Ridgeway Trucking Co.

National Labor Relations Board - Board Decisions

Aug 3, 1979

243 N.L.R.B. 1048 (N.L.R.B. 1979)

Dt(IlSIONS OF NATIONAL. LABOR RATIONS BOARD
Ridgeway Trucking Company and Joseph Egan. Jr.
Case 12 CA 7767
August 3. 1979
[)ECISION AND ORDER
BY MIEMIRS JENKINS, MtRPIIY, AND) TRtiSDAI I
On March 22, 1978, Administrative l.aw Judge
Frank t1. Itkin issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
an answering brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3h) 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that the
General Counsel ftailed to establish that employees
Kenneth Bryant, Andy Griffin. and Coleman Peter-
son were discharged or reasonably led to believe they
were discharged because they and other drivers had
engaged in protected concerted activities and he
therefore recommended dismissal of the complaint.
The General Counsel excepts, asserting that these em-
ployees were discharged in violation of Section
8(a)(1) of the Act. We find merit in his exception.
The relevant facts are, briefly, as follows: I
Respondent is engaged in the transporting of build-
ing materials in Winter Garden, Florida. On the
morning of Tuesday, January 18, 1977. Respondent's
commission drivers reported to the terminal but re-
fused to begin their deliveries until they could meet
with Respondent's general manager, Kenneth Sur-
baugh, to discuss their pay rates.2 When Respon-
dent's chief dispatcher, Horace Shepherd, arrived at
work and found that the employees were refusing to
make deliveries, he immediately attempted to contact
Surbaugh. Shepherd, however, was unable to contact
Surbaugh but he did contact Paul Wolf, a part-owner
of the company, who stated that he would call Sur-
baugh.
Meanwhile, the drivers were continuing to wait in
Respondent's parking lot for Surbaugh's arrival when
I he facts are hased on he testimony as credited hby the Administrative
Law Judge
2 rhe drivers took the position that Respondent had agreed to pas a 25-
percent commission on 100 percent of the load and was instead paying that
commission on ionly 90 percent of the load
the5 noticed Respondent's service manager. Harvey
Cobb, arriving at 6 or 6:15 a.m. The drivers explained
to Cobb their wage problem. C'obb told the drivers
that he would discuss the pr)oblem with Surbaugh and
see what he could do about it. At or about 7 a.m..
Surbaugh arrived. Surbaugh went to Cobb's office
and there was asked by employee Bill Lytle to discuss
the wage problem. Surbaugh refused to talk to the
employees as a group but stated that he would talk to
each one individually. All of the drivers refused to
talk to him individually.
Shortly thereafter Cobb left his office and some of'
the drivers went to the garage area to stand by the
heater. Cobb threatened to call the local authorities
to have them removed from the premises. Surbaugh
returned to the dispatch office and Shepherd inquired
if' the drivers were going to work. Surbaugh replied
"he didn't know: and that if they didn't want to go to
work, they could go someplace else and work." Soon
thereafter Surbaugh went to the shop area and spoke
to the drivers. He told the drivers "they had the op-
portunity to get in their trucks and go to work: if the)
weren't going to go to work, then I suggested the>
leave the premises, if they didn't want to leave the
premises. then I would have no choice but to call the
authorities, since they weren't going to work. if theN
were not going to work." 3 One or more of' the drivers
asked it' they could get their paychecks. Surbaugh ex-
plained to the drivers "that they couldn't be paid un-
til someone came in to sign their checks, ift' they
wanted to be paid."4 In response to specific requests.
Surbaugh gave the drivers permission to get their per-
sonal belongings out of the trucks. Later, Surbaugh
called the sheriffs department to aid in getting the
drivers off the company property.
There is no question but that the drivers were en-
gaged in protected concerted activity in protesting
their wage levels by engaging in a work stoppage. The
only question remaining is whether Respondent. in
fact, discharged them as alleged in the complaint. Al-
though Respondent did not directly state that the
striking drivers were "fired," for the reasons set forth
below, we find that Respondent's statements had the
same effect.
The test for determining "whether [an employer's]
statements constitute an unlawful discharge depends
on whether they would reasonably lead the employ-
ees to believe that they had been discharged" 5 and
"the fact of' discharge does not depend on the use of
formal words of firing .. . It is sufficient if the words
or actions of the employer would logically lead a pru-
Approirlniatels ive tor ix o the drlers v.cnit tIo , rk this tite.
' Se*reral drivers returned later that da and picked up tIlleir checks ;l-
though the regular palydas a ;as on I rdal
' I. 1 R Bt Iflon M,,h,c Im,' 387 1: 2d 7. 9 8th ( ir. 1t67t
243 NI.RB No. 160
1048
RIDGEWAY TRUCKIN(G (COMPANY
dent person to believe his tenure has been termi-
nated."6
In the instant case. Surbaugh ordered the drivers
engaged in the work stoppage to leave the premises
unless they were going to go to work. As evidenced
by their subsequent actions, this statement was con-
strued by them to mean that they were discharged.
Thus, in response to Surbaugh's statement, they im-
mediately requested that they be paid on that day.
Tuesday. despite the fact that Friday was the normal
payday. In addition, they further requested that they
he allowed to remove all their personal belongings
from the company trucks. Surely, both requests must
have made it obvious to Surbaugh that the employees
believed that they had been discharged by their fail-
ure to heed his order to return to work.? Yet Sur-
baugh did nothing to dispel or disabuse them of that
belief. To the contrary. the readiness with which he
agreed to their requests, coupled with his failure to
try to correct any misapprehensions which his actions
towards their work stoppage had created, is consis-
tent with a discharge action and could only have
served to reinforce their belief that they indeed had
been discharged. Thus, the obvious explanation for
Surbaugh's conduct during the incident was that he.
too, knew that they had been discharged when they
chose to disregard his ultimatum to return to work or
leave.' Accordingly, on the basis of the foregoing. we
find that Respondent unlawfully discharged employ-
ees Coleman Peterson, Andy Griffin, and Kenneth
Bryant in violation of Section 8(a)( 1) of the Act.9
NLR.B v. Trumball Asphalt Company si' Delauare. 327 .2d 841. 843
(8th Cir. 1964).
Hule Manufacturing Co. In,. 288 NLRB 10. 13 (1977).
* This conclusion also is supported by Surbaugh's stating to Shepherd, just
before meeting with the striking employees. that "if they didn't want to go to
work. her could go someplace else and sork [emphasis supplied " Although
the employees could not rely on this statement in forming their belief that
Surbaugh had discharged them because they had no knowledge of it. we find
that Surbaugh's remarks to Shepherd evinced a clear ntent on his part to
discharge them if they continued in their work stoppage Thus. we further
find that Surbaugh's statements to Shepherd show that his statement to the
employees to work or lease the premise was meant by him as a discharge
ultimatum.
9 Our dissenting colleague's "puzzlement" over the result reached here
stems from her failure to weigh properly the relevant facts of this case in the
light of existing precedent. Thus, although our colleague acknowledges, as
indeed she must, that a discharge need not he effected by specific language to
be a discharge. she suggests that it is critical here that emplosees were not
told "to look for 'other employment' " words which. presumably. we would
all agree constitute a clear discharge. In much the same vein our colleague
calls attention to the fact that Respondent did not have emplosees' pay-
checks "already prepared and waiting ir them" on the morning of January
18 when this dispute occurred. From thiv, our olleague conclud s Respondent
could not have "rntended" to discharge e'mpi'vees that morning. rhe problem
with this line of reasoning is that it ignores both the Iact hat the entire
sequence of events that culminated in the meeting between (;General Manager
Surbaugh and the drivers tooIk place in at most an hour or two and the fact
that Surbaugh testified that there was nobod, aailable to sign the employ-
ees' checks hlore 8 a m. that morning Hence. inless our colleague sstumes
Respondent was gifted with prescience. it had no reason to hase the checks
"prepared and waiting" for the drivers that morning.
C()NCI t SIONS (1- LAA
I. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. By discharging the striking employees because
they engaged in protected activities for the purpose of
mutual aid and protection. Respondent has interfered
with, restrained and coerced its employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act, in violation of Section 8(a)( ) of the Act.
3. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
RiilM)Y
Having tound that Respondent has enaged in un-
fair labor practices within the meaning of Section
8(a)( 1 ) by discharging striking employees. we shall or-
der that it cease and desist ° therefrom and take cer-
tain affirmative action designed to effectuate the Act.
The General Counsel in its exceptions to the Ad-
ministrative Law Judge's Decision contends that Re-
spondent should be ordered to pay each of the unlaw-
fully discharged strikers backpay. The remedy sought
is limited solely to backpay on grounds that each of
the strikers was offered and declined reinstatement.
We agree with the General Counsel's contention that
the employees are entitled to backpay.
In Abilities rand Goodwill, Inc.. 241 NLRB 27
(1979). the Board determined that for the purpose of
computing backpay. unlawfully discharged strikers
are to be treated in the same manner as other discrim-
Our colleague is n no firmer ground in speculating that Respondent's
conduct in giving employees their paychecks was mere "common courless"
or in suggesting that there is no basis for concluding that Surbaugh's .ction
reflected other then his concern for "acting In a fair and decent manner." As
pointed out previously herein. Surbaugh had already announced to the dis-
patcher his slew that if the drivers engaged in a work stoppage they could go
someplace else and work. Although that statement was not communicated
directly to the drivers, we cannot ignore it as evidence of Surhaugh's inten-
tion. nor can we ignore the fact that. consistent with the intention to fire
employees reflected n the statement. Surhaugh gave emplsyees their pa?-
checks and had them clear out their personal effects.
Finally. our dissenting colleague's protestations to the contrary ntwith-
standing. we note that Halte .tfanu/lturlng ('o, upra, i directly on point
and supports the result reached here. Thus. in Hal. as in the instant case an
employer made ambiguous comments that emplosees could reasonabhl in-
terpret as terminating their employment. There. as here. an employee n-
quired about paychecks and the emploser failed it) clarit the situation In
such circumstances the Board reasoned that had the employer not consid-
ered that he had fired the employees he wuould surely have inquired as to
whether the employee intended to quit or "in some oither manner ascertained
the exact situation" 228 NI.RB at I We find the same reasoning applicable
here.
t Because the discharge it emplosees in reprisal tor engaging in protected
concerted activity strikes at the sery root it employee rights s.lleguarded hs
Sec 7 l the Act. we find that . broad order. requiring Respondent to cease
and desist rom Ilnfringing in any other manner iupon the rights gua.r.anterd
hb Sec 7 o the ct. is wvarranted I tlied tr , lIlls .lt l lllrits it,
223 NI RB 8'9 1971t
1049
)E(CISIONS OF NATIONAL. LABOR RELATIONS BOARD
inatorily discharged employees. Thus, no longer are
such strikers required to request reinstatement uncon-
ditionally in order to start the employer's backpay
obligations. Rather, such strikers are entitled to re-
ceive backpay from the date of their unlawful dis-
charge until an offer of reinstatement is made to
them.
On the basis of the foregoing, we find that the dis-
charged strikers are entitled to backpay from the date
of their unlawful discharge until the date of Respon-
dent's offers of reinstatement. Backpay shall be com-
puted with interest thereon in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651
(1977).1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
Ridgeway Trucking Company, Winter Garden, Flor-
ida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise disciplining employ-
ees because they engage in a protected strike, work
stoppage, or other concerted activity for their mutual
aid or protection.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make employees Kenneth Bryant, Andy Grif-
fin, and Coleman Peterson whole for any loss of earn-
ings which they may have suffered by virtue of the
discrimination against them by paying them an
amount equal to what they would have earned from
the date of their discharge to the date that they were
offered reinstatement. Such backpay is to be com-
puted in the manner set forth in the Remedy section
of this Decision.
(b) Post at its facility in Winter Garden, Florida,
copies of the attached notice marked "Appendix."' 2
Copies of said notice, on forms provided by the Re-
gional Director for Region 12, after being duly signed
by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
' See, generally, sis Plumbing & Healing (o. 138 NLRB 716 1962).
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States (Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director fr Region 12. in
writing, within 20 days from the date of' this Order
what steps Respondent has taken to comply herewith.
MEMBER MURPHY, dissenting:
Here my colleagues stretch the facts all out of rea-
son to conclude that when employees Kenneth Bry-
ant. Thomas Andrew Griffin, and Coleman Peterson
left Respondent's premises in continuation of a work
stoppage they were discharged. In agreement with the
Administrative Law Judge I find that these employ-
ees were not in fact discharged and therefore I con-
clude that Respondent did not violate Section 8(a)( 1)
of the Act.
The facts are as follows:
On Tuesday, January 18, 1977. Respondent's
truckdrivers refused to begin their scheduled duties
because of an alleged dispute over their wages. The
drivers insisted that they would not work until they
could discuss their concerns with a management offi-
cial. Upon his arrival at 5 o'clock that morning, Chief
Dispatcher Horace Shepherd learned of the drivers'
protest and unsuccessfully attempted to contact Re-
spondent's general manager, Kenneth Surbaugh.
Shepherd did, however, succeed in contacting Paul
Wolf, a partial owner of Respondent, who stated that
he would contact Surbaugh.
At or about 6 or 6:15 a.m. Respondent's service
manager, Harvey Cobb, arrived and the drivers de-
cided to talk to him about their problem. After listen-
ing to the drivers, Cobb told them "he would talk to
Surbaugh about it and see what he could do about it
.... " Some time between 6 and 6:30 a.m., Surbaugh
arrived at the plant and Shepherd informed him of
the problem. Surbaugh waited in the dispatch office
until about 7 a.m. for the drivers to report for work,
but when they did not he decided to go to Cobb's
office. In Cobb's office the drivers and Surbaugh con-
versed momentarily and Surbaugh returned to the
dispatch office. Cobb also left the office a short while
later.
The drivers then went to the garage area and stood
by the heater. Surbaugh later came to the area and
asked the drivers to return to work and if they'
"weren't going back to work . . . to leave the prem-
ises": otherwise he would call the authorities. There-
after, some five or six drivers returned to their trucks
and began their work. Of the drivers who did not.
some asked and were granted permission to remove
their personal belongings from the trucks. Also at
their request, some drivers were paid later that morn-
1050
RIDGEWAY RI(. KING (COMPANY
ing (this was Tuesday and the normal payday was
Friday).
My colleagues find that Surbaugh's statement to
the drivers that they must leave the work premises
unless they were going to work coupled with the fact
that he permitted them to remove personal belong-
ings and receive their paychecks early had the effect
of discharging Respondent's employees. I see no basis
for such a conclusion.
After it became apparent that the strikers did not
intend to work, Surbaugh requested that those drivers
who wished to work proceed to their trucks and those
who wanted to continue striking leave the premises.
Considering the situation confronting Surbaugh, he
had the legitimate right to ask those employees who
would choose to, and did, remain on strike to get off
the premises. An employer has the clear right to re-
move strikers from his property. He need not ask hut
can demand their removal as an exercise of that right.
Here, Surbaugh requested them to leave. He asked
nothing more than that and no larger meaning can be
inferred from such a straightforward request. He did
not tell them "to go home"" or to look for "other
employment"'4 both statements which, had they
been made to the strikers, would have cast a different
light on the matter. He simply asked them to leave.
Thus, there was nothing in his request to indicate to
them that they had been or were being discharged.
Rather his request was consistent not only with Re-
spondent's exercise of its property right but with its
desire to get on with its business as normally as it
could under the circumstances, while making plain to
3 See. e.g., Hale Manufacturing Co. supra The majority's reliance on that
case is misplaced Hale is inapposite. In that case nonstriking employees
were requesting a change in their wage payment plan. Respondent's response
was to tell them "there just is not anyway I am paying it; you are all going
to have to go home." In addition, an employee asked if the plant manager,
Godsey. needed 13 cents to mail his paycheck and Godsey replied "no I
think I can handle it." Statements of this type made to employees not en-
gaged in a work stoppage could only reasonably be viewed as a discharge.
Furthermore, it is clear that on other occasions when the respondent in Hale
sent employees home on layoff status. they were specifically told the reason
and when they should come back.
The instant case is readily distinguishable. The employees involved were
engaged in a strike, and Respondent merely asked them either to return to
work or, if they did not wish to do so. to leave the premises. Thus, Respon-
dent offered them an opportunity to go to work, a fact inconsistent with
discharge and. in the alternative, exercised its right to have striking employ-
ees off the premises should they choose to continue in their work stoppage.
' My colleagues note that before speaking to the employees Surbaugh
commented to the chief dispatcher that the strikers "could go someplace else
and work" if they did not want to go to work that day. The statement
obviously was made in a moment of frustration and pique It but reflected
Surbaugh's displeasure at being faced with a work stoppage a natural feel-
ing for any employer in the circumstances). However, it does not follow that
because he may have wished they went elsewhere to work he intended to
take steps to fulfill such a thought-or even really desired it. In any event, no
matter what the statement represented as to his feelings. Surbaugh never
expressed it to the strikers. Consequently, as my colleagues recognize, the
striking employees could not rely on it to form a belief as to their status.
Apparently, my colleagues attribute prescience to the employees with respect
to this comment; Surbaugh's intent is irrelevant unless communicated.
the strikers that they would not be allowed to conduct
their strike on the premises.'"
Nor do I believe that Surbaugh's subsequent con-
duct, in permitting the striking employees to collect
their personal effects and giving them their pity then
rather than on payday, tended in any way to indicate
to them that they were being terminated or that Sur-
baugh was treating them as other than strikers. In
both instances, Surbaugh acted in direct response to
their specific requests, which were subject to interpre-
tation by Surbaugh as voluntary quitting. In so ac-
comodating them, Surbaugh was simply acceding to
their wishes. And I fail to perceive how such conduct
reasonably could have been viewed by the strikers
any differently.
An employer's allowing any employee, striking or
nonstriking, to remove his personal belongings or
gear is an act of common courtesy. Only the most
callous and tyrannical of employers would act other-
wise: and there is no basis for so describing Respon-
dent or its agent, Surbaugh. Furthermore, for Sur-
baugh to have denied the strikers' permission to take
their possessions might very well have constituted tor-
tious conduct. After all, he had no proprietary inter-
est in the strikers' goods and the latter, as evidenced
by their requests, obviously wanted to have their
things with them, for whatever reasons, while the
strike lasted. Thus, how Surbaugh's acting in a fair
and decent manner in response to what might have
been considered job quits could have been construed
by the strikers as an indication of discharge, or how
my colleagues now can regard it as evidence of such,
escapes me.
As for Surbaugh's granting the strikers' request for
the pay they had already earned, it must have been
obvious to all concerned that payment at that time
was for the convenience and benefit of the strikers.' I
find it strange indeed therefore that Surbaugh's ac-
comodating this request could have been interpreted
by the strikers as an act of dismissal rather than as a
favor to them or in response to their voluntarily giv-
ing up their jobs. For much the same reason, I am
puzzled by my colleagues' viewing it as evidence that
the employees had been discharged.
'5 Certainly, the employees must have been aware that they had n right o
stay on the premises during their strike. This. too, must he taken into ac-
count in assessing the "reasonableness" of their claimed belief that they were
being discharged when told to leave. Surely. it weighs adversely to their
claim.
', Note that Surbaugh did not have their paychecks already prepared and
waiting for them. To the contrary, the checks had to be prepared and the
employees who wanted their pay then had to return later in the da. Cer-
tainly. these facts hardly support the argument that Surbaugh intended to
and did discharge them when he acceded to their request for early payment.
On the other hand. such facts are wholly supportable of the conclusion that
Surbaugh granted this request as a favor to the employees in their role as
strikers.
1051
)F'(ISI()NS OF NAlI()NAL IAB()R REIATIONS BOARI)
In view of the foregoing, I am at a loss to under-
stand the tortured logic which prompts my colleagues
to conclude that a combination of Surbaugh's re-
questing the striking employees to leave with his
granting them their two requests establishes that the
latter had reason to believe themselves to have been
discharged. 7 Each element of Surbaugh's dealings
with the strikers was consistent with the other and all
are consonant with the conclusion that he was treat-
ing them as striking or quitting employees rather than
terminated ones. In these circumstances, any ambigu-
ity created by the facts must he resolved against the
General Counsel, as he must sustain the complaint
allegations by a preponderance of the evidence. Since
it is clear, as I have shown above, that Surbaugh's
conduct should be, it' not must be, construed as law-
ful, the General Counsel has not carried his burden of
proof.
Accordingly, in agreement with the Administrative
Law Judge, I would find that the evidence is insuffi-
cient to establish that the employees were discharged
or that they were led to believe that to be the case,
and I would dismiss the complaint.i
a The majority seems to impls hat Surhbugh had a duty o tell the em-
ployees that they had not been discharged, because his conduct gave them
the impression that they were being terminated. As already discussed. there
is no support to the argument that Surhaugh's statements or actions were
ambiguous in the circumstances. Further, I see no basis for placing such a
duty on an employer where, as here. he meaning of his words was self'
evident.
is Furthermore, for the reasons set forth in Member Penello's and m)
dissent in Ahbilities and Goodwill, Inc., supra., een were I to agree with m)
colleagues as to the violation I would not agree with the backpay aspects ot
their order.
APPENDIX
NOTICI To EMPOYEES
POSTED BY ORDER OF THE
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discipline
our employees for engaging in a protected strike,
work stoppage, or other concerted activity for
their mutual aid or protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them under Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL make employees Kenneth Bryant,
Andy Griffin, and Coleman Peterson whole for
any loss of earnings which they may have suf-
fered as a result of our discrimination against
them, plus interest.
RIDGEWAY TRUI(KING COMPANY
E('lISI(ON
FRANK H. I IKIN, Administrative Iaw JIudge: An unfair
labor practice charge was tiled in this case on June 23 and a
complaint issued on July 25. 1'977. he hearing w~as co1n-
ducted before me in Orlando. lorida. n November 7,
1977. The principal issue presented is whether Responldelnl.
Ridgeway Trucking Company. terminated elmployees Ken-
neth ryLanil. Andy Griffin. and ('oleman Peterson hecause
they engaged in a protected work stoppage. in xiolatlion of
Section 8(a)( 1 of the National I.ahbor Relations Ac. as
amended. Upon the entire record, including ntis ohservation
of the witnesses, I make the following:
FINtIN S t) A I
Respondent, a Florida corporation, has its principal
place of business in Winter Ciarden. Florida. where it is
engaged in transporting building materials. The complaint
alleges. the answer admits, and I find and conclude Ihal
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (71 of the Act. Further. it is
undisputed that at all times material to this proceeding
Kenneth Surbaugh was general manager of Respondent:
Harvey Cobb was service manager: and Horace Shepherd
was chief dispatcher. I find and conclude, as stipulated, that
Surbaugh, Cobb, and Shepherd were agents of Respondent
acting on its behalf and supervisors within the meaning of
Section 2( I I ) of the Act.
Horace Shepherd testified that he was emplosed by Re-
spondent as chief dispatcher until July 1977: that on the
morning of Tuesday January 18. 1977. he arrived at the
Employer's facility about 5 a.m.: and that he then discov-
ered that "approximately half of our trucks were still in the
yard." Shepherd asked the night dispatcher. Glen Sewell.
"where [were] all the drivers, and [Sewell] said they were
outside the gate in one of the drivers' vans, that they
weren't going to work until thes talked to somebodVy."
Shepherd recalled: "Glen [Sewell just told me that the
drivers would not they didn't want to go to work until
they talked to someone about their pay." Shepherd then
attempted "to contact Mr. Surbaugh." Respondent's gen-
eral manager. However, Shepherd did not have Surbaugh's
telephone number, and instead, he telephoned Paul Wolft a
"part owner of the Company." Shepherd related to Wolf
"what Glen had told" him. Wolf in turn stated that he
"would call" Surbaugh.
Shepherd testified that General Manager Surbaugh ar-
rived at the Company's facility at about 6 or 6:30 a.m. that
day'. Shepherd then "told [Surbaugh] what Gilen [Sewelll
had told" him--"that the drivers wanted to talk to some-
body about their pay." According to Shepherd, "nothing
happened for about an hour": "we waited for the drivers to
come in and go to work . . . they never came in to go to
work": and "during that period . . . the drivers weren't on
the property. they were outside." Subsequently. Shepherd
was informed that the "drivers were in [Service Manager]
Harvey Cobb's office." Surbaugh then "got up and went
out to talk to them." About 10 minutes later, Surbaugh
returned to the dispatch office. Shepherd testified:
1052
RII)(;IWAY RUt('KIN ((OMI'ANY
"I Shepherd]l asked him [Surhaugh]. were they going
to work, and he said he didn't know: that if the3 didn't
want to go to work. they could go someplace else and
work."
Shepherd did not hear Surbaugh or any other person tell
the drivers that the3 were "discharged" or "lerminated.'
Employee ('oleman Peterson started \vorking for Re-
spondent as a "commission driver" during 1976. Peterson
testified that on TluesdaN, January IX:
I came to work as usual at three o'clock in the morn-
ing. I was approached by some of the drivers ... and
we came to the conclusion that we wouldn't work until
we talked to the supervisor of the Company, which was
Mr. Ken Surbaugh.
He wasn't in at the time, so we sat in the parking lot
until about approximately 6. 6: 15. and we in turn saw
Mr. Cobb coming across the parking lot, going into his
office. [Coworker] Bill L.ytle theni said that he and a
couple more of the drivers wanted to talk to Mr. Cobb.
because he was more understanding than Mr. Sur-
baugh was, and then, in turn. we all came into Mr.
Cobb's office.
According to Peterson. the drivers had decided not to work
that morning "because of the was we thought they were
paying us." Peterson explained: "We thought we was get-
ting paid 25 percent of a hundred dollars land] we only
found we was getting paid 20 percent . . . . We wanted to
talk to Mr. Surbaugh about it .... "
Peterson further testified that, during the meeting be-
tween Cobb and the drivers that morning, the drivers ex-
plained to Cobb "what kind of problem they ,were] having
with the Company." Cobb said "he would talk to Mr. Sur-
baugh about it and] see what he could do about it."' Later
about 7 a.m.. Surbaugh entered Cobb's office. As Peterson
testified, coworker Bill Lytle "wanted to talk to Surbaughl
about the problem we was having with the Company....
And, Mr. Surbaugh said he didn't want to talk to us unless
we talked individually, so he didn't." Peterson explained:
Bill Lytle then told Surbaugh] he still wanted to talk
to him as a group, as a whole. not as one by one....
[Surbaugh] refused to talk to us. He went back out
of the office.
Cobb then left his office and the driver's "went into the
garage land] stood there by the . . . heater." As Peterson
recalled:
Mr. Surbaugh came back up and askled] all the guys
that wanted to go to work to get in their trucks; those
that didn't want to go to work-they were fired.
He [Surbaugh] said those that didn't want to go to
work, get off his property, because he was [going to]
call the sheriff. One of the drivers then askied] him if
they could get their checks. He said we could come
back around 9 o'clock and pick them up.
iAccording to Peterson. there were about 16 drivers in Cobb's office that
morning. including coworkers Kenneth Bryant and Andy Griffin
Alter then, someone else askled] him . . . it the!
could get their equipment out of the trucks. IHe said.
when you get it out, get off the property.
The equipment included "('B radios" and other propert,
whicth the driers had left in the trucks.'
Fmployee Thomas Andrew Griffin testified that he tirst
started svorking t'or Respondent as a driver about 1975: that
he was laid off on Januar 8 1977: and that on Mlonda.
January 17. Chief D)ispatcher Shepherd notified Griffin that
"he wanted Griffin] to go back to work . G..." riffin testi-
fied:
I told him [Shepherd] that I couldn't make it Monda,
morning. I had some business to take care of. And. he
told me to come back in Tuesday [January 8IX atnd talk
to him about it.
Griffin explained that on Tuesda3 Januar's 18:
I got in just hefore da light .... And. I met two or
three of the other drivers, and they explained to me
about the problem of the pay. So. they asked me il I'd
wait around with them to talk to Mr. Surbaugh about
it .... I said I would.... [They] wanted to talk to
[Surbaughl about the percentage of the pa. hos we
was getting paid . . . if it was 25 percent of 90 percent
of the load.... We was only getting paid 25 percent ot
90 percent of the load linstead oil . 25 percent ol 1(H)
percent of the load.
Griffin recalled that "Mr. Cobb said that he would like to
talk to us first, for us to get the drivers. So. we went and got
the rest of the drivers and went into Mr. ('obb's office."
During this meeting with Cobb, the drivers related their
complaint, and Cobb "said that he would talk to Mr. Sur-
baugh." About this time, Surbaugh "walked in." Cobb then
stated: "... these drivers want to talk to you about their
pay." Cobb and Surbaugh "went outside and talked" and
the drivers "went outside to where the heater was and sat
around .... "
Later as Griffin further testified. Surbaugh approached
the drivers. stating: "Those that want to go to work, get in
your trucks and go ahead: and those that don't want to
work, get the hell out of here." One driver "asked ... about
his pay." Surbaugh assertedly responded: "You're fired.
now get your ass out of the gate .... You get paid at 8 or 9
. . . that morning." A driver asked about his "stuff in the
truck." Surbaugh responded: "Go get your stuff out of' the
trucks and get the hell out of here, get on out of the gate."
Griffin. however, acknowledged that his prehearing affida-
vit, which was given to a Board agent some three weeks
after the above incident, does not quote Surbaugh as stat-
ing, "You're fired." The affidavit, instead. quotes Surbaugh
as telling the drivers: "Your checks will be ready at 8 a.m.
Now get out of here or I'll call the sheriff .... " And the
subject of the "paychecks" was initiated by one of the driv-
ers.'
' According to Peterson. about five or six drivers went to work that morn-
ing.
Griffin noted that some 16 drivers attended this meeting
Griffin further claimed that later that day, when Surbaugh and a repre-
sentative from the sheriffs office spoke to the drivers at the gate. Surbaugh
again used the word "fired." Gnffin's affidavit also omits reference to the use
of this word
1053
I)[(('ISIONS Of' NAI'IONAL I. ABOR RI[.,A'IIO)NS B()OARI)
Joseph E-gan, the Charging arty here, testified that he is
an attorney with an office in Orlando:; that he first became
involved in the above matter "either the day of the incident
or the day after the incident ... "; that lie was "contacted''
by a driver of Respondent. Kenneth Schull, a client he had
"represented in the past": and that shortly thereafter Egan
met with about 10 or 12 drivers in his office at which time
they related their complaint to him.
Kenneth Surbaugh, general manager for Respondent,
testified that, when he arrived at the terminal about 6 a.m.
on Tuesday, January 18. "there were quite a iew trucks
parked in the yard that morning": that he "walked into the
dispatch office to find out why they were in the yard": that
Chief Dispatcher Shepherd "indicated that the people
hadn't arrived fr work yet" and "there was some of them
outside the gate in their cars"; and that Shepherd "didn't
know why" the drivers "hadn't reported for work yet." Sur-
baugh explained:
I stayed in the dispatch office until approximately 7
a.m., at which time the shop foreman [Harvey ('obb
arrived for duty. And. I noticed . . . that the drivers
weren't outside the gate anymore, so I walked back
through the shop area where his [Cobb'sl office wlas
located, and they were all gathered around his office
in his office.
* * . * *
I opened the door and asked them what they were
doing. And, one of the drivers said they were having a
meeting-and I don't know which one-at which point
I indicated, well, don't you think you should have a
meeting with me since I am the general manager? And,
they said-one of the drivers-and I don't know which
one stated, we're talking in here. With that, I turned
around and walked . . . to the dispatch office.
Surbaugh then informed Shepherd in the dispatch office
"that if they weren't going to work, they were going to have
to leave the property."
Surbaugh further testified that about 15 minutes later:
I walked back out in the shop area, and they [the driv-
ers] were all gathered around the little space heater...
which was for the mechanics in the shop. And, I again
at this point told them they had [the] opportunity to
get in their trucks to go to work; if they weren't going
to go to work, then I suggested they leave the premises;
if they didn't want to leave the premises, then I would
have no choice but to call the authorities, since they
weren't going to work, if they were not going to work.
Surbaugh claimed that he apprised the drivers that he
would "be glad to talk to them individually in [his] office
.... " He then walked back into the dispatch office. Further.
Surbaugh recalled that one or more drivers had "asked
when they would be paid." Friday is the "normal payday."
Surbaugh explained to the drivers "that they couldn't be
paid until somebody came in to sign their checks, if they
wanted to be paid." Surbaugh later "called the sheriffs de-
partment to send somebody out."
Herman White, employed by Respondent to change tires
and grease trucks in its garage, testified that on the "Tues-
day back i January 1977." when the above incident oc-
curred, Surbaugh "told them [the drivers] to either go to
work get the trucks and go to work or get off the ('om-
party property." White added: "I didn't hear him say an\-
hody was fired or discharged. I just heard him [tell] them to
get ol' the Coompan property. That wsas all.''
Wayne Price. employed by Respondent as a mechanic in
Respondent's garage, testified that during the above inci-
dent. "lie ISurbaugh] told them [the driversl to either go to
work or leave the ard." Price denied that Surbaugh told
the drivers that they were "fired" or "discharged."
Eugene Hudson, presently employed by Respondent as
its dispatcher, testified that he was working for the m-
ployer as a truckdriver on uesday January 18: that Sur-
haugh then told the drivers: "Either go to work or get off
the yard"; that the drivers "asked [Surhaughl about their
pay"' and that Surhaugh stated that "there will he someone
here at 8:30 or] 9 to sign" the paychecks. According to
Hudson, Surbaugh also gave an employee, or employees.
permission" to get their personal property from their
trucks. IHudson denied that Surbaugh told the drivers that
the, were "fired" or "discharged."
[)iscussion
The complaint alleges that Respondent discharged the
three named drivers (Bryant, Griffin, and Peterson) on the
morning of January 18 because they had engaged in a pro-
tected work stoppage. There were, as noted, some 16 drivers
who participated in this protest. Only two of the participat-
ing drivers. Griffin and Peterson, testified. They claim, in
effect, that General Manager Surbaugh told them, and the
other protesting employees who refused to return to work.
that they were "fired." On the other hand, General Man-
ager Surbaugh denies that he told the employees that they
were "fired." Instead, Surbaugh claims that he told the
drivers, "If they weren't going to go to work . .. leave the
premises .... " Garage employee White testified that Sur-
baugh "told [the drivers] to either go to work--get the
trucks and go to work or get off the Company property."
White did not "hear" Surbaugh "say anyone was fired or
discharged." Garage employee Price similarly testified that
Surbaugh "told them to either go to work or leave the yard"
and that the drivers were not told that they were "fired" or
"discharged." Dispatcher Hudson, then a driver, also testi-
fied that Surbaugh told the drivers to "either go to work or
get off the yard" and that the words "fired" or "discharged"
were not used.
In .L.R.B. v. Hilton Mobile Homes. 387 F.2d 7, 9 (8th
Cir. 1967), the court dealt with a similar issue, stating as
follows:
It is now conceded by [the employer] that the strike
was not unlawful. It contends, however, that it did not
discharge the employees on May 6th. but rather noti-
fied them that they would be replaced unless they re-
turned to work immediately. It contends it had a right
to do so as the employees were economic strikers who
could be replaced. Whether [the employer's state-
ments constituted an unlawful discharge depends on
whether they would reasonably lead the employees to
1054
RIDGEWAY TRUCKING COMPANY
believe that they had been discharged. '...R.B v.
Conm/or. Inc.. 365 F.2d 867. 875 (8th Cir. 1966):
N.L.R.B. v. Trunmbull A.sphalt (Comparn' of Delaware,
327 F.2d 841. 843 (8th Cir. 1964): N.L.R.B. . Central
Oki. Milk Producers Ass'n. 285 F.2d 495. 497 498
(10th Cir. 1960); N. L. R. B. v. (Cenlenl Mlasons Local No.
555, 225 F.2d 168. 172 (9th Cir. 1955).
The court, quoting from its prior decisions. noted that "an
employer cannot lawfully terminate the employment status
of economic strikers prior to the time they have been val-
idly replaced"; and "the fact that ... employees received no
formal notice of discharge, as was respondent's customary
practice, is immaterial, if they could logically infer that
their employment status had been terminated at that
point." The court concluded in Hilton Mobile flonle. su-
pra:
Here, as in Comfort supra], we find that the actions
and statements of Ithe employer], on May 6th, had the
intended effect of terminating the employment rela-
tionship of the striking employees. and was thus an
unlawful discharge.
Cf. Imperial Bedding Company, 216 NLRB 934 (1975). enfd.
519 F.2d 1073 (5th Cir. 1975). And, of course, it is the
General Counsel who must establish this violation by a pre-
ponderance of the evidence.
On the entire record in the instant case, I do not credit
the assertions of drivers Peterson and Griffin that General
Manager Surbaugh told them that they, and the other strik-
ing employees who refused to work, were "fired." Indeed, I
note that Griffin's prehearing affidavit does not quote Sur-
baugh as using this language. Further. I do not credit the
testimony of drivers Peterson and Griffin in support of their
contention that they, and the other drivers, were led to be-
lieve by management that they had been discharged. While
I recognize that this issue, on the record before me, is not
entirely free from doubt, I find and conclude here. as Sur-
baugh credibly testified, that the striking drivers were told.
"if they weren't going back to work . .. leave the premises
.... " Surbaugh's testimony in this respect is generally cor-
roborated hb the credible testimony of employees White
and Price and Dispatcher. then driver, Hudson. It is true. as
the witnesses testified. that some protesting drivers were
permitted to remove their personal propert 5 from their
trucks and were given their paychecks on the morning of
January 18. loweser. as the witnesses explained. this ac-
tion was initiated b3 and in response to specific requests h
drivers. And, the credible evidence of record does not, in
my view, afford a sufficient basis for finding that the strik-
ing drivers were reasonably led to believe from manage-
ment's statements or conduct that the) had been discharged
for engaging in a protected work stoppage.'
In sum. I find and conclude here that General (Counsel
has failed to prove bh a preponderance of the evidence that
the three employees named in the complaint ere dis-
charged or reasonablN led to believe that theN were dis-
charged because they. and the other drivers. had engaged in
protected concerted activities.
C()N( 1. S)ONS ()- .A\
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and 7) of the Act.
2. General Counsel has failed to establish bh a prepon-
derance of the evidence that Respondent violated Section
8(a)( I ) of the Act, as alleged.
3. The complaint will therefore be dismissed in its en-
tirety.
[Recommended Order for dismissal omitted from publi-
cation.]
I' note that former )ispatcher Shepherd credlibl recalled that. during the
above incident:
I Shepherdl asked him Surbaughl. were thee the drinersl going to
work, and he said he didn't know: that if he) didn't want to go to work.
theN could g sme place else Io work
Shepherd. however. explained that he did not hear anyione tell the driers
that they had been "discharged" or "terminated" Shepherd's testimon. as-
sessed in the context i1 the entire record. does not show. as General Counsel
claims, that Surbaugh in effect discharged the strikers because he5 were
engaging in protected concerted actisitics.
1055