Operations In Fiscal Year 1988 - National Labor Relations Board

:-. - - --,Unfair Labor Practices 115On the merits of the complaint, the majority found, in agreementwith the judge, that the employer violated Section 8(a)(1)by discharging the employee for refusing to drive a truck theemployee reasonably considered unsafe.Under the parties' collective-bargaining agreement, the employercould not require its employees to drive unsafe vehicles.The parties' side agreement also provided that certain large driverswere not required to drive Ford trucks because of their smallcabs. In addition, applicable -Department of Transportation(DOT) regulations required the employer's drivers to completereports verifying the safety of their equipment.The employer assigned a large driver to drive a Ford truck.The driver repeatedly protested to the employer, both verballyand in DOT reports, that he was unable to drive the vehicle becauseof his size, because of his medical history, and because thesteering column would not fully retract. The driver discussed hiscomplaint with other employees who validated his concerns.After the employer made repairs to the vehicle, which the driverclaimed did not eliminate the problem, the driver refused todrive the vehicle and was discharged.The majority agreed with the judge that the driver was engagedin protected concerted activity under Interboro 145 whenhe refused to drive the Ford truck. Thus, the driver honestly believedthat he had been assigned an unsafe vehicle and clearlyvoiced his safety complaints to the employer. Although he didnot specifically mention the collective-bargaining agreement orside agreement when protesting his assignment, the majorityfound that the driver's complaints concerned reasonably perceivedviolations of these agreements and the DOT regulations.Accordingly, the majority held that, by discharging the driverfor voicing his safety complaints, the employer violated Section8(a)(1).Chairman Dotson, dissenting, would have remanded the caseto the judge to take additional evidence on whether and to whatextent the Area Committee considered the Multi-State Committee'shearing transcript.In Consolidated Freightways Corp. ,146 the Board found, contraryto the administrative law judge, that deferral to the contractualgrievance procedure was proper under United TechnologiesCorp., 147 even though the charging party in the case wasan individual, rather than a labor organization.The Board noted that the judge had based her refusal to deferon a footnote in United Technologies that states:148Contrary to our dissenting colleague's assertion, the pre-arbitraldeferral policy articulated herein does not constitute a148 Interboro Contractors, 157 NLRB 1295 (1966).148 288 NLRB No. 144 (Chairman Stephens and Members Johansen and Babson).147 268 NLRB 557 (1984).148 Id. at 560 fn. 17.