Spencer Trucking Corp.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1444 (N.L.R.B. 1985)

1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spencer Trucking Corporation and Mark D. More-
land. Case 5-CA-15807
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 20 November 1984 Administrative Law
Judge 'Donald R. Holley issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel and Charg-
ing Party each filed responses to the Respondent's
exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Spencer Trucking Corporation, Keyser,
West Virginia, its officers, agents, successors, and
assigns , shall take the action set forth in the Order
as modified.
1.'Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way."
2. Substitute the attached notice for that of the
administrative law judge.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent also contends that some of the judge's findings evi-
denced bias against it After carefully considering the record and the at-
tached decision we reject these charges
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell employees who engage in
protected concerted work stoppages that they are
fired for engaging in such activity.
WE WILL NOT discharge, lay off, or otherwise
discriminate against employees because they
engage in an economic strike and/or other protect-
ed concerted activities for their mutual aid or pro-
tection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Thomas Glass, Jerry Leather-
man, Roger Mellon, and Robert Kesner immediate
and full reinstatement to their former positions or,
if those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against them in any way.
SPENCER TRUCKING CORPORATION
DECISION
STATEMENT OF THE CASE
DONALD R . HOLLEY, Administrative Law Judge
Upon an original charge filed on October 3 , 1983,' by
Mark Moreland , Esq., the Regional Director for Region
5 of the National Labor Relations Board (the Board)
issued a complaint on December 28 alleging , inter alia,
that about April 18 Spencer Trucking Corporation (Re-
spondent) violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by discharging employees
Thomas Glass, Robert Kesner, Jerry Leatherman , Steven
Meek, and Roger Mellon because they had concertedly
complained to Respondent regarding the wages, hours,
and working conditions of Respondent 's employees
and/or in order to discourage employees from engaging
in such activities or other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection . Respondent filed a timely answer denying it
had engaged in the unfair labor practices alleged in the
complaint.
The case was heard in Keyser , West Virginia, on
March 20 and 21, 1984 . At the commencement of the
hearing, the General Counsel was permitted to amend
the complaint to allege that Respondent engaged in inde-
pendent violations of Section 8 (a)(1) of the Act by telling
its employees on April 15 and 16 that they were dis-
charged , and to allege that employee Robert Kesner was
discharged on April 19 rather than April 18
Subsequent to the close of the hearing, the parties filed
briefs which have been carefully considered. On the
i All dates herein are 1983, unless otherwise indicated
274 NLRB No. 206
SPENCER TRUCKING CORP
entire record and from my observation of the demeanor
of the witnesses who appeared at the hearing , I make the
following
FINDINGS OF FACT
I JURISDICTION
Spencer Trucking Corporation , a West Virginia corpo-
ration, maintains an office and place of business in
Keyser , West Virginia, where it is engaged in the inter-
state and intrastate transportation of goods and materials.
During the 12-month period preceding the issuance of
the complaint , it received gross revenue in excess of
$50,000 for the interstate transportation of freight and
other commodities It is admitted , and I find, that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
I Background
Respondent is a closely held family operation which
employs approximately 30 truckdrivers The business is
divided into two segments , a dump truck operation and a
freight operation . Delbert Jack Spencer is in overall
charge of the business . He is assisted by John Spencer,
his son, James Bowman, his son -in-law, and Pete Cento-
fonti Bowman dispatches the drivers who haul freight in
closed vans and/or tractor -trailers, and Centofonti dis-
patches drivers who drive the dump trucks
Due, I would imagine, to the informality found in
family operations , both Delbert Spencer (herein called
Jack Spencer) and his son , John Spencer, exhibited con-
siderable uncertainty when asked to indicate who the of-
ficers and members of the board of directors of the cor-
poration were at the time the events at issue in this case
occurred , I e., during the period April 14-19, 1983 Cor-
porate minutes, which I consider to be the most reliable
evidence , reveal that in April 1983 Jack Spencer was the
president of the corporation , Shirley Spencer was the
vice president , and John Spencer was the secretary-treas-
urer 2 The board of directors of the corporation was
then composed of Jack Spencer , John Spencer, Shirley
Spencer, and Cindy Bowman . The latter named individ-
ual is Jack Spencer 's daughter She is the wife of dis-
patcher James Bowman
The record reveals that , prior to April 1983, Respond-
ent's drivers were paid 25 percent of the gross revenue
earned by their truck In June 1982, Respondent, like
many other users of petroleum products , was authorized
to add a surcharge to its rates to cover the additional ex-
pense it incurred due to fluctuations in fuel prices When
it initially added surcharge amounts to its customers'
bills, its drivers obtained , in effect , a pay raise as its
bookkeeper paid the drivers 25 percent of the surcharge
amounts as well as continuing to pay them 25 percent of
the basic rate or tariff for the hauling services provided
by Respondent In early April 1983, Respondent retained
2 See G C Exhs 5 and 6
14415
an accountant , and, acting on his advice , it decided to re-
frain thereafter from paying its drivers a percentage of
the surcharge amounts added to the customers ' bills. In-
stead, it paid them only 25 percent of the amount re-
ceived from customers , minus the surcharge This change
in remuneration received by Respondent 's drivers gave
rise to the situation at issue in the instant case
2 The April 14 meeting
The record reveals that within 2 weeks of the time
that Respondent ceased to pay its drivers a percentage of
the fuel surcharge amounts they were permitted -to pass
on to their customers , some 15 drivers met on April 14
at 9 p.m at a restaurant called the North Mountain
Truck Stop to discuss their wages 3 During the course of
the meeting , the drivers, after deciding they did not
desire union representation , agreed they would cease to
perform any further services for Respondent until it
acted upon a number of proposals which they formulated
during the meeting ,' and agreed that they did not want
any violence as they did not want anybody hurt or any
trucks destroyed . Drivers Thomas Glass , Steven Meek,
and Jerry Leatherman , the individuals who had been in-
strumental in causing the meeting to be held, were elect-
ed by the drivers attending to be their spokesmen
3. Respondent's policy on nondelivery of loads and
driver assignments on April 14
Through the testimony of Centofonti , Respondent,es-
tablished that, during 1982, in response to a customer
complaint about late deliveries , Respondent placed in the
pay envelopes of its employees a notice dated August 26,
1982, which stated (R. Exh 2):
ATTENTION DRIVERS
Effective Immediately [sic] all drivers who haul sand'
& freight will be monitored dailey [sic] as to has
[sic] picked up & delivered their loads, & those who
did not Any load missed without proper notifica-
tion to Jack, Jim, or Pete Will be terminated imme-
diatly [sic] from Spencer Trucking Corp.
After indicating that a number of drivers had been termi-
nated for violating the policy set forth in the above-de-
scribed memo, Centofonti indicated that on April 14 ^
number of the strikers had been dispatched to deliver
certain loads later that day or on the following day He
claimed that those who had been dispatched to deliver
sand or coal who failed to deliver because of their deci-
sion to strike were . Jr Parrish , Tom Glass, Leo Dove,
Bob Miller Jr, and Bob Miller Sr . Similarly, during his
testimony , Bowman , the freight dispatcher , indicated that
before the strike began on April 14 , he had dispatched
the following employees to deliver freight loads- Bob
Kesner , Roger Mellon , John Knapp, and Jerry Leather-
man. With respect to Leatherman , he indicated that he
3 See G C Exh 15
4 The proposals included payment for driving services od a mileage
basis , and provisions concerning insurance , loading and unloading fees,
vacations, and equal dispatch according to mileage See G C Exh 22
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was to make three delivery stops in the Boston, Massa-
chusetts area, and one was a "red hot" stop at a custom-
er who had indicated that it needed paper immediately if
it was to avoid shutting down its press Bowman indicat-
ed none of the loads mentioned were delivered
4. April 15 events
At 8 a m. on April 15, some 20 drivers employed by
Respondent met at the Chat & Chew Restaurant in
McCoole, Maryland, to further discuss their situation.5
Thereafter, they proceeded as a group to Respondent's
terminal.
On their arrival at Respondent's facility, the drivers
went to the office area and encountered James Bowman,
one of Respondent's dispatchers. Driver Glass credibly
testified that when the drivers walked in the door,
Bowman stated: "I know what you're here for, and
you're all fired." According to Glass, Bowman calmed
down somewhat after Glass observed that almost all the
Company's drivers were present, and the drivers indicat-
ed that they wanted to discuss their proposals with Jack
Spencer. After Bowman informed them Jack Spencer
was out of town, the drivers gave Bowman the paper
which contained their proposals. Bowman discussed the
various proposals with them and indicated that he would
present them to Jack Spencer when he returned and at-
tempted to cause Jack to meet with them the following
day.6
As the drivers were leaving the office, Bowman of-
fered Meek and driver Sam Ellifritz loads. The drivers
refused the loads, indicating they did not want to drive
until they had met with Jack Spencer. As Leatherman
was leaving the facility, dispatcher Pete Centofonti asked
if he could get some drivers together to deliver some
sand loads for him. After agreeing to try, Leatherman
went.to the Chat & Chew Restaurant and found some
drivers who were willing to deliver the sand. He tele-
phoned Respondent's facility and informed Bowman he
had some drivers who would take the load Centofonti
had offered, and Bowman told him to forget it; that they
were all fired.
The record reveals that Jack Spencer called the facili-
ty on April 15 and that Bowman informed him of the sit-
uation, recommending that the drivers who had been dis-
patched but had failed to deliver their loads before join-
ing the strike be fired. While Jack Spencer denied he ex-
pressly told Bowman to fire the drivers who had failed
to deliver loads, it is clear that his discussion with
Bowman gave the latter the impression that Jack agreed
with him. Consequently, during the afternoon of April
15, Bowman contacted 9 or 10 drivers who had been dis-
patched but had not delivered their loads, and told them
to return their bills and clean out their trucks.7 Among
S See G C Exh 16
8 Bowman indicated that the primary speakers for the drivers during
the meeting were Glass, Meek, Leatherman, Roger Mellon, and Robert
Kesner
' The "bills" are bills of lading drivers must possess to make a delivery
or to pick up a load
the drivers contacted by Bowman were Leatherman,
Meek, Glass, Kesner, and Ellifritz
During the late afternoon on April 15, Jack Spencer
and his son, John, both returned to the facility from out-
of-town locations. At approximately 6 30 p.m. they en-
countered Glass and Leatherman who were cleaning out
Glass' truck When the drivers informed Jack they had
been fired, he told them he had "a little say" about how
the Company was run and told them to be sure that they
and the other drivers were at the meeting which had
been scheduled for 12 noon the next day. Jack's son,
John, told Glass and Leatherman that no one was fired.8
4 April 16 events
At 12 noon on Saturday, April 16, virtually all of Re-
spondent's drivers attended a meeting held in the shop at
Respondent's facility. Respondent was represented at the
meeting by Jack Spencer, John Spencer, Bowman, and
Centofonti.
At the outset of the meeting, Jack Spencer indicated
to the drivers that as far as he was concerned the drivers
who had been dispatched but had not taken their loads
were fired.9 At that point, Meek informed Jack Spencer
if one was fired they were all fired, and shortly thereaf-
ter driver Roger Mellon indicated the drivers had decid-
ed to stay together and "if one is fired we're all fired."
Thereafter, John Spencer was given the drivers' list of
demands and he and his father left the room to discuss
them. When they returned, Jack informed them if they
would work under the then existing conditions during a
week's cooling off period, he would submit their de-
mands to his accountant to see what they could do He
or his son, John, expressly informed them that no one
was fired. The drivers agreed and the meeting ended.
5. The events of April 18 and 19
On the morning of April 18, Tom Glass, Jerry Leath-
erman , Steve Meek, and Roger Mellon reported to Re-
spondent's facility about 9 a.m , their usual reporting
time, to receive their load assignments Mellon went to
see Bowman shortly after he arrived to reaffirm whether
he still wanted him to deliver the load he had been as-
signed on April 14, which had not been delivered
Bowman told Mellon to check with Jack Spencer. On
leaving Bowman's office Mellon saw Jack Spencer and
asked him if he wanted him to deliver the aforemen-
tioned load. Jack Spencer told him to go ahead and de-
liver it. Mellon still had his bills so he simply left Re-
spondent's facility and returned home with the intention
of making the delivery that evening. Glass, Leatherman,
and Meek waited all morning at Respondent's facility to
receive an assignment to no avail . Shortly after Glass ar-
8 During the discussion , Jack Spencer expressed concern because
Leatherman had not delivered a load he had been dispatched to deliver
8 Glass and Leatherman indicated Spencer held up a list and said ev-
eryone on it was fired Meek, who I conclude was a reliable witness, re-
called that Spencer held up a list and stated that everyone on the list
who had not been called was fired Spencer, who admits he was ill and
confused that day, denied he had a list and denied he said anyone was
fired I credit the employees and find Meek accurately described what
happened
SPENCER TRUCKING CORP
rived, he attempted to find out from Pete Centofonti
whether he would be given an assignment since he was
not on the dispatch list that morning Centofonti ignored
Glass' inquiries. While attempting to get a response from
Centofonti, John Spencer came walking by Glass asked
John Spencer what was going on John told Glass that
he would have to see his dad
Glass, Leatherman, and Meek continued to wait until
about 12 noon when they saw Jack Spencer Leatherman
asked Jack if he wanted him to take out the load that
was originally assigned to him Glass and Meek also in-
quired about whether they would be getting assignments
as well. Jack told the three drivers that he could not tell
them anything until he had a meeting with his account-
ant around 2 that afternoon. The three drivers then went
out to lunch When they returned around 2 p m , they
found Mellon had returned to Respondent's facility.
Mellon informed the other three drivers that he had re-
ceived a call from Bowman after he returned home.
Bowman told him to bring his bills up and turn them in.
Mellon said Bowman told him the load was not going
out 10
The four drivers went to see Jack Spencer again after
he returned from lunch Meek and Leatherman asked
him what was going on and where they stood. Jack in-
formed the men that Respondent had decided to let some
of them sit for that week until Jack worked things out.
Mellon asked Jack why they were being singled out
from the other ones that did not pick up or deliver loads.
Jack responded by saying he did not know anything
about that. Glass attempted to go over the proposals the
drivers and Respondent had discussed on April 15 and
16 to make Jack aware that what they were seeking was
not very much and could actually save Respondent
money. Jack responded by telling the drivers that "if
they didn't want to drive the trucks for those wages he'd
get some other dummies that would." Glass and Leather-
man, in an attempt to clarify what Jack Spencer meant
by his remark, asked him whether he was saying that
they were fired, laid off, or something else. Jack re-
sponded by saying, "Yes, you're fired, laid off, whatever
you want to call it." Glass asked him again and Jack re-
peated his previous response. The four drivers then
walked outside to discuss what had just occurred. Meek
advised the others that if they were fired they should go
to the office and get a written confirmation stating why
they were fired to use when they went to apply for un-
employment
The four drivers then proceeded to Respondent's
office They informed the office clericals why they were
there and asked for some kind of written confirmation on
their status Two of the office clericals, Betty and Twila,
refused to have anything to do with it. The third cleri-
cal, Cindy Bowman, called Jack Spencer to get a confir-
mation and clarification on what she should do. After
talking briefly with her father, she typed up a termina-
tion slip and mimeographed it. She then filled in the
io Bowman in so many words admits he told Mellon to bring in his
bills and did not assign the other three drivers loads because of their
action on April 15 but he did give loads to two other drivers, Tom Klus-
terman and Carlos Powell , because they "were nowhere around" during
the drivers' concerted activity on April 15 and 16
1447
names of the four drivers and signed her name The slips
stated that Jack Spencer fired the named driver on April
18 for failure to deliver his load on time." Cindy
Bowman testified on cross-examination that she made up
extra termination slips for other drivers who participated
in the work stoppage and, as she put it, "was in on it "
She mentioned Bob Kesner specifically After receiving
their termination slips, the drivers proceeded to go
home. As they were leaving, they saw one of the other
drivers, Butch Parrell, coming in He informed them that
he was going to deliver the load Roger Mellon was told
to return his bills on.
At some point during the evening of April 18, Leath-
erman telephoned driver Robert Kesner to tell him that
he, Glass, and Mellon had been given slips saying they
were fired that day Kesner indicated that, as the drivers
had agreed earlier that if one of them was fired they
would all consider themselves to be fired, he went to Re-
spondent's office on Tuesday, April 19, and asked Cindy
Bowman for a slip which he could take to unemploy-
ment . Cindy put his name on one of the extra slips she
had prepared the previous day, but did not sign the slip
Instead , she instructed Kesner he would have to have
her daddy sign it . Kesner took the slip to Jack in the
shop. Kesner asked Jack to sign the slip since he was
fired. Jack asked Kesner if that was what he really
wanted. Kesner said no Jack then told Kesner that no
one was really fired and that he and his accountant had
decided to "leave everybody sitting for a week " After
Jack made his comments , Kesner left. The slip he had
obtained from Cindy Bowman was not signed by Jack
and Kesner left without it.
6. Post-April 19 events
On April 19, Respondent notified drivers Glass, Meek,
Leatherman, and Mellon by letter that, since they were
no longer employed by Spencer Trucking Corporation,
their insurance through Connecticut General and Coloni-
al Life had been canceled as of April 18 12
After leaving Respondent's employ, each of the al-
leged discriminatees filed a claim for unemployment
compensation with the West Virginia Department of
Employment Security. On April 27, in response to such
claims, Respondent notified the above-named agency
that each of the alleged discriminatees had been "dis-
missed because he failed to do his job "13 Such responses
noted that Glass, Meek, Leatherman, and Mellon were
told the reason for their terminations The response to
Kesner's claim indicated he was told the reason for his
dismissal, but not in writing.
During his testimony, Jack Spencer indicated that at
some unstated time subsequent to April 18, 1983, Leath-
erman accepted a driving position with an owner-opera-
l i See G C Exhs 17, 10, 13, and 25 Cindy Bowman testified that the
employees told her what to put on the slips I credit the employees who
claim she obtained the information from Jack Spencer
12 Kesner testified, without contradiction , that he received a letter
from Respondent on Wednesday or Thursday following April 19 which
was like the insurance cancellation letter received by the other alleged
discriminatees
is See G C Exhs 29, 30, 31, 32, and 33
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor who hauls for Respondent and others While the
record reveals that Respondent, pursuant to an agree-
ment with the owner of the equipment, paid Leatherman
directly for driving performed for Respondent, Leather-
man indicated no deductions for social security or
income tax were taken from amounts due him.
Analysis and Conclusions
The complaint in this case, as amended at the hearing,
alleges that Respondent violated Section 8(a)(1) of the
Act. (1) by telling employees they were discharged on
April 15, 1983, and April 16, 1983, (2) by discharging
employees Thomas Glass, Jerry Leatherman, and Roger
Mellon on April 18, 1983,14 and (3) by discharging
Robert Kesner about April 19, 1983. In his brief, the
General Counsel requests for the first time, that she be
permitted to further amend the Complaint to allege that
Respondent engaged in independent violation of Section
8(a)(1) on April 18, 1983, by instructing Roger Mellon to
bring in his bills because of his participation in protected
concerted activity Noting that Respondent was not
placed on notice during the course of the hearing that
the General Counsel was contending that it had violated
the Act by telling Mellon to bring in his bills on April
18, 1983, and, consequently, it did not specifically ad-
dress that matter when presenting its defense or in its
posthearing brief, I deny the General Counsel's motion
to amend the Complaint further at this stage of the pro-
ceeding. The remaining allegations are discussed below
Uncontroverted record evidence reveals that after
learning that the drivers had met on the night of April
14 and had decided to refuse to drive until certain wage
and other demands were met, Respondent's dispatcher
Bowman told them when they appeared at Respondent's
office on the morning of April 15 that he knew why
they were there and. they were fired. It is likewise undis-
puted that after discussion with Respondent's president,
Jack Spencer, Bowman telephoned 9 or 10 drivers, who
had been dispatched prior to the work stoppage but had
failed to deliver their assigned loads, and told them to
return their bills and clean out their trucks. Finally, the
evidence which I credit reveals that Jack Spencer stated
to the assembled drivers at the outset of the April 16
meeting that all drivers whose names were on a list he
was displaying who had not been called were fired
Although the record reveals that Respondent informed
all of its drivers that no one was fired during the course
of the April 16 meeting, I find that the record compels a
conclusion that Bowman and Spencer repeatedly told
Respondent's drivers they were fired on April 15 and 16,
1983, because the drivers had refused to work until Re-
spondent met with them to remedy their complaints con-
cerning their wages and other terms and conditions of
employment.
Respondent contends it is not responsible for Bow-
man's conduct as he is not a supervisor in the statutory
sense, and it claims that no violation should be found, in
any event, because by participating in a work stoppage
14 As noted, supra, the complaint originally alleged that driver Steven
Meek was discharged in violation of Sec 8(a)(l) At Meek's request, his
name was removed from the complaint
the drivers engaged in unprotected activity I find both
contentions to be without merit
The record reveals that Bowman is the son-in-law of
Respondent's owner, Jack Spencer He is married to
Spencer's daughter, Cindy, who is admittedly an officer
of the corporation He carries the title of dispatcher and
is responsible for dispatching Respondent's drivers who
haul freight and for testing drivers and certifying them.
He indicated during his testimony that when dispatching
approximately 15 drivers who haul freight, he is respon-
sible for assuring that the drivers are scheduled out on
time, he decides which driver will haul any given load,
and he decides how much expense money each driver
will be given Bowman admitted he fired a driver in 1982
for driving while intoxicated, that he fired another in
1982 when he found liquor in his truck, and that he fired
one Frank Starky in 1983 for insubordination.15 Finally,
the record reveals that he is the family member who is in
charge of Respondent's operation when Jack Spencer
and his son John are absent
Noting that the record reveals that Respondent's driv-
ers are paid a percentage of the gross revenue earned by
their trucks, it is clear that Bowman, in effect, decides
how much Respondent's freight drivers will earn as he
determines their assignment In the absence of evidence
which would reveal he is required to consult with others
before determining driver assignments or the amounts of
expense money they will be given, I find he exercises in-
dependent judgment when performing his dispatcher
functions and he is a supervisor within the meaning of
Section 2(11) of the Act. In the absence of such a find-
ing, I would nevertheless find that Respondent was re-
sponsible for his April 15 actions as he was in charge of
the terminal on April 15 and, thus, occupied a position of
apparent authority Hanover Concrete Co., 241 NLRB
936, 938, 939 (1979)
In support of the contention that the drivers engaged
in a unprotected work stoppage, Respondent notes that 9
or 10 of the drivers who participated in the strike, in-
cluding Glass, Mellon, Kesner, and Leatherman, had
been dispatched to deliver loads prior to the strike and
all had, by failing to notify the Company of their inten-
tion to strike, indicated that an object of their strike was
to disrupt the Company's business and to strong-arm it
into accepting their demands. With respect to Leather-
man, in particular, Respondent notes that Bowman indi-
cated that Leatherman's failure to deliver a "red hot"
load to a Massachusetts customer had caused the custom-
er to temporarily shut down his business 16
15 Bowman testified he obtained Jack Spencer's approval before he ef-
fectuated the discharges described
16 While Respondent sought, through the testimony of Steve Miller, to
show that threats were used to cause several drivers to participate in the
work stoppage, Respondent does not argue in its brief that Miller's testi-
mony justifies a conclusion that the drivers' participation in a work stop-
page was unprotected In brief, Miller testified his brother told him that
some unidentified person had threatened to damage his father's truck if
he operated it during the strike, and he testified that he was in Steve
Meek's home on April 14 and heard Meek state that he would retaliate
against driver Junior Scaggs, who refused to attend the April 14 meeting,
by calling Scagg's wife after he went out and telling her Scaggs had been
injured in an accident I accord no weight to the described Miller testi-
Continued
SPENCER TRUCKING CORP
Noting that it had informed its drivers on August 26,
1982, that their failure to pick up or deliver loads, in the
absence of proper notification to Jack, Jim, or Pete,
would subject them to immediate termination, Respond-
ent claims it was lawfully entitled to punish Glass,
Mellon, Kesner, and Leatherman because they engaged
in a strike and refused during the work stoppage to de-
liver loads they had been dispatched to deliver prior to
the work stoppage It claims that the work stoppage was
unprotected because employees implemented it in a
manner designed to harm its business.
While the Board and the Courts have held that con-
certed activity may be held to be unprotected when the
objective of the activity contravenes the basic policies of
the Act or the provisions of a related federal statute,17
or the means utilized involved major violence or miscon-
duct,18 or are otherwise plainly "indefensible" by all rec-
ognized standards of conduct,19 such is not the case
here Patently, the employees involved in this case com-
menced a lawful economic strike against their employer
on April 14, 1983. In such situations, employees are not
obligated to give their employer advance notice of their
intention to strike Washington Aluminum Co, 370 U.S 9
(1962) Moreover, the fact that an employer may lose
money or business because employees engage in such
action does not permit the employer to retaliate against
employees because they engage in such activity Indeed,
the normal object of an economic strike is to subject the
employer of the employees involved to adverse econom-
ic consequences to cause it to grant the economic de-
mands made by striking employees.
In sum, I find that Respondent has failed to show that
the work stoppage engaged in by its drivers, including
Glass, Mellon, Leatherman, and Kesner was unprotected
mony because the testimony concerning his father is obviously double
hearsay, and I credit Meek 's claim that Steve Miller was not in his home
on April 14, and his denial that he made the comments attributed to him
by Steve Miller
17 American News Co, 55 NLRB 1302 (1944) (strike to compel wage
increase in violation of Wage Stablization Act), Thompson Products, 70
NLRB (1946), vacated 72 NLRB 886 (1947) (strike to compel employer
to violate Board certification ), NLRB v Brashear Freight Lines, 119 F 2d
379 (8th Cir 1942) (strike to compel employer to recognize minority
union ), Hoover Co v NLRB, 191 F 2d 380, 385-389 (6th Cir 1951) (boy-
cott to compel employer to recognize one union while representation pe-
tition filed by another union was pending before the Board ), America
Rubber Products Corp v NLRB, 214 F 2d 24, 27, 50-52 (7th Cir 1954)
(strike to compel wage increase which would have violated W S B regu-
lations)
la NLRB v Fansteel Metallurgical Corp, 306 U S 240 (1939) (unlawful
seizure of employer's property), Southern Steamship Co v NLRB, 316
U S 31 (1942) ( strike which constituted mutiny under Criminal Code),
Victor Products Corp v NLRB, 208 F 2d 834 (D C Cir 1953) (forcibly
barring ingress to plant ), Hart Cotton Mills, 91 NLRB 728 ( 1950) (assault
with deadly weapon), Old Town Shoe Co, 91 NLRB 240 ( 1950) (breaking
windows in nonstriker 's home)
is Underwood Machinery Co. 74 NLRB 1641, 646-647 (1947), Elk
Lumber Co, 91 NLRB 333 (1950), and Farber Bros, Inc, 94 NLRB 748
(1951) (slowdowns), NLRB v Sands Mfg Co, 306 U S 332 (1939), and
W L Mead, Inc, 113 NLRB 1040 (1955) (strikes in breach of collective-
bargaining agreement ), .NLRB v Electrical Workers Local IBEW 1229,
346 U S 464 (1953) (showing unnecessary disloyalty to employer through
published attack on employer's product), NLRB v Reynolds & Manley
Lumber Co, 212 F 2d 155 (5th Cir 1954) (walking off jobs in such
manner as to create dangerous situation ), Carnegie-Illinois Steel Corp, 84
NLRB 851 (1949), affd 181 F 2d 652 (7th Cir 1950), and US Steel Co v
NLRB, 196 F 2d 459 (7th Cir 1952) (walking out without taking ade-
quate steps to protect plant)
1449
As the record clearly reveals that Jack Spencer original-
ly announced that he was going to punish alleged discri-
minatees Glass, Mellon, and Leatherman for refusing to
deliver loads during the work stoppage by keeping them
in a week , and it reveals he changed his mind and termi-
nated them when they requested paperwork to document
the reason for his refusal to permit them to work, I find
that Glass, Mellon, and Leatherman were terminated in
violation of Section 8(a)(1) of the Act as alleged.
Remaining for resolution is Respondent 's claim that
Kesner quit his employment on April 19. As revealed,
supra, Kesner obtained a pink slip from Cindy Bowman
on April 19 and went to Jack Spencer and asked him to
sign it since he was fired Spencer refused to sign the slip
and informed Kesner he had not fired anyone, he had de-
cided to let everyone sit for a week Kesner said,
"[F]ine" and left . A day or two later Respondent advised
Kesner by letter that his insurance had been canceled, ef-
fective April 18, "since you are no longer an employee
of Spencer Trucking Corp." Although he had been in-
formed by Spencer he and the others were, in effect, laid
off for the week of April 18, Kesner did not return to
the Company to resume work at the beginning of the
next week . Subsequently , by correspondence dated April
27, 1983, Respondent notified the West Virginia Depart-
ment of Employment Security that Robert Kesner had
been discharged on April 18, 1983 "because he failed to
do his job "
The record clearly reveals that Kesner requested his
pink slip on April 19 because he and the drivers involved
in the work stoppage during the period extending from
April 14 to April 16 had agreed that if any of them got
fired , they would all consider themselves to be fired. I
am fully convinced that Spencer was aware on April 19
that Kesner was requesting that he be given a pink slip
because of the described agreement among the drivers,
and because he desired to support the four drivers termi-
nated the previous day.
In Meyers Industries, 268 NLRB 493 (1984), the Board
indicated employee activity is concerted when it is "en-
gaged in with or on the authority of other employees,
and not solely by and on behalf of the employee him-
self " Additionally , it has held that when a single em-
ployee walks off the job in apparent continuation of a
concerted protest, that action is protected because it in-
volves a group concern. Ontario Knife Co., 247 NLRB
1288, 1289. See also JMC Transport, 272 NLRB 545
(1984).
Applying the foregoing to the Kesner situation, I find
that while Kesner was the only employee who walked
off the job on Apr i l 19, he engaged in such activity pur-
suant to the agreement reached between Respondent's
drivers on April 14 and 15 , which was clearly communi-
cated to Respondent on April 16 . It is clear he walked
off to join cause with Meek , Glass, Leatherman, and
Mellon . In my view . Kesner walked off "on the author-
ity" of his fellow drivers who had been fired and the
action he took was "in apparent continuation of a con-
certed protest" engaged in by practically all of Respond-
ent's drivers during the period extending from April 14
to April 16, 1983. Since he was discharged for walking
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off, I find, as alleged, that by terminating him for engag-
ing in protected concerted activity, Respondent violated
Section 8(a)(1) of the Act as alleged.
Having found that Respondent's employees were en-
gaged in protected concerted activity during the period
April 11-16, 1983, I further find that Respondent,
through the April 15 and 16 actions of Bowman and
Spencer, engaged in independent violation of Section
8(a)(1) as alleged by telling its drivers they were fired
because they had engaged in such activity.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 Respondent violated Section 8(a)(1) of the Act on
April 15 and 16, 1983, by telling drivers who had en-
gaged in a protected work stoppage that they were fired.
3 Respondent violated Section 8(a)(1) of the Act by
discharging employees Thomas Glass, Jerry Leatherman,
Roger Mellon, and Robert Kesner because they engaged
in an economic strike and/or engaged in other protected
concerted activities for their mutual aid or protection
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act, I shall recommend that it cease and desist from
engaging in such unfair labor practices and take certain
affirmative action designed to effectuate the policies of
the Act
Respondent will be required to offer Thomas Glass,
Jerry Leatherman, Roger Mellon, and Robert Kesner im-
mediate reinstatement to their former positions of em-
ployment or, if such positions no longer exist, to substan-
tially equivalent positions of employment without preju-
dice to their seniority or other rights and privileges. I
shall further recommend that Respondent make whole
each of said employees for any economic loss he may
have suffered by reason of the unlawful discharge, with
backpay to be computed on a quarterly basis, and inter-
est thereon to be computed in the manner prescribed in
F. W. Woolworth Co, 90 NLRB 289 (1950), and Florida
Steel Corp, 231 NLRB 651 (1977).20
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
20 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
21 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
ORDER
The Respondent, Spencer Trucking Corporation,
Keyser, West Virginia, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Telling employees who engage in protected con-
certed work stoppages that they are fired for engaging in
such activity
(b) Discharging, laying off, or otherwise discriminating
against employees because they engage in an economic
strike and/or other protected concerted activities for
their mutual aid or protection
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Thomas Glass, Jerry Leatherman, Roger
Mellon, and Robert Kesner immediate and full reinstate-
ment to their former positions of employment or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, and make them whole for the losses they
may have suffered by reason of Respondent's discrimina-
tion against them as set forth in the remedy section of
this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its place of business in Keyser, West Vir-
ginia, copies of the attached notice marked "Appen-
dix."22 Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material
(d) Notify the Regional Director for Region 5 in writ-
ing within 20 days from the date of this Order what
steps the Respondent has taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses
22 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "