James Banyard v. National Labor Relations Board, McLean Trucking Company, Intervenor. Clay D. Ferguson v. National Labor Relations Board

505 F.2d 342, 164 U.S. App. D.C. 235, 87 L.R.R.M. (BNA) 2001, 1974 U.S. App. LEXIS 7228

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 14, 1974
• Docket: 73-1609, 73-1610
• Status: Published

Opinions

WILKEY, Circuit Judge:

These consolidated petitions ¹ for review of orders 2 of the National Labor Relations Board call into question the Board’s application of its Spielberg³ and Collyer⁴ doctrines. Because we find the Board has erroneously applied those doctrines in these cases, we remand for further proceedings.

I.

Banyard’s Case

James Banyard worked as a truck driver for McLean Trucking Company and its predecessor for 22 years and also served as the Union’s⁵ appointed shop steward since 1955. He was fired on 7 October 1969 for refusing to drive a truck admittedly overloaded in violation of Ohio state law.⁶ At the time of his discharge there was in effect between the Company and the Union the National Master Freight Agreement and the Central States Area Local Cartage Supplemental Agreement. Article 16 of the contract provided that employees would not be required to violate any applicable statute or a governmental regulation relating to safety.⁷

On 6 October 1969 Banyard was dispatched to pick up 800 fifty-pound sacks of breading at Specialty Products Company in Cleveland. He was reluctant to haul what he considered an overweight load, but when he expressed his reluctance to a Specialty employee, he was told that he would have to call his dispatcher if he wanted to reduce the size of the load. Banyard telephoned the dispatcher and was told to “load the front end light and the back end heavy, and . . . bring it in.”⁸ He loaded the truck and again telephoned the terminal. When he refused to “bring it in,” he was instructed to drop the trailer and return to the terminal. He was discharged the following day.

Pursuant to Articles 8, 42, and 48 of the contract, the Union had prosecuted Banyard’s grievance through two stages of grievance procedure when on 2 January 1970 Banyard filed a charge with the National Labor Relations Board alleging violation by the Company of sections 8(a)(1) and (3) of the National Labor Relations Act of 1947.⁹ On 23 July 1970 the trial examiner concluded that although the grievance proceedings were under way, there was no award for the Board to recognize. He went on to find that Banyard’s discharge violated sections 8(a)(1) and (3) of the Act.

Although the Company filed timely exceptions, the Board reached no decision until after the Union’s claim had been denied at the final stage of the contract grievance procedure.¹⁰ On 23 March 1973 the Board dismissed the unfair labor practice complaint, deferring to the decision of the National Grievance Procedure under Spielberg.

Ferguson’s Case

Clay D. Ferguson worked as an over-the-road driver for Roadway Express, Inc., for nine years.¹¹ He was fired on 24 March 1972 for refusing to drive a truck which he asserted was unsafe. At the time of Ferguson’s discharge there was in effect between the Company and the Union the National Master Freight Agreement and the Carolina Freight Council Over the Road Supplemental Agreement. Article 16 of the contract provided that employees would not be required to operate vehicles not in safe operating condition.¹²

On 20 March 1972 Ferguson was assigned a tractor to drive from Nashville, Tennessee, to Columbia, South Carolina. Finding it difficult to hold the road — ■ and therefore believing the truck to be unsafe — he hailed a second Roadway driver who happened by and asked him to road test the tractor for possible defects. When the second driver confirmed the danger,¹³ Ferguson proceeded with caution to Hageman’s, a nearby truck stop, and telephoned his dispatcher who instructed him to allow the Hageman’s mechanic to road test the vehicle. When the mechanic also expressed doubt over the vehicle’s safety,¹⁴ Ferguson again telephoned his dispatcher, refusing to proceed any farther', and was told to wait at Hageman’s for Roadway personnel. Roadway sent a safety supervisor and a mechanic, both of whom indicated that the vehicle was safe, but Ferguson still refused to drive. Pursuant to Ferguson’s request, a Department of Transportation Safety Investigator arrived, inspected (but did not drive) the tractor, and stated that he could find nothing wrong.¹⁵ Roadway’s replacement driver then drove the tractor ten or fifteen miles and reported it safe to drive. When Ferguson then refused to drive the tractor “unless somebody from Roadway Express signs a statement that they will be responsible for the unit,” ¹⁶ he was discharged.

Pursuant to Articles 43 and 44 of the contract, Ferguson’s grievance was heard by the Carolina Joint Bi-State Grievance Committee and denied on 11 April 1972. Four days earlier, Ferguson had filed a charge with the National Labor Relations Board alleging violation by Roadway of section 8(a)(1) of the National Labor Relations Act. The opinion of the trial examiner deferring to the Joint Committee award and dismissing the complaint was affirmed by the Board on 25 April 1973.

II.

In Spielberg (post-arbitral) the Board established its policy of dismissing unfair labor practice complaints where the issues involved had been previously resolved by arbitral award. Under Collyer (pre-arbitral) the Board will withhold its processes until the parties first submit to those processes upon which they have privately agreed. If, after the Board has withheld under Collyer, the unfair labor practice issues are resolved by the arbitral tribunal, the Board will apply Spielberg and defer to the arbitral award.

In three opinions this year by Judges Wright and Tamm of this court, the Spielberg and Collyer doctrines are analyzed. Recognizing that

submission to grievance and arbitration proceedings of disputes which might involve unfair labor practices would be substantially discouraged if the disputants thought the Board would give de novo consideration to the issue which the arbitrator might resolve [,] ¹⁷

in Associated Press v. NLRB,¹⁸ we approved the application of both Spielberg and Collyer. However, our acceptance of those doctrines was and is founded upon the premise that they are appropriately applied only where the resolution of the contractual issues is congruent with the resolution of the statutory unfair labor practice issues. In Local Union 2188 v. NLRB we held: “This congruence between the contractual dispute and the overlying unfair labor practice charge is significant. If it were not present, the Board’s abstention might constitute [ ] not deference, but abdication.”¹⁹ Moreover, shortly thereafter in Local Union 715 v. NLRB, we held that abstention is proper only where three prerequisites (established in the Spielberg opinion itself) are met: (1) fair and regular arbitral proceedings, (2) parties agreed to be bound by the arbitral award, and (3) a decision which is “not clearly repugnant to the purposes and policies of the National Labor Relations Act.”²⁰ To these we add other prerequisites exemplified in 'this case (see p. 347 infra).

Banyard

As found by the trial examiner, the Company has engaged in the practice of requiring its employees to haul overloaded trucks in violation of state law.²¹ Banyard’s attempts to protest the practice ultimately resulted in his discharge in 19 69.²² We agree with the conclusion of the trial examiner:

In the instant case, it is patent that the issue raised by the allegations of the complaint, namely, whether Ban-yard has been discharged by Respondent because of his concerted or union activity, is not one which falls within the special competence of an arbitrator, but is primarily one for resolution under the provisions of the Act which the Board has been mandated by Congress to enforce.²³

With respect to the issue whether the purpose of the Ohio law was for the protection of this driver, or other drivers on the highways, or for the protection of the highways, the Board majority refused to substitute its judgment for that of the Grievance Committee,²⁴ but pointed out that no points were assessed against the license of any driver caught hauling an overload,²⁵ and that during periods of suspension of a driver’s license the Company agreed to provide employment at equivalent earnings.²⁶ Whatever the primary purpose of the Ohio law (which we need not determine), aside from possible loss of license vel non, there are other valid reasons for refusing to haul overloads in violation of state law. The trial examiner found definite safety risks involved in the practice.²⁷ These risks pose a danger not only to the driver himself, but to the rest of the motoring public as well.

Our review of the transcript fails to reveal that the Committee considered such important issues as safety. Moreover, the actual Committee award does not indicate that the Committee’s judgment was exercised at all on the crucial issues regarding violation of the Ohio statute. The award to which the Board deferred states in its entirety:

Please be advised that the National Grievance Committee on December 2, 1971, adopted a motion that based on the transcript, the claim of the Union be denied.

As Judge Tamm pointed out in Local Union 715, supra, “[T]his reasoning appears to contradict the Board’s own decisions to the effect that deferral is not appropriate with respect to an issue not considered by the arbitration panel.” ²⁸ We do not know what was considered in the case at bar.

Regardless of the purpose of the Ohio statute, it remains axiomatic that it was still the law; for this or any other company to require its employees to act in violation thereof can never be upheld by the Board or this court. We concur in the dissenting Board members’ perception of the dispositive issue in this case, viz., “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.”²⁹ Left standing, the arbitral award below 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.

Congress recognized that neither employers, employees, nor labor organizations have “any right in [their] relations with each other to engage in acts or practices which jeopardize the public health, safety, or interest.”³⁰ Whether Banyard’s discharge was violative of section 8(a)(1) of the Act was the proper issue for the Board’s consideration, and this in turn necessarily embraced the admitted violations of Ohio law and their repugnance to public policy and the purposes of the Act. To the three prerequisites of Spielberg already listed in Local Union 715, supra, we would add that the Spielberg doctrine only applies if the arbitral tribunal (A) clearly decided the issue on which it is later urged that the Board should give deference, and (B) the arbitral tribunal decided an issue within its competence. Here the doctrine was misapplied as to these two prerequisites. Moreover, the arbitral tribunal’s award appears repugnant to the statute.

Ferguson

Section 7 of the Act extends to employees “the right ... to engage in . concerted activities for the purpose of . mutual aid or protection . . . ,”³¹ Ferguson contends that his refusal to drive was a protest against “abnormally dangerous” working conditions protected under section 502 ³² of the Act and a protest on behalf of other employees against the unsafe condition of the vehicle and to secure its repair. He argues that such protest constitutes protected activity under section 7. The Board argues that its deferral under Spielberg was proper because the statutory question — whether in all the circumstances Ferguson was justified in refusing to operate the tractor because of unsafe operating conditions — “was squarely faced by the Joint Committee since Article 16 of the contract prohibited discharging Ferguson unless his refusal to drive based on safety factors ‘is unjustified.’ ” ³³ Yet the Board’s characterization of the contract and statutory issues as identical does not make them - so, and our decisions make it clear that deferral on statutory issues is proper only where there is congruence with contractual issues.³⁴

We perceive the resolution of the statutory issue here as dependent upon whether, in the Board’s own language, “the actual working conditions shown to exist by competent evidence might in the circumstances reasonably be considered ‘abnormally dangerous.’ ”³⁵ Rejecting the conclusion of the Third Circuit that “an employee’s honest belief, no matter how unjustified, in the existence of ‘abnormally dangerous conditions for work' necessarily invokes the protection of § 502,” the Supreme Court in Gateway Coal Company v. United Mine Workers of America ³⁶ recently held that “a union seeking to justify a contractually prohibited work stoppage under § 502 must present ‘ascertainable, objective evidence supporting its conclusion that an abnormally dangerous condition for work exists.’ ”³⁷

Our reluctance in the case sub judice to sanction the Board’s deferral to the Joint Committee award stems from our uncertainty over whether the standard applied by the Joint Committee to the contractual issue before it is the correct standard to be applied to the statutory issue before the Board. Our concern is that the Joint Committee applied a “safe-in-fact” standard and thereby found that Ferguson was not contractually justified in refusing to drive the tractor.³⁸ Under the more liberal Gateway Coal standard the Board might have concluded that Ferguson’s belief that the tractor was unsafe was amply supported by “ascertainable, objective evidence.”

Our approval of the Board’s deferral under Spielberg of statutory issues to arbitral resolution along with contractual issues is conditioned upon the resolution by the arbitral tribunal of congruent statutory and contractual issues. In that situation “the arbitration award becomes the sole remedy for both contractual and statutory violations.”³⁹ If in the present case the Joint Committee applied to the issue before it a standard correct under the contract but not under judicial interpretation of section 502, then it cannot be said that the statutory issue was decided by the Joint Committee. In that event the Board’s abstention goes beyond deferral and approaches abdication.⁴⁰

As in Banyard’s case, the award of the Grievance Committee in this case was exceedingly brief. After merely summarizing the Company’s and the Union’s positions, the award states in its entirety:

Claim of Union denied.

The trial examiner, whose findings were adopted by the Board in this case, stated that the “Committee in reaching its conclusion to deny the grievance had to con-elude that Ferguson’s refusal to drive the vehicle was unjustified.”⁴¹ Yet the failure of the Committee to amplify its decision forced the trial examiner to speculate by what standard the refusal was “unjustified.” Neither the examiner, the Board, nor we are entitled to engage in such speculation.

Accordingly, these petitions are remanded with instructions that deferral not being appropriate, the Board should proceed to a consideration of the unfair labor practice issues in a manner not inconsistent with this opinion.

So ordered.

1 . These proceedings were consolidated by order of this court on 22 May 1974.

2 . McLean Trucking Co., 202 NLRB No. 102, 82 L.R.R.M. 1652 (23 March 1973); Roadway Express, Inc., 203 NLRB No. 25, 83 L.R.R.M. 1149 (25 April 1973).

Our jurisdiction to review these orders is provided by section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f).

3 . Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955).

4 . Collyer Insulated Wire, 192 N.L.R.B. 837 (1971).

6 . The parties stipulated that Ohio law prohibited a weight exceeding 19,000 pounds plus three percent tolerance on the drive axle, and/or a weight exceeding 32,000 pounds plus three percent on the trailer axle. The trial examiner found that the 6 October shipment was in excess of the lawful weight under Ohio law and that Banyard did in fact refuse to pull an overload on that date. App. 27. (Citations to the record hereafter will be indicated as follows: "App.” refers to the Appendix to the parties’ briefs; “Tr.” refers to the transcript of proceedings before the trial examiner.)

7 . Article 16 provides in relevant part:

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. . . . Under no circumstances will an employee be required or assigned to engage in any activity involving dangerous conditions of work or danger to person or property or in violation of any applicable statute or court order, or in violation of a government regulation relating to safety of person or equipment.

8 . Tr. at 88-89.

9 . 29 U.S.G. §§ 158(a) (1) and (3).

10 . In the meantime, the Board announced its decision in Collyer Insulated Wire, note 4 supra.

11 . Ferguson was a member of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 391.

12 . See note 7 supra.

13 . Testifying before the trial examiner, Roy Potts (the second driver) stated: “Well, it scared me. I thought maybe it was going to break in two. ... 1 didn’t see how that I could drive the truck because I thought it was unsafe.” Tr. at 97.

14 . The mechanic testified that “I told him [Ferguson] that I wouldn’t drive it, and that in my opinion the tractor was not safe to be on the road and get somebody else killed.” Tr. at 182.

15 . Claude Gatlin, Jr., Safety Investigator of the Department of Transportation, would state neither that the tractor was safe nor that it was unsafe. Gatlin merely inspected the vehicle and could find nothing visibly wrong with it.

16 . Tr. at 333.

17 . Associated Press v. NLRB, 160 U.S.App.D.C. 396, 401, 492 F.2d 662, 667 (1974).

18 . Ibid.

19 . Local Union 2188, AFL-CIO v. NLRB, 161 U.S.App.D.C. 168, 172, 494 F.2d 1087, 1091 (1974).

20 . Local Union 715, AFL-CIO v. NLRB, 161 U.S.App.D.C. 217, 219, 494 F.2d 1136, 1138 (1974).

21 . In tliis connection, the record is amply supported by examples of employees who were told to pull overloads. One such employee was told to pull an overload and not get caught. App. 25-26.

22 . That Banyard himself may have acquiesced in the practice by pulling overloads from 1966 to 1969 is not determinative of the issue now before us. He explained, and the trial examiner found, “that he pulled the overloads because he did not know the position of his union above the local level on overloads and that, without pulling overloads, he had to work 6 days a week in order to earn what other drivers earned in 5 days.” App. 28. Banyard, of course, had no more authority to sanction the Company’s violation of the law than did the contract or the arbitral tribunal.

23 . App. 30.

24 . Referring to the arguments made by the dissent concerning the purpose of the Ohio state law, the Board majority stated

We are not persuaded that the issues are either as simple or dramatic as our colleagues assert, and are thus less anxious than they to rush to substitute our judgment for that of an experienced Committee, composed of experienced union and management representatives, or to accuse that Committee of sanctioning the creation of safety hazards.

App. 7.

25 . The parties stipulated that under Ohio law no penalties would be assessed against a driver’s license but that any overload was the obligation of the owner of the company. App. 27.

26 . Article 36 of the contract provides in relevant part:

In the event an employee shall suffer a suspension or revocation of his chauffeur’s license because of a succession of size and weight penalties, caused by the employee complying with his Employer’s instructions to him, the Employer shall provide employment for such employee at not less than his regular earnings at the time of his suspension for the entire period thereof, subject however, to the seniority and lay-off provisions applicable to him at the time of such suspension.

27 . One employee testified that lie had trouble maintaining traffic speed with an overload and that he could not brake an overload to a stop as he could a legal load. Both Banyard and another employee confirmed the difficult braking. Banyard also testified, and the trial examiner found, that overloading limits maneuverability. App. 26.

28 . 161 U.S.App.D.C. at 220, 494 F.2d at 1139.

29 . 202 NLRB No. 102 at 9, 82 L.R.R.M. at 1654 (Fanning and Jenkins, Members, dissenting) .

30 . 29 U.S.C. § 141.

31 . 29 U.S.C. § 157.

32 . 29 U.S.C. § 143. Section 502 provides in relevant part:

[Nlor Khali the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter.

33 . Respondent’s Brief at 15.

34 . See note 19 supra and accompanying text.

35 . Redwing Carriers, Inc., 130 N.L.R.B. 1208, 1209 (1961).

36 . 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).

37 . Id. at 386-387, 94 S.Ct. at 641.

38 . The trial examiner found that the .Toint Committee “in reaching its conclusion to deny the grievance had to conclude that Ferguson’s refusal to drive the vehicle was unjustified. Possibly bolstering its conclusion is the fact that the tractor was driven some 800 miles without any repairs after Ferguson’s refusal.” App. 12 (emphasis added). Evidence of what happened after Ferguson’s refusal, while relevant to the question whether the truck was safe in fact, is irrelevant to whether there was “ascertainable, objective evidence” supporting a justified conclusion that an abnormally dangerous condition for work existed at the time he refused to drive.

39 . 161 U.S.App.D.C. at 219, 494 F.2d at 1138.

⁴⁰

41 . App. 12.