American Freight System, Inc. v. N.L.R.B., 82-2243
| Decision Date | 29 November 1983 |
| Docket Number | No. 82-2243,82-2243 |
| Citation | 722 F.2d 828 |
| Parties | 114 L.R.R.M. (BNA) 3513, 232 U.S.App.D.C. 342, 99 Lab.Cas. P 10,581 AMERICAN FREIGHT SYSTEM, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Philip O. McArthur, Southern Conference of Teamsters, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the National Labor relations board.
R. F. Beagle, Jr., Kansas City, Mo., with whom Mary M. Cracraft, Kansas City, Mo., was on the brief for petitioner.
Elinor Hadley Stillman, Atty., N.L.R.B., Washington, D.C., for respondent. Elliott Moore, Deputy Associate Gen. Counsel, Jonathan Saperstein, Atty., N.L.R.B., Washington, D.C., were on the brief, for respondent.
Paul Alan Levy and Alan B. Morrison, Washington, D.C., were on the brief for intervenor, McArthur.
L.N.D. Wells, Jr. and G. William Baab, Dallas, Tex., were on the brief for intervenor, Southern Conference of Teamsters.
Before EDWARDS and SCALIA, Circuit Judges, and WILLIAMS, * District Judge.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
In this case, we review a decision of the National Labor Relations Board (the "NLRB" or "Board") determining that American Freight System, Inc. committed an unfair labor practice in violation of section 8(a)(1) of the National Labor Relations Act 1 (the "NLRA") by firing Philip McArthur for refusing to drive a truck that he believed was unsafe. Prior to the Board's consideration of this matter, McArthur pursued a contract grievance claim, under a collective bargaining agreement between American Freight and the Southern Conference of Teamsters, over precisely the same question that was subsequently presented to the NLRB. After hearing the case pursuant to the collective bargaining agreement, the authorized Grievance Committee acted unanimously to deny McArthur's claim as unmeritorious.
In reaching its decision, the Board declined to defer to the Grievance Committee decision on the grounds that the statutory unfair labor practice claim may not have been considered by the Committee. The Board then theorized that, because his refusal to drive the assigned truck was an attempt to enforce a provision of the collective bargaining agreement, McArthur was engaged in protected concerted activity under the NLRA. The Board ordered American Freight to reinstate McArthur with full back pay and to discontinue its unfair labor practices.
American Freight filed a petition in this court for review of the Board's order. The Board cross-petitioned for enforcement. We conclude that the Board abused its discretion in failing to defer to the Grievance Committee decision upholding McArthur's discharge. Accordingly, we decline to enforce the Board's order.
Prior to his discharge, Philip O. McArthur was employed by American Freight as a truck driver. On May 29, 1980, McArthur refused to drive his assigned truck because the steering axle tires were "General" brand; he claimed that he had been told eleven days earlier by an outside mechanic that the General brand tires could be unsafe if put on the steering axle. In response to McArthur's complaint, two different Union mechanics inspected the truck and reported that the tires were safe. In addition, one of the two Union stewards who was summoned by the terminal manager to intervene in the dispute, advised McArthur to drive his assigned truck; the second steward testified that he gave no advice because he felt that McArthur had already made up his mind. Nonetheless, McArthur continued to refuse to drive the truck, and he was dismissed.
It is undisputed that when McArthur refused to drive his assigned truck on May 29, he did so solely out of an alleged concern for his own personal safety. At no time did he assert any safety interest on behalf of anyone other than himself. He did not attempt to warn his fellow employees that the truck was unsafe to drive, and it appears that the truck was taken out on a run that same day by another employee. Furthermore, there is nothing in the record to indicate that the truck or its tires were in fact unsafe; indeed, all evidence points to the opposite conclusion and, also, to a conclusion that McArthur had reason to know that the truck was not unsafe. At most, there is evidence to suggest that McArthur may have personally believed that the tires were unsafe despite the clear indications to the contrary. 2
McArthur filed a grievance with the Union on June 9, 1980. He alleged that American Freight discharged him in violation of article 16 of the collective bargaining agreement, which protects an employee's right to refuse to operate equipment "unless such refusal is unjustified." 3 On June 24, 1980, the Southern Multi-State Grievance Committee, composed of three employer members and three Union members, conducted a full hearing on McArthur's grievance. 4 McArthur was represented by the Union and was given an unfettered right to present evidence to the Committee. Following the grievance hearing, the Committee sustained McArthur's discharge, finding no breach of the applicable terms of the contract. App. 371.
McArthur then filed an unfair labor practice charge on June 30, 1980, alleging that his discharge was a violation of section 8(a)(1) of the NLRA. After an administrative hearing, the Administrative Law Judge ("ALJ") held that McArthur was engaged in protected concerted activity within the meaning of section 7 of the NLRA when he refused to drive his assigned truck and, therefore, that American Freight violated section 8(a)(1) of the NLRA by terminating him. App. 416-17. The ALJ refused to defer to the arbitration decision because the Grievance Committee might not have considered the statutory unfair labor practice issue in reaching its decision. App. 418 n. 10. See also note 2 supra.
The Board upheld the decision of the ALJ. American Freight System, Inc., 264 N.L.R.B. No. 18 (Sept. 27, 1982), reprinted in App. 424. See note 2 supra. American Freight then filed a petition for review with this court on October 18, 1982. The Board cross-petitioned for enforcement. McArthur intervened in support of the Board, while the Southern Conference of Teamsters intervened in opposition to the Board in order to support the contractual grievance process and the decision of the Grievance Committee.
American Freight raises two objections to the Board's decision. First, it asserts that the Board abused its discretion in failing to defer to the Grievance Committee decision. Second, it argues that McArthur was not engaged in protected concerted activity when he refused to drive his assigned truck.
American Freight's principal--and most compelling--argument is that the Board improperly failed to defer to the Grievance Committee decision upholding McArthur's discharge for refusing to drive his truck. Under established NLRB precedent, the Board routinely defers to arbitration decisions when (1) the contractual proceedings appear to have been fair and regular; (2) all parties have agreed to be bound; (3) the decision under the contract is not clearly repugnant to the purposes and policies of the Act; and (4) the unfair labor practice issue before the Board has been "both presented to and considered by the arbitrator." See Spielberg Manufacturing Co., 112 N.L.R.B. 1080, 1082 (1955) (); Suburban Motor Freight, Inc., 247 N.L.R.B. 146, 146-47 (1980) (adding fourth requirement). 5 In this case, the Board contends that the fourth deference requirement was not met. We find this contention to be wholly untenable.
The Board's argument is based on its view that this case involves both a contractual issue and a distinct statutory unfair labor practice issue, and that it is unclear whether the Grievance Committee considered the latter. The contractual issue is whether McArthur was "justified" in refusing to drive his assigned truck within the meaning of article 16 of the collective bargaining agreement. In the Board's view, the statutory issue is whether McArthur had a reasonable and good faith belief that his truck was unsafe at the time he refused to drive it. See note 2 supra. According to the Board, if McArthur had a "good faith" belief that his truck was unsafe, his refusal to drive constituted protected concerted activity under the Board's Interboro doctrine. See NLRB v. Interboro Contractors, Inc., 388 F.2d 495, 500 (2d Cir.1967) (). The Board correctly assumed that the Grievance Committee was not bound to apply a subjective "good faith" test in considering McArthur's claim under the contract. See note 2 supra. In light of this assumption, the Board reached the specious conclusion that "to assume that the arbitrators fully considered and applied the proper standards in resolving both [the contractual and statutory] issues 'goes beyond deferral and approaches abdication.' " Slip op. at 7, reprinted in App. 430 (quoting Banyard v. N.L.R.B., 505 F.2d 342, 348 (D.C.Cir.1974)).
The obvious fallacy in the Board's analysis is its contention that there is a statutory issue apart from the contractual issue. This analytical flaw is born of the Board's total failure to consider contractual waiver doctrine. It is well settled that a union may lawfully waive statutory rights of represented employees in a collective bargaining agreement. See Metropolitan Edison Co. v. NLRB, --- U.S. ----, 103 S.Ct. 1467, 1476, 75 L.Ed.2d 387 (1983). Although the NLRA protects an employee's right to strike, for example, no-strike clauses in collective bargaining agreements have been uniformly upheld. See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 280, 76 S.Ct. 349, 356, 100 L.Ed. 309 (1956); Fournelle v. NLRB, 670...
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