ILLINOIS RUAN TRANSPORT CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, 404 F.2d 274

VAN OOSTERHOUT, Chief Judge. This case is before us upon the petition of Illinois Ruan Transport Corporation (Ruan) for a review of an order of the National Labor Relations Board issued against Ruan on June 9,1967, reported at 165 NLRB No. 84. The Board has cross-petitioned for the enforcement of its order. It is agreed and established that Ruan is engaged in commerce within the meaning of the Act and that the court has jurisdiction under § 10(

e) and (

f) of the Act (National Labor Relations Act as amended, 29 U.S.C.A. § 151 et seq.) The Board, in agreement with its Trial Examiner, found Ruan had violated § 8 (a) (1) of the Act by discriminatorily discharging its employee Adams for engaging in concerted protected activities in the implementation of the driver safety provisions of the collective bargaining agreement between the company and Teamsters Local No. 525, the collective bargaining agent of the employees. The Board ordered Ruan to cease its unfair labor practices, to restore Adams to his job with back pay, and to post notices.

The basic issue presented is whether there is substantial evidence in the record as a whole to support the Board's finding that Adams’ discharge was motivated by Adams’ protected union activity. A careful examination of the record as a whole convinces us that the Board’s determination that Adams was discriminatorily discharged lacks substantial evidentiary support. Initially, a serious question arose as to whether Adams’ alleged safety campaign was a protected concerted activity. See Indiana Gear Works v. N.L.R.B., 7 Cir., 371 F.2d 273, and cases there cited.

Adams was one of forty tank truck-trailer drivers employed by Ruan. A letter written by Adams to Ruan’s president on April 1, 1966, contains many gripes by Adams with respect to company practices and makes numerous suggestions. At least many of these could not fall in the protected activity category. The record is barren of any evidence that any of Adams’ complaints or suggestions had any support from any fellow-employees or the union. Adams’ good faith in his alleged safety campaign is open to serious question.

However, inasmuch as we hold hereinafter that the discharge was not motivated by the safety campaign, we see no purpose in adjudicating the close and difficult question of whether Adams’ alleged safety campaign constituted protected concerted activity and will assume for the purposes of this case, without so deciding, that the activity is protected activity. Adams was discharged on April 21, 1966. He was orally advised of the reasons for his discharge on that date, and at his request a letter bearing the same date was sent to him and received by him the following day.

The letter reads: “Dear Bob: This letter confirms our conversation and is, after complete investigation, issued as notice of discharge for violation of

Section 3(

e) and

Section 2(

c) of Uniform Rules and Regulations Governing Employees of Tank Truck Carriers Signatory to the Central Conference of Teamsters Tank Truck Agreement for dishonesty in falsification of records and unauthorized use of our motor vehicle. On April 13th, 1966 you took it upon yourself to move our transport #8792-2165 from Standard Oil Company plant at 4017 Park Avenue, St. Louis to 16th & Clark Streets, St. Louis, Missouri where you had arranged for an I.C.C. equipment compliance check —a strictly unauthorized movement of our equipment.

When you arrived back at our terminal after a delay of nearly two hours you advised our dispatcher that you were delayed behind another truck —subsequently, you made out your J-61 operational report which stated that you were delayed at Standard Oil Plant because an American Oil Company truck with a defective pump was unloading ahead of you. Our investigation with the American Oil Company plant superintendent develops that the above statement of yours is incorrect.

In addition to the above you were given four warning notices since November 2, 1965 for the following violations: On November 2, 1965 you were given a warning letter because of running a railroad crossing —

Section 5(e). On December 3, 1965 you received a warning notice for failure to properly load your transport, in violation of

Section 3(g). On January 28, 1966 you were given a warning notice on accidents you had on January 25, 1966 and on January 28, 1966 —

Section 1 (b). On February 9,1966 you received a warning letter for violation of I.C.C. hours —

Section 3(g). Discharge is effective on April 21st, 1966.” Ruan bases Adams’ discharge primarily upon the unauthorized movement of its motor vehicle on April 13, 1966, at St. Louis. On that date, Adams was sent from the company base at Wood River, Illinois, to make an oil delivery to a Standard Oil plant at 4017 Park Avenue in St. Louis. Without authorization from Ruan, Adams called the I.C.C. inspection office and at his request and without a demand from the inspector, he arranged for a safety inspection of his equipment.

After unloading, pursuant to such arrangement, he drove his equipment to the I.C.C. location at 16th and Clark Streets in St. Louis. The union and employer had entered into an agreement covering rules and regulations pertaining to drivers and with respect to penalties that could be imposed for rule violations.

Section 2 (

c) of the rules prohibits drivers from making unauthorized use of motor vehicles and provides for a penalty upon violation of layoff or discharge. Grievance procedures are spelled out in the contract in detail. It clearly appears that the company and union by their negotiated contract agreed that unauthorized use of equipment was a breach of duty which would justify a discharge. The existence and validity of the rule is not challenged. It is established beyond dispute that Adams violated the unauthorized use rule.

The National Labor Relations Board in its brief states: “Although the ICC inspection involved a literal violation of a Company rule— since Adams had to drive the truck about a mile off route — this conduct cost the Company only a hour’s use of its property, while it brought to light a number of defects affecting the safe operation of the truck.” Thus, it is firmly established that a valid basis existed under the labor contract for Adams’ discharge.

The issue of whether there is substantial evidence in the record when considered as a whole to support the Board’s finding has been frequently considered by the courts, including this court. The leading case of Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, lays down the guide lines for review on this issue.

Among other things, the Court there states: “We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds.

That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly ' precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.” 340 U.S. 474, 490, 71 S.Ct. 456, 466.

Each ease must be determined upon the basis of its own peculiar facts. The applicable principles have been cited and thoroughly discussed in our many prior cases dealing with the review of Board orders determining that discriminatory discharges were made. In a considerable number of cases, we have determined that the Board’s finding of discriminatory discharge lacked substantial evidentiary support. Among such cases are, Singer Co., Wood Products Div. v. N. L. R. B., 8 Cir., 371 F.2d 623; Farmbest, Inc. v. N. L. R. B., 8 Cir., 370 F.2d 1015; N. L. R. B. v. Monroe Auto Equip.

Co., 8 Cir., 368 F.2d 975; Banner Biscuit Co. v. N. L. R. B., 8 Cir., 356 F.2d 765; N. L. R. B. v. South Rambler Co., 8 Cir., 324 F.2d 447; Osceola County Co-op. Creamery Ass’n v. N. L. R. B., 8 Cir., 251 F.2d 62. It is established by the authorities last cited that an employer has a right to hire and discharge employees at will, provided motivation for the discharge is not punishment for legitimate protected concerted activity. When, as here, the contract provides the basis upon which a discharge may be made, the contractual provisions constitute a further qualification upon the right to discharge.

Where the discharge is upon a ground specifically authorized by the contract, the employer has the same absolute right to discharge as he would have had in the absence of contractual limitations upon discharge. When the contractual provisions for discharge are met, the right to discharge - exists provided the discharge is not motivated by activity protected by the Act. We have no doubt that Ruan had a right to discharge Adams for the unauthorized use of its motor vehicle.

Protected activity under the circumstances of this case cannot extend to an unauthorized use of the employer’s equipment in violation of the governing contract. The rule proscribing unauthorized use of company vehicles is in no sense unreasonable. Unauthorized use of vehicles, as the contract recognizes, can cause a serious disruption in the company’s business operations. We now reach the issue of whether there is any substantial evidence to establish that the discharge was motivated by protected union activity.

It is of course true that a justifiable ground of discharge is not a defense to an unfair labor practice charge when the asserted ground for discharge is a mere pretext and not the moving cause of a discharge. The burden of proving an unlawful discharge is upon the Board. An inference that the discharge of an employee was motivated by his union activity must be based on evidence, direct or circumstantial, and not upon mere suspicion. N. L. R. B. v. Monroe Auto Equip. Co., supra; N. L. R. B. v. South Rambler Co., supra.

The discharge letter, in addition to basing the discharge on the unauthorized use of the motor vehicle, states that Adams made a dishonest report and that he had since November 5, 1965, been given four described warning letters for safety violations. None of the asserted complaints against Adams in the letter could possibly fall in the category of protected activity. It is quite true that under the union contract the safety violations standing alone do not warrant a discharge. Nevertheless, such violations present matters which employers may reasonably consider when a violation occurs which warrants a discharge.

The Examiner in his findings points to no substantial evidentiary basis for holding the discharge was discriminatory, nor do we find any substantial evidentiary basis therefor in the record. The Examiner cites at length cases holding that it is against public policy to deny an employee the right to make complaints to public authorities with respect to conduct of his employer that violates safety regulations and infers that the discharge was by reason of complaints made to authorities by Adams. The record shows that Ruan has recognized at all times here material the right of an employee to make such complaints.

Adams, in his letter of April 1, 1966, to the president of Ruan includes a statement that he has sent defective equipment reports to the I.C.C. with the request for investigation. The record further shows that in February, 1966, Ruan was aware of the fact that Adams had complained to the highway police that Ruan’s vehicles were being overloaded and had obtained some assurance that such violations would be checked. No discharge followed as a result of such activities. The contract between the company and the union specifically gives any employee a right to refuse to drive equipment he considers unsafe.

The equipment defects claimed by Adams under his own testimony existed at the time he took out the equipment and he made no complaint with respect thereto. The I.C.C. examiner found some defects in the equipment but none which would require taking the truck off the road. After Adams returned to his base, subsequent to the inspection, he made no immediate report with respect to the defects and continued to use the equipment in making deliveries for the balance of the day. The inspection report was not turned in until the end of the day’s work.

The fact that Adams had on some prior occasions been layed off for the day when he refused to operate equipment he considered defective in no way justifies his right to make an unauthorized use of the equipment in taking it off the route for an inspection which was neither authorized by his employer nor demanded by the regulating agency. If Adams’ complaint about prior layoffs resulting from equipment complaints has any merit, the company might well be guilty of an unfair labor practice in laying him off for the day if other equipment was available for assignment to him. Such a charge is not here before us.

Two fellow employees testified at the hearing that they had on a few occasions stopped while on duty for a haircut, to pick up license plates and to pick up other items for their personal use, and that they were not discharged. Such drivers admitted that they did not log or report such stops to the company and there is no evidence that the employer had any knowledge of the infractions. On the basis of this evidence, the Examiner finds: “The Respondent’s defense that Adams violated one of its rules by his unauthorized use of the vehicles is not tenable.

As shown hereinabove, Adams’ departure or deviation from his route of delivery amounted only to 500 or 600 feet. Moreover, the record is replete with evidence that other drivers had departed from their routes of delivery for a number of personal reasons, including the obtaining of license plates at Springfield, Illinois, and visits to barber shops for haircuts.

Although the record does not show that the Respondent had definite knowledge of such unauthorized use of its vehicles, it is clear that such unauthorized use extended over a period of several years and, in at least one instance, was for the benefit of the Respondent’s office secretary at the Wood River terminal. I infer that because of such extended unauthorized use of Respondent’s vehicles and the long period of time over which such unauthorized use occurred that the Respondent, in fact, had knowledge.

I therefore find and conclude that the Respondent’s defense that Adams was terminated because of his unauthorized use of the vehicles in question on April 13, is lacking in merit.” In our view, the above findings are based entirely upon conjecture and speculation and not substantial evidence. The violations related are not similar to that of Adams and there is nothing to show that the work records of the involved employees are in any respect the same.

In any event, when a violation warranting a discharge exists, a discretion exists in the employer whether or not to exercise the right to discharge, and the work record of an employee may well be an important consideration in determining whether the discharge should be made. In our present case, unlike the situations in many of the decided cases, there is no evidence whatsoever of hostility to the union or union activities. We find no evidentiary basis for an inference that Adams’ discharge was motivated in any way by Adams’ alleged safety campaign.

Adams immediately after his discharge invoked the grievance procedure provided by the contract. At the hearing at the company level, Adams appeared and was represented by the union secretary and business agent. The violation of the rule was not disputed but it was urged that the penalty was too severe. No solution was reached. The grievance, pursuant to the contract, was presented to a special meeting of the joint committee for arbitration consisting of three outside employers and three outside labor representatives. Adams appeared in person and was represented by three union officials.

The case was presented by the union business agent, whereupon Adams spoke for himself and read the letter of complaint he had written Ruan on April 1, 1966. It would appear that he was given a full opportunity for the presentation of any grievance that he might have. The arbitration board unanimously upheld the discharge. The unfair labor charge here invoked was filed shortly after the adverse decision of the arbitration board. It is Ruan’s position that the arbitration procedure was fair and regular and that the Board should have accepted the arbitration board’s determination with respect to the discharge.

The Examiner, affirmed by the Board, determined that the arbitration hearing did not meet the standards set by the Board in Speilberg Mfg. Co., 112 NLRB 1080. By reason of the provisions of § 10 of the Act, it would appear that the Board is not bound by the decision of an arbitration board in considering an unfair labor practice before it. N. L. R. B. v. Acme Industrial Co., 385 U.S. 432, 437, 87 S.Ct. 565, 17 L.Ed.2d 495; Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 11 L.Ed.2d 320.

The issue of whether the discharge was motivated by protected union activities does not appear to have been raised in the arbitration proceeding and hence the Board did not abuse its discretion in refusing to be bound by the arbitration decision. See Hawkins v. N. L. R. B., 7 Cir., 358 F.2d 281, 284. Consequently, in reaching our result, we have given no consideration to the action of the arbitration board in upholding the discharge.

A careful reading of the entire record has left us with the firm conclusion that there is no substantial evidentiary support for the Board’s determination that Adams’ discharge was motivated by any activity of Adams which is protected by the Act. No unfair labor practice has been established. The Board’s order is set aside and enforcement is denied.