King Trucking Company

KING TRUCKING COMPANY 725 King Trucking Company and James Morgan and ORDER Ernest Centers. Cases 9-CA-15335 and 9-CA- Er t Cente.15462 - ad 9 - Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- December 16, 1981 lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- DECISION AND ORDER fled below, and hereby orders that the Respondent, BY MEMBERS FANNING, JENKINS, AND King Trucking Company, Burlington, Kentucky, ZIMMERMAN shall take the action set forth in said recommended Order, as so modified: On May 11, 1981, Administrative Law Judge 1. Substitute the following paragraph for para- James P. Timony issued the attached Decision in graphs l(a) and (b): this proceeding. Thereafter, Respondent and the "(a) Discharging or otherise discouraging em- General Counsel filed exceptions and supporting ployees for their support of Truckdrivers, Chauf- briefs. feurs and Helpers, Local Union No. 100, an affili- Pursuant to the provisions of Section 3(b) of the ate of the International Brotherhood of Teamsters, National Labor Relations Act, as amended, the Na- Chauffeurs, Warehousemen and Helpers of Amer- tional Labor Relations Board has delegated its au- ica, or any other labor organization of its employ- thority in this proceeding to a three-member panel. ees, by discriminating against them for engaging in The Board has considered the record and the at- protected union activity tached Decision in light of the exceptions and 2. Insert the following as new paragraph l(b): briefs and has decided to affirm the rulings, find- (b) Assaulting employees in violation of Section ings,' and conclusions2 of the Administrative Law 8(a)(1) of the Act because they have engaged in Judge and to adopt his recommended Order, as union act modified herein. 3 union activity." 3. Substitute the attached notice for that of the Respondent and the General Counsel have excepted to certain credi- Administrative Law Judge. bility findings made by the Administrative Law Judge. It is the Board's established respect to credibility unless the clear preponderance of all of violated Sec. 8(aXl) of the Act and we shall amend the Administrative the relevant evidence convinces us that the resolutions are incorrect. Law Judge's recommended Order and notice accordingly. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no AON basis for reversing his findings. APPENDIX We agree with the Administrative Law Judge's findings that James Morgan was not discharged. In so doing we disavow the Administrative NOTICE To EMPLOYEES Law Judge's conclusion that Morgan was not an employee of Respond- P T OR R T ent. Morgan was a part-time employee who had worked for Respondent POSTED BY ORDER OF THE in the past. The established practice was for Morgan, because of a corm- NATIONAL LABOR RELATIONS BOARD munication problem, to contact Respondent when he needed work. On A Agency of the United States Government March 26 Morgan contacted Respondent and was assigned a route. While fueling his truck at the truck stop, he met the other drivers who were discussing the Swigert incident, and decided to return to the com- After a hearing at which all sides had an opportu- pany yard with them to discuss the matter with Respondent's president, King. This meeting lasted several hours and at its conclusion the drivers nity to present evidence and state their positions, decided it was too late to begin their routes. When Morgan informed the National Labor Relations Board found that we King that he was not going out on his route, King requested the truck have violated the National Labor Relations Act, as keys. Morgan asked if he was going to be fired and King replied, "no." Morgan never contacted King after March 26. For that reason the Ad- amended, and has ordered us to post this notice. ministrative Law Judge found that Morgan was not discharged but rather voluntarily discontinued the established employment arrangement. We The Act gives employees the following rights: agree. ' We adopt the Administrative Law Judge's finding based on credibil. To engage in self-organization ity that Respondent by Meade King did not threaten plant closure when To form, join, or assist any union he talked to Otis Mefford during the organizational campaign. We there- To bargain collectively through repre- fore find it unnecessary to decide Meade King's status with Respondent. Under the section entitled "Discussion" the Administrative Law Judge sentatives of their own choice apparently buttressed his finding that Respondent was hostile to the To engage in activities together for the Union with an incident which took place between Combs and driver Jim. Hudson. Although we adopt the Administrative Law Judge's finding that purpose of collective bargaining or other Combs discharged Swigert for antiunion purposes, we disavow any infer- mutual aid or protection ence drawn from the incident in which Combs excluded Hudson from To refrain from the exercise of any or all the "shop." ' The complaint alleged that Respondent, by Supervisor Combs, violat- such activities. ed Sec. 8(aXI) of the Act by assaulting employee Swigert during an un- lawful discharge. Although the Administrative Law Judge found that WE WILL NOT discharge or otherwise dis- Swigert was assaulted, he failed to make a finding as to whether such courage employees for their support of Truck- conduct violated Sec. 8(aXI) of the Act. The General Counsel excepts to drivers Chauffeurs and Helpers Local Union this omission. We find that Combs' assault of Swigert, in the context of and related to his unlawful discharge and because of his union activity, No. 100, an affiliate of the International Broth- 259 NLRB No. 79 KING TRUCKING COMPANY 725 King Trucking Company and James Morgan and ORDER Ernest Centers. Cases 9-CA-15335 and 9-CA- 15462 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- December 16, 1981 lations Board adopts as its Order the recommended DECISION/tK ANDT^ ORDERT COOrder of the Administrative Law Judge, as modi- DECISION AND ORDER ffed below, and hereby orders that the Respondent, BY MEMBERS FANNING, JENKINS, AND King Trucking Company, Burlington, Kentucky, ZIMMERMAN shall take the action set forth in said recommended On. May 1981 AdministrativeOrder, as so modified: On May 11, 1981, Administrative Law Judge i1 Substitute the following paragraph for para- James P. Timony issued the attached Decision in graphs l(a) and (b): this proceeding. Thereafter, Respondent and the "(a) Discharging or otherwise discouraging em- General Counsel filed exceptions and supporting ployees for their support of Truckdrivers, Chauf- briefs. feurs and Helpers, Local Union No. 100, an affili- Pursuant to the provisions of Section 3(b) of the ate of the International Brotherhood of Teamsters, National Labor Relations Act, as amended, the Na- Chauffeurs, Warehousemen and Helpers of Amer- tional Labor Relations Board has delegated its au- ica, or any other labor organization of its employ- thority in this proceeding to a three-member panel. ees, by discriminating against them for engaging in The Board has considered the record and the at- p e u a, tached Decision in light of the exceptions and 2. Insert the following as new paragraph l(b): briefs and has decided to affirm the rulings, find- - Assaulting employees in violation of Section ings,' and conclusions2 of the Administrative Law 8(a)(1) of the Act because they have engaged in Judge and to adopt his recommended Order, as ' * „-„,„.„ modified herein 3union aiviy. 3. Substitute the attached notice for that of the Respondent and the General Counsel have excepted to certain credi- Administrative Law Judge. bility findings made by the Administrative Law Judge. It is the Board's established respect to credibility unless the clear preponderance of all of violated Sec. 8(a)(l) of the Act and we shall amend the Administrative the relevant evidence convinces us that the resolutions are incorrect. Law Judge's recommended Order and notice accordingly. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. APPENDIX We agree with the Administrative Law Judge's findings that James Morgan was not discharged. In so doing we disavow the Administrative NOTICE TO EMPLOYEES Law Judge's conclusion that Morgan was not an employee of Respond-PncTcn nv OnnpB rF TMR ent. Morgan was a part-time employee who had worked for RespondentrPSTED B ORDER OF THE in the past. The established practice was for Morgan, because of a com- NATIONAL LABOR RELATIONS BOARD munication problem, to contact Respondent when he needed work. On Agency of the United States Government March 26 Morgan contacted Respondent and was assigned a route. A While fueling his truck at the truck stop, he met the other drivers who were discussing the Swigert incident, and decided to return to the com- After a hearing at which all sides had an opportu- pany yard with them to discuss the matter with Respondent's president, , , .. i . .. .1. * _ *.* King. This meeting lasted several hours and at its conclusion the drivers nity to Present evidence and State their positions, decided it was too late to begin their routes. When Morgan informed the National Labor Relations Board found that we King that he was not going out on his route, King requested the truck have violated the National Labor Relations Act, as keys. Morgan asked if he was going to be fired and King replied, "no." Morgan never contacted King after March 26. For that reason the Ad- amended, and has Ordered us to post this notice. ministrative Law Judge found that Morgan was not discharged but rather . , , ., ^ 11 * * i.. voluntarily discontinued the established employment arrangement. WeThe Act gives employees the following rghts: agree. T naei efognzto 'IWe adopt the Administrative Law Judge's finding based on credibil- T o engage in Self-organization ity that Respondent by Meade King did not threaten plant closure when To form, join, Or assist any Union he talked to Otis Mefford during the organizational campaign. We there-To harpain cnllertiveiv thrnnfh renre- fore find it unnecessary to decide Meade King's status with Respondent. ° bargain colecively through repre Under the section entitled "Discussion" the Administrative Law Judge sentatives of their own choice apparently buttressed his finding that Respondent was hostile to the To engage in activities together for the Union with an incident which took place between Combs and driver Jim „ .. , * * ., Hudson. Although we adopt the Administrative Law Judge's Finding thatpurpose of Collective bargaining Or Other Combs discharged Swigert for antiunion purposes, we disavow any infer- mutual aid Or protection ence drawn from the incident in which Combs excluded Hudson from To refrain from the exercise of any or all the "shop."n.. I The complaint alleged that Respondent, by Supervisor Combs, violat- such activities. ed Sec. 8(aXl) of the Act by assaulting employee Swigert during an un- lawful discharge. Although the Administrative Law Judge found that WE WILL NOT discharge Or Otherwise dis- Swigert was assaulted, he failed to make a finding as to whether such courage employees for their support Of Truck- conduct violated Sec. 8(aXl) of the Act. The General Counsel excepts to * _ ai..er -„ ul_-- T .^l IT - this omission. We find that Combs' assault of Swigert, in the context ofdrivers, Chauffeurs and Helpers, Local Union and related to his unlawful discharge and because of his union activity, No. 100, an affiliate of the International Broth- 259 NLRB No. 79 KING TRUCKING COMPANY 725 King Trucking Company and James Morgan and ORDER Ernest Centers. Cases 9-CA-15335 and 9-CA- 15462 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- December 16, 1981 lations Board adopts as its Order the recommended DECISION/tK ANDT^ ORDERT COOrder of the Administrative Law Judge, as modi- DECISION AND ORDER ffed below, and hereby orders that the Respondent, BY MEMBERS FANNING, JENKINS, AND King Trucking Company, Burlington, Kentucky, ZIMMERMAN shall take the action set forth in said recommended On. May 1981 AdministrativeOrder, as so modified: On May 11, 1981, Administrative Law Judge i1 Substitute the following paragraph for para- James P. Timony issued the attached Decision in graphs l(a) and (b): this proceeding. Thereafter, Respondent and the "(a) Discharging or otherwise discouraging em- General Counsel filed exceptions and supporting ployees for their support of Truckdrivers, Chauf- briefs. feurs and Helpers, Local Union No. 100, an affili- Pursuant to the provisions of Section 3(b) of the ate of the International Brotherhood of Teamsters, National Labor Relations Act, as amended, the Na- Chauffeurs, Warehousemen and Helpers of Amer- tional Labor Relations Board has delegated its au- ica, or any other labor organization of its employ- thority in this proceeding to a three-member panel. ees, by discriminating against them for engaging in The Board has considered the record and the at- p e u a, tached Decision in light of the exceptions and 2. Insert the following as new paragraph l(b): briefs and has decided to affirm the rulings, find- - Assaulting employees in violation of Section ings,' and conclusions2 of the Administrative Law 8(a)(1) of the Act because they have engaged in Judge and to adopt his recommended Order, as ' * „-„,„.„ modified herein 3union aiviy. 3. Substitute the attached notice for that of the Respondent and the General Counsel have excepted to certain credi- Administrative Law Judge. bility findings made by the Administrative Law Judge. It is the Board's established respect to credibility unless the clear preponderance of all of violated Sec. 8(a)(l) of the Act and we shall amend the Administrative the relevant evidence convinces us that the resolutions are incorrect. Law Judge's recommended Order and notice accordingly. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. APPENDIX We agree with the Administrative Law Judge's findings that James Morgan was not discharged. In so doing we disavow the Administrative NOTICE TO EMPLOYEES Law Judge's conclusion that Morgan was not an employee of Respond-PncTcn nv OnnpB rF TMR ent. Morgan was a part-time employee who had worked for RespondentrPSTED B ORDER OF THE in the past. The established practice was for Morgan, because of a com- NATIONAL LABOR RELATIONS BOARD munication problem, to contact Respondent when he needed work. On Agency of the United States Government March 26 Morgan contacted Respondent and was assigned a route. A While fueling his truck at the truck stop, he met the other drivers who were discussing the Swigert incident, and decided to return to the com- After a hearing at which all sides had an opportu- pany yard with them to discuss the matter with Respondent's president, , , .. i . .. .1. * _ *.* King. This meeting lasted several hours and at its conclusion the drivers nity to Present evidence and State their positions, decided it was too late to begin their routes. When Morgan informed the National Labor Relations Board found that we King that he was not going out on his route, King requested the truck have violated the National Labor Relations Act, as keys. Morgan asked if he was going to be fired and King replied, "no." Morgan never contacted King after March 26. For that reason the Ad- amended, and has Ordered us to post this notice. ministrative Law Judge found that Morgan was not discharged but rather . , , ., ^ 11 * * i.. voluntarily discontinued the established employment arrangement. WeThe Act gives employees the following rghts: agree. T naei efognzto 'IWe adopt the Administrative Law Judge's finding based on credibil- T o engage in Self-organization ity that Respondent by Meade King did not threaten plant closure when To form, join, Or assist any Union he talked to Otis Mefford during the organizational campaign. We there-To harpain cnllertiveiv thrnnfh renre- fore find it unnecessary to decide Meade King's status with Respondent. ° bargain colecively through repre Under the section entitled "Discussion" the Administrative Law Judge sentatives of their own choice apparently buttressed his finding that Respondent was hostile to the To engage in activities together for the Union with an incident which took place between Combs and driver Jim „ .. , * * ., Hudson. Although we adopt the Administrative Law Judge's Finding thatpurpose of Collective bargaining Or Other Combs discharged Swigert for antiunion purposes, we disavow any infer- mutual aid Or protection ence drawn from the incident in which Combs excluded Hudson from To refrain from the exercise of any or all the "shop."n.. I The complaint alleged that Respondent, by Supervisor Combs, violat- such activities. ed Sec. 8(aXl) of the Act by assaulting employee Swigert during an un- lawful discharge. Although the Administrative Law Judge found that WE WILL NOT discharge Or Otherwise dis- Swigert was assaulted, he failed to make a finding as to whether such courage employees for their support Of Truck- conduct violated Sec. 8(aXl) of the Act. The General Counsel excepts to * _ ai..er -„ ul_-- T .^l IT - this omission. We find that Combs' assault of Swigert, in the context ofdrivers, Chauffeurs and Helpers, Local Union and related to his unlawful discharge and because of his union activity, No. 100, an affiliate of the International Broth- 259 NLRB No. 79 KING TRUCKING COMPANY 725 King Trucking Company and James Morgan and ORDER Ernest Centers. Cases 9-CA-15335 and 9-CA- 15462 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- December 16, 1981 lations Board adopts as its Order the recommended DECISION/tK ANDT^ ORDERT COOrder of the Administrative Law Judge, as modi- DECISION AND ORDER ffed below, and hereby orders that the Respondent, BY MEMBERS FANNING, JENKINS, AND King Trucking Company, Burlington, Kentucky, ZIMMERMAN shall take the action set forth in said recommended On. May 1981 AdministrativeOrder, as so modified: On May 11, 1981, Administrative Law Judge i1 Substitute the following paragraph for para- James P. Timony issued the attached Decision in graphs l(a) and (b): this proceeding. Thereafter, Respondent and the "(a) Discharging or otherwise discouraging em- General Counsel filed exceptions and supporting ployees for their support of Truckdrivers, Chauf- briefs. feurs and Helpers, Local Union No. 100, an affili- Pursuant to the provisions of Section 3(b) of the ate of the International Brotherhood of Teamsters, National Labor Relations Act, as amended, the Na- Chauffeurs, Warehousemen and Helpers of Amer- tional Labor Relations Board has delegated its au- ica, or any other labor organization of its employ- thority in this proceeding to a three-member panel. ees, by discriminating against them for engaging in The Board has considered the record and the at- p e u a, tached Decision in light of the exceptions and 2. Insert the following as new paragraph l(b): briefs and has decided to affirm the rulings, find- - Assaulting employees in violation of Section ings,' and conclusions2 of the Administrative Law 8(a)(1) of the Act because they have engaged in Judge and to adopt his recommended Order, as ' * „-„,„.„ modified herein 3union aiviy. 3. Substitute the attached notice for that of the Respondent and the General Counsel have excepted to certain credi- Administrative Law Judge. bility findings made by the Administrative Law Judge. It is the Board's established respect to credibility unless the clear preponderance of all of violated Sec. 8(a)(l) of the Act and we shall amend the Administrative the relevant evidence convinces us that the resolutions are incorrect. Law Judge's recommended Order and notice accordingly. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. APPENDIX We agree with the Administrative Law Judge's findings that James Morgan was not discharged. In so doing we disavow the Administrative NOTICE TO EMPLOYEES Law Judge's conclusion that Morgan was not an employee of Respond-PncTcn nv OnnpB rF TMR ent. Morgan was a part-time employee who had worked for RespondentrPSTED B ORDER OF THE in the past. The established practice was for Morgan, because of a com- NATIONAL LABOR RELATIONS BOARD munication problem, to contact Respondent when he needed work. On Agency of the United States Government March 26 Morgan contacted Respondent and was assigned a route. A While fueling his truck at the truck stop, he met the other drivers who were discussing the Swigert incident, and decided to return to the com- After a hearing at which all sides had an opportu- pany yard with them to discuss the matter with Respondent's president, , , .. i . .. .1. * _ *.* King. This meeting lasted several hours and at its conclusion the drivers nity to Present evidence and State their positions, decided it was too late to begin their routes. When Morgan informed the National Labor Relations Board found that we King that he was not going out on his route, King requested the truck have violated the National Labor Relations Act, as keys. Morgan asked if he was going to be fired and King replied, "no." Morgan never contacted King after March 26. For that reason the Ad- amended, and has Ordered us to post this notice. ministrative Law Judge found that Morgan was not discharged but rather . , , ., ^ 11 * * i.. voluntarily discontinued the established employment arrangement. WeThe Act gives employees the following rghts: agree. T naei efognzto 'IWe adopt the Administrative Law Judge's finding based on credibil- T o engage in Self-organization ity that Respondent by Meade King did not threaten plant closure when To form, join, Or assist any Union he talked to Otis Mefford during the organizational campaign. We there-To harpain cnllertiveiv thrnnfh renre- fore find it unnecessary to decide Meade King's status with Respondent. ° bargain colecively through repre Under the section entitled "Discussion" the Administrative Law Judge sentatives of their own choice apparently buttressed his finding that Respondent was hostile to the To engage in activities together for the Union with an incident which took place between Combs and driver Jim „ .. , * * ., Hudson. Although we adopt the Administrative Law Judge's Finding thatpurpose of Collective bargaining Or Other Combs discharged Swigert for antiunion purposes, we disavow any infer- mutual aid Or protection ence drawn from the incident in which Combs excluded Hudson from To refrain from the exercise of any or all the "shop."n.. I The complaint alleged that Respondent, by Supervisor Combs, violat- such activities. ed Sec. 8(aXl) of the Act by assaulting employee Swigert during an un- lawful discharge. Although the Administrative Law Judge found that WE WILL NOT discharge Or Otherwise dis- Swigert was assaulted, he failed to make a finding as to whether such courage employees for their support Of Truck- conduct violated Sec. 8(aXl) of the Act. The General Counsel excepts to * _ ai..er -„ ul_-- T .^l IT - this omission. We find that Combs' assault of Swigert, in the context ofdrivers, Chauffeurs and Helpers, Local Union and related to his unlawful discharge and because of his union activity, No. 100, an affiliate of the International Broth- 259 NLRB No. 79 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erhood of Teamsters, Chauffeurs, Warehouse- FINDINGS OF FACT men and Helpers of America, or any otherJURISDICTION labor organization of its employees, by dis- criminating against them for engaging in pro- King Trucking Company is a partnership, with an tected union activity. office and place of business in Burlington, Kentucky, en- WE WILL NOT assault employees because gaged in the operation of a trucking service, providing they engage in union activity. services valued in excess of $50,000. The company admits and I find that it is an employer engaged in com- WE WILL NOT in any like or related manner interWE WILL NOT rin any like or related manner merce within the meaning of Section 2(2), (6), and (7) of interfere with, restrain, or coerce our employ- the Act. The parties stipulated that the Union is a labor ees in the exercise of the rights guaranteed organization within the meaning of Section 2(5) of the them by Section 7 of the Act. Act. WE WILL offer John Swigert immediate and full reinstatement to his former job or, if that n. THE EVENTS job no longer exists, to a substantially equiva- King Trucking Company transports coal and sand. lent job, without prejudice to his seniority or Gary King, president of the Company, owns 70 percent other rights and privileges previously enjoyed, of the stock, and his father, Meade King, owns the rest.' and WE WILL make him whole for any loss of They own 10 Mack trucks and employ 10 drivers.2 The pay he suffered as a result of the discrimina- Company transports coal exclusively for Madison Coal tion practiced against him, plus interest. Company which contracts to buy coal directly from coal mines and then, each morning, directs King where the ~KING TRUCKING COMPANY „coal is to be picked up. KING TRUCKING COMPANY Drivers come in about 8 a.m., receive their assign- DECISION ments, go to the sand pits, load, and go to Lexington or London, Kentucky. They unload the sand and go to the STATEMENT OF THE CASE coal fields east of Lexington to load coal. They drive to the Madison Coal Company in Cincinnati, dump the JAMES P. TIMONY, Administrative Law Judge: These coal, and return as late as 10:30 p.m. to the King Truck- consolidated cases were heard in Cincinnati, Ohio, on ing Company February 19 and 20, 1981, upon the complaint of the The drivers are paid 25 percent of the gross revenue General Counsel issued June 26, 1980, based upon the T chargeGeneral Counsel issued June 26, 1980 , 1980, based upon the received by King for each haul of sand and coal. On charge filed on May 16, 1980, by James Morgan and the some days Madison Coal Company has not contracted amended consolidated complaint issued July 23, 1980, for enough coal to fill all of the trucks King then allo based upon the charge filed by Ernest Centers on June cates the hauling of coal to the drivers by seniority. On 17, 1980. some days the drivers haul only sand and come back The complaints allege that King Trucking Company empt unlawfully discharged three employees, John Swigert, In February 1980, a union3 started an organizing cam- James Morgan, and Ernest Centers; coercively interro- n at the Ki Trucking Company. The drivers gated and threatened employee Ernest Centers; promised sign authorization cards, and the union filed a employees additional benefits if they would forego sup- representation petition on February 26, 1980 The parties port of the union; withdrew company credit cards from entered into a Stipulation for Certification Upon Consent employees because of their participation in the union or- Election which was approved by the Regional Director ganizing campaign; and that Respondent's agent/- of Region 9 of the National Labor Relations Board on supervisor, Tom Combs, assaulted an employee because Rg R supervisor, Tom Combs, assaulted an employee because April 18, 1980. The results of the election were five of that employee's support of the union. At the hearing, Apri 8, 1980. The results ag the uel ion and six aticoercively votes for the union; no votes against the union; and six another allegation added is that Meade King coercively challenged ballots The RegionalOffice resolved three of threatened employees with plant closure if the union was selected as the employees' collectivebargaining r - these six challenges, finding that their ballots should not selected as the employees' collective-bargaining repre- sentative. be counted. Since the remaining three challenged ballots espndent, in the answer, adts jstn bt would not affect the outcome of the election, the union Respondent, in the answer, admits jurisdiction but was certified as the exclusive bargaining representative denies the commission of any unfair labor practices. Re- of the truck drivers on May 27, 1980. spondent contends that the three named employees vol- untarily quit their jobs and denies that Tom Combs was a supervisor under the law. Upon consideration of the whole record, and my ob- Meade King is not in the management of the Company. servation of the demeanor of the witnesses, I make the ' King also leases about 30 trucks from owner-operators and, acting as following: a broker, leases the trucks to Madison Coal Company. ' Truck Drivers, Chauffeurs and Helpers, Local Union No. 100, an af- filiate of the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erhood of Teamsters, Chauffeurs, Warehouse- FINDINGS OF FACT men and Helpers of America, or any other . JURISDICTION labor organization of its employees, by dis- criminating against them for engaging in pro- King Trucking Company is a partnership, with an tected union activity. office and place of business in Burlington, Kentucky, en- WE WILL NOT assault employees because gaged i n the operation of a trucking service, providing they engage in union activity. services valued in excess of $50,000. The company WE WIL NO in ny lke orrelaed mnner admits and I find that it is an employer engaged in com- WE WILL NOT in any like or related oremly merce within the meaning of Section 2(2), (6), and (7) of interfere with, restrain, or coerce our employ- the Act. The parties stipulated that the Union is a labor ees in the exercise of the rights guaranteed organization within the meaning of Section 2(5) of the them by Section 7 of the Act. Act. WE WILL offer John Swigert immediate and full reinstatement to his former job or, if that "- TH E EVENTS job no longer exists, to a substantially equiva- King Trucking Company transports coal and sand. lent job, without prejudice to his seniority or Gary King, president of the Company, owns 70 percent other rights and privileges previously enjoyed, of the stock, and his father, Meade King, owns the rest.' and WE WILL make him whole for any loss of They own 10 Mack trucks and employ 10 drivers.' The pay he suffered as a result of the discrimina- Company transports coal exclusively for Madison Coal tion practiced against him, plus interest. Company which contracts to buy coal directly from coal mines and then, each morning, directs King where the KING TRUCKING COMPANY coal is to be picked up. KING TRUCKING COMPANY ^ . Drivers come in about 8 a.m., receive their assign- DECISION ments, go to the sand pits, load, and go to Lexington or London, Kentucky. They unload the sand and go to the STATEMENT OF THE CASE coal fields east of Lexington to load coal. They drive to the Madison Coal Company in Cincinnati, dump the JAMES P. TIMONY, Administrative Law Judge. These col an return as late as 10=30 p.m. to the King Truck- consolidated cases were heard in Cincinnati, Ohio, on comand Febuar 19and20,198, uon he ompain ofthe ing Company. February 19 and 20, 1981, upon the complaint of the The drivers are paid 25 percent of the gross revenue General Counsel issued June 26, 1980, based upon the received by King for each haul of sand and coal. On charge filed on May 16, 1980c by James MorguJlane 2 19 some days Madison Coal Company has not contracted amended consolidated complaint issued July 23, 1980, for enough coal to fill all of the trucks. King then allo- based upon the charge fled by Ernest Centers on June cates the hauling of coal to the drivers by seniority. On 17, 1980. ae t some days the drivers haul only sand and come back The complaints allege that King Trucking Company mt unlawfully discharged three employees, John Swigert, e t February 1980, a union started an organizing cam- James Morgan, and Ernest Centers; coercively interro- In F u 190 a Trucking Company. The drivers gated and threatened employee Ernest Centers; promised ign authorization cards, and the union filed a employees additional benefits if they would forego sup- representation petition on February 26, 1980. The parties port of the union; withdrew company credit cards from re nt Stipulation for Certification Upon Consent employees because of their participation in the union or- entered into Siu approved by the Regional Director ganizing campaign; and that Respondent's agent/- E lcion w 9 a v the National Labor Relations Board on supervisor, Tom Combs, assaulted an employee because of Rgg 9Q of ^ the election were five of that employee's support of the union. At the hearing, April J 8, 1980. The results of the elecion wer fi another allegation added is that Meade King coercively vegainstite uniolved six threatened employees with plant closure if the union was c b T R O rl t of selected as the employees' collective-bargaining repre- these six chalenges finding that their ballots should not sentative. be counted. Since the remaining three challenged ballots Respondent, in th nwwould not affect the outcome of the election, the union Respondent, in the answer, admits jurisdiction but was certified as the exclusive bargaining representative denies the commission of any unfair labor practices. Re- of the truck drivers on May 27, 1980. spondent contends that the three named employees vol- untarily quit their jobs and denies that Tom Combs was a supervisor under the law. Upon consideration of the whole record, and my ob- >Meade King is not in the management of the Company. servation of the demeanor of the witnesses, I make the ' King also leases about 30 trucks from owner-operators and, acting as following: a broker, leases the trucks to Madison Coal Company. I Truck Drivers, Chauffeurs and Helpers, Local Union No. 100, an af- filiate of the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erhood of Teamsters, Chauffeurs, Warehouse- FINDINGS OF FACT men and Helpers of America, or any other . JURISDICTION labor organization of its employees, by dis- criminating against them for engaging in pro- King Trucking Company is a partnership, with an tected union activity. office and place of business in Burlington, Kentucky, en- WE WILL NOT assault employees because gaged i n the operation of a trucking service, providing they engage in union activity. services valued in excess of $50,000. The company WE WIL NO in ny lke orrelaed mnner admits and I find that it is an employer engaged in com- WE WILL NOT in any like or related oremly merce within the meaning of Section 2(2), (6), and (7) of interfere with, restrain, or coerce our employ- the Act. The parties stipulated that the Union is a labor ees in the exercise of the rights guaranteed organization within the meaning of Section 2(5) of the them by Section 7 of the Act. Act. WE WILL offer John Swigert immediate and full reinstatement to his former job or, if that "- TH E EVENTS job no longer exists, to a substantially equiva- King Trucking Company transports coal and sand. lent job, without prejudice to his seniority or Gary King, president of the Company, owns 70 percent other rights and privileges previously enjoyed, of the stock, and his father, Meade King, owns the rest.' and WE WILL make him whole for any loss of They own 10 Mack trucks and employ 10 drivers.' The pay he suffered as a result of the discrimina- Company transports coal exclusively for Madison Coal tion practiced against him, plus interest. Company which contracts to buy coal directly from coal mines and then, each morning, directs King where the KING TRUCKING COMPANY coal is to be picked up. KING TRUCKING COMPANY t . Drivers come in about 8 a.m., receive their assign- DECISION ments, go to the sand pits, load, and go to Lexington or London, Kentucky. They unload the sand and go to the STATEMENT OF THE CASE coal fields east of Lexington to load coal. They drive to the Madison Coal Company in Cincinnati, dump the JAMES P. TIMONY, Administrative Law Judge. These col an return as late as 10=30 p.m. to the King Truck- consolidated cases were heard in Cincinnati, Ohio, on comand Febuar 19and20,198, uon he ompain ofthe ing Company. February 19 and 20, 1981, upon the complaint of the The drivers are paid 25 percent of the gross revenue General Counsel issued June 26, 1980, based upon the received by King for each haul of sand and coal. On charge filed on May 16, 1980c by James MorguJlane 2 19 some days Madison Coal Company has not contracted amended consolidated complaint issued July 23, 1980, for enough coal to fill all of the trucks. King then allo- based upon the charge fled by Ernest Centers on June cates the hauling of coal to the drivers by seniority. On 17, 1980. ae t some days the drivers haul only sand and come back The complaints allege that King Trucking Company mt unlawfully discharged three employees, John Swigert, e t February 1980, a union started an organizing cam- James Morgan, and Ernest Centers; coercively interro- In F u 190 a Trucking Company. The drivers gated and threatened employee Ernest Centers; promised ign authorization cards, and the union filed a employees additional benefits if they would forego sup- representation petition on February 26, 1980. The parties port of the union; withdrew company credit cards from re nt Stipulation for Certification Upon Consent employees because of their participation in the union or- entered into Siu approved by the Regional Director ganizing campaign; and that Respondent's agent/- E lcion w 9 a v the National Labor Relations Board on supervisor, Tom Combs, assaulted an employee because of Rgg 9Q of ^ the election were five of that employee's support of the union. At the hearing, April J 8, 1980. The results of the elecion wer fi another allegation added is that Meade King coercively vegainstite uniolved six threatened employees with plant closure if the union was c b T R O rl t of selected as the employees' collective-bargaining repre- these six chalenges finding that their ballots should not sentative. be counted. Since the remaining three challenged ballots Respondent, in th nwwould not affect the outcome of the election, the union Respondent, in the answer, admits jurisdiction but was certified as the exclusive bargaining representative denies the commission of any unfair labor practices. Re- of the truck drivers on May 27, 1980. spondent contends that the three named employees vol- untarily quit their jobs and denies that Tom Combs was a supervisor under the law. Upon consideration of the whole record, and my ob- >Meade King is not in the management of the Company. servation of the demeanor of the witnesses, I make the ' King also leases about 30 trucks from owner-operators and, acting as following: a broker, leases the trucks to Madison Coal Company. I Truck Drivers, Chauffeurs and Helpers, Local Union No. 100, an af- filiate of the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erhood of Teamsters, Chauffeurs, Warehouse- FINDINGS OF FACT men and Helpers of America, or any other . JURISDICTION labor organization of its employees, by dis- criminating against them for engaging in pro- King Trucking Company is a partnership, with an tected union activity. office and place of business in Burlington, Kentucky, en- WE WILL NOT assault employees because gaged i n the operation of a trucking service, providing they engage in union activity. services valued in excess of $50,000. The company WE WIL NO in ny lke orrelaed mnner admits and I find that it is an employer engaged in com- WE WILL NOT in any like or related oremly merce within the meaning of Section 2(2), (6), and (7) of interfere with, restrain, or coerce our employ- the Act. The parties stipulated that the Union is a labor ees in the exercise of the rights guaranteed organization within the meaning of Section 2(5) of the them by Section 7 of the Act. Act. WE WILL offer John Swigert immediate and full reinstatement to his former job or, if that "- TH E EVENTS job no longer exists, to a substantially equiva- King Trucking Company transports coal and sand. lent job, without prejudice to his seniority or Gary King, president of the Company, owns 70 percent other rights and privileges previously enjoyed, of the stock, and his father, Meade King, owns the rest.' and WE WILL make him whole for any loss of They own 10 Mack trucks and employ 10 drivers.' The pay he suffered as a result of the discrimina- Company transports coal exclusively for Madison Coal tion practiced against him, plus interest. Company which contracts to buy coal directly from coal mines and then, each morning, directs King where the KING TRUCKING COMPANY coal is to be picked up. KING TRUCKING COMPANY t . Drivers come in about 8 a.m., receive their assign- DECISION ments, go to the sand pits, load, and go to Lexington or London, Kentucky. They unload the sand and go to the STATEMENT OF THE CASE coal fields east of Lexington to load coal. They drive to the Madison Coal Company in Cincinnati, dump the JAMES P. TIMONY, Administrative Law Judge. These col an return as late as 10=30 p.m. to the King Truck- consolidated cases were heard in Cincinnati, Ohio, on comand Febuar 19and20,198, uon he ompain ofthe ing Company. February 19 and 20, 1981, upon the complaint of the The drivers are paid 25 percent of the gross revenue General Counsel issued June 26, 1980, based upon the received by King for each haul of sand and coal. On charge filed on May 16, 1980c by James MorguJlane 2 19 some days Madison Coal Company has not contracted amended consolidated complaint issued July 23, 1980, for enough coal to fill all of the trucks. King then allo- based upon the charge fled by Ernest Centers on June cates the hauling of coal to the drivers by seniority. On 17, 1980. ae t some days the drivers haul only sand and come back The complaints allege that King Trucking Company mt unlawfully discharged three employees, John Swigert, e t February 1980, a union started an organizing cam- James Morgan, and Ernest Centers; coercively interro- In F u 190 a Trucking Company. The drivers gated and threatened employee Ernest Centers; promised ign authorization cards, and the union filed a employees additional benefits if they would forego sup- representation petition on February 26, 1980. The parties port of the union; withdrew company credit cards from re nt Stipulation for Certification Upon Consent employees because of their participation in the union or- entered into Siu approved by the Regional Director ganizing campaign; and that Respondent's agent/- E lcion w 9 a v the National Labor Relations Board on supervisor, Tom Combs, assaulted an employee because of Rgg 9Q of ^ the election were five of that employee's support of the union. At the hearing, April J 8, 1980. The results of the elecion wer fi another allegation added is that Meade King coercively vegainstite uniolved six threatened employees with plant closure if the union was c b T R O rl t of selected as the employees' collective-bargaining repre- these six chalenges finding that their ballots should not sentative. be counted. Since the remaining three challenged ballots Respondent, in th nwwould not affect the outcome of the election, the union Respondent, in the answer, admits jurisdiction but was certified as the exclusive bargaining representative denies the commission of any unfair labor practices. Re- of the truck drivers on May 27, 1980. spondent contends that the three named employees vol- untarily quit their jobs and denies that Tom Combs was a supervisor under the law. Upon consideration of the whole record, and my ob- >Meade King is not in the management of the Company. servation of the demeanor of the witnesses, I make the ' King also leases about 30 trucks from owner-operators and, acting as following: a broker, leases the trucks to Madison Coal Company. I Truck Drivers, Chauffeurs and Helpers, Local Union No. 100, an af- filiate of the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. KING TRUCKING COMPANY 727 A. Tom Combs'Assault he said, "Well, you and the God damned Union are The most dramatic incident in this case involves a going to break this trucking company." And I said, fracas between Tom Combs and John Sigert on March "I don't have any more to do with the Union than fracas between Tom Combs and John Swigert on March 24 1980n. anybody else around here, Mister." And he said, Tom Combs had leased a truck to King and had "Well, you're fired." And I said, "Well, if I'm fired, worked part-time as a mechanic for the Company for pay me so I can go on home." He said, "I'll do just several years. In January 1980, King had just purchasedthat five new Mack trucks, at $75,000 each, and hired Combs five new Mack trucks, at 575,000 each, and hired Combs Combs then went into the office to call Gary King. He as a full-time mechanic. In March 1980, the trucks were diad th e telephone. e icked u a tire hamer an hit breaking down due to the drivers' failure to perform rou- dialed h e elehne e pked up tie hammer an hi tine maintenance and because the trucks were being it on a bench while he talked on the phone. After he driven overloaded over rough roads. Gary King told the hung up the telephone he came back toward Swigert and drivers that he had authorized Tom Combs to report any said, "You come in in the morning and get your money. further instances of breakdown due to driver negligence, It will be here. Swigert testified that Combs then threw and King said he would discharge the driver. Combs ap- the tire hammer underneath a truck and hit the wall with parently was the only employee in the office after the a terrible "ppet." Arguing resumed and with both trucks had gone on their daily journey, and he answered screaming imprecations Combs reaffirmed his point of the telephone in the office in Gary King's absence and view by jabbing his finger into Swigert's chest. Swigert took messages. He recommended two drivers who were finally pushed Combs hard with a blow similar to a employed by the Company. Gary King admitted on the straight arm in football, mashing Combs' mouth. Swigert witness stand that Tom Combs was in charge when he left to go to his car. Combs followed him into the dark was away. In fact, King told several of the drivers that yard and Swigert testified at the hearing as to what next Combs was "road boss" and that Combs could fire them occurred: if they mistreated the equipment.' And I saw a shadow and I threw up my hand and a About 10:30 p.m. on March 24, 1980, the drivers were shovel come across my arm and nearly broke my returning to the yard at King Trucking Company. John arm and stuck in my head. And I went down in the Swigert, a driver for King for about 2 years, helped an- rocks and he hit me again, flatways, right about the other driver back his truck into the yard. Swigert then ear with the shovel. And then he hit me in the approached a group of other drivers, joshing how he back. I was down in the yard bleeding and getting was going to have to conduct lessons in driving. At the fainty. And I hollered for help and nobody come. same time, Tom Combs approached the group to find the nd my car was sitting there running with the door root of the hostility recently shown to him by some of open. And I crawled in it. Someway I got up to the drivers. He asked one of the group, John Keeler, Buns' Truck Stop and somebody called the Law whom Combs had considered to be his friend, why the and the ambulance. The blue lights was everywhere drivers had not been talking to him. Combs said that if it in the-and they took me to the hospital. was related to Gary King giving him the authority to report abused equipment, he assured them that he would Two days later, when word of the altercation had confront the driver with the facts before taking him into spread, the drivers met at a truck stop for coffee before the office and reporting the matter to King. At that point proceeding to pick up their load. Driver Ernest Centers Swigert joined the group and asserted that Combs would called Gary King and wanted him to come to the truck not take him into the office. This lead to an escalation of ut King declined and said that they stop to talk about it. King declined and said that they heated threats. Combs testified that Swigert said that he would discuss it on the following day. Instead, however did not like working for Gary King and that when he the drivers returned to the company yard. As Centers left he was going to make sure King was out of business. was getting his equipment out of the truck, Gary King Combs said that he then called Gary King on the tele- saw a baseball bat in the cab of the truck. He grabbed it phone and recommended to King that Swigert be dis- and ran to the office to call the police. charged because he felt that Swigert was threatening the livelihood of all of the drivers. Swigert, however, gave a B. Promising Benefits To Forego the Union different version of what happened.5 He testified that the following dialogue occurred: After the police arrived at the company yard, they ad- I said, "Are you firing me?" I said, "Am I fired." vised the drivers to go home. First, however, Gary King He said, "Yeah, if I say you're fired, you're fird, invited the drivers into his office individually to discuss buddy." I said, "Well, why are you fiing me?" And the affair. Later, he addressed a group of drivers in the yard again asking about their grievances. They told him Ernest Centers' testimony on this point was corroborated by driven that they were afraid of Tom Combs, and that they Otis Mefford and Ritchie Smeal, neither of whom is now employed by wanted health insurance and "show-up" pay (a $10 pay- King and therefore they are without bias. Respondent did not call other ment to each driver for appearing at the company yard employees who were present during this conversation on days when King had nothing to haul). King had re- ' I find from my observation of the witnesses that Swigert's testimony ceived legal advice and told the drivers that, because of as to the reason he was fired is more accurate. Combs appeared to be a the union organizational campaign, he could not make combative individual and was not a trustworthy witness. He appeared to be willing to give whatever testimony might help the Company's cause, any promises but he implied that the demands were rea- whereas Swigert appeared to be a relatively sincere witness. sonable. He told the drivers that he could not discharge KING TRUCKING COMPANY 727 A. Tom Combs'Assault he said, "Well, you and the God damned Union are The most dramatic incident in this case involves a going to b r ea k t h i s trucking company." And I said, fracas between Tom Combs and John Swigert on March" d o n t h av e an m o re t o d o w ith t h e U n o n th an 24, 1980. anybody else around here, Mister." And he said, Tom Combs had leased a truck to King and had "We ll, you're fir ed ." A nd I said , "We ll , if I'm fir ed , worked part-time as a mechanic for the Company for pay me so I can go on home." He said, "'111 do just several years. In January 1980, King had just purchased t h at five new Mack trucks, at $75,000 each, and hired Combs C t w i t o t c. H as a full-time mechanic. In March 1980, the trucks were d C o m b s l t h ent w ep t n to n t h e o f fi c e t o c a" t a r y K an g . H e breaking down due to the drivers' failure to perform rou- di a le d ona benchwhile e talked u p the phone. afe he tine maintenance and because the trucks were being hun u a bench while he talked on the phone. After he driven overloaded over rough roads. Gary King told the sidg "p t h e telephone he came back toward Swigert and drivers that he had authorized Tom Combs to report any *^"Y T" ln t h e morning and get your money. further instances of breakdown due to driver negligence, It w ill be here." Swigert testified that Combs then threw and King said he would discharge the driver. Combs ap- the tire hammer underneath a truck and hit the wall with parently was the only employee in the office after the a terrible "rippet." Arguing resumed and with both trucks had gone on their daily journey, and he answered screaming imprecations Combs reaffirmed his point of the telephone in the office in Gary King's absence and v ie w by jabbing his finger into Swigert's chest. Swigert took messages. He recommended two drivers who were finally pushed Combs hard with a blow similar to a employed by the Company. Gary King admitted on the straight arm in football, mashing Combs' mouth. Swigert witness stand that Tom Combs was in charge when he left to go to his car. Combs followed him into the dark was away. In fact, King told several of the drivers that yard and Swigert testified at the hearing as to what next Combs was "road boss" and that Combs could fire them occurred: if they mistreated the equipment.' And I saw a shadow and I threw up my hand and a About 10:30 p.m. on March 24, 1980, the drivers were shovel come across my arm and nearly broke my returning to the yard at King Trucking Company. John arm and stuck in my head. And I went down in the Swigert, a driver for King for about 2 years, helped an- rocks and he hit me again, flatways, right about the other driver back his truck into the yard. Swigert then ear with the shovel. And then he hit me in the approached a group of other drivers, joshing how he back. I was down in the yard bleeding and getting was going to have to conduct lessons in driving. At the fainty. And I hollered for help and nobody come. same time, Tom Combs approached the group to find the And my car was sitting there running with the door root of the hostility recently shown to him by some of open. And I crawled in it. Someway I got up to the drivers. He asked one of the group, John Keeler, Bums' Truck Stop and somebody called the Law whom Combs had considered to be his friend, why the and the ambulance. The blue lights was everywhere drivers had not been talking to him. Combs said that if it in the-and they took me to the hospital. was related to Gary King giving him the authority to report abused equipment, he assured them that he would Two days later, when word of the altercation had confront the driver with the facts before taking him into spread, the drivers met at a truck stop for coffee before the office and reporting the matter to King. At that point proceeding to pick up their load. Driver Ernest Centers Swigert joined the group and asserted that Combs would called Gary King and wanted him to come to the truck not take him into the office. This lead to an escalation of s tut it. King declined and said that they heated threats. Combs testified that Swigert said that he would discuss it on the following day. Instead, however, did not like working for Gary King and that when he the drivers returned to the company yard. As Centers left he was going to make sure King was out of business. was getting his equipment out of the truck, Gary King Combs said that he then called Gary King on the tele- saw a baseball bat in the cab of the truck. He grabbed it phone and recommended to King t ha t Swigert b e dis- and ran to the office to call the police. charged because he felt that Swigert was threatening the livelihood of all of the drivers. Swigert, however, gave a B. Promising Benefits To Forego the union different version of what happened." He testified that the following dialogue occurred: After the police arrived at the company yard, they ad- I said, "Are you firing me?" I said, "Am I fired." vised the drivers to go home. First, however, Gary King He said, "Yeah, if I say you're fired, you're fired, in v ite d th e driv e rs in to hi s o f fi c e individually to discuss buddy." I said, "Well, why are you firing me?" And the affair. Later, he addressed a group of drivers in the yard again asking about their grievances. They told him Ernest Centers' testimony on this point was corroborated by drivenr t hat they were afraid of Tom Combs, and that they Otis Mefford and Ritchie Smeal, neither of whom is now employed by wanted health insurance and "show-up" pay (a $10 pay- King and therefore they are without bias. Respondent did not call other ment to each driver for appearing at the company yard employees who were present during this conversation. on days when King had nothing to haul). King had re- ' I find from my observation of the witnesses that Swigert's testimony ceived legal advice and told the drivers that, because of as to the reason he was fired is more accurate. Combs appeared to be a the Union Organizational Campaign, he could not make combative individual and was not a trustworthy witness. He appeared to be willing to give whatever testimony might help the Company's cause, any promises but he implied that the demands were rea- whereas Swigert appeared to be a relatively sincere witness. sonable. He told the drivers that he could not discharge KING TRUCKING COMPANY 727 A. Tom Combs'Assault he said, "Well, you and the God damned Union are The most dramatic incident in this case involves a going to b r ea k t h i s trucking company." And I said, fracas between Tom Combs and John Swigert on March" d o n t h av e an m o re t o d o w ith t h e U n o n th an 24, 1980. anybody else around here, Mister." And he said, Tom Combs had leased a truck to King and had "We ll, you're fir ed ." A nd I said , "We ll , if I'm fir ed , worked part-time as a mechanic for the Company for pay me so I can go on home." He said, "'111 do just several years. In January 1980, King had just purchased t h at five new Mack trucks, at $75,000 each, and hired Combs C t w i t o t c. H as a full-time mechanic. In March 1980, the trucks were d C o m b s l t h ent w ep t n to n t h e o f fi c e t o c a" t a r y K an g . H e breaking down due to the drivers' failure to perform rou- di a le d ona benchwhile e talked u p the phone. afe he tine maintenance and because the trucks were being hun u a bench while he talked on the phone. After he driven overloaded over rough roads. Gary King told the sidg "p t h e telephone he came back toward Swigert and drivers that he had authorized Tom Combs to report any *^"Y T" ln t h e morning a 1^ get your money. further instances of breakdown due to driver negligence, It w ill be h ere." Swigert testified that Combs then threw and King said he would discharge the driver. Combs ap- the tire hammer underneath a truck and hit the wall with parently was the only employee in the office after the a terrible "rippet." Arguing resumed and with both trucks had gone on their daily journey, and he answered screaming imprecations Combs reaffirmed his point of the telephone in the office in Gary King's absence and v ie w by jabbing his finger into Swigert's chest. Swigert took messages. He recommended two drivers who were finally pushed Combs hard with a blow similar to a employed by the Company. Gary King admitted on the straight arm in football, mashing Combs' mouth. Swigert witness stand that Tom Combs was in charge when he left to go to his car. Combs followed him into the dark was away. In fact, King told several of the drivers that yard and Swigert testified at the hearing as to what next Combs was "road boss" and that Combs could fire them occurred: if they mistreated the equipment.' And I saw a shadow and I threw up my hand and a About 10:30 p.m. on March 24, 1980, the drivers were shovel come across my arm and nearly broke my returning to the yard at King Trucking Company. John arm and stuck in my head. And I went down in the Swigert, a driver for King for about 2 years, helped an- rocks and he hit me again, flatways, right about the other driver back his truck into the yard. Swigert then ear with the shovel. And then he hit me in the approached a group of other drivers, joshing how he back. I was down in the yard bleeding and getting was going to have to conduct lessons in driving. At the fainty. And I hollered for help and nobody come. same time, Tom Combs approached the group to find the And my car was sitting there running with the door root of the hostility recently shown to him by some of open. And I crawled in it. Someway I got up to the drivers. He asked one of the group, John Keeler, Bums' Truck Stop and somebody called the Law whom Combs had considered to be his friend, why the and the ambulance. The blue lights was everywhere drivers had not been talking to him. Combs said that if it in the-and they took me to the hospital. was related to Gary King giving him the authority to report abused equipment, he assured them that he would Two days later, when word of the altercation had confront the driver with the facts before taking him into spread, the drivers met at a truck stop for coffee before the office and reporting the matter to King. At that point proceeding to pick up their load. Driver Ernest Centers Swigert joined the group and asserted that Combs would called Gary King and wanted him to come to the truck not take him into the office. This lead to an escalation of s tut it. King declined and said that they heated threats. Combs testified that Swigert said that he would discuss it on the following day. Instead, however, did not like working for Gary King and that when he the drivers returned to the company yard. As Centers left he was going to make sure King was out of business. was getting his equipment out of the truck, Gary King Combs said that he then called Gary King on the tele- saw a baseball bat in the cab of the truck. He grabbed it phone and recommended to King t ha t Swigert b e dis- and ran to the office to call the police. charged because he felt that Swigert was threatening the livelihood of all of the drivers. Swigert, however, gave a B. Promising Benefits To Forego the Union different version of what happened." He testified that the following dialogue occurred: After the police arrived at the company yard, they ad- I said, "Are you firing me?" I said, "Am I fired." vised the drivers to go home. First, however, Gary King He said, "Yeah, if I say you're fired, you're fired, in v ite d th e driv e rs in to hi s o f fi c e individually to discuss buddy." I said, "Well, why are you firing me?" And the affair. Later, he addressed a group of drivers in the yard again asking about their grievances. They told him Ernest Centers' testimony on this point was corroborated by drivenr t hat they were afraid of Tom Combs, and that they Otis Mefford and Ritchie Smeal, neither of whom is now employed by wanted health insurance and "show-up" pay (a $10 pay- King and therefore they are without bias. Respondent did not call other ment to each driver for appearing at the company yard employees who were present during this conversation. on days when King had nothing to haul). King had re- ' I find from my observation of the witnesses that Swigert's testimony ceived legal advice and told the drivers that, because of as to the reason he was fired is more accurate. Combs appeared to be a the Union Organizational Campaign, he could not make combative individual and was not a trustworthy witness. He appeared to be willing to give whatever testimony might help the Company's cause, any promises but he implied that the demands were rea- whereas Swigert appeared to be a relatively sincere witness. sonable. He told the drivers that he could not discharge KING TRUCKING COMPANY 727 A. Tom Combs'Assault he said, "Well, you and the God damned Union are The most dramatic incident in this case involves a going to b r ea k t h i s trucking company." And I said, fracas between Tom Combs and John Swigert on March" d o n t h av e an m o re t o d o w ith t h e U n o n th an 24, 1980. anybody else around here, Mister." And he said, Tom Combs had leased a truck to King and had "We ll, you're fir ed ." A nd I said , "We ll , if I'm fir ed , worked part-time as a mechanic for the Company for pay me so I can go on home." He said, "'111 do just several years. In January 1980, King had just purchased t h at five new Mack trucks, at $75,000 each, and hired Combs C t w i t o t c. H as a full-time mechanic. In March 1980, the trucks were d C o m b s l t h ent w ep t n to n t h e o f fi c e t o c a" t a r y K an g . H e breaking down due to the drivers' failure to perform rou- di a le d ona benchwhile e talked u p the phone. afe he tine maintenance and because the trucks were being hun u a bench while he talked on the phone. After he driven overloaded over rough roads. Gary King told the sidg "p t h e telephone he came back toward Swigert and drivers that he had authorized Tom Combs to report any *^"Y T" ln t h e morningand get your money. further instances of breakdown due to driver negligence, It w ill be h ere." Swigert testified that Combs then threw and King said he would discharge the driver. Combs ap- the tire hammer underneath a truck and hit the wall with parently was the only employee in the office after the a terrible "rippet." Arguing resumed and with both trucks had gone on their daily journey, and he answered screaming imprecations Combs reaffirmed his point of the telephone in the office in Gary King's absence and v ie w by jabbing his finger into Swigert's chest. Swigert took messages. He recommended two drivers who were finally pushed Combs hard with a blow similar to a employed by the Company. Gary King admitted on the straight arm in football, mashing Combs' mouth. Swigert witness stand that Tom Combs was in charge when he left to go to his car. Combs followed him into the dark was away. In fact, King told several of the drivers that yard and Swigert testified at the hearing as to what next Combs was "road boss" and that Combs could fire them occurred: if they mistreated the equipment.' And I saw a shadow and I threw up my hand and a About 10:30 p.m. on March 24, 1980, the drivers were shovel come across my arm and nearly broke my returning to the yard at King Trucking Company. John arm and stuck in my head. And I went down in the Swigert, a driver for King for about 2 years, helped an- rocks and he hit me again, flatways, right about the other driver back his truck into the yard. Swigert then ear with the shovel. And then he hit me in the approached a group of other drivers, joshing how he back. I was down in the yard bleeding and getting was going to have to conduct lessons in driving. At the fainty. And I hollered for help and nobody come. same time, Tom Combs approached the group to find the And my car was sitting there running with the door root of the hostility recently shown to him by some of open. And I crawled in it. Someway I got up to the drivers. He asked one of the group, John Keeler, Bums' Truck Stop and somebody called the Law whom Combs had considered to be his friend, why the and the ambulance. The blue lights was everywhere drivers had not been talking to him. Combs said that if it in the-and they took me to the hospital. was related to Gary King giving him the authority to report abused equipment, he assured them that he would Two days later, when word of the altercation had confront the driver with the facts before taking him into spread, the drivers met at a truck stop for coffee before the office and reporting the matter to King. At that point proceeding to pick up their load. Driver Ernest Centers Swigert joined the group and asserted that Combs would called Gary King and wanted him to come to the truck not take him into the office. This lead to an escalation of s tut it. King declined and said that they heated threats. Combs testified that Swigert said that he would discuss it on the following day. Instead, however, did not like working for Gary King and that when he the drivers returned to the company yard. As Centers left he was going to make sure King was out of business. was getting his equipment out of the truck, Gary King Combs said that he then called Gary King on the tele- saw a baseball bat in the cab of the truck. He grabbed it phone and recommended to King t ha t Swigert b e dis- and ran to the office to call the police. charged because he felt that Swigert was threatening the livelihood of all of the drivers. Swigert, however, gave a B. Promising Benefits To Forego the Union different version of what happened." He testified that the following dialogue occurred: After the police arrived at the company yard, they ad- I said, "Are you firing me?" I said, "Am I fired." vised the drivers to go home. First, however, Gary King He said, "Yeah, if I say you're fired, you're fired, in v ite d th e driv e rs in to hi s o f fi c e individually to discuss buddy." I said, "Well, why are you firing me?" And the affair. Later, he addressed a group of drivers in the yard again asking about their grievances. They told him Ernest Centers' testimony on this point was corroborated by drivenr t hat they were afraid of Tom Combs, and that they Otis Mefford and Ritchie Smeal, neither of whom is now employed by wanted health insurance and "show-up" pay (a $10 pay- King and therefore they are without bias. Respondent did not call other ment to each driver for appearing at the company yard employees who were present during this conversation. on days when King had nothing to haul). King had re- ' I find from my observation of the witnesses that Swigert's testimony ceived legal advice and told the drivers that, because of as to the reason he was fired is more accurate. Combs appeared to be a the Union Organizational Campaign, he could not make combative individual and was not a trustworthy witness. He appeared to be willing to give whatever testimony might help the Company's cause, any promises but he implied that the demands were rea- whereas Swigert appeared to be a relatively sincere witness. sonable. He told the drivers that he could not discharge 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Combs because of the union campaign but that Combs Centers later saw driver Jim Hudson at a truck stop and had no power to fire Swigert and that Swigert was not admitted to him, "I'm kind of in a way sorry I quit."8 fired. King also said that he would see that Combs James Morgan was one of three substitute dirivers would not hit anybody else, and the drivers said that was who had worked for King Trucking when regular driv- what they wanted and they left and returned the next ers were unavailable. Since Morgan did not have a tele- day for work. 6 phone at his home, his practice was to call King when he wanted work. Morgan had worked for King on 2 pre- C. Discharge of Swigert, Centers, and Morgan vious days, on March 14 and 23, and he asked Gary King to work on March 26, 1980, the day of the baseball The day after the altercation, Gary King tried to find bat incident. Morgan had not filled out an application out what had happened. He asked the other three drivers b i M h n f ou an apivers. out what had happened. He asked thethe her three drivers and had not been hired as one of King's full-time drivers. who d r they had not much bee When hereturned from they had notruck seen much becausethe other the yard was dark and they had not heard much of the drivers to protest the altercation, he was invited into the dialogue between Combs and Swigert. King tried to call office and Gary King asked him why he had returned to Swigert on the telephone, but he got Mrs. Swigert and the yard. Morgan said he wanted something done about she said she did not know what had happened. King told Combs. King told him to turn over the key to the truck. driver Jim Hudson, who was Swigert's friend, to see Morgan asked if he was fired and King said, "No." He Swigert and tell him he was not fired. Swigert did return left the yard and did not return. to vote in the union election at the request of the union organizer but did not return to work as a driver because D. Coercive Interrogation of Ernest Centers he felt that he had been fired and his lawyer told him to Ernest Centers testified that at 9 a.m. on March 4, stay away from King Trucking Company. stay away from King Trucking Company. 1980, he was fixing a flat tire in the shop when Gary Ernest Centers continued to drive for King for several 1 0 e w s h a a t he ew a King came up to him and asked him what he knew about weeks after the incident involving the baseball bat. Cen- the n and rs ed ht i ing wanted to ters received several fines for driving overloaded trucks know anything about the Union he should get everybody in early 1980 and claims that King required him to con- together. Centers alleged that King said that he would tinue to drive overloaded, and that he therefore had to find out who started it and fire them and if he could not leave the Company. find out who it was he would fire everybody. Gary King King had a policy that drivers should not drive the denied making this statement. trucks overloaded because it is illegal and can damage Based on their demeanor and their whole testimony I the springs and other parts of the truck. Scales are locat- find that Gary King's denial of this allegation is more ed at the tipple of the coal mine where the trucks are credible. The evidence shows that King was receiving loaded, but, since they are paid on a percentage of the competent legal advice-which he followed-not to weight of the load carried, some drivers did drive over- mention the Union to the employees.9 Further, other loaded and King formerly had paid the commission even drivers testified that King had not interfered with their on loads exceeding the legal limit. After he bought the rights to vote in the Union. new trucks, however, King told the drivers that he would pay the commission only up to the legal amount. E. Withdrawal of Credit Cards This policy was posted on the bulletin board in the King Trucking Company provided a credit card kept office. King Trucking Company provided a credit card kept .~~offi~ ~~~~~~ce~. ,. ,, . in each truck so that the driver could use it to pay the About May 1, 1980, King's orders to transport coal tolls on the highway. During the spring of 1980, Gary dropped off drastically. Gary King told Centers that, al- King noted that his bill for tolls had increased S200 in 1 though there would be no coal to haul for a while, he month and that the receipts showed that unauthorized could haul sand. Centers said that he could not make a automobiles and trucks were being checked through the living that way. Centers claims that he called Gary King toll booth on the credit cards. He therefore removed the on the night of May 15, 1980, asking for work and that credit cards from the trucks for 2 months and gave the King told him he would have to haul sand overweight drivers cash for the tolls. There is no evidence that the and that he refused and that the next day he went and credit cards were intended as a prequisite, nor that the applied for workmen's compensation, stating that he had temporary discontinuance had anything to do with the been discharged for failure to carry more than the legal Union weight. An unemployment insurance examiner for the State of Kentucky, Stephen Schultz, testified that he F. Meade King's Threat asked Gary King whether this was true and that King replied that Centers could come back to work under the During the testimony of driver Otis Mefford, he stated same conditions as he worked before. Since I find that that Meade King said that there would not be a union at King had a policy against driving overweight, this offer K ing had a policy against driving overweight, this o ffe r aThis testimony was technically hearsay elicited through driver Jim meant, in effect, that Centers had not been discharged. Hudson. Ernest Centers was in the courtroom, however, and heard the testimony and later testified on rebuttal and denied the statement. By " Otis Mefford generally corroborated Gary King's testimony as to their demeanor, I believe Hudson to be the more credible witness. what was said on this occasion. * Otis Mefford and Jim Hudson-both believable witnesses-corrobo- 'The president of the coal company, James Hatfield, testified credibly rated King's testimony in this regard, directly contradicting Ernest Cen- about this decrease. ters. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Combs because of the union campaign but that Combs Centers later saw driver Jim Hudson at a truck stop and had no power to fire Swigert and that Swigert was not admitted to him, "I'm kind of in a way sorry I quit." 8 fired. King also said that he would see that Combs James Morgan was one of three substitute dirivers would not hit anybody else, and the drivers said that was who had worked for King Trucking when regular driv- what they wanted and they left and returned the next ers were unavailable. Since Morgan did not have a tele- day for work. phone at his home, his practice was to call King when he wanted work. Morgan had worked for King on 2 pre- C. Discharge of Swigert, Centers, and Morgan vious days, on March 14 and 23, and he asked Gary The day after the altercation, Gary King tried to find King to work on March 26, 1980, the day of the baseball The day after the altercation, Gary King tried bat incident. Morgn had not filled out an application out what had happened. He asked theyh n her t ee mch ecus and had not been hired as one of King's full-time drivers. who had been there, but they had not seen much because When he returned from the truck stop with the other the yard was dark and they had not heard much of the drivers to protest the altercation, he was invited into the dialogue between Combs and Swigert. King tnied to call office and Gary King asked him why he had returned to Swigert on the telephone, but he got Mrs. Swigert and the yard. Morgan said he wanted something done about she said she did not know what had happened. King told Combs. King told him to turn over the key to the truck. driver Jim Hudson, who was Swigert's friend, to see Morgan asked if he was fired and King said, "No." He Swigert and tell him he was not fired. Swigert did return left the yard and did not return. to vote in the union election at the request of the union organizer but did not return to work as a driver because D. Coercive Interrogation of Ernest Centers he felt that he had been fired and his lawyer told him to E Cener t t t . a stay away from King Trucking Company. E e t c n e . s lf d t h a 9 a- 1 ° M r 4 stay awy from ing Trcking Cmpany.1980, he was fixing a flat tire in the shop when Gary Ernest Centers continued to drive for King for several 1Kin ca e up to hi a a sk e hi what h e n abu , . .. .. , . . . ,, , „ , . , King came up to him and asked him what he knew about weeks after the incident involving the baseball bat. Cen- t U an C r t if K ters received several fines for driving overloaded trucks know anything about the Union he should get everybody in early 1980 and claims that King required him to con- together. Centers alleged that King said that he would tinue to drive overloaded, and that he therefore had to find out who started it and fire them and if he could not leave the Company. find out who it was he would fire everybody. Gary King King had a policy that drivers should not drive the denied making this statement. trucks overloaded because it is illegal and can damage Based on their demeanor and their whole testimony I the springs and other parts of the truck. Scales are locat- find that Gary King's denial of this allegation is more ed at the tipple of the coal mine where the trucks are credible. The evidence shows that King was receiving loaded, but, since they are paid on a percentage of the competent legal advice-which he followed-not to weight of the load carried, some drivers did drive over- mention the Union to the employees. 9 Further, other loaded and King formerly had paid the commission even drivers testified that King had not interfered with their on loads exceeding the legal limit. After he bought the rights to vote in the Union. new trucks, however, King told the drivers that he would pay the commission only up to the legal amount. E. Withdrawal of Credit Cards This policy was posted on the bulletin board in the Kin T k Ca office. in Trucking Company provided a credit card kept office. , ., . ,„,,,, „. , in each truck so that the driver could use it to pay the A b o u t May 1, 1980, King's orders to transport coal tolls on the highway. During the spring of 1980. Gary dropped off drastically.I Gary King told Centers that, al- King noted that his bill for tolls had increased $200 in 1 though there would be no coal to haul for a while, he month and that the receipts showed that unauthorized could haul sand. Centers said that he could not make a automobiles and trucks were being checked through the living that way. Centers claims that he called Gary King toll booth on the credit cards. He therefore removed the on the night of May 15, 1980, asking for work and that credit cards from the trucks for 2 months and gave the King told him he would have to haul sand overweight drivers cash for the tolls. There is no evidence that the and that he refused and that the next day he went and credit cards were intended as a prequisite, nor that the applied for workmen's compensation, stating that he had temporary discontinuance had anything to do with the been discharged for failure to carry more than the legal Union weight. An unemployment insurance examiner for the State of Kentucky, Stephen Schultz, testified that he F. Meade King's Threat asked Gary King whether this was true and that King replied that Centers could come back to work under the During t h e testimony of driver Otis Mefford. he stated same conditions as he worked before. Since I find that t h a t M e a d e King sa id t h a t th e r e w o u ld n o t b e a unio n a t King had a policy against driving overweight, this offer------ meant, in effect, that Centers had not been discharged. Hudsons Ernest Centers was in the courtroom, however, and heard the testimony and later testified on rebuttal and denied the statement. By " Otis Mefford generally corroborated Gary King's testimony as to their demeanor, I believe Hudson to be the more credible witness. what was said on this occasion.*I Otis Mefford and Jim Hudson-both believable witnesses-corrobo- ' The president of the coal company, James Hatfield, testified credibly rated King's testimony in this regard, directly contradicting Ernest Cen- about this decrease. ters. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Combs because of the union campaign but that Combs Centers later saw driver Jim Hudson at a truck stop and had no power to fire Swigert and that Swigert was not admitted to him, "I'm kind of in a way sorry I quit." 8 fired. King also said that he would see that Combs James Morgan was one of three substitute dirivers would not hit anybody else, and the drivers said that was who had worked for King Trucking when regular driv- what they wanted and they left and returned the next ers were unavailable. Since Morgan did not have a tele- day for work. phone at his home, his practice was to call King when he wanted work. Morgan had worked for King on 2 pre- C. Discharge of Swigert, Centers, and Morgan vious days, on March 14 and 23, and he asked Gary The day after the altercation, Gary King tried to find King to work on March 26, 1980, the day of the baseball The day after the altercation, Gary King ted bat incident. Morgn had not filled out an application out what had happened. He asked theyh n her t ee mch ecus and had not been hired as one of King's full-time drivers. who had been there, but they had not seen much because When he returned from the truck stop with the other the yard was dark and they had not heard much of the drivers to protest the altercation, he was invited into the dialogue between Combs and Swigert. King tnied to call office and Gary King asked him why he had returned to Swigert on the telephone, but he got Mrs. Swigert and the yard. Morgan said he wanted something done about she said she did not know what had happened. King told Combs. King told him to turn over the key to the truck. driver Jim Hudson, who was Swigert's friend, to see Morgan asked if he was fired and King said, "No." He Swigert and tell him he was not fired. Swigert did return left the yard and did not return. to vote in the union election at the request of the union organizer but did not return to work as a driver because D. Coercive Interrogation of Ernest Centers he felt that he had been fired and his lawyer told him to E Cener t t t . a stay away from King Trucking Company. E e t c n e . s lf d t h a 9 a- 1 ° M r 4 stay awy from ing Trcking Cmpany.1980, he was fixing a flat tire in the shop when Gary Ernest Centers continued to drive for King for several 1Kin ca e up to hi a a sk e hi what h e n abu , . .. .. , . . . ,, , „ , . , King came up to him and asked him what he knew about weeks after the incident involving the baseball bat. Cen- t U an C r t if K ters received several fines for driving overloaded trucks know anything about the Union he should get everybody in early 1980 and claims that King required him to con- together. Centers alleged that King said that he would tinue to drive overloaded, and that he therefore had to find out who started it and fire them and if he could not leave the Company. find out who it was he would fire everybody. Gary King King had a policy that drivers should not drive the denied making this statement. trucks overloaded because it is illegal and can damage Based on their demeanor and their whole testimony I the springs and other parts of the truck. Scales are locat- find that Gary King's denial of this allegation is more ed at the tipple of the coal mine where the trucks are credible. The evidence shows that King was receiving loaded, but, since they are paid on a percentage of the competent legal advice-which he followed-not to weight of the load carried, some drivers did drive over- mention the Union to the employees. 9 Further, other loaded and King formerly had paid the commission even drivers testified that King had not interfered with their on loads exceeding the legal limit. After he bought the rights to vote in the Union. new trucks, however, King told the drivers that he would pay the commission only up to the legal amount. E. Withdrawal of Credit Cards This policy was posted on the bulletin board in the Kin T k Ca office. in Trucking Company provided a credit card kept office. , ., . ,„,,,, „.,in each truck so that the driver could use it to pay the A b o u t May 1, 1980, King's orders to transport coal tolls on the highway. During the spring of 1980. Gary dropped off drastically.I Gary King told Centers that, al- King noted that his bill for tolls had increased $200 in 1 though there would be no coal to haul for a while, he month and that the receipts showed that unauthorized could haul sand. Centers said that he could not make a automobiles and trucks were being checked through the living that way. Centers claims that he called Gary King toll booth on the credit cards. He therefore removed the on the night of May 15, 1980, asking for work and that credit cards from the trucks for 2 months and gave the King told him he would have to haul sand overweight drivers cash for the tolls. There is no evidence that the and that he refused and that the next day he went and credit cards were intended as a prequisite, nor that the applied for workmen's compensation, stating that he had temporary discontinuance had anything to do with the been discharged for failure to carry more than the legal Union weight. An unemployment insurance examiner for the State of Kentucky, Stephen Schultz, testified that he F. Meade King's Threat asked Gary King whether this was true and that King replied that Centers could come back to work under the During t h e testimony of driver Otis Mefford. he stated same conditions as he worked before. Since I find that t h a t M e a d e King sa id t h a t th e r e w o u ld n o t b e a unio n a t King had a policy against driving overweight, this offer------ meant, in effect, that Centers had not been discharged. Hudsons Ernest Centers was in the courtroom, however, and heard the testimony and later testified on rebuttal and denied the statement. By " Otis Mefford generally corroborated Gary King's testimony as to their demeanor, I believe Hudson to be the more credible witness. what was said on this occasion.*I Otis Mefford and Jim Hudson-both believable witnesses-corrobo- ' The president of the coal company, James Hatfield, testified credibly rated King's testimony in this regard, directly contradicting Ernest Cen- about this decrease. ters. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Combs because of the union campaign but that Combs Centers later saw driver Jim Hudson at a truck stop and had no power to fire Swigert and that Swigert was not admitted to him, "I'm kind of in a way sorry I quit." 8 fired. King also said that he would see that Combs James Morgan was one of three substitute dirivers would not hit anybody else, and the drivers said that was who had worked for King Trucking when regular driv- what they wanted and they left and returned the next ers were unavailable. Since Morgan did not have a tele- day for work. phone at his home, his practice was to call King when he wanted work. Morgan had worked for King on 2 pre- C. Discharge of Swigert, Centers, and Morgan vious days, on March 14 and 23, and he asked Gary The day after the altercation, Gary King tried to find King to work on March 26, 1980, the day of the baseball The day after the altercation, Gary King ted bat incident. Morgn had not filled out an application out what had happened. He asked theyh n her t ee mch ecus and had not been hired as one of King's full-time drivers. who had been there, but they had not seen much because When he returned from the truck stop with the other the yard was dark and they had not heard much of the drivers to protest the altercation, he was invited into the dialogue between Combs and Swigert. King tnied to call office and Gary King asked him why he had returned to Swigert on the telephone, but he got Mrs. Swigert and the yard. Morgan said he wanted something done about she said she did not know what had happened. King told Combs. King told him to turn over the key to the truck. driver Jim Hudson, who was Swigert's friend, to see Morgan asked if he was fired and King said, "No." He Swigert and tell him he was not fired. Swigert did return left the yard and did not return. to vote in the union election at the request of the union organizer but did not return to work as a driver because D. Coercive Interrogation of Ernest Centers he felt that he had been fired and his lawyer told him to E Cener t t t . a stay away from King Trucking Company. E e t c n e . s lf d t h a 9 a- 1 ° M r 4 stay awy from ing Trcking Cmpany.1980, he was fixing a flat tire in the shop when Gary Ernest Centers continued to drive for King for several 1Kin ca e up to hi a a sk e hi what h e n abu , . .. . . . . , . , , -„ , . King came up to him and asked him what he knew about weeks after the incident involving the baseball bat. Cen- t U an C r t if K ters received several fines for driving overloaded trucks know anything about the Union he should get everybody in early 1980 and claims that King required him to con- together. Centers alleged that King said that he would tinue to drive overloaded, and that he therefore had to find out who started it and fire them and if he could not leave the Company. find out who it was he would fire everybody. Gary King King had a policy that drivers should not drive the denied making this statement. trucks overloaded because it is illegal and can damage Based on their demeanor and their whole testimony I the springs and other parts of the truck. Scales are locat- find that Gary King's denial of this allegation is more ed at the tipple of the coal mine where the trucks are credible. The evidence shows that King was receiving loaded, but, since they are paid on a percentage of the competent legal advice-which he followed-not to weight of the load carried, some drivers did drive over- mention the Union to the employees. 9 Further, other loaded and King formerly had paid the commission even drivers testified that King had not interfered with their on loads exceeding the legal limit. After he bought the rights to vote in the Union. new trucks, however, King told the drivers that he would pay the commission only up to the legal amount. E. Withdrawal of Credit Cards This policy was posted on the bulletin board in the Kin T k Ca office. in Trucking Company provided a credit card kept office. , ., . ,„,,,, „.,in each truck so that the driver could use it to pay the A b o u t May 1, 1980, King's orders to transport coal tolls on the highway. During the spring of 1980. Gary dropped off drastically.I Gary King told Centers that, al- King noted that his bill for tolls had increased $200 in 1 though there would be no coal to haul for a while, he month and that the receipts showed that unauthorized could haul sand. Centers said that he could not make a automobiles and trucks were being checked through the living that way. Centers claims that he called Gary King toll booth on the credit cards. He therefore removed the on the night of May 15, 1980, asking for work and that credit cards from the trucks for 2 months and gave the King told him he would have to haul sand overweight drivers cash for the tolls. There is no evidence that the and that he refused and that the next day he went and credit cards were intended as a prequisite, nor that the applied for workmen's compensation, stating that he had temporary discontinuance had anything to do with the been discharged for failure to carry more than the legal Union weight. An unemployment insurance examiner for the State of Kentucky, Stephen Schultz, testified that he F. Meade King's Threat asked Gary King whether this was true and that King replied that Centers could come back to work under the During t h e testimony of driver Otis Mefford. he stated same conditions as he worked before. Since I find that t h a t M e a d e King sa id t h a t th e r e w o u ld n o t b e a unio n a t King had a policy against driving overweight, this offer------ meant, in effect, that Centers had not been discharged. Hudsons Ernest Centers was in the courtroom, however, and heard the testimony and later testified on rebuttal and denied the statement. By " Otis Mefford generally corroborated Gary King's testimony as to their demeanor, I believe Hudson to be the more credible witness. what was said on this occasion.*I Otis Mefford and Jim Hudson-both believable witnesses-corrobo- ' The president of the coal company, James Hatfield, testified credibly rated King's testimony in this regard, directly contradicting Ernest Cen- about this decrease. ters. KING TRUCKING COMPANY 729 the Company and that "he would close it down and go 9. Meade King did not threaten to close down the back to Tennessee." This statement responded to a lead- shop if the employees formed a union. ing question, and was unadorned by details as to where and when it occurred as well as any information about Discussion any other witnesses who heard the statement. ' The alle- In deciding whether Respondent unlawfully dis- gation was not in the complaint and Respondent was not gation was not in the complaint and Respondent was not charged John Swigert, there are three issues: (1) whether prepared to defend against it and had no duty to probe Tom Combs was Respondent's supervisor, (2) whether for further detail. Furthermore, while Meade King is a Swnd (3) what was the Swigerm was discharged or quit, and (3) what was the stockholder in King Trucking Company, there is no motivation for the discharge. record proof that he has any management function, nor The National Labor Relations Act defines the term that he had the power to close down the Company. "supervir," 29 U.S.C. §152, as follows: "supervisor," 29 U.S.C. §152, as follows: ill. CONCLUSIONS 1III. CONCLUSIONS The term "supervisor" means any individual having 1. Ernest Centers, a claimant in this proceeding, was authority, in the interest of the employer, to hire, not coercively interrogated concerning his union sympa- transfer, suspend, lay off, recall, promote, discharge, thies by Gary King, president of Respondent, on March assign, reward, or discipline other employees, or re- 4, 1981. In addition, Centers was not coercively interro- sponsibly to direct them, or to adjust their griev- gated by Gary King concerning which employee initiat- ances, or effectively to recommend such action, if in ed the union campaign. connection with the foregoing the exercise of such 2. Respondent, through Gary King, did not on March authority is not of a merely routine or clerical 4, 1980, threaten to discharge the employee who began nature, but requires the use of independent judg- the union campaign. Furthermore, Gary King did not ment. threaten to fire all the employees if he could not find the particular employee who began the union campaign. The fact that Combs was authorized to discharge em- 3. Respondent employed Tom Combs as a full-time ployees, without more, is sufficient to show that he was mechanic in January 1980. Combs' duties included re- a supervisor within the meaning of the Act: ". . . [The pairing Respondent's equipment, recommending prospec- possession of any one of the authorities listed [in that tive drivers for employment, reporting to Gary King any section] places the employee vested with this authority in abuse of the equipment, discharging employees for such the supervisory class. Ohio Power Company v. N.LR.B., abuse, and answering the phone and being in charge 176 F.2d 385, 387 (6th Cir. 1949). Since Tom Combs was when Gary King was not on Respondent's premises. authorized to discharge employees, he was a supervisor 4. Tom Combs was a supervisor for King Trucking under the Act. Company. Furthermore, even Gary King testified, in effect, that 5. Respondent discharged its employee, James Swigert, Combs was authorized with the power effectively to rec- on March 24, 1980, for union activity. ommend the discharge of an employee; Combs is, there- 6. Respondent, through Gary King, did not promise fore, a supervisor within the meaning of the Section. El- additional insurance and showup pay to its employees on 345 F.t2d 460 (7h Cir. 1943 N B 811, 8 16 d196 3) i enfd. March 26, 1980, and did not threaten the employees that 34 5 F 2d 4 60 M 7t h Cir 196 5) .R And, t w o disinterested the Union would never represent them. On March 26, witnesses, Otis Mefford and Ritchie Smeal, testified that, the Union would never represent them. On March 26, after the drivers complained to King about Tom Combs 1980, Gary King told a group of employees that he aft er th e drvers complaied to Kig about Tom Combs could not discuss the Union with them nor offer them hitting John Swigert with a shovel, King said that, al- additional benefits because of the union election. though he could not discharge Combs because of the union campaign, he would see that Combs was no longer a "foreman" or a "boss," thus implying that Combs had claimant herein, but Morgan voluntarily terminated the in fact been a supervisor when he discharged Swigert. in fact been a supervisor when he discharged Swigert. arrangement ha e ehad with Respondent. James Morgan Tom Combs appears to have an irascible nature. His was not a full-time employee with Respondent, but only dominant motive for discharging Swigert, however, was a "fill-in" who would temporarily drive when another d om n a n t m o tiv e fo r discharging Swigert, however, was adriver c ould no work.uld torgarly drive whfor Reson Combs' prejudice against the Union, expressed in his re- driver could not work. Morgan only drove for Respond- sponse to Swigert's question why he was being fired. ent on 3 days, never filled out an employment applica- This animus was lso indicat y he was being fired. tion, and was not an employee of Respondent. This amus was also dicated by his treatment. One night 2 o. RespondAnt .id not discharge Ernst- . <". . i-ut Hudson, a leader of the union movement. One night 2 8. Respondent did not discharge Ernest Centers, but weeks after Swigert was discharged Hudson was park- Centers voluntarily terminated his employment with Re- ing his truck in the company lot when the rear end of spondent. When Centers asked Gary King if he could spondent. When Centers asked Gary King if he could undethe truck caught fire. He ran into the shop for a hose to return to his employment, King said he could under the put out the fire and Combs began to curse him, and, put out the fire and Combs began to curse him, and, previous conditions but King did not say that Centers pointing his finger at Hudson told him "You al- had to haul illegal overweight loads of sand and coal as a condition of reemployment. a condition of reemployment. " Since I find that Combs was a supervisor, there is no need to decide whether Combs acted as Respondent's agent. '1 Although Otis Mefford was a trustworthy witness, I am not required " Respondent's argument that Combs could not be a supervisor be- to find as a fact everything he said. Edwards Transportation Company, 187 cause he was allowed to vote in the union election is without merit. NLRB 3 (1970), enfd. per curium 437 F.2d 502 (5th Cir. 1971). N.LR.B. v. Elliott- Williams Ca. Inc., 345 F.2d 460, 463. KING TRUCKING COMPANY 729 the Company and that "he would close it down and go 9. Meade King did not threaten to close down the back to Tennessee." This statement responded to a lead- shop if the employees formed a union. ing question, and was unadorned by details as to where and when it occurred as well as any information about Discussion any other witnesses who heard the statement." 0 The alle- In deciding whether Respondent unlawfully dis- gation was not in the complaint and Respondent was not~ n d c d n h t e P" 1 "aflyds gatin wa no in he omplint nd espoden wasnot charged John Swigert, there are three issues: (1) whether prepared to defend against it and had no duty to probe Tom C omb s R e s e sue rvs r ," (2) w h et h e r for further detail. Furthermore, while Meade King is a Sietw s d a rgd o quit, a2) whethe s t ~~o l d et ^ ^ ^ Company thereiger Ia no Shor gd d oe qu l t, an d (3) w h a t w as t h e stockholder in King Trucking Company, there is no moiaonfrtedshg. record proof that he has any management function, nor Th N L R Ac di t that he had the power to close down the Company. "u ervis o r 2 S 1 a sfollows: * * *~~~~~~~~~"supervisor," 29 U.S.C. §152, as follows: Ill. CONCLUSIONS- . .„*., , The term "supervisor" means any individual having 1. Ernest Centers, a claimant in this proceeding, was authority, in the interest of the employer, to hire, not coercively interrogated concerning his union sympa- transfer, suspend, lay off, recall, promote, discharge, thies by Gary King, president of Respondent, on March assign, reward, or discipline other employees, or re- 4, 1981. In addition, Centers was not coercively interro- sponsibly to direct them, or to adjust their griev- gated by Gary King concerning which employee initiat- ances, or effectively to recommend such action, if in ed the union campaign. connection with the foregoing the exercise of such 2. Respondent, through Gary King, did not on March authority is not of a merely routine or clerical 4, 1980, threaten to discharge the employee who began nature, but requires the use of independent judg- the union campaign. Furthermore, Gary King did not ment. threaten to fire all the employees if he could not find the particular employee who began the union campaign. T h e fac t that Combs was authorized to discharge em- 3. Respondent employed Tom Combs as a full-time ployees, without more, is sufficient to show that he was mechanic in January 1980. Combs' duties included re- a supervisor within the meaning of the Act: ". . . [T]he pairing Respondent's equipment, recommending prospec- possession of any one of the authorities listed [in that tive drivers for employment, reporting to Gary King any section] places the employee vested with this authority in abuse of the equipment, discharging employees for such the supervisory class. Ohio Power Company v. N.LR.B., abuse, and answering the phone and being in charge 17 6 F.2d 38 5, 387 (6t h Cir. 1949). Since Tom Combs was when Gary King was not on Respondent's premises. authorized to discharge employees, he was a supervisor 4. Tom Combs was a supervisor for King Trucking u n d e r t h e A ct . Company. Furthermore, even Gary King testified, in effect, that 5. Respondent discharged its employee, James Swigert, Co m b s w as authorized with the power effectively to rec- on March 24, 1980, for union activity. ommend the discharge of an employee; Combs is, there- 6. Respondent, through Gary King, did not promise f o r e , a s u pe r v iso r w it h in the meanin g o f t h e Sec tio n . E l - additional insurance and showup pay to its employees on hot^-Wilhams Co. Inc., 143 NLRB 811, 8 16 (196 3), e n fd . March 26, 1980, and did not threaten the employees that 34 5 F.2d 4 60 (7t h Cir. 196 5) .2 A n d , t w o disinterested the Union would never represent them. On March 26, witnesses, Otis Mefford and Ritchie Smeal, testified that, 1980, Gary King told a group of employees that he aft er t he drivers complained to King about Tom Combs could not discuss the Union with them nor offer them hit t in g J o h n Swig er t w ith a shovel, King said that, al- additional benefits because of the union election. t h o u g h h e c o u ld no t discharge Combs because of the 7. Respondent did not discharge James Morgan, a union campaign, he would see that Combs was no longer a "foreman" or a "boss," thus implying that Combs had claimant herein, but Morgan voluntarily terminated the i fat e en as o r when he d h ar Swigert. arrangement he had with Respondent. James Morgan Tom Comb aper to he discible Swtge. was not a full-time employee with Respondent, but only T o m C o m b s m ppoief t o h a v e aS ir asct b l e na t ure v Hw s a "fill-in" who would temporarily drive when another dCombs'prj uotive for discharging Swigert, however, was driver could not work. Morgan only drove for Respond- C o m b s' prejd.ce against the Union, expressed in his re- ent on 3 days, never filled out an employment applica- sp o n se t o Swigert's question why he was being fired. tion, and was not an employee of Respondent. a T h is ani m u s w as als o indicated by his treatment of Jim to n, andwst a n emp loe ofa Resp nent i. <. Hudson, a leader of the union movement. One night 2 Ce Resvpuondnt did nterm diatedhargeem es t Centewirs ,but weeks after Swigert w as d i sc ha r g e d , Hudson w as park- Centrs olutarly trmiate hi empoymnt ithRe- ing his truck in the company lot when the rear end of spnet.We Ce "ter ase hr Kn f h e ^ ^ ^^ t holS spondnt. hen entes ased Gry Kng i he ould the truck caught fire. He ran into the shop for a hose to return to his employment, King said he could under the puotthfieadCmsbgnocrehmn, ^Tous~~~tdS ~~urK^ ^^^^~~P"« ,-t th fi and^ Combs began to curse him. and, previous conditions but King did not say that Centers ponighsfgeatHdnolhm,"uan'al had to haul illegal overweight loads of sand and coal as a condition of reemployment.c ,-. „. a*condition of reemployment. 1" Since I find that Combs was a supervisor, there is no need to decide whether Combs acted as Respondent's agent. 10 Although Otis Mefford was a trustworthy witness, I am not required "1 Respondent's argument that Combs could not be a supervisor be- to rind as a fact everything he said. Edwards Transportation Company, 187 cause he was allowed to vote in the union election is without merit. NLRB 3 (1970), enfd. per curium 437 F.2d 502 (5th Cir. 1971). N.L.R.B. v. Elliott- Williams Ca. Inc., 345 F.2d 460, 463. KING TRUCKING COMPANY 729 the Company and that "he would close it down and go 9. Meade King did not threaten to close down the back to Tennessee." This statement responded to a lead- shop if the employees formed a union. ing question, and was unadorned by details as to where and when it occurred as well as any information about Discussion any other witnesses who heard the statement." 0 The alle- In deciding whether Respondent unlawfully dis- gation was not in the complaint and Respondent was not~ n d c d n h t e P" 1 "aflyds gatin wa no in he omplint nd espoden wasnot charged John Swigert, there are three issues: (1) whether prepared to defend against it and had no duty to probe To C om w Re sn t su er visor," (2) w h et h e r for further detail. Furthermore, while Meade King is a Sietw s d a rged o quit, a2) whethe s t ~~o l d et ^ ^ ^ Company thereiger Ia no Shor gd d oe qu l t, an d (3) w h a t w as t h e stockholder in King Trucking Company, there is no moiaonfrtedshg. record proof that he has any management function, nor Th N L R Ac di t that he had the power to close down the Company. "u ervis o r 2 S 1 a sfollows: * * *~~~~~~~~~"supervisor," 29 U.S.C. §152, as follows: Ill. CONCLUSIONS- . .„*., , The term "supervisor" means any individual having 1. Ernest Centers, a claimant in this proceeding, was authority, in the interest of the employer, to hire, not coercively interrogated concerning his union sympa- transfer, suspend, lay off, recall, promote, discharge, thies by Gary King, president of Respondent, on March assign, reward, or discipline other employees, or re- 4, 1981. In addition, Centers was not coercively interro- sponsibly to direct them, or to adjust their griev- gated by Gary King concerning which employee initiat- ances, or effectively to recommend such action, if in ed the union campaign. connection with the foregoing the exercise of such 2. Respondent, through Gary King, did not on March authority is not of a merely routine or clerical 4, 1980, threaten to discharge the employee who began nature, but requires the use of independent judg- the union campaign. Furthermore, Gary King did not ment. threaten to fire all the employees if he could not find the particular employee who began the union campaign. T h e fac t that Combs was authorized to discharge em- 3. Respondent employed Tom Combs as a full-time ployees, without more, is sufficient to show that he was mechanic in January 1980. Combs' duties included re- a supervisor within the meaning of the Act: ". . . [T]he pairing Respondent's equipment, recommending prospec- possession of any one of the authorities listed [in that tive drivers for employment, reporting to Gary King any section] places the employee vested with this authority in abuse of the equipment, discharging employees for such the supervisory class. Ohio Power Company v. N.LR.B., abuse, and answering the phone and being in charge 17 6 F.2d 38 5, 387 (6t h Cir. 1949). Since Tom Combs was when Gary King was not on Respondent's premises. authorized to discharge employees, he was a supervisor 4. Tom Combs was a supervisor for King Trucking u n d e r t h e A ct . Company. Furthermore, even Gary King testified, in effect, that 5. Respondent discharged its employee, James Swigert, Co m b s w as authorized with the power effectively to rec- on March 24, 1980, for union activity. ommend the discharge of an employee; Combs is, there- 6. Respondent, through Gary King, did not promise f o r e , a s u pe r v iso r w it h in the me an in g o f t h e Sec tio n . E l - additional insurance and showup pay to its employees on hot^-Wilhams Co. Inc., 143 NLRB 811, 8 16 (196 3), e n fd . March 26, 1980, and did not threaten the employees that 34 5 F. 2d 4 60 (7t h Cir. 196 5) . 2 A n d , t w o disinterested the Union would never represent them. On March 26, witnesses, Otis Mefford and Ritchie Smeal, testified that, 1980, Gary King told a group of employees that he aft er t he drivers complained to King about Tom Combs could not discuss the Union with them nor offer them hit t in g J o h n Swig er t w ith a shovel, King said that, al- additional benefits because of the union election. t h o u g h h e c o u ld no t discharge Combs because of the 7. Respondent did not discharge James Morgan, a union campaign, he would see that Combs was no longer a "foreman" or a "boss," thus implying that Combs had claimant herein, but Morgan voluntarily terminated the i fat e en as o r when he d h ar Swigert. arrangement he had with Respondent. James Morgan Tom Comb appar to he discible Swtge. was not a full-time employee with Respondent, but only T o m C o m b s m ppoief t o h a v e aS ir asct b l e na t ure v Hw s a "fill-in" who would temporarily drive when another dCombs'prj uotive for discharging Swigert, however, was driver could not work. Morgan only drove for Respond- C o m b s' prejd.ce against the Union, expressed in his re- ent on 3 days, never filled out an employment applica- sp o n se t o Swigert's question why he was being fired. tion, and was not an employee of Respondent. a T h is ani m u s w as als o indicated by his treatment of Jim to n, andwst a n emp loe ofa Resp nent i. <. Hudson, a leader of the union movement. One night 2 Ce s nvduent did no m isatred e Eem s tCent erwisbut weeks after Swigert w as discharged, Hudson w as park- Centrs olutarly trmiate hi empoymnt ithRe- ing his truck in the company lot when the rear end of spnet.We Ce "ter ase hr Kn f h e ^ ^ ^^ t holS spondnt. hen entes ased Gry Kng i he ould the truck caught fire. He ran into the shop for a hose to return to his employment, King said he could under the puotthfieadCmsbgnocrehmn, ^Tous~~~tdS ~~urK^ ^^^^~~P"« ,-t th fir and bs began to curse him. and, previous conditions but King did not say that Centers ponighsfgeatHdnolhm,"uan'al had to haul illegal overweight loads of sand and coal as a condition of reemployment.c ,-. „. a*condition of reemployment. 1" Since I find that Combs was a supervisor, there is no need to decide whether Combs acted as Respondent's agent. 10 Although Otis Mefford was a trustworthy witness, I am not required "1 Respondent's argument that Combs could not be a supervisor be- to rind as a fact everything he said. Edwards Transportation Company, 187 cause he was allowed to vote in the union election is without merit. NLRB 3 (1970), enfd. per curium 437 F.2d 502 (5th Cir. 1971). N.L.R.B. v. Elliott- Williams Ca. Inc., 345 F.2d 460, 463. KING TRUCKING COMPANY 729 the Company and that "he would close it down and go 9. Meade King did not threaten to close down the back to Tennessee." This statement responded to a lead- shop if the employees formed a union. ing question, and was unadorned by details as to where and when it occurred as well as any information about Discussion any other witnesses who heard the statement." 0 The alle- In deciding whether Respondent unlawfully dis- gation was not in the complaint and Respondent was not~ n d c d n h t e P" 1 "aflyds gatin wa no in he omplint nd espoden wasnot charged John Swigert, there are three issues: (1) whether prepared to defend against it and had no duty to probe To C om w Re sn t su er visor," (2) w h et h e r for further detail. Furthermore, while Meade King is a Swi l er w asdicare o quit, a2) whethe ^d0 1 11 " ^ ^ ^ ^ - t h e re ~~~Swger gs s » m i rdisha ge. ^qut an d (3) w h a t w as t h e stockholder in King Trucking Company, there is no moiaonfrtedshg. record proof that he has any management function, nor Th N L R Ac di t that he had the power to close down the Company. "u ervis o r 2 S 1 a sfollows: * * *~~~~~~~~~"supervisor," 29 U.S.C. §152, as follows: Ill. CONCLUSIONS- . .„*., , The term "supervisor" means any individual having 1. Ernest Centers, a claimant in this proceeding, was authority, in the interest of the employer, to hire, not coercively interrogated concerning his union sympa- transfer, suspend, lay off, recall, promote, discharge, thies by Gary King, president of Respondent, on March assign, reward, or discipline other employees, or re- 4, 1981. In addition, Centers was not coercively interro- sponsibly to direct them, or to adjust their griev- gated by Gary King concerning which employee initiat- ances, or effectively to recommend such action, if in ed the union campaign. connection with the foregoing the exercise of such 2. Respondent, through Gary King, did not on March authority is not of a merely routine or clerical 4, 1980, threaten to discharge the employee who began nature, but requires the use of independent judg- the union campaign. Furthermore, Gary King did not ment. threaten to fire all the employees if he could not find the particular employee who began the union campaign. T h e fac t that Combs was authorized to discharge em- 3. Respondent employed Tom Combs as a full-time ployees, without more, is sufficient to show that he was mechanic in January 1980. Combs' duties included re- a supervisor within the meaning of the Act: ". . . [T]he pairing Respondent's equipment, recommending prospec- possession of any one of the authorities listed [in that tive drivers for employment, reporting to Gary King any section] places the employee vested with this authority in abuse of the equipment, discharging employees for such the supervisory class. Ohio Power Company v. N.LR.B., abuse, and answering the phone and being in charge 17 6 F.2d 38 5, 387 (6t h Cir. 1949). Since Tom Combs was when Gary King was not on Respondent's premises. authorized to discharge employees, he was a supervisor 4. Tom Combs was a supervisor for King Trucking u n d e r t h e A ct . Company. Furthermore, even Gary King testified, in effect, that 5. Respondent discharged its employee, James Swigert, Co m b s w as authorized with the power effectively to rec- on March 24, 1980, for union activity. ommend the discharge of an employee; Combs is, there- 6. Respondent, through Gary King, did not promise f o r e , a s u pe r v iso r w it h in the me an in g o f t h e Sec tio n . E l - additional insurance and showup pay to its employees on hot^-Wilhams Co. Inc., 143 NLRB 811, 8 16 (196 3), e n fd . March 26, 1980, and did not threaten the employees that 34 5 F.2d 4 60 (7t h Cir. 196 5) . 2 A n d , t w o disinterested the Union would never represent them. On March 26, witnesses, Otis Mefford and Ritchie Smeal, testified that, 1980, Gary King told a group of employees that he aft er t he drivers complained to King about Tom Combs could not discuss the Union with them nor offer them hit t in g J o h n Swig er t w ith a shovel, King said that, al- additional benefits because of the union election. t h o u g h h e c o u ld no t discharge Combs because of the 7. Respondent did not discharge James Morgan, a union campaign, he would see that Combs was no longer a "foreman" or a "boss," thus implying that Combs had claimant herein, but Morgan voluntarily terminated the i fat e en as o r when he d h ar Swigert. arrangement he had with Respondent. James Morgan Tom Comb appar to he discible Swtge. was not a full-time employee with Respondent, but only T o m C o m b s m ppoief t o h a v e aS ir asct b l e na t ure v Hw s a "fill-in" who would temporarily drive when another dCombs'prj uotive for discharging Swigert, however, was driver could not work. Morgan only drove for Respond- C o m b s' prejd.ce against the Union, expressed in his re- ent on 3 days, never filled out an employment applica- sp o n se t o Swigert's question why he was being fired. tion, and was not an employee of Respondent. a T h is ani m u s w as als o indicated by his treatment of Jim to n, andwst a n emp loe ofa Resp nent i. <. Hudson, a leader of the union movement. One night 2 Ce s nvduent did no m isatred e Eem s tCent erwisbut weeks after Swigert w as discharged, Hudson w as park- Centrs olutarly trmiate hi empoymnt ithRe- ing his truck in the company lot when the rear end of spnet.We Ce "ter ase hr Kn f h e ^ ^ ^^ t holS spondnt. hen entes ased Gry Kng i he ould the truck caught fire. He ran into the shop for a hose to return to his employment, King said he could under the puotthfieadCmsbgnocrehmn, ^Tous~~~tdS ~~urK^ ^^^^~~P"« ,-t th fi and^ Combs began to curse him. and, previous conditions but King did not say that Centers ponighsfgeatHdnolhm,"uan'al had to haul illegal overweight loads of sand and coal as a condition of reemployment.c ,-. „. a*condition of reemployment. 1" Since I find that Combs was a supervisor, there is no need to decide whether Combs acted as Respondent's agent. 10 Although Otis Mefford was a trustworthy witness, I am not required "1 Respondent's argument that Combs could not be a supervisor be- to rind as a fact everything he said. Edwards Transportation Company, 187 cause he was allowed to vote in the union election is without merit. NLRB 3 (1970), enfd. per curium 437 F.2d 502 (5th Cir. 1971). N.L.R.B. v. Elliott- Williams Ca. Inc., 345 F.2d 460, 463. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lowed in the shop." Combs told driver Richie Smeal, worth Company, 90 NLRB 289 (1950), and Florida Steel "I've got nothing to say to you, Richie. I'm talking to Corporation, 231 NLRB 651 (1977). See, generally, Isis him." Richie Smeal was one of two drivers working for Plumbing & Heating Co., 138 NLRB 716 (962) King who did not participate in organizing the Union. Upon the foregoing findings of fact, conclusions of When Respondent's employee Tom Combs, acting as a law, and the entire record, I hereby issue-pursuant to supervisor, told John Swigert that he was discharged,"3 Section 10(c) of the Act-the following recommended and a motivating factor in that act was Union activity order. protected by the Act, the burden shifted to Respondent to show that the discharge would have occurred even in ORDER"S the absence of the protected activity. Wright Line, a Divi- sion of Wright Line, Inc., 251 NLRB 1083 (1980). Re- The Respondent, King Trucking Company, Burling- spondent offered no reason to justify Swigert's discharge. ton, Kentucky, its officers, agents, successors, and as- Respondent, in fact, denies that Swigert was dis- signs, shall: charged. The point having been emphasized with shovel 1. Cease and desist from: blows, I believe that Swigert acted reasonably in think- (a) Discharging employees because they have engaged ing that he had been discharged"4 and that Respondent in protected concerted activity. had a duty clearly to demonstrate to Swigert that he had (b) Discouraging membership in the Union, or any not been discharged. Gary King's inconclusive call to other labor organization of its employees, by discriminat- Mrs. Swigert to find out what had happened, and his use ing against them for engaging in protected concerted ac- of Jim Hudson as an emissary, did not, in my opinion, tivity. fulfill this obligation. King saw Swigert at the election (c) In any like or related manner interfering with, re- on April 28, 1980, and could have made clear his intent raining, or coercing employees in the exercise of the at that time. He testified that he saw Swigert on his lot ri guaranteed under Section 7 of the Act. at the union election but said nothing. That is not in my ghts garantee uner et te Act. estimation a good-faith repudiation of Combs' reprehensi- 2. Take the following affirmative action which will ble conduct or adequate reassurance that Swigert's job effect the policies of the Act: was still available. (a) Offer John Swigert reinstatement to his former po- sition and make him whole in the manner set forth in the CONCLUSIONS OF LAW section entitled "The Remedy." 1. Respondent is an employer engaged in commerce (b) Preserve and, upon request, make available to the within the meaning of Section 2(2), (6), and (7) of the Board or its agents, for examination and copying, all Act. payroll records, social security payment records, time- 2. The Union is a labor organization within the mean- cards, personnel records and reports, and all other re- ing of Section 2(5) of the Act. cords necessary to analyze the amount of backpay due 3. Respondent, by Tom Combs, violated Section under the terms of this Order. 8(a)(l) and (3) of the Act by unlawfully discharging em- (c) Post in its office and provide each of its driver em- ployee John Swigert as a result of his activity on behalf ployees with a copy of the attached notice marked "Ap- of the Union. pendix." 16 Copies of said notice, on forms provided by 4. Except as found above, Respondent has not engaged the Regional Director for Region 9, after being duly in other unfair labor practies as alleged. signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt THE REMEDY thereof and be maintained by it for 60 consecutive days Having found that Respondent engaged in certain therefter, in conspicuous places, including all places unfair labor practices, I find it necessary that it cease and where notices to employees are customarily posted. Rea- desist therefrom and from any like or related conduct, sonable steps shall be taken by Respondent to insure that and to post an appropriate notice, attached hereto as an said notices are not altered, defaced or covered by any Appendix. other material. Moreover, Respondent should make whole employee (d) Notify the Regional Director for Region 9, in writ- John Swigert for any loss of pay as a result of the dis- ing, within 20 days from the effective date of this Order, crimination against him, and offer him immediate and full what steps Respondent has taken to comply herewith. reinstatement to his former position of employment or, if that position no longer exists, to substantially equivalent In the event no exceptions are filed as provided by Sec. 102.46 of employment, without prejudice to his seniority or other the Rules and Regulations of the National Labor Relations Board, the rights or privileges previously enjoyed. Said backpay is findings, conclusions, and recommended Order herein shall, as provided to be computed in the manner prescribed in F. W Wool- in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. " Jim Hudson, a driver presently employed by King and generally a " In the event that this Order is enforced by a Judgment of a United believable witness, testified that Combs told Swigert: "You're fired. Get States Court of Appeals, the words in the notice reading "Posted by off the damn lot. You're fired." Order of the National Labor Relations Board" shall read "Posted Pursu- " Swigert testified that he applied for unemployment compensation on ant to a Judgment of the United States Court of Appeals Enforcing an the basis of having been fired. Order of the National Labor Relations Board." 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lowed in the shop." Combs told driver Richie Smeal, worth Company, 90 NLRB 289 (1950), and Florida Steel "I've got nothing to say to you, Richie. I'm talking to Corporation, 231 NLRB 651 (1977). See, generally, Isis him." Richie Smeal was one of two drivers working for Plumbing & Heating Co., 138 NLRB 716 (962) King who did not participate in organizing the Union. Upon the foregoing findings of fact, conclusions of When Respondent's employee Tom Combs, acting as a law, and the entire record, I hereby issue-pursuant to supervisor, told John Swigert that he was discharged," Section 10(c) of the Act-the following recommended and a motivating factor in that act was Union activity order. protected by the Act, the burden shifted to Respondent to show that the discharge would have occurred even in ORDER" the absence of the protected activity. Wright Line, a Divi- sion of Wright Line, Inc., 251 NLRB 1083 (1980). Re-_ The Respondent, King Trucking Company, Burling- spondent offered no reason to justify Swigert's discharge,. ton, Kentucky, its officers, agents, successors, and as- Respondent, in fact, denies that Swigert was dis- signs, shall: charged. The point having been emphasized with shovel 1. Cease and desist from: blows, I believe that Swigert acted reasonably in think- (a) Discharging employees because they have engaged ing that he had been discharged" and that Respondent in protected concerted activity. had a duty clearly to demonstrate to Swigert that he had (b) Discouraging membership in the Union, or any not been discharged. Gary King's inconclusive call to other labor organization of its employees, by discriminat- Mrs. Swigert to find out what had happened, and his use ing against them for engaging in protected concerted ac- of Jim Hudson as an emissary, did not, in my opinion, tivity. fulfill this obligation. King saw Swigert at the election (c) In any like or related manner interfering with, re- on April 28, 1980, and could have made clear his intent straining, or coercing employees in the exercise of the at that time. He testified that he saw Swigert on his lot rights guaranteed under Section 7 of the Act. at the union election but said nothing. That is not in my 2. Tak t n a a wi will estimation a good-faith repudiation of Combs' reprehensi- 2. T a k e t h e f o l lo w ing affirmative action which will ble conduct or adequate reassurance that Swigert's job e f e c t t h e policies of the Act: was still available. (a) Offer John Swigert reinstatement to his former po- sition and make him whole in the manner set forth in the CONCLUSIONS OF LAW section entitled "The Remedy." 1. Respondent is an employer engaged in commerce (b) Preserve and, upon request, make available to the within the meaning of Section 2(2). (6), and (7) of the Board or its agents, for examination and copying, all Act. payroll records, social security payment records, time- 2. The Union is a labor organization within the mean- c a r d s , personnel records and reports, and all other re- ing of Section 2(5) of the Act. c o r d s necessary to analyze the amount of backpay due 3. Respondent, by Tom Combs, violated Section under the terms of this Order. 8(aXl) and (3) of the Act by unlawfully discharging em- (c) Post in its office and provide each of its driver em- ployee John Swigert as a result of his activity on behalf ployees with a copy of the attached notice marked "Ap- of the Union. pendix." 16 Copies of said notice, on forms provided by 4. Except as found above, Respondent has not engaged the Regional Director for Region 9, after being duly in other unfair labor practies as alleged. signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt THE REMEDY thereof and be maintained by it for 60 consecutive days Having found that Respondent engaged in certain therefter, in conspicuous places, including all places unfair labor practices, I find it necessary that it cease and w h e r e notices to employees are customarily posted. Rea- desist therefrom and from any like or related conduct, sonable steps shall be taken by Respondent to insure that and to post an appropriate notice, attached hereto as an said notices are not altered, defaced or covered by any Appendix. other material. Moreover, Respondent should make whole employee (d) Notify the Regional Director for Region 9, in writ- John Swigert for any loss of pay as a result of the dis- ing, within 20 days from the effective date of this Order, crimination against him, and offer him immediate and full what steps Respondent has taken to comply herewith. reinstatement to his former position of employment or, if that position no longer exists, to substantially equivalent In the event no exceptions are ried as provided by Sec. 102.46 of employment, without prejudice to his seniority or Other the Rules and Regulations of the National Labor Relations Board, the rights Or privileges previously enjoyed. Said backpay is findings, conclusions, and recommended Order herein shall, as provided to be computed in the manner prescribed in F. W. Wool- i n S ec . 10 2 .48 o f t he R ul es a nd Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. " Jim Hudson, a driver presently employed by King and generally a L" In the event that this Order is enforced by a Judgment of a United believable witness, testified that Combs told Swigert: "You're fired. Get States Court of Appeals, the words in the notice reading "Posted by off the damn lot. You're fired." Order of the National Labor Relations Board" shall read "Posted Pursu- " Swigert testified that he applied for unemployment compensation on ant to a Judgment of the United States Court of Appeals Enforcing an the basis of having been fired. Order of the National Labor Relations Board." 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lowed in the shop." Combs told driver Richie Smeal, worth Company, 90 NLRB 289 (1950), and Florida Steel "I've got nothing to say to you, Richie. I'm talking to Corporation, 231 NLRB 651 (1977). See, generally, Isis him." Richie Smeal was one of two drivers working for Plumbing & Heating Co., 138 NLRB 716 (962) King who did not participate in organizing the Union. Upon the foregoing findings of fact, conclusions of When Respondent's employee Tom Combs, acting as a law, and the entire record, I hereby issue-pursuant to supervisor, told John Swigert that he was discharged," Section 10(c) of the Act-the following recommended and a motivating factor in that act was Union activity order. protected by the Act, the burden shifted to Respondent to show that the discharge would have occurred even in ORDER" the absence of the protected activity. Wright Line, a Divi- sion of Wright Line, Inc., 251 NLRB 1083 (1980). Re-_ The Respondent, King Trucking Company, Burling- spondent offered no reason to justify Swigert's discharge,. ton, Kentucky, its officers, agents, successors, and as- Respondent, in fact, denies that Swigert was dis- signs, shall: charged. The point having been emphasized with shovel 1. Cease and desist from: blows, I believe that Swigert acted reasonably in think- (a) Discharging employees because they have engaged ing that he had been discharged" and that Respondent in protected concerted activity. had a duty clearly to demonstrate to Swigert that he had (b) Discouraging membership in the Union, or any not been discharged. Gary King's inconclusive call to other labor organization of its employees, by discriminat- Mrs. Swigert to find out what had happened, and his use ing against them for engaging in protected concerted ac- of Jim Hudson as an emissary, did not, in my opinion, tivity. fulfill this obligation. King saw Swigert at the election (c) In any like or related manner interfering with, re- on April 28, 1980, and could have made clear his intent straining, or coercing employees in the exercise of the at that time. He testified that he saw Swigert on his lot rights guaranteed under Section 7 of the Act. at the union election but said nothing. That is not in my 2. Tak t 11 a a wi will estimation a good-faith repudiation of Combs' reprehensi- 2. T a k e t h e f o l lo w ing affirmative action which will ble conduct or adequate reassurance that Swigert's job e f e c t t h e policies of the Act: was still available. (a) Offer John Swigert reinstatement to his former po- sition and make him whole in the manner set forth in the CONCLUSIONS OF LAW section entitled "The Remedy." 1. Respondent is an employer engaged in commerce (b) Preserve and, upon request, make available to the within the meaning of Section 2(2), (6), and (7) of the Board or its agents, for examination and copying, all Act. payroll records, social security payment records, time- 2. The Union is a labor organization within the mean- c a r d s , personnel records and reports, and all other re- ing of Section 2(5) of the Act. c o r d s necessary to analyze the amount of backpay due 3. Respondent, by Tom Combs, violated Section under the terms of this Order. 8(aXl) and (3) of the Act by unlawfully discharging em- (c) Post in its office and provide each of its driver em- ployee John Swigert as a result of his activity on behalf ployees with a copy of the attached notice marked "Ap- of the Union. pendix." 16 Copies of said notice, on forms provided by 4. Except as found above, Respondent has not engaged the Regional Director for Region 9, after being duly in other unfair labor practies as alleged. signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt THE REMEDY thereof and be maintained by it for 60 consecutive days Having found that Respondent engaged in certain therefter, in conspicuous places, including all places unfair labor practices, I find it necessary that it cease and w h e r e notices to employees are customarily posted. Rea- desist therefrom and from any like or related conduct, sonable steps shall be taken by Respondent to insure that and to post an appropriate notice, attached hereto as an said notices are not altered, defaced or covered by any Appendix. other material. Moreover, Respondent should make whole employee (d) Notify the Regional Director for Region 9, in writ- John Swigert for any loss of pay as a result of the dis- ing, within 20 days from the effective date of this Order, crimination against him, and offer him immediate and full what steps Respondent has taken to comply herewith. reinstatement to his former position of employment or, if that position no longer exists, to substantially equivalent In the event no exceptions are riled as provided by Sec. 102.46 of employment, without prejudice to his seniority or Other the Rules and Regulations of the National Labor Relations Board, the rights Or privileges previously enjoyed. Said backpay is findings, conclusions, and recommended Order herein shall, as provided to be computed in the manner prescribed in F. W. Wool- i n S ec . 10 2 .48 o f t he R ul es a nd Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. " Jim Hudson, a driver presently employed by King and generally a L" In the event that this Order is enforced by a Judgment of a United believable witness, testified that Combs told Swigert: "You're fired. Get States Court of Appeals, the words in the notice reading "Posted by off the damn lot. You're fired." Order of the National Labor Relations Board" shall read "Posted Pursu- " Swigert testified that he applied for unemployment compensation on ant to a Judgment of the United States Court of Appeals Enforcing an the basis of having been fired. Order of the National Labor Relations Board." 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lowed in the shop." Combs told driver Richie Smeal, worth Company, 90 NLRB 289 (1950), and Florida Steel "I've got nothing to say to you, Richie. I'm talking to Corporation, 231 NLRB 651 (1977). See, generally, Isis him." Richie Smeal was one of two drivers working for Plumbing & Heating Co., 138 NLRB 716 (962) King who did not participate in organizing the Union. Upon the foregoing findings of fact, conclusions of When Respondent's employee Tom Combs, acting as a law, and the entire record, I hereby issue-pursuant to supervisor, told John Swigert that he was discharged," Section 10(c) of the Act-the following recommended and a motivating factor in that act was Union activity order. protected by the Act, the burden shifted to Respondent to show that the discharge would have occurred even in ORDER" the absence of the protected activity. Wright Line, a Divi- sion of Wright Line, Inc., 251 NLRB 1083 (1980). Re-_ The Respondent, King Trucking Company, Burling- spondent offered no reason to justify Swigert's discharge,. ton, Kentucky, its officers, agents, successors, and as- Respondent, in fact, denies that Swigert was dis- signs, shall: charged. The point having been emphasized with shovel 1. Cease and desist from: blows, I believe that Swigert acted reasonably in think- (a) Discharging employees because they have engaged ing that he had been discharged" and that Respondent in protected concerted activity. had a duty clearly to demonstrate to Swigert that he had (b) Discouraging membership in the Union, or any not been discharged. Gary King's inconclusive call to other labor organization of its employees, by discriminat- Mrs. Swigert to find out what had happened, and his use ing against them for engaging in protected concerted ac- of Jim Hudson as an emissary, did not, in my opinion, tivity. fulfill this obligation. King saw Swigert at the election (c) In any like or related manner interfering with, re- on April 28, 1980, and could have made clear his intent straining, or coercing employees in the exercise of the at that time. He testified that he saw Swigert on his lot rights guaranteed under Section 7 of the Act. at the union election but said nothing. That is not in my 2. Tak t 11 a a wi will estimation a good-faith repudiation of Combs' reprehensi- 2. T a k e t h e f o l lo w ing affirmative action which will ble conduct or adequate reassurance that Swigert's job e f e c t t h e policies of the Act: was still available. (a) Offer John Swigert reinstatement to his former po- sition and make him whole in the manner set forth in the CONCLUSIONS OF LAW section entitled "The Remedy." 1. Respondent is an employer engaged in commerce (b) Preserve and, upon request, make available to the within the meaning of Section 2(2), (6), and (7) of the Board or its agents, for examination and copying, all Act. payroll records, social security payment records, time- 2. The Union is a labor organization within the mean- c a r d s, personnel records and reports, and all other re- ing of Section 2(5) of the Act. c o rd s necessary to analyze the amount of backpay due 3. Respondent, by Tom Combs, violated Section under the terms of this Order. 8(aXl) and (3) of the Act by unlawfully discharging em- (c) Post in its office and provide each of its driver em- ployee John Swigert as a result of his activity on behalf ployees with a copy of the attached notice marked "Ap- of the Union. pendix." 16 Copies of said notice, on forms provided by 4. Except as found above, Respondent has not engaged the Regional Director for Region 9, after being duly in other unfair labor practies as alleged. signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt THE REMEDY thereof and be maintained by it for 60 consecutive days Having found that Respondent engaged in certain therefter, in conspicuous places, including all places unfair labor practices, I find it necessary that it cease and w h e r e notices to employees are customarily posted. Rea- desist therefrom and from any like or related conduct, sonable steps shall be taken by Respondent to insure that and to post an appropriate notice, attached hereto as an said notices are not altered, defaced or covered by any Appendix. other material. Moreover, Respondent should make whole employee (d) Notify the Regional Director for Region 9, in writ- John Swigert for any loss of pay as a result of the dis- ing, within 20 days from the effective date of this Order, crimination against him, and offer him immediate and full what steps Respondent has taken to comply herewith. reinstatement to his former position of employment or, if that position no longer exists, to substantially equivalent In the event no exceptions are riled as provided by Sec. 102.46 of employment, without prejudice to his seniority or Other the Rules and Regulations of the National Labor Relations Board, the rights Or privileges previously enjoyed. Said backpay is findings, conclusions, and recommended Order herein shall, as provided to be computed in the manner prescribed in F. W. Wool- i n S ec . 10 2 .48 o f t he R ul es a nd Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. " Jim Hudson, a driver presently employed by King and generally a L" In the event that this Order is enforced by a Judgment of a United believable witness, testified that Combs told Swigert: "You're fired. Get States Court of Appeals, the words in the notice reading "Posted by off the damn lot. You're fired." Order of the National Labor Relations Board" shall read "Posted Pursu- " Swigert testified that he applied for unemployment compensation on ant to a Judgment of the United States Court of Appeals Enforcing an the basis of having been fired. Order of the National Labor Relations Board."