Banyard v. N.L.R.B., s. 73-1609

• Decision Date: 14 August 1974
• Docket Number: Nos. 73-1609,73-1610,s. 73-1609
• Citation: 164 U.S.App.D.C. 235,505 F.2d 342
• Parties: 87 L.R.R.M. (BNA) 2001, 164 U.S.App.D.C. 235, 74 Lab.Cas. P 10,261 James BANYARD, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, McLean Trucking Company, Intervenor. Clay D. FERGUSON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 342

505 F.2d 342

87 L.R.R.M. (BNA) 2001, 164 U.S.App.D.C. 235,

74 Lab.Cas. P 10,261

James BANYARD, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, McLean Trucking

Company, Intervenor.

Clay D. FERGUSON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 73-1609, 73-1610.

United States Court of Appeals, District of Columbia Circuit.

Argued June 10, 1974.

Decided Aug. 14, 1974.

Arthur L. Fox, II, Washington, D.C., with whom Alan B. Morrison, Washington, D.C., was on the brief, for petitioners.

Patrick Hardin, Associate Gen. Counsel, National Labor Relations Board, with whom John S. Irving, Deputy Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, National Labor Relations Board, were on the brief, for respondent.

Melvin R. Manning, Richmond, Va., for intervenor.

Before WRIGHT, MacKINNON and WILKEY, Circuit Judges.

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 Spielberg ³ and Collyer ⁴ 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's ⁵ 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 43 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 1969. 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 Banyard 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, 'This reasoning appears to contradict the Board's own decisions...