UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitions for Review of Orders of the National Labor Relations Board.
Wright, MacKinnon and Wilkey, Circuit Judges. MacKinnon, Circuit Judge (concurring). Opinion for the Court filed by Circuit Judge Wilkey. Concurring opinion filed by Circuit Judge MacKinnon.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY
These consolidated petitions *fn1 for review of orders *fn2 of the National Labor Relations Board call into question the Board's application of its Spielberg *fn3 and Collyer *fn4 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 *fn5 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. *fn6 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. *fn7
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." *fn8 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. *fn9 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. *fn10 On 23 March 1973 the Board dismissed the unfair labor practice complaint, deferring to the decision of the National Grievance Procedure under Spielberg.
Clay D. Ferguson worked as an over-the-road driver for Roadway Express, Inc., for nine years. *fn11 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. *fn12
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, *fn13 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, *fn14 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. *fn15 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," *fn16 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 ...