N.L.R.B. v. Lloyd A. Fry Roofing Co., Inc. of Delaware, 78-1537
| Decision Date | 10 June 1981 |
| Docket Number | No. 78-1537,78-1537 |
| Citation | 651 F.2d 442 |
| Parties | 107 L.R.R.M. (BNA) 2926, 91 Lab.Cas. P 12,801 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LLOYD A. FRY ROOFING COMPANY, INC. OF DELAWARE, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, Jay E. Shanklin, Deputy Associate General Counsel, Barbara J. Kraft, N.L.R.B., Washington, D. C., Bernard Levine, Director, Region 8, N. L. R. B., Cleveland, Ohio, Michael R. White, Washington, D. C., for petitioner.
John D. O'Brien, Jones, Day, Reavis & Pogue, Frank C. Heath, James A. Rydzel, Cleveland, Ohio, for respondent.
Before MARTIN and JONES, Circuit Judges, and REED, District Judge. *
The National Labor Relations Board (the Board) petitions for enforcement of its order that the Lloyd A. Fry Roofing Company (Fry) violated section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 151 et seq. by constructively discharging an employee because he filed complaints respecting the safety of Fry's equipment. For the reasons set forth below, we grant enforcement.
Fry is a multistate manufacturer and distributor of asphalt roofing products. At its Medina, Ohio plant, Fry employs approximately 25 production workers, and four over-the-road (OTR) truck drivers who are not represented by a union. On May 21, 1975, Carl Bauer, Fry's office manager at Medina, hired James L. Varney as an OTR driver. Because Varney was a close personal friend, Bauer waived Fry's established policy requiring two years experience as an OTR driver. In December of 1975, Varney was laid off for lack of work. Although Varney had been reprimanded for improperly securing loads and had one accident, Fry recalled Varney in January 1976.
In November 1975, Fry entered into a one-year truck leasing agreement with Joban Leasing Company. Immediately thereafter, each of the OTR drivers complained to numerous Fry officials about the safety of Joban's trucks. Varney also questioned James Beliles, Joban's owner, about the condition of its trucks. In response, Beliles threatened to "see to it that Varney was fired."
As a result of the OTR drivers' complaints, on January 13, 1976, plant manager Dorsch convened a meeting with Beliles and OTR drivers James Wade and Varney to seek a solution to the truck maintenance problems. Varney complained of the condition of the trucks and compared them unfavorably with Fry's prior equipment. Wade agreed. Beliles promised that new equipment would be provided in the spring. Dorsch stated that no driver need operate an unsafe vehicle, but that they would have to continue to use Joban's trucks. Beliles agreed to make repairs provided the complaints were in writing. As a consequence, Dorsch instituted an "Equipment Complaint Report" to be completed by the OTR drivers after each trip. After the meeting, Beliles again threatened Varney to "see to it that he is fired."
The Equipment Complaint Report proved ineffective. Beliles ignored Equipment Complaint Reports listing defective lights, faulty transmissions, faulty steering wheels, maladjusted or inoperative brakes, and broken speedometers. On one occasion, Beliles tore up several forms. At Varney's instigation, Dorsch was told of Beliles' disregard for the Equipment Complaint Report.
In addition to filing Equipment Complaint Reports, Varney used the "Driver Vehicle Condition Report" on the back of the daily log form required by regulations of the Federal Highway Administration to note mechanical problems with Joban's trucks. Driver Vehicle Condition Reports provide for certification by the mechanic that the defect has been repaired before further use of the vehicle. Though Varney submitted several such reports, the required repairs were not made.
Varney also asked Dorsch to have Joban's trucks inspected by the Ohio Public Utilities Commission or by the Federal Highway Administration. Varney agreed to stop complaining if the trucks were inspected. Dorsch refused.
In early March, 1976, three of the four OTR drivers complained orally to Dorsch about Joban's trucks. Varney threatened not to drive the trucks unless they were fixed. Shortly thereafter, an OTR driver quit because he was tired of driving Joban's trucks.
On April 14, Varney was assigned to deliver a load in Pennsylvania. Joban's mechanic told Varney that the truck had new brakes. During Varney's trip, the brakes on the truck failed and he had a three-vehicle accident. In a telephone conversation with office manager Bauer, an emergency road service mechanic stated that the brakes were defective. Bauer and Dorsch told Varney that the accident was not his fault.
The day after the accident, Beliles called Dorsch and threatened to "pull all of his equipment out unless they get rid of Varney." On April 19, Dorsch convened another meeting. Varney complained about the condition of Joban's trucks. Beliles accused Varney of deliberately abusing Joban's trucks. Beliles reiterated his oft-repeated threat that Varney be fired. Dorsch "refused," but gave Varney an "ultimatum." Dorsch then presented to Varney for his signature a statement, already prepared, putting him on probation for six months. 1 Dorsch read the statement aloud. Bauer advised Varney that if he signed it he would be admitting to the violations set forth in it. Varney refused to sign. Dorsch told Varney to sign the statement or be terminated. After the meeting, Bauer conferred privately with Varney and told him that he would be foolish to sign the statement. Varney again refused to sign the statement and was fired.
Varney filed an unfair labor practice charge with the Board alleging that he was discharged for exercising rights protected by section 7 of the Act. After a hearing, an Administrative Law Judge held that Varney's participation in meetings convened by Fry, use of the Equipment Maintenance Report, and efforts to enforce compliance with governmental safety regulations were related to a common concern of all OTR drivers. As a consequence, the ALJ held that Varney was engaged in protected concerted activities within the meaning of section 7 of the Act. 2
The ALJ concluded that Varney was subjected to "excessively harsh and unwarranted probationary status" because of his concerted activity respecting the safety of Joban's trucks. Fry's proffered justification that Varney was discharged because he failed to tie down cargo, was tardy in deliveries, had poor customer relations, and drove carelessly were found to be pretextual.
Section 7 of the Act provides that "employees shall have the right ... to engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. Employees may engage in concerted activities protected by section 7 regardless of whether the employees are members of a union. Vic Tanny International, Inc. v. NLRB, 622 F.2d 237, 241 (6th Cir. 1980).
An individual employee's complaint is "concerted" if it is related to group action for the mutual aid or protection of other employees. Signal Oil & Gas Co. v. NLRB, 390 F.2d 338, 342-43 (9th Cir. 1968). Either the individual employee "is in fact acting on behalf of, or as a representative of, other employees," NLRB v. Guernsey-Muskingum Electric Cooperative, Inc., 28 F.2d 8, 12-13 (6th Cir. 1960), or his claim "must be made with the object of inducing or preparing for group action," Aro, Inc. v. NLRB, 596 F.2d 713, 718 (6th Cir. 1979). It is not necessary that the individual employee be appointed or nominated by other employees to represent their interests.
Protests of wages, hours, other working conditions and the presentation of job-related grievances are for the mutual aid and protection of employees. NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962); Vic Tanny, supra, 622 F.2d at 241; NLRB v. Elias Brothers Restaurants, 496 F.2d 1165 (6th Cir. 1974). Additionally, an employee's presentation of job-related grievances aimed at achieving employer compliance with governmental regulations affecting working conditions is for the mutual aid and protection of employees. Socony Mobil Oil Co. v. NLRB, 357 F.2d 662 (2d Cir. 1966). Alleluia Cushion Co., 221 NLRB No. 999 (1975). Applying these principles, we hold that Varney was engaged in concerted activity protected by section 7 of the...
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