00-2040, 00-2289 L.S.F. Transportation, Inc. v. NLRB

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“Hill had undergone a physical examination, at the Hammond clinic where Dr. Feldman was employed on April 7, 1994, and that the results of the examination and corresponding clearance for employment as a driver were valid for two years. The record reflects that LSF failed to submit any evidence to suggest that one year after this examination it had any valid reason to became genuinely concerned about Hill’s medical status.

“Michaels’s interest in making only short-haul runs was common knowledge in the company for sometime. Indeed, when Michaels agreed to make infrequent and intermittent long-haul runs from November 1994 to January 1995 (before his union activity) because the company had developed a sudden increase in long-haul runs at that time. He did so only after receiving assurances from management that he would be reassigned to short-haul runs upon the company’s hiring of additional drivers. The company’s suggestion that Michaels was amenable to being assigned to long-haul runs simply lacks factual support in the record.

“[T]he ALJ found that Belt met with Owens and another LSF employee, Bill Sadler, in January 1995 and assured Owens that ‘he would protect him from having to get his class A license, and further offered to give him a written statement guaranteeing he would not have to drive a tractor trailer.’ LSF does nothing to refute the ALJ’s finding that Belt assured Owens he would not be required to obtain a class A CDL, and in fact references it in its own argument. … But on May 8, a mere 10 days after the union election, Owens received a memorandum from Belt advising him that he had but 11 days to obtain the class A license.

“According to LSF, its attorney advised it that it would be in violation of DOT regulations if it were to allow Kawa to continue driving, and thus it had no alternative but to discharge him. But we are unable to discern any such requirement among the regulations. The DOT regulations only provide for the disqualification of a driver who drove with an alcohol concentration of .04 percent or more, and we are confident that they certainly did not direct LSF to fire John Kawa for having a BAC of .009.”

Order Enforced.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board, Coffey, J.