16 of the contract provides:
Under no circumstances will an employee be required
or assigned to engage in any activity involving danger-
ous conditions 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.
177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The work rules which supplement the contract provide:
In all cases, drivers will comply strictly with all DOT
Regulations (Rule 6) All layovers will be notified at the
time of call (Rule I I).
The General Counsel contends that Novak was dis-
charged for questioning the appropriateness of a dispatch
which he reasonably believed might cause him to violate this
provision, and therefore had engaged in the protected
concerted activity of attempting to enforce his contract.
Respondent contends that the dispatch assigned to Novak
was not in any way violative of DOT Regulations or the
contract and that Novak's challenge of the dispatch consti-
tuted insubordination and a work slowdown. Respondent
points to article 8 of the National Master Freight Agreement
which provides for a grievance procedure through which all
grievances or questions of interpretation arising under the
contract are to be processed. Work stoppages or slowdowns
are expressly prohibited in a "no-strike" clause, except in
circumstances not applicable herein.
B. The Termination of Novak
On the morning of November 14, 1978,2 Novak called the
Newburgh terminal dispatcher from his home in Albany to
receive his assignment.' Novak was told an assignment
would be available for him that afternoon. He arrived at the
terminal at 2:30 p.m. and inquired at the dispatcher's
window about an assignment. Paul Oliveri, the dispatcher on
duty, asked Novak whether he thought it possible to make a
trip from Newburgh to Bloomsburg, Pennsylvania, return to
Newburgh, and go out again on a round trip to Scranton,
Pennsylvania, within 10 hours.' This was a new run for
Respondent and the only available estimate of driving time
was a computer calculation which showed that the trip
should take 9 hours and 44 minutes.' Novak and Oliveri
consulted with the central dispatcher's office, and Novak
told Oliveri he felt the trip could possibly be made within 10
hours. He returned to the office at 4:30 p.m. and received the
dispatch for the double-turn. Novak was scheduled to leave
the Newburgh terminal at 7 p.m.
At 7 a.m. Novak was given a trip report, log book, and the
bills for the trip to Bloomsburg.' He completed the necessary
All dates stated herein refer to 1978 unless otherwise indicated.
' It is the dispatcher's responsibility to see that trips are properly prepared
and planned for, that drivers are assigned 40 "runs" in an orderly and
expeditious fashion, that drivers are not scheduled to be on the road longer
than a 10-hour maximum established by DOT, and that drivers receive the
necessary paperwork to prepare for trips.
' A trip which consists of two round trips between the home terminal and
the given destinations is referred to as a "double-turn." A single round trip
assignment is referred to as a "turn-around," and a trip which is scheduled to
take more than 10 hours is known as a "layover." Except in adverse weather
conditions during the winter, under no circumstances may a driver be behind
the wheel for longer than 10 hours. Upon expiration of the 10 hours, DOT
regulations require an 8-hour rest period. In the case of a layover, the driver
rests 8 hours before returning to the terminal. It is Respondent's practice, as
set forth in rule I , to notify drivers 2 hours before they are scheduled to make
a trip for which a layover is planned. This enables the driver to take clothing
and toiletries and make other preparations to "go to bed."
' The computer is programmed to determine the driving time of a run by
calculating the mileage from post office to post office and dividing it by 55
miles per hour.
I It is Respondent's practice to give the driver one set of papers for the
outbound trip, and, upon arriving at the destination terminal, the driver is
given another set of papers for the return trip.
paperwork and proceeded to check the tractor assigned to
him. The tractor was defective and the tractor sent to
replace it was also found defective. A third tractor was
provided which was found fit and safe to drive. Novak
reported back to the dispatcher and departed for Blooms-
burg at 8 p.m. Novak "punched in" at the Bloomsburg
terminal at 11:50 p.m.; the punch clock, which works on the
principle of 100 clicks to the hour on a 24-hour basis,
registered 23:86 (the equivalent of 11:50). Novak departed
from the Bloomsburg terminal at approximately 12:00. The
punch-out machine registered 0:16.
Novak arrived at the terminal at 4:35 a.m., or 4:60 on the
punch clock. At that time he had exhausted approximately 8
hours of driving time and had 2 hours remaining.' Novak
punched out on his audit card, indicating that he had
completed his assignment, and gave his papers from the
Bloomsburg run to the clerk behind the dispatcher's win-
dow.' When the clerk gave Novak the papers for the run to
Scranton, Novak stated that he did not have enough hours
remaining to complete the run. Novak testified that he had
passed through Scranton on the way to Bloomsburg and had
noted that it took him 2 hotrs and 30 minutes to drive from
Newburgh to Scranton. The clerk called John Sexton, the
dispatcher on duty, to the window. Sexton knew that Novak
had been dispatched on a double-turn, and understood that
he was to send Novak to Scranton, as scheduled.
Novak asked Sexton where he was to get the hours for a 4-
hour round trip when he had only 2 hours remaining. Novak
testified that much of his concern arose from a similar
incident which had occurred on October 15. Novak had
accepted a dispatch for a turn-around which he believed
could not be completed within 10 hours. He had taken the
run because company regulations forbid the refusal of an
assignment. Before the 10 hours were to expire, Novak
notified the terminal that he could not complete the trip, and
Respondent, in accordance with DOT regulations, instruct-
ed him to "go to bed."' Novak was put to bed for a total of
12 hours of which Respondent agreed to pay for only 4
hours which exceeded the required 8 hour rest period.
Novak filed a grievance on the matter. Novak was eventually
awarded payment for the full 12 hours, but he had not yet
been notified of the decision at the time of his discharge.
However, Novak did not mention the October 15 incident or
' There is some confusion regarding the driving time Novak believed was
still remaining. He testified that he had only I hour and 45 minutes left and
had informed the dispatcher of this. However, in his affidavit of November 30,
1978, Novak stated that he had 2 hours of driving time remaining, and, in a
subsequent letter to the branch manager, also indicated that 2 hours remained.
Witnesses for both the General Counsel and Respondent testified that Novak
informed the dispatcher's office that he had 2 hours left, rather than I hour
and 45 minutes.
' Novak testified that he refrained from punching his trip report because
this would have indicated that he had no intention of going to Scranton.
However, he did punch his audit card, which, under Respondent's procedure,
indicates the completion of an assignment.
' A trip scheduled to take less than 10 hours may, due to unforeseeable
circumstances or an error in calculation, take longer than anticipated. In such
a case, it is company practice for the driver to notify the terminal before his
10-hour period runs out and receive instructions whether to return to the
terminal within the 2 hours or to go to bed for the mandatory 8 hours. This
practice is not violative of rule II, which requires prior notification of
layovers, since it is not technically a layover because the excess hours were not
foreseen.
178
YELLOW FREIGHT SYSTEM, INC.
the resulting grievance during his November 15 encounter
with Sexton.
When Novak asked Sexton where he was to get the hours
to complete the trip to Scranton, Sexton told him to take the
run, and when he exhausted his hours to call the terminal
and he would be put to bed. 0 Novak returned to the drivers'
table to fill out the papers for Scranton. Five minutes later
he returned to the dispatcher's window and once again asked
Sexton where he was to find the additional hours to
complete the run. Sexton told him he "didn't give a shit, just
take the run," and when he ran out of hours to call and he
would be put to bed."
Robert Luebbers, another official of Respondent who was
present and had overheard the argument, checked the
computer and found that the trip to Scranton could be made
in less than 2 hours. While Novak sat at the drivers' table
completing the necessary paperwork and continuing to
complain about the assignment, Luebbers told Sexton that a
failure to follow instructions constituted a "voluntarily
quit." Sexton returned to the window, saw Novak still seated
at the table, and told him to leave or he would be considered
to have voluntarily quit his job. Novak remained seated.
Sexton then told him to turn in his bills, that he had
voluntarily quit. Novak said nothing, and Sexton repeated
the statement. Luebbers came to the window and told Novak
to hand in his bills, that he had voluntarily quit his job.
Novak then stood up and stated that he was leaving for
Scranton. Luebbers told Novak not to take a unit from the
yard or he would be arrested. Sexton and Luebbers testified
that Novak came to the window, threw the bills through the
opening, and said, "[l]f that's the way you feel, so do I."
Sexton dispatched another driver to Scranton, who made the
run in hour and 45 minutes.
The confrontation between Novak and his superiors took
about 20 minutes.
Novak testified that, at some point during his confronta-
tion with Sexton, he asked Sexton to call his union
representative and that Sexton refused. Novak then request-
ed that he be allowed to call his representative himself, and
Sexton told him to call on his own time. Sexton and
Luebbers both testified that they did not recall Novak
requesting to speak with his union representative. Two
coworkers, Frances Hartman and Sid Gleason, who were
seated in the drivers' room at the time of the argument,
testified that they overheard Novak ask for his union
representative.' However, in a meeting held later that
morning between Ronald Jones, the branch manager at the
Newburgh terminal, Novak, and Novak's union representa-
tive, no mention was made of the alleged request. Nor did
Novak mention the request in the first of three affidavits he
gave to Board agents investigating his charge of violation in
this case.
"' According to Novak's testimony, Sexton did not immediately tell him he
would be put to bed, but only after being asked several times. Even assuming
that Novak's version is correct, his testimony and his knowledge of the
October 15 incident establishe that he was aware that he would not have to
take the run in violation of DOT regulations and that he would be put to bed
when his hours expired.
" Novak testified that he asked Sexton how he would get paid and Sexton
replied, "how do you usually get paid?" I do not credit Novak on this point.
None of the other four witnesses to the confrontation testified that Novak
C. Events Subsequent to the Termination
At 8 a.m. on the morning of November 15, Sexton and
Luebbers reported to Ronald Jones the events which
culminated in Novak's termination. At 8:30 a.m. Novak and
his union representative appeared at Jones' office and told
Jones that Novak had only insisted that Sexton give him
instructions regarding what to do when he exhausted his
hours. As the branch manager, Jones had the power to
reverse the termination decision, but chose not to. Jones
testified that he agreed with Sexton and Luebbers that
Novak had engaged in a work slowdown, based partially on
his belief that Novak knew from past experience that he was
to rest after exhausting his hours. At the meeting, neither
Novak nor his union representative brought up Novak's
alleged request to speak with a union representative the
night before.
On November 15, Novak submitted a grievance described
as follows:
Company states I voluntary quit my job because I
questioned a dispatcher as to how I was suppose to
return home from a turn dispatch to Scranton PA when
I only had 2 hours driving time left. At no time did I
say that I would not go or did I refuse dispatch to
Scranton, PA.
On December 14 the grievance was submitted to the New
York City joint committee, which consists of employer and
Teamster Union representatives whose decisions under the
contract are final. The committee considered the grievance
and position statements from the Union, Novak, and
Respondent as well as answers to its questions submitted to
"both sides." No transcript was taken, but the minutes of the
hearing state that the parties agreed that they had "received
a full hearing." The committee's minutes do not provide a
rationale for its decision which is simply that "based on the
evidence and testimony presented in this instant case . . .
[Novak] constructively quit his job."
At the December 14 grievance hearing, Novak was
represented by the Union. According to Novak's testimony,
the only argument asserted by the Union pertained to the
propriety of insisting that Novak make a trip which required
an unscheduled layover when there were other drivers
available to make the run within their 10-hour limit. The
Union at no time asserted Sexton's alleged denial of Novak's
request to speak with his union representative or the
contention that Novak had engaged in protected concerted
activity by defending a contract right.
mentioned payment for the layover. Nor did Novak mention this matter in his
grievance, in his letter 3 days later to Branch Manager Ronald Jones, or in his
three pretrial affidavits. Finally, even though he attributed his request for a
union representative to a concern over a prior incident of inadequate payment
for a layover, he never specifically mentioned the prior incident or the
resulting grievance to Sexton in their confrontation.
" The dispatcher's office is partitioned off from the drivers' room by a wall
and a large window. An opening in the window allows the driver to
communicate with the dispatcher and receive his papers.
179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Discussion and Analysis
1. The Spielberg deferral issue
The threshold issue herein is whether the Board should
decline to consider the merits of this case and defer to the
judgment of the biparte committee which, under the applica-
ble collective-bargaining agreement, denied the Union's
claim on Novak's behalf and found that Novak had
"constructively quit" his job. The Board has a policy under
which, in its discretion, it may defer to an arbitration award,
including the award of a biparte panel, where (1) the
proceedings were fair and regular; (2) all parties have agreed
to be bound by such an award; (3) the decision is not
repugnant to the purposes and policies of the Act;" and (4)
the arbitrator or finder of fact has considered the unfair
labor practice issues.'
The General Counsel asserts that the biparte committee's
decision fails to meet the Spielberg criteria in two respects:
first, the decision did not address the statutory issue; and,
secondly, it was repugnant to the policies of the Act. As to
the first point, the Board has held that the burden of proving
that the unfair labor practice issue has been considered rests
on the party asserting that the Board should defer its
decision, here, the Respondent. See Gulf States Asphalt,
supra, and cases there cited. I do not believe that Respon-
dent has sustained that burden.
The General Counsel's theory is that Novak was terminat-
ed for protesting a violation of the contract-the assignment
of a job which would keep him on the road over 10 hours.
The theory is based on Board and court cases holding that
Section 7 of the Act protects an employee's efforts to enforce
contract terms where there is a reasonable basis for believing
those terms are being violated.
In the instant case, the grievance presented to the biparte
panel was the propriety of Respondent's asserted reason for
Novak's termination: ". .. involuntary quit . . . because I
questioned a dispatch as to how I was suppose [sic] to return
home from a turn dispatch to Scranton, Pennsylvania, when
I only had 2 hrs. driving time left." The grievance continued,
"[A]t no time did I say I would not go or did I refuse
dispatch to Scranton, Pa." The decision itself was very
sketchy, referring simply to position statements of the
parties and concluding that "based on the evidence and
testimony presented"-which was not detailed or analyzed
in any way-"the grievant ... constructively quit his job."
It is impossible to determine from the evidence presented to
me whether the panel considered whether Novak was
terminated for asserting a contract right. Novak himself
testified that the Union never presented that issue to the
panel, and, although this testimony may be somewhat
conclusory, it was not refuted. There was no analysis in the
committee's decision of the evidence or positions presented
to it, and I am intrigued, but unenlightened, as to what is
" Spielberg Mfg. Cao., 112 NLRB 1080(1955).
" Gulf States Asphalt Co.. 200 NLRB 938 (1972).
" Here, unlike in the recent case of Bloom v. N.LR.B., 603 F.2d 1015 (D.C.
Cir. 1979), there is no evidence that the panel "specifically" considered
Novak's claim that he was attempting to enforce the contract, and the issue of
whether Novak was discharged for "just cause" was skirted by an ambiguous
conclusion. Id. at 1021.
' The General Counsel also argues that Novak's concern over payment for
meant by a "constructive quit." Significantly, Respondent's
position before the panel was that Novak "voluntarily" quit.
The Board has stated that where an arbitrator has not
clearly set forth which issues have been decided and which
have not, "we will look to the evidence and contentions
which have been presented to him together with the
language of his award in an effort to determine whether he in
fact disposed of the unfair labor practice issue." Gulf States,
supra, 200 NLRB at 938, fn. 9. However, the sketchy
evidence of the decisional process in the instant case, along
with Novak's testimony that the Union never presented the
issue of whether he was terminated for asserting a contract
right, leaves me in considerable doubt as to whether the
biparte panel considered-or, at the very least, appreciated
the complexity of-the unfair labor practice issue when it
determined that Novak had "constructively quit" his job.
Moreover, it is not disputed that the panel failed to consider
the alleged denial of union representation to Novak during
his dispute with the dispatcher. In these circumstances, I
cannot conclude that Respondent has satisfied its burden of
showing that the unfair labor practice issues were considered
and determined by the committee and I shall proceed to
decide the unfair labor practice issues herein. See Banyard
v. N.L.R.B., 505 F.2d 342, 347 (D.C. Cir. 1974)."
2. The termination
I find that the General Counsel has not established by a
preponderance of the evidence that Respondent discharged
Novak for engaging in protected concerted activity, that is,
asserting the violation of a contract right to the effect that he
could not be assigned to drive for over 10 hours. Indeed, I
find that Novak refused a justifiable work assignment or so
delayed accepting that work assignment that his termina-
tion-whether it be deemed a quit or a discharge-was
based on Respondent's legitimate interest in moving freight
rather than Novak's assertion of a contractual right.
The General Counsel asserts that when Novak was
protesting the continuation of the last leg of his job
assignment-the Scranton run and return-he was asserting
a contractual right. He argues that Novak's repeated
requests as to how he could complete the run within his
approximately 2 remaining hours of driving time are
sufficient evidence that Novak was asserting contractual
rights. The 10-hour DOT driving restriction was incorporat-
ed in the collective-bargaining agreement. 6
The General Counsel cites cases where an employee's
failure to specifically refer to a contractual right, or to be
correct in his assertion, does not circumscribe his Section 7
rights." However, an employee's assertion of a contract right
must be reasonably based. '" And the ultimate question is
whether the employer did in fact discharge the employee for
asserting a contract right.
a possible layover constituted protected concerted activity. In view of my
credibility determination-that Novak did not articulate such a concern to
Respondent on November 15-1 do not consider this additional contention.
" See Firch Baking Co., 232 NLRH 772 (1977); G M Underground
Contracting Co., 239 NLRB 78 (1979).
" See N.LR.B. v. Interboro Contractors. Inc.. 388 F.2d 495, 499-500 (2d
Cir. 1967).
180
YELLOW FREIGHT SYSTEM. INC.
I am not persuaded that Novak in protesting the job
assignment-and refusing for about 20 minutes to continue
his run-was engaged in protected concerted activity. First,
Novak's protest was not a reasonably based contract claim.
His own testimony shows that he understood he would not
be required to violate any contractual provision or DOT
regulation and that he was primarily concerned with his pay
for the probable layover. Secondly, even if, initially, his
conduct were viewed as a reasonably based assertion of a
contractual right, the manner in which he made such an
assertion rendered his conduct unprotected. Novak's con-
duct amounted to insubordination and a delay of freight.
Finally, this was the real reason for Respondent's termina-
tion of Novak; Respondent's termination of Novak had
nothing to do with his alleged assertion of a contract right.
As stated above, the dispatch was assigned to Novak only
after he and the dispatcher agreed that the trip could be
made in 10 hours. Novak conceded at the trial that the
additional hours required to complete the trip were unfore-
seen and that the assignment itself, scheduled to take 9 hours
and 45 minutes, violated neither the collective-bargaining
agreement nor DOT regulations. The only possible violation
which subsequently could have arisen, and to which Novak
rightfully could have protested, would have been a demand
on the part of Respondent's officials that he run over the 10-
hour limit. This, however, was not the case. When Novak
protested that he did not have the hours to complete the
turn-around to Scranton, he was told to notify the dispatcher
when his hours ran out and he would be "put to notify the
dispatcher when his hours ran out and he would be "put to
bed." Unforeseen layovers are encountered by Respondent's
drivers upon occasion due to a miscalculation in time or
distance or a breakdown of equipment. However inconve-
nient they may be, such layovers are not a violation of the
collective-bargaining agreement or DOT regulations.
Even assuming that several minutes had passed before
Novak received instructions to go to bed, he knew, from
both his years of working for Respondent and his personal
experience with an unexpected layover on October 15, that it
was Respondent's practice to instruct drivers who have
exhausted their hours to rest and that Respondent had
always carefully adhered to the 10-hour rule established by
DOT regulations. It is important to note that the run to
Scranton was not a new assignment, but the completion of
the "double turn" which Novak had agreed to undertake.
Significantly, Novak testified that his primary concern was
not that he would be made to run in violation of the 10-hour
rule, but that he be paid for the rest time he was
unexpectedly being forced to incur, a concern which he did
not articulate to his superiors.
In these circumstances, I am not convinced that, at the
time of the argument which led to Novak's termination,
Novak reasonably believed that he was asserting a contract
right. No violation of the contract had taken place, and his
testimony reveals that he did not believe that he would be
expected to violate the 10-hour rule which he was allegedly
" Empire Seel Mfg. Co.. Inc.. 234 NLRB 530 (1978), cited by the General
Counsel, is distinguishable on its facts. In that case, a group of employees met
for from 5 to 10 minutes beyond their lunch hour on what clearly amounted
to protected concerted activity. The disruption was not found to have
interfered with production. In that case, there was no underlying dispute-the
employees were simply discussing the implications of a work-related accident
protesting or that he intended to run over the 10 hours on
his own initiative. Rather I believe that Novak simply
protested an assignment which would have caused him an
inconvenience.
Even assuming that it could be found that Novak asserted
a reasonably based contractual right, I find that his conduct
was not protected because it constituted insubordination. By
protesting the job assignment and delaying the continuation
of his run in the face of driving-time restrictions, Novak was
in effect attempting to work only on his own terms. His
conducLt was therefore unprotected. See John S. Swift Co..
Inc., 124 NLRJ 394, 397 (1959); N.L.R.B. v. Montgomery
Ward & Co.. 157 F.2d 486 (8th Cir. 1946). Moreover, there
was no need for Novak's slowdown or delay for there was a
grievance machinery available for him to protest job assign-
ments. Indeed, an integral part of the grievance procedure
was the contractual prohibition against slowdowns and work
stoppages. In view of the necessity to continue the dispatch
and utilize the two remaining hours of Novak's driving time,
as well as the necessity to maintain discipline in Respon-
dent's operation, Novak's work interruption cannot be
deemed insignificant."
Finally, even assuming that it could be found that Novak
was-however inartfully-asserting a reasonably based con-
tract right and that this assertion was properly and reason-
ably accomplished, I cannot conclude that he was dis-
charged for that reason. First, Respondent had no idea that
Novak was asserting a contract right. He had 2 hours
driving time left and Respondent's dispatcher had clearly
told him that he should call from Sranton if he "ran out of
hours" and he would be put to bed, as he had been on a
recent similar incident. Respondent had never before-so far
as this record shows-violated the DOT required-hours
provision of the contract. There was no suggestion that
Respondent was going to violate the provision on November
15 and Novak knew this. Novak himself testified that he was
primarily concerned with his pay for the layover in Scran-
ton. Moreover, according to the credited testimony, he did
not mention this alleged concern with pay for the layover to
his superiors. The pay dispute over Novak's October 15
layover was the subject of a pending grievance and was
likewise not mentioned by Novak as a basis for his protest.
There was no evidence that Respondent harbored any
animus toward Novak for his assertion of contractual rights.
Rather, it was understandably concerned over his delay in
continuing the run to Scranton and his apparent refusal to
work. Even as Novak argued, he was using up time he could
have utilized by driving the empty trailer to Scranton where
it was needed for loading the next morning. By all accounts,
Novak still had sufficient driving time to take the needed
trailer to Scranton. Once there, he would have been
permitted to "go to bed." In this respect, I credit and accept
the following testimony by Respondent's official, Luebbers:
at the plant: and the meeting was not viewed as coming within the meaning of
the no-strike clause involved therein. Here, the underlying dispute involved a
single employee's questioning a job assignment and refusing to work in
circumstances where a grievance could have been filed if the mployee had
any basis at all for his protest.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What prompted you to tell Mr. Sexton that this,
that he should communicate to Mr. Novak it would be
treated as a voluntary quit?
A. Well, we're talking about fifteen minutes time here
approximately, and our road dispatchers do not have to
put up with this kind of harassment, they have more to
do than try to get a driver out of town. Also, it was a
work slow down and it was delaying freight. There is a
way that a contractural employee can handle this and
that is through the grievance committee if he thinks he's
being wronged.
Furthermore, in response to my question as to why, after
Novak finally decided to go on the run, Luebbers did not
change his decision and permit Novak to work, Luebbers
candidly testified as follows:
JUDGE GIANNASI: Why did you not at that point
forgive and forget? And let him take the run?
THE WITNESS: The action that was taken, he should
have taken the run on his first dispatch.
JUDGE GIANNASI: I understand that's your position,
but-
THE WITNESS: The position I took is, as I mentioned
before, he had already delayed freight, he had the work
stoppage and he tied up a road dispatcher for twenty
minutes. And there is a way to handle this if he felt that
he was being wronged, there is a grievance procedure
which they can go through. We have a saying, work and
grieve. This is how it should have been handled if that's
the way he felt.
In these circumstances, I find that Respondent terminated
Novak for cause and not for engaging in protected, concert-
ed activity in violation of the Act.
3. The Weingarten issue
The General Counsel also alleges that Respondent violat-
ed Section 8(a)(1) of the Act by refusing Novak's request for
union representation during the confrontation between
Novak and the dispatcher which resulted in Novak's
termination. An employee has a right to the presence, upon
request, of a union repesentative at an investigatory inter-
view with his employer which the employee reasonably
believes may result in disciplinary action. N.L.R.B. v. J.
Weingarten, Inc., 420 U.S. 251 (1975); Certified Grocers of
California, Ltd., 227 NLRB 1211 (1977). However, based on
the facts presented on this issue, I shall dismiss the allegation
of a violation of Section 8(a)(1).
D In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
The evidence on the issue of whether Novak requested
union representation at all on the night in question is in
sharp dispute. Novak testified that he did, although such a
request was not mentioned in the first of three pre-trial
affidavits given by Novak to Board investigators. Nor did
Novak mention the matter either in a subsequent meeting
with Branch Manager Ronald Jones or in the grievance
committee hearing. However, two other employees, who
were present, testified that he informed the dispatcher he
wanted to talk to his shop steward and the dispatcher said he
would call the steward on his own and not on Respondent's
time. Respondent's two witnesses disputed this evidence.
Novak testified that he asked for union representation
because on October 15 he was given a dispatch and forced to
lay over for a period of 12 hours and was not paid for the
layover. He filed a grievance and received a check in full
settlement of his claim after the December 14 committee
hearing upholding his termination. He testified that on
November 14 he was concerned because he had not been
paid for the October 15 trip and was "curious as to ... how
I was to be paid for this particular trip .... " He did not,
however, articulate this concern to Respondent's officials.
Even assuming, arguendo. the truth of Novak's testimony
that he asked for union representation, I find that he had no
Section 7 right to insist on such representation in the
circumstances of this case. It appears from his testimony
that Novak asked for union representation prior to being
terminated. It is clear, however, that there was no investiga-
tory or disciplinary interview in progress. Novak was simply
given a work assignment which he questioned, and he was
terminated. Nor was Novak seeking union representation to
guard against possible discipline: he conceded he wanted the
union representative simply to give him a clarification on his
job assignment and how he would be paid for the trip. In
these circumstances, I find that the General Counsel has not
established that Respondent violated the Act by failing to
call a union representative at Novak's request. See Amoco
Oil Co., 238 NLRB 551 (1978); K-Mart Corp., 242 NLRB
855 (1979).
CONCLUSION OF LAW
Respondent has not violated the Act.
Based upon the above findings and conclusion and the
entire record herein, I issue the following recommended:
ORDER2"'
The complaint is dismissed in its entirety.
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
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