Pink Moody, Inc., 39 (1978)

Docket Number:07-CA-13856

Pink Moody, Inc. and Reynaldo Salinas. Case 7-CA13856


BY MEMBERS JENKINS. PENELLO. AND Mt RPHY On August 31, 1977, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and supporting arguments.

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 supporting arguments and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, but only to the extent consistent herewith.

The complaint alleges that on March 5, 1977, Respondent laid off employee Reynaldo Salinas and failed to recall him until March 9, 1977, because Salinas complained about the unsafe condition of Respondent's trucks and refused to drive a truck which had defective brakes.

The basic facts are not in dispute. Respondent is a contract hauler for the U.S. Postal Service in and around the Detroit, Michigan, area. In the course of its operations it employs, among others, four drivers who operate Respondent's 'box' trucks, three of whom work days, while Salinas works nights Sunday through Thursday and during the daytime on Saturday. Respondent has three box trucks, numbered 25, 26, and 27. Salinas could use any of the three trucks, but generally drove truck 25. Starting in November 1976, Salinas began experiencing brake trouble with truck 25. The brakes would work at the start of his run, but after a period of operation, the brake pedal would lock up, leaving the vehicle without brakes.

On numerous occasions, as was his custom with any discovered defect, Salinas left notes in the truck calling attention to the defective brakes. On one occasion when the brake pedal malfunctioned, Salinas was able to drive the truck through his shift by driving very slowly in low gear. On another occasion when the brake pedal locked up, he called Moody.

Respondent's president, and asked him what to do.

Moody responded that 'it was up to you.' Salinas left the truck at the postal skip center. For the next several nights Respondent took truck 25 out of service. In February 1977, the brake pedal again locked PINK MOODY. INC up and, when Salinas telephoned Moody, another driver brought truck 27 to Salinas to complete his shift.

During this period of time, Salinas on several occasions spoke with his fellow drivers regarding the defective brakes. On Thursday, March 3, driver Horn drove truck 25 and experienced the malfunctioning brake. That night, in a phone conversation with Salinas. Horn stated that he would not drive truck 25 again. Salinas discussed the situation with Horn.

That night, Salinas left a note asking that truck 25 be fixed by Saturday. The next morning (Friday), Respondent directed Horn to drive truck 25, and Horn refused. There was no confrontation, however, because truck 27 became available before Horn started his shift. On Saturday, March 5, Salinas took truck 25 out and again experienced the locked brake pedal.

He called Moody from one of his stops to tell him that he needed another truck because of faulty brakes. Moody instructed Salinas to drive the truck back to the garage. When Salinas refused, Moody told him he was laid off for a few days. Salinas was recalled on March 9.

The Administrative Law Judge found that Salinas was not engaged in concerted activities at the time of this refusal to drive truck 25. Although he acknowledged that operating unsafe motor vehicles was a matter of concern to all of Respondent's employees, he distinguished the Board's decision in Alleluia Cushion Co., Inc., 221 NLRB 999 (1975), and Air Surrev Corporation, 229 NLRB 1064 (1977). by noting that the discriminatees in those cases had not interfered with or interrupted their normal work tasks.

The Administrative Law Judge concluded that since it was not clear to Respondent at the time it suspended Salinas that his fellow employees shared his concern and interest about the defective brakes, Respondent could not be denied its right to discipline Salinas when he individually refused to perform his duties.

In Alleluia Cushion, supra, we held that where an employee speaks up and seeks to enforce statutory provisions relating to occupational safety designed for the benefit of all employees, in the absence of any evidence that fellow employees disavow such representation. we will find implied consent thereto and deem such acitvity to be concerted. In Air Surrey', supra, we found as concerted activity an employee's individual inquiry at his employer's bank as to whether the employer had sufficient funds on deposit to meet the upcoming payroll. because the matter inquired into by the employee was of vital concern to all employees. And in Dawson Cabinet Company, Inc., 228 NLRB 290 (1977), we extended the Alleluia Cushion principle in order to find as concerted activi237 NLRB No. 7


DECISIONS OF NATIONAL LABOR RELATIONS BOARD ty a female employee's individual refusal to perform a certain job unless she was paid the same wages as a male employee doing the same job, because the employee was attempting to vindicate the equal pay rights of the female employees.' In the instant case, the facts clearly establish that Salinas' refusal to drive truck 25 on March 5 was concerted activity within the meaning of Alleluia Cushion, Air Surrey, and Dawson Cabinet. Respondent acknowledged its own concern over the brakes on truck 25 when it took the truck out of service for a few nights in January after the brakes had malfunctioned while Salinas was driving his route. In March,

Respondent became aware that other drivers besides Salinas were concerned about the malfunctioning brakes on truck 25. Thus, on March 3 Salinas had a telephone conversation with Horn, who had driven truck 25 that day and had experienced the malfunctioning brakes. Horn stated that he (Horn) would not drive truck 25 again. The next day, when directed by Respondent to drive truck 25, Horn refused. Nothing happened, however, because another truck became avialable before Horn started his run. The very next day, Salinas refused to drive truck 25 back to the garage...

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