Question

Roger Rolling is a Driver Operator at the Cavalier Air Force Station in North Dakota. The Fire Department at the Cavalier Air Force base is operated by a vendor, Fiore Industries, Inc. Fiore's driver trainer described him as "a very good driver" who "knows the truck [and] knows the job." Rolling has been working as a Driver Operator for Fiore and assigned to Cavalier for ten (10) years Prior to 2018, Rolling had maintained good safety and driving records, with no documented violations of Fiore's, Cavalier's, Department of Transportation (DOT), or Department of Defense rules. His record suffered in the fall 2018 and spring of 2019-a period that Rolling alleges was marked by a series of unlawful labor practices by Fiore and, in particular, by Clyde Lea operations manager at the Cavalier base r, the In a meeting in September 2018, Lear purportedly changed disciplinary policies to eliminate verbal warnings; Rolling filed a charge with the NLRB alleging the change was made in retaliation for an earlier charge he had filed. Then, in late October, Fiore suspended Rolling for hree days for completing DOT paperwork after clocking out. Lear described the violation as severe, dishonest, and potentially a terminable offense. Rolling, alleging the suspension was further retaliation, filed a charge on November 7, 2018. That same month, Lear provided an charge, and both charges affidavit in response to the NLRB investigation regarding the first remained pending in early January, 2019 On January 13th, Rolling pulled into the yard of the Cavalier base with a load of gas cylinders in his truck. The load consisted of at least one 12-pack of cylinders and four cylinders attached to the truck frame with two straps. The 12-pack, referred to as a "cradle" or a "bank," is described a cage bolted together to keep the cylinders in place. Rolling was responsible for securing the four cylinders that were not in a cradle. Fiore's driver training manual instructs that "cylinders must be strapped, chained or secured to the vehicle so that they do not move or rattle." Cylinders should also be "nested," meaning placed in a secure, staggered formation with each cylinder supporting its neighbors. The cylinders in Rolling's truck, though secured with two straps, were not nested properly and leaned slightly against the truck railing. Lear was standing in the yard when Rolling pulled in According to the written warning issued to Rolling later that week, Lear "heard rattling and saw Rolling] pulling into the yard. When he went to investigate the noise, he saw that (Rolling] had a pallet on [his] truck that was not properly strapped, which was causing the noise." Lear went into his office to retrieve his phone and safety glasses and returned to the truck. He took picture of the leaning cylinders and, without physically inspecting the load, went back inside Lear did not speak to Rolling about fixing the cylinder placement or tightening the straps ever though the two men walked past each other twice. Rolling checked the back of the truck to see what Lear had photographed, readjusted the cylinders and straps, and left the yard to complete his route. Lear, who was inside looking out a window while talking to another employee, saw Rolling fix the load The next day, January 14th, Lear emailed Mark MacBride, Fiore's driver trainer. He attached a copy of the photo he had taken and asked, "What do you think about this? Look good to you?" MacBride responded, "No with the cylinders being off-set we would be hit for insecure load just by how it looks. Where is this truck(?) Not good, did the driver catch it before leaving[?)" Lear wrote, "I saw it when he pulled in[to) the yard." MacBride asked again, "Did it get fixed before leaving[?1" and Lear wrote, "This is the way it was when he pulled in after his run." MacBride responded, "Unacceptable," and Lear asked, "Where would I find the strongest language about load securement that drivers are trained to?" MacBride referred him to the training manual. January 16th, at a meeting with Rolling, another plant manager, and the union steward, Lear handed Rolling the written warning letter and explained that he had heard rattling himself Rolling responded that the noise was coming from the 12-cylinder bank, not from the four strapped cylinders. Rolling filed a grievance that day, writing that the "written warning [was) excessive" because the cylinders "were leaning a little but [did] not rattle." That grievance gave rise to two meetings. At the first, on March 2nd, Lear explained that Article IX of the Collective Bargaining Agreement provided for written warnings. Rolling disagreed, saying the warning should have been verbal. Lear read Article IX and reiterated that "ItJhe discipline stays." At the second meeting, on March 23, Lear again denied the request to reduce the discipline to a verbal warning, this time explaining that it was "not [Rolling's) first DOT violation" and that the incident was "sever[e]." Rolling plans to file an Unlawful Employment Practice charge under NLRA Section 8(a)(4), with the National Labor Relations Board Regional Office. To establish a case of discrimination under n 8(a)(4), the General Counsel must demonstrate that: (1)the employee was engaged in protected activity; (2)that the employer knew of the employee's protected activity; and (3) t the employer acted as it did on the basis of anti-union animus." If the General Counsel establishes a case under the three-prong test, the burden shifts to the employer to prove by a preponderance of the evidence that the employee permissible reasons even if he had not been involved in activity protected by the [NLRAJ. If the would have been [disciplined] for r's stated justification for the decision is determined to be pretextual, the Board is not obligated to consider whether the employer would have taken the same decision regardless of the employee's union activity. Wright Line, 251 NL.RB、1083 (1980), and adopted by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983) 1. Explain Rolling's arguments under NLRA Section 8(a)(4); 2. Explain the employer's position 3. Should the NLRB General Counsel refer this case to the Administrative Law Judge after an investigation? Explain.

Answer 1

Q) Explain Rolling’s argument under section NLRA Section 8 (a) (4)?

Ans: Under section 8 (a) (4) of NLRA, Rolling’s arguments are:

• Cylinders were leaning but did not rattle
• Rattling noise was from 12 pack of cylinders which are properly nested
• Lear did not physically inspect the load because he thought it was safely protected
• Mention that he did not have any documented violations from DOT or defense department
• Explain that 4 cylinders were strapped properly with 2 straps

Q) Explain the employer’s position?

Ans: The employer’s position and explanation would be:

• The violation was photographed properly and even sent to the vendor
• Rolling was earlier suspended by the company for violating DOT paperwork time
• The cylinders were not properly nested as per the safety training manual
• Violation is severe and might have led to huge losses if action had not been taken
• Could have acted the same even in case of anti-union animus as it is a proper violation

Q) Should the General counsel of NLRB refer this case to the administrative law judge after an investigation? Explain?

Ans: I think general counsel of NLRB should refer this case to administrative law judge because:

• The employee was engaged in protected activity and it is his first documented violation of DOT
• The employer did not mention anything while Rolling delivered the same
• Employer justification for the act is pre-textual as he did not warn Rolling for his acts
• Employer did not physically inspect the vehicle