Red Ball Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1980

253 N.L.R.B. 871 (N.L.R.B. 1980)

RD BAI.I MOTOR FREICIll', INC
Red Ball Motor Freight, Inc. and Linda Surley.
Case 16-CA-8556
December 19, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PNI.I.O, AND
TRUESDAI.E
On February 20, 1980, Administrative Law
Judge Leonard N. Cohen issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge,
as modified herein, to modify his remedy, 2 and to
adopt his recommended Order.3
In adopting the Administrative Law Judge's con-
clusion that Respondent violated Section 8(a)(1) of
the Act by discharging Surley on April 18, 1979,
we do not rely on his application of the "in part"
test to find the violation. Rather, we analyze this
case in light of our recent decision in Wright Line,
A Division of Wright Line, Inc., 251 NLRB 1083
(1980). Employing the test set forth therein, we
find that the General Counsel has made a prima
facie showing that Surley's participation in concert-
ed activities protected under Section 7 of the Act
was the motivating factor in Respondent's decision
to discharge her and that Respondent has failed to
rebut that showing.
We agree with the Administrative Law Judge's
conclusion that employee Surley's complaints to
management regarding the order of recalling em-
ployees and the requirement that employees use
their vacation time during the forced layoff were
protected concerted activities which led to her un-
lawful discharge by Respondent. Surley's com-
plaint to her supervisor, Yant, on behalf of herself
and a coworker over Respondent's failure to honor
its commitment to observe lines of seniority in re-
calling employees from the layoff certainly consti-
' Respondent has excepted to certain credibility findings made h the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to redi
bility unless the clear preponderance of all of the relevarit eidence con-
vinces us that the resolutions are incorrect Standard Drr Wal! Producrs.
Inc., 91 NLRB 544 (1950), enfd 188 F2d 3h2 (3d Cir 1951) We have
carefully examined the record and find no hasis for reversing his firndings
Z See Isis Plumbing & Hearing Coi. 13 NI.RH 71tb (1962), for rtioiale
on interest payments
a We have m(dified the Adnimllistrallse I au Judge's noice to clifrm
with his recommended Order
tuted an effort to gain a benefit not only for herself
but for her coworker, Cox, and other senior em-
ployees as well. See N.L.R.B. v. Buddies Supermar-
kets, Inc., 481 F.2d 714, 717 (5th Cir. 1973). The
recall of employees by seniority favored not only
Surley but other laid-off employees including Cox,
who was specifically mentioned by Surley in her
conversation with Yant. Surley's grievance over
the manner in which the recall was being handled
was designed to protest the detrimental effect of
Respondent's procedure on a group of employees
that included Surley and Cox and it is apparent
that her complaint was not solely made to resolve
a personal problem but rather with the welfare of
her coworkers in mind. See V.L.R.B. v. Sencore.
Inc., 558 F.2d 433 (8th Cir. 1977).
In addition, our review of the record reveals that
Surley engaged in another protected concerted ac-
tivity relied on by Respondent as one of its reasons
for discharging her. Specifically, we note the testi-
mony of Respondent's revenue accounting and col-
lections department director, Barkley, who stated
that he personally terminated Surley because, in
addition to her complaining about the manner of
recall and forced use of vacation during the layoff,
she made a comment to other employees in a work
area urging them not to start work early. We find
that Surley's comment, made in the presence of her
coworkers, to employee Davis that Davis should
not start work until the time set by the Employer
was an attempt to induce fellow employees not to
perform work for which they would not be paid.
Surley's remark constituted an action by an indi-
vidual seeking to solicit protected group activity
and was thus concerted in nature. The courts have
held that such activity by a single employee in at-
tempting to enlist the support of her fellow em-
ployees for their mutual protection is as much a
concerted activity as is ordinary group activity.
Owens-Corning Fiberglass v. NL.R.B., 407 F.2d
1357 (4th Cir. 1969); Richardson Paint Co. Inc. v.
V.L.R.B., 574 F.2d 1195 (5th Cir. 1978); Dreis &
Krump Manufacturing Co., Inc. v. N.L.R.B., 544
F.2d 320 (7th Cir. 1976).
Under Wright Line., supra, this evidence by the
General Counsel demonstrating concerted protect-
ed activity by the alleged discriminatee and Re-
spondent's reliance on that conduct as a ground for
its action against the alleged discriminatee effec-
tively shifted the burden to Respondent to show
that the discharge would have occurred even in
the absence of Surley's protected activities. Re-
spondent contends that Surley was not terminated
for her complaints concerning the forced use of va-
cation, manner of recall, or comment to her co-
workers, but rather for her alleged refusal to com-
253 NLRB No. 111
871
D)ECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
mence work promptly at 8 a.m., on April 18, 1979,
which allegedly caused a disruption in her work
area, and for her generally "poor attitude." How-
ever, even if Surley did fail to start work promptly
at 8: a.m., on April 18, 1979,4 it is clear that Re-
spondent was motivated by her protected activity
to seize the first possible excuse it could find to ter-
minate her. In so finding, we rely on the admission
of Respondent's witness Barkley, who testified that
Surley's complaints about recall and forced vaca-
tion and her comment not to start work early were
a "chain of events" that caused him to "watch"
her. He testified that after being told on the morn-
ing of April 18 that Surley "had made a comment
in a work area which I didn't feel like helped our
work conditions . . . I started watching her."
Barkley also testified, however, that while he ob-
served her allegedly disruptive behavior he made
no attempt to stop her. Further, an earlier, more
disruptive incident caused by employee Cox had
resulted only in a -day suspension. This testimony,
and the record as a whole, amply supports the Ad-
ministrative Law Judge's findings that Surley's
growing propensity to engage in protected concert-
ed activities caught the attention of Respondent's
management, which was then motivated to engage
in special surveillance of her work performance
and to seize upon her first alleged transgression as
a pretext to terminate her. Respondent has failed to
rebut this showing by the General Counsel and we
therefore conclude that it has failed to meet its
burden that absent Surley's protected activities her
discharge would have occurred. Accordingly, we
adopt the Administrative Law Judge's conclusion
that Respondent violated Section 8(a)(1) of the Act
by discharging Surely for engaging in protected
concerted activities under the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Red Ball
Motor Freight, Inc., Dallas, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attched notice is substituted for that of the
Administrative Law Judge.
4 The Administratise Law Judge failed to resolve the conflicting testi-
mony in the record as to what time Surley began working oi April 18
and, instead, treated the resolution of this credibility issue in a light most
favorable to Respondent As is detailed above, ascertainment of the ceact
time Surley began work on the date in question is unnecessar i deter-
mining whether a violation of the Act has occurred
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist ay union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge any of our employ-
ees because they engaged in protected concert-
ed activities.
WE wl.l. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended.
WE- wil.t offer Linda Surley immediate and
full reinstatement to her former job or, if that
job no longer exists, to a substantially equiva-
lent position without prejudice to her seniority
or other rights and privileges previously en-
joyed, and make her whole for any loss of
earnings, plus interest.
RED BALI. MOTOR FREIGHT, INC.
DECISION
SItITEMENI OF TIHI CASI
LEONARI) N. COHEN, Administrative Law Judge: This
matter was heard before me on November 15, 1979.1 On
July 19, the Regional Director for Region 16 of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing based on unfair labor practice charges
filed on June 19, alleging that Red Ball Motor Freight,
Inc., herein called Respondent, discharged Linda Surley
on or about April 18 in violation of Section 8(a)(l) and
(3) of the National Labor Relations Act, as amended, 29
U.S.C. §151, et seq., herein called the Act.
All parties have been afforded full opportunity to
appear, introduce evidence, to examine and cross-exam-
Unless ilthlirwlsc stated, all dales occurred in 1979
872
RED BALI.. MOTOR FREICIII , INC
ine witnesses, to argue orally, and to file briefs. Counsel
for both parties filed briefs, which have been carefully
considered.
Upon the entire record of this case and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACF
1. JURISI)ICIION
Respondent admits and I find that at all times material,
it has been a Delaware corporation with an office and
principal place of business in Dallas, Texas, where it is
engaged as an interstate motor common carrier of
freight. In the past fiscal year, Respondent, in the course
and conduct of its business operations, derived gross rev-
enues in excess of $50,000 for the transportation of
freight and commodities from the State of Texas directly
to points outside the State of Texas. Accordingly, I find
that at all times material herein Respondent has been an
employer engaged in commerce and in operations affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
1. IHE At I.I GI) UNFAIR LtABOR PRAC(I'ICES
A. Facts
Except where specifically noted, the following facts
are not in dispute. Prior to her discharge on the after-
noon of Wednesday, April 18, Linda Surley, the Charg-
ing Party herein, had been employed as a clerical in Re-
spondent's Dallas facility for approximately 9-1/2 years.
At the time of her discharge, Surley was employed as a
cashier in the revenue accounting subdepartment under
the direct supervision of Don Yant, one of the three su-
pervisors in the revenue accounting and collections de-
partment. Neal Barkley, the director of the entire depart-
ment, was the immediate supervisor of Yant.
On April 1, Respondent's truckdrivers joined the na-
tionwide Teamster strike and on April 6, Barkley met
with all the hourly nonorganized employees in his de-
partment and announced that effective Monday, April 9,
they would all be placed on mandatory vacation until
further notice. Surley, at this time, asked Barkley if the
employees could simply be put on leave without pay
during the shutdown rather than using their vacation
time. Barkley responded that he was merely informing
the employees of management's prior decision, and they
would be forced to use their earned vacation time if they
had any left. During the course of this meeting, another
clerical employee asked Barkley if the employees would
be called back by seniority. Barkley answered that they
would be called back by seniority and jobs, but that
there would be no training given immediately upon
recall.
Sometime between April 9 and 18, the day she re-
turned to work, Surley stopped by the office to pick up
her paycheck. While in the office, Surley complained to
Yant about Respondent's policy which forced her to use
up her vacation time rather than permitting the employ-
ees to take leave without pay.
On Friday, April 13, Surley called Yant and told him
that she and a coworker. Gladys Cox, had heard that
some of the other employees had already been called to
return to work and asked if she and Cox would also be
recalled at that time. Yant answered that he had only
four employees being recalled and that Surley and Cox
swould not be included in the initial group. Surley then
asked about one of the other to subdepartments within
the revenue accounting and collection department. Yant
answered that 10 employees had already been called
back by the collection supervisor. Surley at this point an-
grily stated that both she and Cox had greater seniority
than those recalled employees in the collection subde-
partment and since both she and Cox were cross-trained
to perform those functions, she asked why they had not
been called back. Yant simply answered that "that's the
way it is."
At somc point prior to April 18, Yant informed Bark-
lcy that he had spoken to Surley on the phone and re-
ported that Surley was quite disturbed by the fact that
she was not one of the first employees called back Hark-
lcy denied that Yant told him that Surle. also was dis-
turbed by Respondent's failure to call back Cox prior to
April 18.
On Tuesday, April 17, Yant called Surley at home and
asked her to come back to work on the following day.
Yant further stated that if she did not return to work for
the remainder of that week, the additional days would be
charged as vacation time. Surley agreed to return on
April 18.
On the morning of April 18, Surley reported to work
at about 10 to 15 minutes before 8 a.m., went to her de-
partment, put her purse in her desk and, accompanied by
Cox, started to go to the coffee shop. As she and Cox
were leaving the work area, they passed the desk of
Renee Davis, another clerical employee. Davis was al-
ready seated at her desk going through the mail that had
accumulated while she had been on layoff. Surley stated
to Davis that she (Davis) should not go to work since it
was not yet 8 a.m. Davis simply laughed and continued
to work. 2
Surley testified that she made the remark in question
since the employees had always been informed by man-
agement that they were not to go to work before 8 a.m.
and were to be sure to leave by 4:30 p.m.3 Surley further
testified that the employees had received several memo-
randa regarding their times of work and the fact that
they were not to be at their desks working at any other
time.
2 The aboe account is based on the credited testimony of SurleN Cox.
and Davis. A fourth clerical employee, Shirley Richardson. apparently
overheard this passing remark as ell According to Richardson's ai-
count. Surls " as telling everybodhd" not to go to , urk before c ami
because hey did not "'owe Red Ball anything " I do not credit Richard-
son's account which impressed me as rank exaggeration given b all ap
parentl unllriendly c worker over tilt mutually corroborated ersion el
torth above Y'int as apparently also in the area al the t time Surlei made
the comlnltllv t [D)asis According to Yant's sortinehat ha and haltiing
recollectoi on his point, Surley told )asis not t g to work beforc 8
a i "becaule -sometlhing about Red Bali c drtlt afford to pa) then"
Ilike Rl hirdsots, Yant's s'erronll is not rcdited
Respondlent did nrot hase I imelock tir use h the crlrical emplo>-
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to Barkley's arrival in the department approxi-
mately 4 years ago, the department operated on a much
less strict schedule. Employees were permitted to either
come in early or stay late in order to make up for doc-
tor's appointments and the like. However, apparently
employees abused this policy which was subsequently
abolished and the new stricter policy was established and
carefully policed by the supervisors. 4 According to
Barkley, his operation has virtually no overtime and any
overtime would have to be specifically authorized by
either himself or one of the first line supervisors.
About 8:15 that morning, Raydean West, one of the
other department supervisors came to Barkley and re-
peated to him Richardson's version of Surley's earlier
remark to Davis. Apparently, West also informed Bark-
ley that Surley was not at her desk working for the first
15 minutes of the workday. Barkley testified that even
before this conversation with West, he had, from his
office, observed Surley walking around the office not
performing her duties.' Barkley testified that after West
left his office, he continued to watch Surley and ob-
served that she was not at her desk.
About 8:25 am., or shortly thereafter, Barkley left his
office and went into Yant's. ; Barkley told Yant that ihe
did not feel that Surley had been working that morning,
and then asked if Yant had overheard Surley's comment
to l)avis. Yant answered that he had heard Surley tell
Davis not to go to work before 8 a.m. "because some-
thing about Red Ball couldn't afford to pay thenl."
D)uring the course of this conversation, Yant mentioned
to Barkley that just that morning Surley had again corn-
plained about the forced vacation policy.
A dispute exists over the question of whether Surley
actually started work at 8 a.m. as she testified. or
whether she wasted the first approximately 15 to 20() min-
utes of' the workday walking around the room talking to
her coworkers as testified by Barkley, Richardson, and
West. 8 I do not need resolve this issue and will for the
purposes of this decision treat the resolution of this
credibility question in the light most favorable to Re-
spondent.
Sometime between 8:30 and 9 a.m. that day. Barklcy
met with his immediate supervisors, Wayne Hogan, vice
president, finance, and W. Jack Tittle, vice president of
()n his poil. airlklcy testlfied that he wanted pe.ople at it cir work
stallioils atl X a nl ind wanted them out at 430 p.m
T Ihe wtindow of iarkls's office faced the lerical work atrei
Accrdring to llarklc, Stiricy had by this ime retlrnerl Ido he desk
1' corrbhora t this claim. he General Cousel l uesli nrted eniplll y-
ec C x nd I)al i, Davis testified that although she had lno pixersonal
knowledge f whether Surley immediately went t1 work on the nmorrning
f the IX8th. she did not recall any disturbance or nise during the first
half hour of work that day Cox, whose desk is located with a gooid vlitC
if the entire rli, testified that she did not obserse Surle w alking
aro und the r oomr between ad 8 30
1 Richardson testified that he observed Surley after 8 am and thal
Surlecy wa not at her desk bill walking around tilhe room talking l iar-
tius people at their desks Richardson also estified that she overlheard
Surley state at or about 8 15. "Well, I guess I'd better go Io work or they
will fire ii " Richardson reported Surley's not working to her Irnmedl
ate supervisor, Raydean Wesl West then observed Surley alkilg
around the rmn ad as et forth above, reported this behavior to lark-
ley
industrial relations. 9 Barkley informed Tittle and Hogan
that Surley had created the disturbance in one of his de-
partments, had failed to start work promptly at 8 a.m.,
and that he was tired of her continuing disturbance of
other employees. Barkley further explained that since the
Teamster strike, the clerical work was piled up and Re-
spondent had lost substantial revenue and that in this in-
tense situation, the employees should be cooperating
with the Company. Barkley then recommended that he
be authorized to discharge Surley.
That Barkley did not rely solely on Surley's comment
to Davis that morning, and the fact that Surley did not
immediately commence work at 8 a.m. is demonstrated
by the following testimony of Tittle:
[By the Judge] Did Mr. Barkley in describing the
situation in his recommendation-did he mention
that her attitude-that he considered her attitude
negative?
A. Yes he did.
Q. Did he state in describing this attitude her
complaining about the vacation matter?' 0
A. Yes. He made us aware of that.
Q. Did he state anything regarding her complain-
ing about recall'?
A. Yes.
The three then reviewed Surley's personnel file, and
Tittle and Hogan concurred with Barkley's recommenda-
tion that Surley should be discharged.
Respondent utilizes an annual employee appraisal form
and all witnesses at hearing agreed that Surley's work
had never been rated less than good and that she was an
excellent worker when she applied herself. All witnesses
also agreed that Surley's annual appraisals also consist-
celtly contained negative comments that she got along
too well with the other employees and that she talked
too much. t2
Both Barkley and Tittle testified that on at least two
prior occasions, Barkley had unsuccessfully sought au-
thority from his supervisors to discharge Surley. The last
of these preceding the instant matter, took place in No-
vember 1978.L3 On that occasion, Surley received a
written reprimand from Yant for "constantly chattering
while doing her job." This reprimand also stated that
Surley had been informed that if she failed to cooperate,
Yant would be forced "to take punitive actions."(4
I 'he following accoult is a cornpsite oif the testimtinoyi of Blarkley
and Tittle Hogan did not estify
" Subsequenl to the April 9 lavyoff, Tittle was able to effect a change
in corporate policy concerning requiring its clerical employees to use
their earned vacation time during the Tcanmsters strike Smletime during
the mrning of April 18. after 9 a.m , Yant infiormed the clerical employ-
ces that they) would be able, if they wished, to complete their scheduled
acatillons as planned and be permitted to take necessary time off without
pay
' I lhe subject of whether to impose mily discipline less severe than dis
charge was not discussed at this meetnllg
1' Surley's annual 1977 pay raise wa:; withheld apparently because of
excessise talking At that time, at least fiur other employees also had
their anual pay raises withheld.
N evidence was offered as to1 uhlcil the first incident took place
"L Surley testified without contradiction that Yant told her at the time
that he did not feel she needed the warning at that time, but that he had
Continued
874
RED BALL MOTOR FREIGHI, INC.
At the same time that Surley received her written
warning, Cox received a -day suspension for disturbing
people. When asked by counsel for Respondent to ex-
plain why Surley was discharged when Cox only re-
ceived a I-day suspension, Barkley testified:
A. Cookie Cox's event was a very loud noise.
There were several people involved in popping
gum and I considered it a deliberate attempt to dis-
credit management and disturb the work area. It
was not an event that had happended before. It was
an extremely noisy happening.
Q. [By Mr. Baumgartner] Now with regard to
Mrs. Surley?
A. This was a continual process that had been
going on for a year. She had had discussions with
her supervisor and myself. s
Surley testified without contradiction that at no time
between the November 1978 incident described above
and April 18, did Yant ever have any further discussions
with her regarding her talking at work.
The evidence offered relating to the 8(a)(3) allegation
is somewhat hazy. Apparently, during the course of the
employees' afternoon break on April 18, some of the
clerical employees, including Surley, got together and
decided that it would be good fun to post a bogus union
meeting announcement for clerical employees with the
home address of one of Respondent's vice presidents.
Yant became aware of this practical joke before any
notice was posted and Yant and all the employees in-
volved apparently treated the matter in a light and
joking manner. No evidence was presented that any su-
pervisor other than Yant was aware of this abortive
practical joke.
Surley testified that during the week and a half she
was off between April 9 and 18, she did have discussions
with various clerical employees to the effect that if the
clericals had been represented by a union they would
have been called back by seniority. There is no evidence
that any supervisor was aware of these conversations
prior to Surley's discharge.
The only evidence presented relating to any discus-
sions she had with any supervisor regarding the Union
concerned a passing remark she made to Yant during the
discussion over the "union notice." During the course of
her conversation with Yant, the fact that she believed
that if the clericals had been represented, they would
have been called back by straight seniority. This conver-
sation took place at the afternoon break well after the
decision on Surley had been made exclusively by Yant's
supervisors. Again, no evidence was offered that Yant in-
formed his supervisors of Surley's opinion in this regard.
About 4:20 on the afternoon of April 18, Barkley
called Yant to his office and informed him that Surley
been forced to give it to her because West brought "the matier" to Bark-
ley's attention.
l" Barkley testified that although he spoke to Surley (on several occa-
sions and told her that her actions "were not becoming to an employee,
he never, prior to April 18, ever warned her that she faced possible dis-
charge for a continuation of such actions or conduct
was going to be discharged. About 4:25, Surley was
summoned into Barkley's office. According to Surley,
Barkley told her that he had heard of her remark to
Davis prior to 8 a.m. Barkley then stated that he under-
stood that Surley did not like the procedure in calling
people back to work. Surley answered that it was fair in
her room, 17 but not fair overall. Barkley then stated that
he had had no recourse but to terminate her and he
handed her her checks. When Surley asked why, Barkley
simply replied in words to the effect that he had no
other choice. Surley then asked if Yant had anything to
do with the decision and Barkley answered "no," that it
had been his (Barkley's) decision.
Barkley's version of the converstaion is essentially
consistent with that of Surely's. Barkley's description is
chronicled in the following lengthy and rambling testi-
mony:
Q. [By Ms. Aure] So let me understand the rea-
sons you fired Linda were because she didn't go to
work right away that morning-she didn't do her
work?
A. That and her general attitude, yes.
Q. She was in the office though?
A. She was in the office. She was in the work
area
Q. Is there any other reason she was fired''
A. Just her general attitude and the fact that she
was not working that morning.
Q. Did you tell anybody that she was fired be-
cause she was too outspoken'?
A. Possibly that was one of the reasons I came
up with in our discussion. The fact that I had had
problems with Linda in speaking out and disturbing
the work area. She had been talked to in the past of
being involved i disturbances with me and her su-
pervisor.
Q. Did you tell Linda when you had the conver-
sation with her on the afternoon of April 18 when
you terminated her that she was being terminated
because she had been walking and not doing her
work that morning?
A. I told Linda there were a chain of events that
caused me to watch her: the conversation that she
had with Don about not being brought back in the
order she deemed she should be; she was complain-
ing about-she was called in and she was very out-
spoken about forced vacation; and that fact that I
understood she had made a comment in the work
area which I didn't feel like helped our working
conditions.
Q. What comment was that?
A. She made a comment to some people that
they did not need to go to work and that was the
conversation, actually what Mr. West had told me.
16 At no time that day had the subject of possible discipline of Surley
ever been discussed with Yant Yanlt testified that on other occasions
when employees under his direct supervision had been terminated, he
knew i this dcisill more than minutes before he employees actually
received notificatioll
1 Apparenll referring to Yani's subdepartment
875
I)I CISI()NS OF NATIONAl. .ABO()R RELATIONS BO()ARD
Q. Do you have any knowledge of when that
comment was made?
A. It was made prior to 8.
Q. Prior to 8?
A. Uh-huh. So I guess that fact that he told that
she had made it-so I started watching her. I re-
layed that to her and I did tell her that I observed
the fact that she did not go to work. That these in-
cidents and based on the fact that we had had prob-
lems with her in the past of disturbing the work
area that I made the decision to terminate her
That same afternoon, Surley, at Yant's suggestion,
went to Tittle's office and asked if he could intervene on
her behalf. Tittle said he would see what could be done.
The following day, Tittle informed Surley by phone that
he could do nothing as things were out of' his hands.
On April 20, Surley's husband called Barkley and
asked why his wife had been fired. Barkley explained
that she had been fired for making a remark at 10 before
8 a.m. on April 18, and that it was "detrimental to his
character or the character of the personnel at Red Ball"
and that he (Barklcy) felt that Surley was too outsploken
to work fr Respondent.
B. Analysis and Conclusions
Based on the record set forth above, I conclude that
Respondent's discharge of Linda Surley on the afternoon
of April 18 was in violation of Section 8(a)(l) of the Act.
In my view, Surley was not discharged as Respondent
contends in its posthearing brief, solely because she
"elected not to commence work promptly at 8 a.m. but
rather . . . elected to talk across the room, walk around
and otherwise disobey the company rule concerning
starting time and her prior warnings concerning her
'mouth problems."' The existence of other factors which
motivated Respondent in reaching its decision is amply
demonstrated by a review of the testimony of Barkley
and Tittle, two of the three management officials respon-
sible for her discharge.
In this regard, Barkley testified that in informing
Surley of her discharge, he stated that her complaints re-
garding the order of recalling employees and the require-
ment that employees must use their vacation time during
the layoff caused by the Teamster strike, as well as her
comment to a fellow employee in the work area at 7:50
that morning, were part of the chain of events that
caused him to watch her.
Further, Tittle testified that Barkley, in presenting his
case for authorization to discharge Surley, specifically in-
formed Tittle and Hogan of Surley's complaints about
the recall and forced vacation issues, and that he (Bark-
ley) considered these matters as components in, and ex-
amples of, Surley's overall negative attitude.
With regard to the recall procedure, Surley, in voicing
on April 13 her opposition to which she felt was a devi-
ation from Respondent's April 6 assurance that emnploy-
ees would be recalled by seniority and jobs was, as Yant
admitted, speaking both for herself and her coworker
Gladys Cox. That Yant, in informing Barkley of Surley's
conversation with him, "H did not specifically tell him
that Surley was also speaking on behalf of Cox is of little
moment. Surley's complaints were topics of common in-
terest and concern of all the clerical employees in the de-
partment that were on layoff and of possible benefit to a
portion of that group, and, thus, a protected concerted
activity within the meaning of the Act. Hansen Chevrolet,
237 NLRB 584 (1978); Fairmont otel Company, 230
NLRB 874, 878 (1977); ARO, Inc., 227 NLRB 243
(1976).
Similarly, Surley, in both the meeting with Barkley on
April 6 and in at least two separate conversations with
Yant prior to her discharge, voiced her opposition to Re-
spondent's announced policy of forcing the clerical em-
ployees to use up their earned acation while on layoff.
Barkley admitted that he had been informed by Yant of
Surley's continued opposition to this policy. Like Re-
spondent's method of recalling laid off employees, the
forced vacation issue was clearly a subject of common
interest and concern to all the clerical employees.'9 See
Hansen Chevrolet. supra, and the cases cited in the pre-
ceding paragraph. Further, that Surley was not specifi-
cally chosen as the spokesperson by the employees to
speak for them in discussions with supervision is irrele-
vant, since it is clear that she spoke on the employee's
behalf as well as her own. Diagnostic Center lospital
Corp. of Texas, 228 NLRB 1215, 1217 (1977); see also K-
Mart Enterprises Inc., 202 NLRB 358 (1973).
A violation of the Act is found when the General
Counsel establishes, by a preponderence of the evidence,
that Respondent's conduct was, in part, discriminatorily
motivated, and the possible coexistence of separate
lawful reasons does not eliminate the unlawful aspects of
the coiduct in question. Further. the legal effect of such
"mixed motive" cases is the same as though the illegal
reason was the operative factor. See Rabco Metal Prod-
ucts. Inc., 221 NI.RB 1230 (1975). In the instant case, Re-
spondent by its own admission based Surley's discharge,
at least in part, on her protected concerted activities in
protesting ad objecting to Respondent's policies regard-
ing the recall procedure and the forced use of earned va-
cation. Accordingly, I find that Respondent violated
Section 8(a)(l) when it discharged Surley on April 18.
Even if two of Respondent's key officials had not
made the damaging admissions as to Respondent's moti-
vation, as described above, I am convinced that the
record evidence establishes beyond question that Re-
sporident seized on both Surley's remark to Davis and, as
well as, her alleged failure to commence work promptly
at 8 a.m. as a pretext to mask its true motivation; i.e., to
rid itself of an employee who had demonstrated a grow-
' Respondent iI its brief points out that at oiIe point during the hear-
ing, Surley described her April 13 phone call ith Yant as "merely an
inquiry" Whi, that may he true, as noted i the facts section above,
tiarkley himself testified that Yant informed him that Surley was "quite
d lslull d'" ioer he niatter
'' Rspondent crlttlnds thai Ilte "orccd acation" issued as a possible
gr.inild for its action i discharging Surley is totally devoid of any facltual
hasis sinlce Responderlt had. by April 17. already changed its announced
polic. anlld implemented it plics consistent with Surley's desires In pre-
selltnrig this argument, Repondrlcnit chooses It ignore Harkley's clear
stlteenllt thilt lie considered her complaints i this regard as evidencing a
"ieg;all e attitude"
876
RED BAI.I MOTOR FREIGHT, INC
ing propensity to engage in protected concerted activi-
ties. In this regard, I note first, Surley's remark to Davis
as reported to Barkley was relatively innocuous, caused
no disruption in the work area and was completely con-
sistent with Respondent's well established policies that
employees were expected to strictly adhere to Respond-
ent's work hours and were to commence work promptly
at 8 a.m. and leave their desks promptly at 4:30 p.m.
Second, with respect to Surley's alleged failure to start
work at the appointed hour and her spending up to 20
minutes walking around the room talking and disturbing
other employees, Barkley, though he admittedly ob-
served this conduct for several minutes, made no attempt
whatsoever to correct her "insubordinate" behavior.
Thirdly, Barkley made no real effort to fully investi-
gate the incidents of the morning of April 18, but instead
immediately sought authorization to discharge an em-
ployee with 9-1/2 years' seniority. No opportunity was
offered to Surley to explain her actions or conduct.
Fourth, Respondent deviated from its normal estab-
lished custom and habit as to the method used in reach-
ing a decision on discharging an employee. Yant, Sur-
ley's direct and immediate supervisor, credibly testified
that prior to Surley's discharge, he had always been at
least informed of the decision sometime prior to its im-
plementation. Here. Yant had no input into the decision
and was merel informed of it only 5 minutes before it
was announced to Surley.
Fifth, and perhaps most significantly, the record estah-
lishes significant evidence of disparate treatment in the
instant matter that raises a strong inference that R-
spondent was basing its decision on unlax ful consider-
ations. In Novemhber, employee Cox received a -da
suspension for conduct which Barkley described as "a
deliberate attempt to discredit management and disturb a
work area." arklcy further described that incident as
"an extremely noisy happening." Even vieving the evi-
dence in the light most favorable to Respondent, Surlcy's
conduct on the morning of April 18 was neither an "ex-
tremely noisy happening" nor a deliberate attempt to dis-
credit management and disturb the work area. 20 Despite
the fact that Respondent had merely suspended employ-
ees in the past for acts of misconduct, the subject of dis-
cipline less severe than discharge was never even dis-
cussed here.
Accordingly, even absent any admissions, I would
find, based on the entire record, that Respondent's as-
cribed reasons for the discharge of Surlc> are pretextual
and its conduct violative of Section 8(a)( 1 I.
Finally, I deal with the General Counsel's contention
that Respondent, in violation of Section 8(a)(3), also ter-
minated Surley because "she had dared to discuss the
possibility of organizing the office personnel at a time
when Respondent was being struck by the Teamsters."
The General Counsel has not, in my opinion, met its
burden in this regard.
2 I tf, as Rpondei l ontends, Surle' Iodil b .lt tre ii ntl 2{
a m that da:n tas loud and disruplil. Iarkle's c spl.nation Lai 1o i is ltI
alloved it tIo ,o)ntinue as lam ie l. hcsl Addillonalll . I ll ijt '1to ;1l,
whost offic also facts the clerial stork area .id iti1t , A, i ils l il
that morning. did n otice .ian disruiption or loud talking
Surley's activities were limited to discussing at some
time between April and 17 the possibility of a union
with some of her laid-off coworkers and her one brief
joking discussion with her immediate supervisor, Yant,
on the afternoon of April 18. The General Counsel,
while conceding that there is no record of evidence that
higher management knew of this activity, contends that
the precipitous nature of her discharge, as well as Re-
spondent's deviation from its past established disciplinary
practices lead one to the inescapable conclusion that
Surley was terminated because of her support of the
Union. I disagree. The evidence clearly demonstrates
that the decision to discharge Surley was made early in
the morning of the 18th prior to Barkley's and Tittle's
acquisition of the knowledge that Surley had been
making joking remarks in support of the Union. Accord-
ingly I shall recommend dismissal of the 8(a)(3) portion
of the complaint.
III. IHEF EFFECT O 1 11:i UN AIR I ARBOR PRACt I S
tUPON COMMtIRCF
IThe activities of Respondent set forth in sections II
and III, above, occurring in connection with the oper-
ations of Respondent described in section I, ahbo c. ha e
a close, intimate, and substantial relationship to trade.
traffic, and commerce among the several States and tend
to Ieadl to labor disputes hburdeninig antd obstructing conm-
nircc and the fret' nflos of coinllece.
I\ I ItI RI %l11i
}{avi\ig fould that RponttlCnt has ngagcd iil curtain
unfair labor practices. I shall recommend that it h or-
diered to cease and desisl therefronl and take cerlain af-
firmative action designed to effectuale thie policies of tlhi
Act
tll itng found thlt Rspoiident discharged I lida
Surley in violation of Sectlion Sla)( . I recommenld that
Respondent he ordered to offer her reinstatement a(nd to
make her whole for an) loss of pay resulting from het
discharge, by a payment of a sum of mone'y equal to the
amount she would ha e earned as wages from the date
of her discharge to the date on which reinstatement is of-
fered, less et arnings during that period. The amount
of hackpay shall be computed in the matner set forth in
I:. K( WoolHorth Comnpany, 90 NLRB 289 (1950), with
ic:terest thereon to be computed in the manner prescribed
in, lorida Steel ('orporation. 231 NLRB3 651 (1i'77).
CONCI SIONS LAkw4
1. Respondent is an employer engaged in commerce
within the meaning of Scetion 2(2), (6), and (7) of the
Act.
2. Respondent violated Section 8(a)11) of the Act bi
discharging employee I.inda Srlev
3. Respondent did not violate Section 8(a)(3) of the
Act by discharging employee Linda Surle>.
Upon the foregoing firtinigs of fact, conclusions of
law, an(d iupn the entire record pursuant to Section 10(c)
of the Act I hereby ssue the following recommended:
877
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 2 1
The Respondent, Red Ball Motor Freight, Inc., Dallas,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees for engaging in protected
concerted activities.
(b) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Linda Surley immediate and full reinstate-
ment to her former job, or, if that job no longer exists, to
a substantially equivalent position without prejudice to
her seniority or other rights and privileges, and make her
whole for her loss of earnings in the manner set forth in
the section of the Decision entitled "The Remedy."
21In the event no exceptions are filed as provided by Sec 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations, he adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, tirne-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Dallas, Texas, facility the attached
notice marked "Appendix." 22 Copies of the notice on
forms provided by the Regional Director for Region 16
after being duly signed by Respondent's authorized rep-
resentatives shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days of the date of this Order what
steps Respondent has taken to comply herewith.
2 In the event that this Order is enforced b a Judgment of a United
States Court of Appeals, the words in the notice reading "'Posted hb
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations IBoard "
878