Yellow Freight System, Inc., 177 (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

1. 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.

2. THE LABOR ORGANIZATION Local 707, International Brotherhood of Teamsters,

   Chauffeurs, Warehousemen and Helpers ofAmerica (hereinafter, referred to as the Union), is a labor organization within the meaning of Section 2(5) of the Act.

2. 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 ofthe National Master Freight Agreement and the New YorkNew 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 ofduty.

   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 dangerous 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.

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   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 ofcall (Rule II).

   The General Counsel contends that Novak was discharged 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 constituted 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.

   2. 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 tripto 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 oftwo 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 ofpapers 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 Bloomsburg 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 window.' 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 4hour round trip when...