# James Banyard v. National Labor Relations Board, McLean Trucking Company, Intervenor. Clay D. Ferguson v. National Labor Relations Board

> Court of Appeals for the D.C. Circuit · August 14, 1974 · 505 F.2d 342

URL: https://www.frixlaw.com/law-library/cases/9461159

## Case

- **Full name:** James BANYARD, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, McLean Trucking Company, Intervenor; Clay D. FERGUSON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** August 14, 1974
- **Citations:** 505 F.2d 342; 164 U.S. App. D.C. 235; 87 L.R.R.M. (BNA) 2001; 1974 U.S. App. LEXIS 7228
- **Precedential status:** Published
- **Opinion:** Concurrence by MacKINNON
- **Judges:** Wright, MacKinnon, Wilkey
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Criticized by National Labor Relations Board v. Max Factor and Company v. Luisa Gratz, Intervenor, 640 F.2d 197 (1981).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9461159

## Opinion text

MacKINNON, Circuit Judge
(concurring) :
I concur in the majority opinion with respect to Ferguson and concur in the result with respect to Banyard.
As to Banyard, the majority errs in adopting an interpretation of the contract which conflicts with the interpretation by the National Grievance Committee. Banyard’s position is that his refusal to drive the overloaded vehicle was an attempt to enforce Article 16 of the contract, which provides:
The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety appliances prescribed by law. . . . Under no circumstances will an employee be required or assigned to engage in any activity involving dangerous conditions of work or danger to person or property or in violation of any applicable statute or court order, or in violation of a government regulation relating to safety of person or equipment. . The Employer shall not ask or require any employee to take out equipment that has been reported by any other employee as being in an unsafe operating condition until same has been approved as being safe by the mechanical department. The Employer and the Union together shall create a joint committee of qualified representatives for the purpose of consulting among themselves and with appropriate Government agencies, state and federal, on matters involving highway and equipment safety. (Emphasis added.)
Banyard contends that the reference in the contract to “any applicable statute” is not limited to statutes “relating to safety” because the latter phrase is separated from the former by a comma. The majority opinion seems to adopt this construction of the contract.
The National Grievance Committee, however, adopted a contrary interpretation of the contract. In denying Ban-yard’s grievance, the Committee necessarily concluded: (1) that the contractual reference to “any applicable statute” is limited to statutes “relating to safety,” and (2) that the Ohio load-limit statute does not relate to safety. See Page’s Ohio Rev.Code Anno. Gh. 5577 (1970). The Committee settled the interpretation of the contract for the parties and we are not at liberty to adopt a different interpretation. Since Article 16 is devoted entirely to employee and equipment safety, the Committee was on solid ground in concluding that the isolated phrase “applicable statute” refers only to statutes related to safety. This interpretation of the contract is not repugnant to the federal labor relations policy because Congress has not designated the National Labor Relations Board to be the enforcement agency for the multitude of state and local highway ordinances and other state laws.
*350 The Grievance Committee was also on solid ground in concluding that the Ohio load-limit statute does not relate to safety. The purpose of that statute is to protect and to reduce maintenance costs of “improved streets, highways, bridges or culverts” in Ohio. See id. Most states have similar statutes designed to protect the highways, but the load limits vary from state to state. The limits also vary with the season of the year and the structure of the highway. Requiring an employee to operate a vehicle with loads in excess of a statutory load limit does not violate Article 16 of the contract, as interpreted by the Grievance Committee, absent some showing that the loads exceed the limit set by the manufacturer for the vehicle.
However, even accepting the Grievance Committee’s interpretation of the contract and the statute, the Board erred in assuming that the Grievance Committee decision resolved the federal statutory issue. The National Labor Relations Act protects employees engaged in concerted activity designed to enforce contractual rights. 29 U.S.C. §§ 157 , 158(a)(1) (1970). Even though Banyard’s position with respect to the ambiguous language of Article 16 ultimately proved erroneous, his position was not unreasonable. In view of the grammatical structure of the relevant sentence in Article 16, a layman reasonably could conclude that the reference to “any applicable statute” was not modified by the subsequent phrase “relating to safety.” As long as Banyard acted with a reasonable and good faith belief that his interpretation of the contract was correct, the National Labor Relations Act protects his concerted efforts to enforce that interpretation. Otherwise, employees would be discouraged from asserting interpretations favorable to themselves except in the clearest situations involving unambiguous contract language. In other words, the employee is protected when he engages in concerted activity to enforce a reasonable and good faith interpretation of the contract, even though his interpretation ultimately does not prevail.
For this reason, the Grievance Committee’s adverse ruling on the contract interpretation issue did not foreclose a favorable ruling by the Board on the statutory claim under the National Labor Relations Act. Therefore, I would remand for the Board to determine whether Banyard’s refusal to drive the overloaded truck was a concerted effort to enforce a reasonable and good faith interpretation of his contract.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9461159. Public record. Not legal advice.