Boyd Brothers Transportation Company

BOYD BROTHERS TRANSPORTATION COMPANY Boyd Brothers Transportation Company and Melvin Dumpson. Case 10-CA- 17605 February 28, 1983 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND ZIMMERMAN On November 30, 1982, Administrative Law Judge J. Pargen Robertson issued the attached De- cision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. 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 re- versing his findings. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge: This case was heard in Birmingham, Alabama, on August 24, 1982. The complaint, which issued on De- cember 18, 1981, and is predicated on the charge which was filed on November 3, 1981, alleges that Boyd Broth- ers Transportation Company (Respondent) violated Sec- tion 8(a)(1) and (3) of the Act by discharging employee Melvin Dumpson. Upon the entire record and from my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I hereby make the following findings: The Evidence The issues herein as framed by counsel for the General Counsel involve a question of whether alleged discrimin- atee Melvin Dumpson resigned his employment or whether he was discharged; secondly, if it is determined that Dumpson was discharged, a question exists as to Re- spondent's motive for that action. According to the testimony of alleged discriminatee Dumpson, he was terminated on October 30, 1981, after he had earlier threatened to quit. Dumpson admitted that during a phone conversation around October 26, 1981, he told dispatcher Randy Taylor that he would "prob- ably quit." Respondent, on the other hand, contends that Dump- son resigned. According to the testimony of dispatcher Randy Taylor, Dumpson phoned him on October 26, 1981, and asked for a $50 advance. Taylor questioned the advance on the grounds that Dumpson had received a $75 advance a few days earlier. An argument ensued and Dumpson told Taylor that "he was quitting, and he wanted me to get him a load coming to the house as soon as possible." Respondent also called driver Max Blevins. Blevins testified that he was with Melvin Dumpson in Pennsyl- vania on October 26, 1981. Blevins testified that he and Dumpson phoned for advances and, after Blevins spoke to a dispatcher he gave the phone to Dumpson. Blevins testified that Dumpson, who is also a minister, was "very upset because he had stayed out the weekend [on assign- ment from Respondent] and he said he had a sermon that he had to preach." Blevins went on to testify that Dump- son "had heated words (during the phone conversation with Randy Taylor], and he told Randy that he was going to quit as soon as he got in." It is undisputed that from around August 1981 until his employment ended Melvin Dumpson discussed with other employees various complaints about their working conditions. Dumpson testified that he talked to some 10 to 15 other drivers about various complaints. Respond- ent's witness, Max Blevins, testified that Dumpson told him on October 26, 1981, that he was trying to get the drivers to sign a grievance. However, Dumpson ad- mitted that he never brought the complaints to the atten- tion of anyone in Respondent's supervisory hierarchy. It is also undisputed that Dumpson remained on the road after October 26, 1981, until he returned to Re- spondent's terminal on October 30. After a delivery to Detroit, Michigan, Dumpson was assigned a delivery to Morristown, Tennessee. From Morristown, Dumpson was "deadheaded" back to Respondent's Birmingham, Alabama, terminal. Dumpson's testimony regarding his October 30, 1981, return to Birmingham was corroborated by the testimony of Terminal Manager Ken Phillips. Dumpson testified that when he arrived Terminal Manager Phillips told him "I understand you quit." Dumpson asked, "Who I The commerce facts and conclusions are not at issue. The complaint alleges and the answer admits that Respondent, an Alabama corporation with an office and terminal located in Birmingham, Alabama, where it is engaged in the interstate transportation of freight, is an employer en- gaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. 266 NLRB No. 46 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told you I quit?" Phillips replied that Randy Taylor had told him and Dumpson asked, "Did you hear me say I quit?" Phillips replied no but went on to say that "as far as he was concerned, [Dumpson] had quit." The evidence is disputed regarding an October 31 con- versation between Dumpson and Phillips. According to Dumpson, during a conversation at the terminal on that date, he asked Phillips, "What is the problem" and Phil- lips replied that Dumpson "was going around starting trouble with the drivers trying to start a union." Phillips admitted talking to Dumpson on the morning of October 31, but Phillips denied saying anything about Dumpson's starting trouble and trying to start a union. According to Phillips, during the October 31 conversa- tion he asked Dumpson if he had told Randy Taylor he was quitting and Dumpson admitted that he made such a statement to Taylor. Conclusion In consideration of the circumstances surrounding the termination issue, I must consider whether Respondent's actions in treating Dumpson's comments to Taylor as a resignation were reasonable. In that light the actual intent of Dumpson is not a significant factor. Instead I must examine what was said and how such comments could be interpreted. As to the October 26 phone conversation, both Randy Taylor and driver Max Blevins understood Dumpson to express a definite intent to resign. Taylor recalled that Dumpson stated "he was quitting" while Blevins recalled that Dumpson stated "he was going to quit as soon as he got in." I am convinced from their demeanor that both Taylor and Blevins were testifying in accord with their respec- tive recollections of the October 26 phone conversation. While it is not possible to determine the specific words used by Dumpson, it is clear that on October 26 Dump- son placed Taylor on notice that he was resigning. Despite my findings above, Dumpson's testimony re- garding his October 31 conversation with Terminal Man- ager Phillips is bothersome. However, I find unconvinc- ing Dumpson's testimony that Phillips told him he was starting trouble and trying to start a union. Phillips denied that he made such statement and I am unable to discredit his testimony. Moreover, the facts as admitted by Dumpson demonstrate that he had not tried to start a union. On cross-examination Dumpson admitted that he had "talked to nobody about a union." Additionally, aside from Dumpson's version of the October 31 conver- sation with Phillips, there is no evidence showing that Respondent had knowledge of any of Dumpson's alleged protected activities; i.e., his discussions with other driv- ers about working conditions complaints. Dumpson ad- mitted that he presented none of those complaints to management. Therefore, I find that the evidence does not support the General Counsel's contention that Melvin Dumpson was discharged in violation of the Act. CONCLUSIONS OF LAW 1. Boyd Brothers Transportation Company is an em- ployer engaged in commerce and activities affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent has not engaged in any unfair labor practices alleged in the complaint. Upon the foregoing findings, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 It is hereby recommended that the complaint be dis- missed in its entirety. 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided 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. 218