Mash Transportation, Inc.

National Labor Relations Board - Board Decisions

Sep 11, 1986

281 N.L.R.B. 444 (N.L.R.B. 1986)

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mash Transportation , Inc. and Mark Combs. Case
25-CA-17484
11 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 17 March 1986 Administrative Law Judge
Phil W. Saunders issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 11 and
conclusions2 and to adopt the recommended
Order. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Mash Trans-
portation, Inc., Whiteland, Indiana, its officers,
agents, successors, and assigns , shall take the action
set forth in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
8 In adopting the judge 's conclusion that the Respondent violated Sec.
8(axl) by discharging employees Mark Combs and Craig Scheid for re-
fusing to drive a truck they considered to be unsafe , we disavow any sug-
gestion that their alleged protected concerted activity prior to 11 Sep-
tember 1985 played a part in the Respondent 's decision to terminate
them The pre- 11 September activity and the Respondent 's response to
this activity do, however, lend further support to our finding that on 11
September Combs' and Scheid 's belief that the truck was unsafe was rea-
sonable
We find it unnecessary to pass on the judge's discussion of whether the
Respondent violated the Surface Transportation Act of 1982 when it dis-
charged Combs and Scheid
8 We leave to the compliance stage of this proceeding the issues raised
by the Respondent concerning Scheid 's reinstatement and backpay in
light of his alleged loss of postal clearance
The General Counsel's exceptions urge modification of the recom-
mended Order to include a provision for a visitational clause authorizing
the Board , for compliance purposes , to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States court of appeals enforcing this Order. Under the
circumstances of this case , we find it unnecessary to include such a
clause.
Robert E. Hayes Esq., for the General Counsel.
David A . Paetzmann, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
PHIL W . SAUNDERS, Administrative Judge . The origi-
nal and amended charges in this case were filed on Sep-
tember 16 and September 27,1 respectively, by Mark
Combs (Combs or Charging Party), against Mash Trans-
portation, Inc. (the Company or Respondent), alleging a
violation of Section 8(axl) of the National Labor Rela-
tions Act. The Respondent filed an answer denying the
allegations and, following a hearing before me , both par-
ties filed briefs in this matter.
On the entire record, and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation organized under the
laws of the State of Indiana and, at all times material, the
Respondent has maintained its principal office and place
of business at Whiteland , Indiana, where it has continu-
ously been engaged in the interstate transportation of
U.S. mail.
During the past 12 months, a representative period, the
Respondent ,in the course and conduct of its business op-
erations, derived gross revenues in excess of $50 ,000 for
the transportation of freight and commodities from the
State of Indiana directly to points outside the State of In-
diana, and during the same period the Respondent de-
rived gross revenues in excess of $1 million.
The Respondent is now , and has been at all times ma-
terial, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
There is no labor organization , as such, involved in the
case.
III. THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that during various un-
known dates in April, May, and June, and more specifi-
cally about July 1 and 30 August 1 and 21, the Respond-
ent's employees Mark Combs and Craig Scheid com-
plained concertedly to the Respondent regarding wages,
hours, and working conditions of the Respondent's em-
ployees; that about September 11, certain employees of
the Respondent (Craig and Scheid) ceased work concer-
tedly and engaged in a strike by refusing to perform
physically dangerous and unsafe work; that about Sep-
tember 12, the Respondent discharged Mark Combs and
Craig Scheid ; and that the Respondent engaged in the
conduct described above because the employees named
therein engaged in protected concerted activity to dis-
courage employees from engaging in such activities or
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and (as
amended at the hearing), because of their refusal to drive
i All dates are 1985 unless stated otherwise
281 NLRB No. 71
MASH TRANSPORTATION
unsafe vehicles in violation of the Surface Transportation
Assistance Act of 1982.
The Respondent is a contract carrier of United States
Mail-primarily along a route between_ Baltimore, Wash-
ington, D.C., St . Louis, Missouri, and return. Respondent
leases its tractors and trailers from a -third party , and nor-
mally employs about 16 truckdrivers . Respondent's office
is located in Whiteland, Indiana, , and its president and
general manager is Herman Mullikin, and the assistant
manager of,, the Respondent at 'all relevant times was
Gary Ping.
Mark Combs and Craig Scheid - were hired by the Re-
spondent as over-the.road truckdrivers in November
1984 and February 1985, respectively, and Respondent
points " out that in addition ' to driving a semitruck, their
drivers are also expected to perform minor maintenance
on their' trucks, if necessary, and this maintenance in-
cludes ' such things ' as hooking up trailer lights and chang-
ing light bulbs.
The record, shows - that early in 1985, Combs and
Scheid began driving together as a team for the ' most
part, and usually they drove Respondent 's truck 68, al-
though on different times between April and July 1985,
they used truck 63 as , a-relief truck while 68 was being
serviced.
Respondent's president, Herman Mullikin, testified, that
semitruck drivers in interstate commerce are required by
Federal law to prepare a daily log showing their activi-
ties during each working day, and included in these daily
logs are the driver 's vehicle inspection reports and hours
spent driving . Moreover, if two employees are driving as
a team, each driver is required to perform ' his own vehi-
cle inspection and should prepare his own driver's log.
The record shows that on July 1, Scheid was ticketed
by the Indiana state police because of an air leak and
cracked windshield on truck 63. Combs was teamed with
Scheid on that date 'and was present when the ticket was
issued. Scheid then brought the ticket into Mullikin the
next day, but Mullikin advised Scheid that the Company
would not pay the ticket because it was issued in
Scheid's name . Combs was standing in' the area during
the conversation . Scheid testified that he later paid the
ticket out of his own pocket.
It appears that sometime in July, Respondent's truck
68 was returned to service and was then driven during
July and August by Scheid' and Combs and possibly
other drivers . However, near the end of July Scheid was
issued a "fix it ticket" in Ohio - due to a ,crack in truck
68's windshield . Again Scheid delivered the ticket to
Mullikin the next day, while Combs was also present
with him. Scheid testified that Mullikin then threw the
ticket in the wastebasket and, at this time , Combs asked
if the Company would get a lawyer if they (he, and
Scheid) got "locked up." Mullikin replied that they
would have to get their own, counsel.
This record further reveals that truck 68 was also in-
spected twice by the Illinois Department of Transporta-
tion. On the first occasion, July 30, the department cited
Scheid for not wearing his seatbelt and for having, an
empty fire extinguisher, but the cracked windshield was
not listed as a violation . Moreover, on September 24
(after Combs and Scheid had been terminated) truck 68
445
was again inspected, and once again the, cracked wind-
shield was not listed as a violation ,? and during July and
August, none of the-other drivers on this truck, with the
exception of -Combs, listed the cracked windshield as -a
safety defecton their daily vehicle inspection reports.
During most 'of August, Combs noted in his daily logs
what he,considered to, be defects affecting the safe oper-
ation of 'truck 68,3 and about August 23, Mullikin and
Combs had a conversation concerning the cracked wind-
shield. Combs testified that after looking over the wind-
shield and noting that the ' crack did= not obstruct the
driver's vision, Mullikin told him that he did not feel the
crack violated Federal regulations and,that there was no
need to note the cracked windshield on his driver's log
and to quit writing it up. Scheid was also present during
this conversation between Mullikin and Combs.
On September ''1 1, Combs and Scheid were scheduled
to transport mail from Washington, D.C., via Baltimore,
to St. Louis and upon changing trailers in Washington,
D.C., - Combs noticed a ' problem with the lights on the
new trailer-no brake, turn, or'tail lights-but neverthe-
less, Combs left Washington, D.C., about 4:30 a .m., and
traveled to, Baltimore with only his tractor 'four-way
flashers . on.4'After leaving Baltimore about 6 a .m. EST,
he went through'the downtown area and then pulled off
onto the shoulder of the road to await daylight , and then
proceeded `to Frederick, Maryland.
By calling ''long distance-now about 8 a.m. EST-
Combs `was able to reach and talk with Gary Ping, Re-
spondent's assistant manager, about the problem he was
having with no lights on the trailer, and as to his initial
conversation with Gary Ping, Combs testified as follows:
Okay. The electrical-there 's an electrical -con-
nection between the tractor and the trailer . On each
end of it, there is a cylinder. There are wires-the
cylinder plugs ' into the tractor. The wires coming
from the other side that makes the connection-it's
like a clock . You have a big wire in the center, and
the there are six wires aroundthe outside of it. And
Mr. Ping told me to=he told me which of those-
of the six wires, he told me which two were for the
trailer, and he told me to put a jumper 'wire from
those two outside wires to the center wire and that
should get it to work.
'Ping testified that he had shown Combs how to per-
form this `particular task at the Respondent 's terminal
about 2 weeks before, and he knew no reason why a
driver' of Combs' experience could not perform this
maintenance, and Ping had tried this method of placing a
jumper wire from the outside, wires to , the center wire a
"hundred times" and it had never failed him.
It appears that about this time in the morning , Scheid,
who had been sleeping in the truck, awoke and tried to
assist `Combs in fixing the lights. However, after several
2 See R Exhs. 3 and 4.
8 See G.C. Exh. 3
4 Combs testified that when he reached Baltimore, he then tried to see
if there was a loose connection, but he could not find any, and that the
bulbs in the back were okay.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours and a few more phone calls in which Combs was
again instructed on how to fix the lights, he then finally
advised Mullikin that he and Scheid would not drive the
truck back because of the problems with the lights, and
that they could not fix them. Combs then sought the ap-
proval of Mullikin to have the lights repaired at the
truckstop they were in, but Mullikin would not agree to
this, and then told Combs to put the keys in the truck
and "lock it up," and he would send someone else to get
the truck.
The next sequence of events shows that Mullikin then
sent two other drivers, Ed Bryant and Tim Callahan, to
Frederick that afternoon to pick up the vehicle arriving
around midnight.
Ed Bryant testified that on their arrival, he "jumped
into" the truck here in question, started it, and there
were "no lights" except the front right headlight, but
later stated on cross-examination that he did not walk all
the way around the truck. Bryant said that he then went
to the truckstop to buy some flashlight batteries, and
when he returned Tim Callahan had the lights working.
Tim Callahan testified that after Bryant had started the
truck and turned on the lights, he walked behind the
trailer and then observed that the brake lights, the tail
lights, and the right-hand turn signal were working, but
the left headlight was not working and there were no
clearance lights on the trailer. Callahan stated that he
then ran a wire from the positive part of the battery to
the "pigtail," and by so doing got all the clearance lights
working and, by replacing a bulb, got the left turn signal
working. He stated that neither task required special
tools, and only took about 3 minutes to complete.
The next day, Thursday, September 12, Combs and
Scheid came to Respondent's terminal after taking a bus
on their return, took photographs of truck 63, and then
went in to talk with Mullikin, and despite the fact that
Respondent's normal payday was Friday, Combs and
Scheid asked for their paychecks and also requested
Mullikin cash them. 5 Scheid then asked if he and Combs
were fired, to which Mullikin replied that they had quit
the previous day. Combs and Scheid denied quitting, and
Mullikin responded that they would then have to consid-
er themselves fired.
Counsel for Respondent maintains that the allegations
in the complaint stating that on various dates in the
spring and summer of 1985, to the effect that Combs and
Scheid complained concertedly about working condi-
tions, is wholly unsupported by the evidence-under
Meyers Industries, 268 NLRB 493 (1979), and later cases,
the Board has continually indicated, as in A. N. Electric
Corp., 276 NLRB 564 (1985), that "to find an employee's
activity to be 'concerted,' we shall require that it be en-
gaged in with or on the authority of other employees
and not solely by and on behalf of the employee him-
self."
Counsel for Respondent argues that in the instant case
the General Counsel first alleges concerted protected ac-
tivity by Combs and Scheid during April, May, and June
6 In cashing the paychecks, Mullikin deducted $77 from each check as
payment or reimbursement to the Company for their bus fare back from
Frederick.
and, as aforestated, maintains that this allegation should
be dismissed as the record is silent about any activities
whatsoever during those months-that the earliest inci-
dent reported by any of the witnesses related to a ticket
received by Scheid on July 1 from the Indiana state
police due to an air leak in the brake system and a
cracked windshield on truck 63, and the next day Scheid
brought the ticket to Respondent, which Respondent re-
fused to pay. According to Respondent, at no point does
the record indicate that either Scheid or Combs made
any complaints about a cracked windshield or air leak on
truck 63, and Scheid's complaint about a ticket issued to
him personally does not constitute protected concerted
activity under the Meyers standard-that there is no law
requiring an employer to pay a ticket received by a
driver in his own name , and although Scheid's action
could, under a broad definition, be called a complaint
about working conditions, there is no evidence of con-
certed activity. Moreover, argues Respondent, even
though Combs was present during the conversation be-
tween Mullikin and Scheid, at no time did he contribute
to the discussion nor did he have reason to because only
Scheid's name appeared on the ticket-Combs was only
a bystander in this discussion, and his mere presence,
without more, does not raise Scheid's individual com-
plaint to the status of concerted activity.
Counsel for Respondent points out that the next alle-
gation of protected concerted activity deals with circum-
stances surrounding a second ticket issued to Scheid
about July 30, and his conversation with Mullikin the
following day concerning the same. (This ticket called a
"fix it" ticket was issued by the Ohio state police for a
crack in the windshield of truck 68.) As aforestated,
Scheid delivered the ticket to Mullikin the next day, and
Mullikin threw it in the wastebasket and told him not to
worry about it, but Combs asked if the Company would
provide a lawyer if they got "locked up," and Mullikin
replied that they would have to get their own lawyer.
Respondent's counsel argues that although this conversa-
tion may be "concerted," it did not deal with any pro-
tected activity-that at no time during the discussion did
Combs or Scheid complain about the cracked windshield
itself or that it posed a danger to their safety while driv-
ing, nor did they complain about any existing working
conditions. That the substance of the conversation in-
volved questioning Mullikin over what he would do if
some event, which may or may not happen in the future,
ever occurred. Counsel maintains that questioning an em-
ployer about a nonexistent and speculative event must be
distinguished from a complaint concerning an existing
working condition, and only the latter is protected activ-
ity under the Act.
Counsel for Respondent further argues that even as-
suming that Combs' notation of alleged safety problems
on his driver's log falls within the presumption of con-
certed activity-the Respondent rebutted this presump-
tion by proving a lack of group support. Although
Scheid was present during the August 23 conversation
between Combs and Mullikin, and he testified concern-
MASH TRANSPORTATION
ing his , recollections of that conversation,6 neither he nor
Combs ever testified that Combs was speaking for him
on that occasion . Moreover , maintains Respondent's
counsel, there was also no - evidence that Scheid partici-
pated in the discussion , and his silence during this con-
versation could well be interpreted as a sign that Scheid
did not support Combs ' position , and this notion is also
supported by the fact that Scheid noted no safety prob-
lems on truck 68 in his daily logs , and Respondent's posi-
tion of a lack of group support behind Combs ' notations
is further strengthened by the fact that no other drivers
noted any safety problems with truck 68 during August,
and from this evidence, it is clear that Combs was acting
alone ` in writing up alleged safety defects, and his senti-
ments were not shared by his fellow drivers.
In making my final conclusions in this phase of the
case, it is first noted the admission by Mullikin that in
June, July, and August ; Mark Combs , complained to him
continually about a cracked windshield on truck 68.' In
fact, Mullikin stated , "It got to the point where he com-
plained each trip about something . Part of it was a
cracked windshield." Mullikin, also testified that Combs
further complained about the air-warning device , brakes,
-and-the hours he had to work.,
-Mullikin was also aware , that in July Scheid had re-
ceived a ticket from the Indiana state police citing a
company truck for having a brake air leak and a cracked
windshield. The; ticket ((3.C. Exh. 2) also shows that the
vehicle was placed out of service by the Indiana state
police. Scheid testified that on the day in question (July
1), the state trooper involved permitted him to drive the
vehicle several miles to a truckstop for repairs , but the
mechanic was unable to repair it because lie lacked a
part. Scheid then telephoned Mullikin for instructions
and was told to drive the truck on to St. Louis and back
to Indiana without the needed repairs ., It is undisputed
that Scheid later paid the ticket out of his pocket.
Combs , as aforestated, was Scheid 's team .member at the
time.
This record also shows-'that in late July , in Zanesville,
Ohio, Scheid and Combs were together when Scheid re-
ceived a ticket for having a cracked windshield, and the
ticket required that the ,noted defect be repaired within
72 hours under pain of, arrest . The following day Scheid
spoke to Mullikin about the ticket , but Mullikin cavalier-
ly threw the ticket in a wastebasket , and it was at this
point when Combs inquired if the Company would get a
lawyer if he and Scheid got "locked up."
It is also noted a further admission by Mullikin that
Combs had made entries in his daily driver's log regard-
ing vehicle, conditions that Combs believed were unsafe,
and that he told Combs to stop making such notations
and 'that if he did not feel that the equipment was safe to
use, to find himself another job. Furthermore , Mullikin
testified, "I had, to talk to them on different occasions
6 For about 10 days prior to August 21, Combs had noted one or more
safety-related problems in his daily driver's log. Finally , on August 23,
Combs and 'Mullikin discussed these alleged safety problems and Scheid
was present during this conversation. According to the testimony of both
Combs and Mullikin, after looking at the windshield , Mullikin stated his
belief that the crack did not violate Federal Motor Carrier Regulations,
and that there was no need to note the windshield in Combs' daily log.
447
and tell them that if they were unsatisfied with their job,
they were not tied to it or words to that effect." Thus,
Mullikin made clear his knowledge of their concerted
complaints as further evidenced by his testimony that
"they were the only ones , that were having any problems
with- the tractor, and trailer ." There is also credited testi-
mony that Combs and Scheid had discussed these safety
problems among themselves. In fact, Combs candidly tes-
tified, that although the cracked windshield - did notaob-
scure , his vision, it did pose a safety hazard because a
flying object could cause the glass to fall in, if it struck
the windshield . Brake problems or lockups on a loaded
18-wheeler is, -of course , a" situation to be avoided at all
times.
There is no , question but , that the mechanical and
visual difficulties encountered by team drivers Scheid
and Combs , starting in June , were of .a joint and contin-
ual concern to both- of them, and the incidents with state
police,, their numerous complaints, and the overall cir-
cumstances in- connection therewith, -were constantly
intermingled and overlapping, problems between - them
and Respondent,,.and on most all occasions both drivers
were present when the one or the other registered their
protests or complaints - to Mullikin , and- neither, Combs
nor Scheid ever disavowed- the statements and/or actions
of the other .7
In the final analysis, there can be no question that the
complaints and"-protests raised by Scheid and Combs re-
lated to their- terms and conditions of employment, and I
therefore find , that their concerted activity in the spring
and summer of 1985 was protected"by Section 7 of the
Act. ' "'
Turning now ` to the events 'on September 11 and 12.8
As detailed previously 'the testimony concerning which
lights- were working' on-the vehicle is in conflict-Combs
and Scheid claiming no lights worked on the trailer, but
relief driver Tim Callahan stating otherwise.
Respondent requests that I credit the testimony of Cal-
lahan and Bryant over that of Combs and Scheid, due to
certain inconsistencies in the latters' testimony . For ex-
ample,; Combs testified he checked all the light' bulbs and
they were not the, problem, but Callahan stated that
changing a bulb was all that was necessary to -fix the
turn signal. According , to Respondent, Combs also testi-
fied that after first talking with, Gary Ping about 8 a.m.
EST and being told how to fix -the lights, he went out
and tried to , do what Ping told him-to put , a jumper
wire across certain wires in the electrical connection be-
tween tractor and trailer, but Combs could not recall
where he , got this jumper wire . Moreover, argues Re-
spondent, ' Scheid then testified that he' bought the wire
that-was used for a jumper wire , and thus the unan-
swered question is how Combs could have made any at-
tempt to fix the lights pursuant to Ping 's instructions,
when the wire to be used, was not even purchased until
Combs testified that when one team driver notes a safety problem on
his daily Jog, the other driver need not do so.
B The Respondent concedes that the refusal of Combs and Scheid to
'drive truck 68 on September 11 was concerted activity, but that although
employees' acts may be "concerted ," this does not -imply that they are
also "protected" under the Act.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sometime later and, furthermore , Scheid 's testimony
about the purchase of this wire is also questionable ac-
cording to Respondent-that in spite of having $400 of
Respondent's advance money, Scheid paid for a roll of
wire at the truckstop with his own money, but he could
not produce a receipt for the wire, claiming the mechan-
ic could not give him one.
Counsel for Respondent also points out that clearance
lights, which are located around the top of the trailer,
are of no use to a truckdriver during daylight hours, and
are not operated during the daytime unless a visibility
problem exists , and admittedly the weather conditions on
September 11 were clear. Moreover, there were suffi-
cient daylight hours to reach Respondent's terminal had
they left that morning , and the nonoperable turn signal
could have been fixed with the changing of a bulb (spare
ones kept in the truck). It is also pointed out by Re-
spondent that on the morning in question Combs did
drive the truck, in total darkness from Washington, D.C.,
to Baltimore, and then drove for another hour in day-
light between Baltimore and Frederick, Maryland-so at
these times he did not feel it was unsafe to drive the
truck.
In essence, the Respondent maintains that on Septem-
ber 11, Combs and Scheid voluntarily quit their employ-
ment with the Company pointing out that although an
employee may go on strike and refuse to do his job, he
normally does not show up prior to payday and demand
his money, and rather than showing any desire to contin-
ue the employment relationship by staying with the
truck, Combs and Scheid decided to take a bus home.
Then, on September 12 they came in and asked for their
pay early, instead of waiting for the normal payday. Re-
spondent argues that these actions manifested their intent
to quit when they abandoned Respondent's truck and
they should not be allowed to claim after the fact that
they really did not.
In McEver Engineering, 275 NLRB 921, 925 (1985), the
Board set out the law of this case:
The law is clear, has been stated often, and need
not be belabored. When employees acting in con-
cert to protest the existence of what they in good
faith perceive to be unsafe working conditions with-
hold their labor from the employer for such pur-
pose they are considered to be engaged in concert-
ed activity protected under Section 7 of the Act,
and may not lawfully be punished by their employ-
er for their conduct. NLRB v. Washington Alumi-
num Co., 370 U.S. 9 (1962); Union Boiler Co., 213
NLRB 818 (1974); Du-Tri Displays, 231 NLRB 1261
(1977); E. R. Carpenter Co., 252 NLRB 18 (1980);
Service Machine & Shipbuilding Corp., 253 NLRB
628 (1980).
There can be no serious issue but that the refusal by
Combs and Scheid to drive the truck on the occasion
here in question was protected concerted activity, and it
is equally apparent from this record that the Respondent
knew, prior to the discharge, that Combs and Scheid
were withholding their labor from the Respondent
brought on by unsafe working conditions. As indicated,
working for a nonunion employer, they had no bargain-
ing representative and, in fact, no representative of any
kind to present their grievances to their Employer, and
they had to act for themselves as best they could.
The Respondent is contending that most of the trailer
lights were in working order , but, nevertheless, Combs
and Scheid engaged in a "calculated hoax " to create
problems for the Company and that they actually wel-
comed the opportunity to lay over in a truckstop in
Maryland for 3 or 4 hours rather than return home, and
that they did not object paying $77 out of their pockets,
as it turned out, for bus tickets back home to Indiana.
Ed Bryant , initially called as a witness for the General
Counsel , testified that he jumped into the truck , started
it, and there were no lights, except a front headlight, as
aforestated , but on cross-examination , Bryant changed
his testimony and proffered a story to the effect that he
never actually walked around the rear of the trailer, that
he only had a side view of it, and was not sure whether
the lights were on or off. However, when asked how his
memory became better on December 5 (the date of the
trial) than it was on September 25 (when he gave his af-
fidavit), he answered "perhaps because we're here."
Thus, Bryant acknowledged that once on the witness
stand his memory could be readily changed, and by his
overall demeanor while testifying , and his rather unusual
replies,9 he demonstrated that rather than concern for
9 As Bryant testified:
Q Did you tell the agent of the National Labor Relations Board,
when you made this statement , that when you got there, you only
looked at the truck from the side?
A. Sir, I'm not a perfect human being . I cannot get that technical
Q You are not. Okay.
A You 're asking an undesirable question there. I don 't know, you
know, right from wrong, but you know.
Q. Well, the incident that took place on the 11th of-the incident
of their discharge took place on the 12th of September.
You gave your affidavit on the 25th of September, just a couple of
weeks later So, the events were fresher in your mind then they are
now, because it happened sooner , a couple of weeks later. Now,
we're-and this is December. How is it that you testimony is better
now-I mean, your recall is better now than it was then?
Do you want me to say that again? How is that you remember-
A. How can you say that it 's better now? It's the same thing.
Q I'm asking you, how is that your recall of what happened when
you went out to the truck, is better now on December 5th, than it
was on September 15?
A I really don' t know how to answer that. I don't know-perhaps
because we're here.
Q. Right. Because you're here and because you work for Mash
Transportation Company and you're-
MR PAETZMANN : Your Honor, I'm going to object to Mr. Hayes
making statements for the witness here.
THE WrrNESS: I rode with him for six months
MR. PAETZMANN. He's being argumative [sic]
THE WrrNEss He's my fnend. Even though we're on the wrong
side of the table , he's still my fnend . Don't imply anything I'm an
honest man . Don't imply anything . I'm an honest man. Don 't imply
nothing else. Maybe I'm losing my temper here, but I don't like what
he's talking to me
JUDGE SAUNDERS: There' s no question There's no question. Are
we through?
MR. HAYES : Yeah, we're through [(Tr. 125-127)]
MASH TRANSPORTATION
the-, truthfulness , of his initial testimony on direct, Bry-
ant's real interest was keeping his job and helping the
Company win their case.
As also indicated, counsel for Respondent attempted to
discredit the two drivers 'involved herein over - the em-
ployment application originally filled out by Combs and
Scheid. Scheid's traffic record showed that he'received- a
ticket for a nonspeeding offense, and after ignoring the
ticket, his license was , then temporarily suspended, but
this -fact was not indicated on Scheid 's employment ap-
plication . On the other hand, Combs, although failing to
note all the tickets he received during the last 3 years on
his employment application, -did tell Mullikin about the
speeding tickets he had received in this period-those he
could remember.10
In the final analysis, the credited testimony in this
record establishes that in the early hours of September
11, the trailer"' here in question , had no marker or clear-
ance lights, no tail light, and no brake and turn signals,
but in efforts to keep the mail schedule running on time,
Combs was able to reach Baltimore by the use of his
four-way flashers on the tractor, and "therefore he 'was
not driving in ""total darkness" as Respondent contends.
After stopping at the loading dock, he then proceeded to
drive from Baltimore to, Frederick , Maryland, and for
the most part did so after it turned ' daylight. Combs then
stopped and called Mullikin ,and Gary Ping at the home
terminal in Indiana on three or, four different occasions,
and admittedly Ping-gave , him some instructions, on how
to correct his light problems on - the trailers, but after
spending about 3 hours in attempts to repair the lights,
he and Scheid were still unable to remedy , the difficulty
at hand. Combs testified that the procedure , Ping showed
him 2 weeks . before was a, totally different operation
from what he,needed to do to fix the lights on Septem-
ber 11 . Scheid testified he was "no mechanic at all."
The reliable testimony further, shows that Combs then
suggested having the lights repaired at a shop, in the
truckstop , but Mullikin declined this suggestion and in-
structed r Combs to drive the truck ` to Indianapolis.11
Combs : and Scheid then proceeded in the truck to a
nearby Maryland state police headquarters, and ex-
plained there the fact that -their trailer had no lights, that
management was not going to fix it, and requested police
authorization "to halt? any further driving of this vehi-
cle, but the police were unable to grant this request
other than giving them a ticket , but which was then de-
clined as Scheid had already , received two tickets he
himself had to pay or was -responsible for, as aforestated.
-Combs then called Mullikin back and informed him that
they were not going to drive the truck the way it was,
and then used part of the advanced money ($77 each) to
buy bus tickets back to terminal headquarters in Indiana.
1° Regarding these incidents involving speeding tickets, the General
Counsel makes the following observation, "We all know that truck driv-
ers never ' speed, they are paragons of virtue lawfully traversing the high-
ways of America at 55 mph."
11 An employer is not free to order employees to .terminate a strike
and'to return to work or face discharge. Nor is it entitled to treat striking
employees as having voluntarily -quit or terminated the employment rela-
tionship. See Holiday Inn, 274 NLRB 687 (1985).
449
Turning briefly to, Respondent's argument about why
Scheid 'would -pay for -a troll of wire out of his own
pocket instead of using some of his' advance money. It
appears to me-- that Scheid explained the circumstances
by stating that ' when' he went to make this purchase, the
jumper wire in question belonged- to, the mechanic on
duty-"it was his wire' out of his box," and he could not
write up a ticket for it, and- as a result Scheid could not
turn it in as' an expense purchase as he had no receipt for
his $2 expenditure.
Counsel for Respondent also maintains that when on
strike employees do ' not normally show up prior to
payday and demand their wages,- and in the situation
here such conduct' manifested their intention to quit.
I am unable to attach any particular significance to
Respondent's inference about the above circumstances.
The normal payday for employees of Respondent falls
on Fridays,, but 4C^onnbs and Scheid got back to the terini,
nal on Thursday, and at `this time asked for _ their pay-
checks. Mullikin himself best summarized the situation
when lie testified that "they [Combs and Scheid] indicat-
ed that they needed the money and they would have to
make a trip back up there for them. So I offered to cash
themI for them,' because I' happened to have `money on
me at the time sufficient to' ca'sh those checks."
As .I see it, Combs and Scheid were simply being paid
so that they would not have to `make another trip to the
terminal on the 'following day, and Mullikin's own testi-
mony supports this conclusion.
Respondent has also, raised credibility questions con-
cerning entries or information omitted from the two em-
ployment applications, as previously detailed. Although
Combs did not list,all his speeding violations for the past
3 years on his application, nevertheless, there was credi-
ble testimony by Combs that he informed Mullikin about
his other violations, and what the situation was, and the
reason he did not enter, such on his employment applica-
tion, was because he- could not remember the dates when
they all occurred. Scheid- checked the box "no" on his
application where it asked if_any license, permit, or privi-
lege,had ever been suspended or revoked, but in testify-
ing admitted that back in 1980 his license was suspended
for not paying a ticket issued for no headlight. Scheid
was then asked how long this suspension lasted,` and he
replied that he vas not sure"because he did not even
know his license was suspended until he went to renew it
in May 1984. Scheid did not remember getting' a -ticket in
1983,for an invalid driver's, license, and testified that he
has always, "for his ' whole life," ' had a driver 's license.
Although Scheid acknowledged that he lied to Mullikin
when he submitted his employment application, as'noted
above, nevertheless, under all, the extenuating circum-
stances involved herein, and his otherwise good record
over his many years- of driving, I' do not believe this par-
ticular omission in his application seriously-detracts from
his overall credibility ,in relating "and corroborating the
events that transpired-on September 11 and 12.,
Respondent also contends that Combs and -Scheid en-
gaged in a , "calculated hoax" to create problems for the
Respondent. I, have also rejected this contention,' and es-
pecially so because it is uncontradicted that on the day in
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question they drove the truck to a nearby Maryland state
police station in an effort to have the state police issue a
no-further driving restriction on this vehicle . I doubt
very much if such an unusual action would have been
taken had the trailer lights been working and, again, a
strong inference bearing on the seriousness of the situa-
tion as evaluated by Combs and Scheid.' 2
The General Counsel amended the complaint by in-
serting the allegation that Respondent 's motivation for
discharging Combs and Scheid was also because they re-
fused to drive an unsafe vehicle in violation of the Sur-
face Transportation Assistance Act of 1982. The Re-
spondent argues that under the facts of this case , the Sur-
face Transportation Act affords Combs and Scheid no
protection. 13
Counsel for Respondent points out that the first crite-
ria for protection under this statute is that the refusal to
drive must violate Federal Motor Carrier regulations,
and "lighted lamps" are not required on motor vehicles
between 30 minutes before sunrise and 30 minutes after
sunset, and Combs and Scheid 's refusal to drive occurred
during daylight hours . Moreover , maintains Respondent,
if the above test is not satisfied , then the employee must
have a reasonable apprehension of serious injury before
his refusal to drive is protected by the Surface Transpor-
tation Act. Furthermore , Respondent did everything
necessary to help Combs and Scheid fix the lights to
their satisfaction , and they also could have used part of
the $400 advance money in their possession to have the
lights hooked up at the truckstop where they were
parked (Combs estimated the total cost of professional
12 All the facts found herein are based on the record as a whole on my
observation of the witnesses . The credibility resolutions herein have been
derived from a review of the entire testimonial records and exhibts with
due regard for the logic of probability, the demeanor of the witnesses,
and the teaching of NLRB v. Walton Mfg. Co, 369 U.S. 404 (1962). Con-
cerning those witnesses testifying in contradiction of the findings, their
testimony has been discredited, either as having been in conflict with the
testimony of credible witness or because it was in and of itself incredible
and unworthy of belief. All testimony has been reviewed and weighed in
the light of the entire record. In many instances , heretofore and subse-
quently, I have also stated my specific reasons for either crediting certain
testimony or rejecting same, but in essence, I have credited the witnesses
for the General Counsel as they impressed me as candid , open, and
straightforward witnesses in recalling what they said and heard during
the incidents here in question , and although there may have been some
variances in their respective versions of the relevant events (Ed Bryant in
particular), I am convinced these variances were due to some in the
group having heard certain remarks while others did not, and to some
having better memories than others , and not to an attempt to fabricate
their descriptions of what occurred.
is In relevant part , sec 405 of the Surface Transportation Act, 49
U S C. § 2305, provides:
(b) No person shall discharge , discipline, or in any manner discrimi-
nate against an employee with respect to the employee 's compensa-
tion , terms, conditions, or privileges of employment for refusing to
operate a vehicle when such operation constitutes a violation of any
Federal rules, regulations , standards , or orders applicable to commer-
cial motor vehicle safety or health , or because of the employee's rea-
sonable apprehension of serious injury to himself or the public due to
the unsafe condition of such equipment. The unsafe conditions caus-
mg the employee's apprehension of injury must be of such nature
that a reasonable person , under the circumstances then confronting
the employee , would conclude that there is a bona fide danger of an
accident , injury, or serious impairment of health , resulting from the
unsafe condition . In order to qualify for protection under this subsec-
tion, the employee must have sought from his employer, and have
been able to obtain, correction of the unsafe condition.
repairs at $30-$40 maximum), but instead Combs and
Scheid used over $150 of the advance money and took a
bus home without any authorization to do so, and this is
not the type of situation the Surface Transportation Act
was meant to address . According to Respondent, it was
not intended to shield employees because they would not
perform a simple bit of minor maintenance in wanton dis-
regard of an employer 's best interest.
Although there may well be different interpretations
and various ramifications of the Surface Transportation
Act, it appears to me, that under the circumstances here,
Combs and Scheid might well have a "reasonable appre-
hension" of serious injury due to no lights on their trail-
er, and possibly a "reasonable person" would so con-
clude . In fact, Mullikin agreed that at all times (even in
daylight hours) trailers are supposed to have brake and
turn lights or signals . Therefore, even if it is later deter-
mined by an appellate body that Respondent did not vio-
late the National Labor Relations Act, then the evidence
relating to the above statute could then be considered in
showing that Combs and Scheid were also privileged,
under the Surface Transportation Assistance Act, to
refuse to drive the unsafe vehicle here involved.
Under Wright Line, 251 NLRB 1083 (1980), the Gen-
eral Counsel first must make a prima facie showing suffi-
cient to support an inference that the protected conduct
was a motivating factor in the employer's decision to
impose discipline on an employee . Once this is estab-
lished, the burden then shifts to the employer to demon-
strate by a preponderance of the evidence that its con-
duct would have been the same even in the absence of
the employee's protected activity.
Mullikin advanced two reasons for the discharge of
Combs and Scheid-the first being their refusal to drive
the truck, and the second the abandonment of that truck,
loaded with United States mail, at a truckstop. Respond-
ent points out that Combs and Scheid left their truck
without permission while it contained a load of mail, un-
watched in a truckstop, and which was over 500 miles
from Respondent's terminal, and that there is no doubt in
the minds of any witnesses that the post office takes it
routes very seriously14 and undisputedly the Respondent
was put at great risk when Combs and Scheid abandoned
the truck and took the bus home without permission, and
the risk of being fined or having its contract canceled
constitutes a valid business justification for the discharges
because that risk stemmed from their unauthorized act.
And the same action would have been taken absent the
allegedly protected refusal to drive. Therefore, because
this legitimate business reason has been clearly estab-
lished by a preponderance of the evidence, satisfying the
Wright Line test in "dual motive" cases, the Respondent's
discharge of Combs and Scheid, if they were in fact dis-
14 Mullikin testified that the U.S Post Office penalizes its carriers for
any irregularity in a contract route, and may take action against a carrier
ranging from a fine to cancellation of a contract, depending on the seri-
ousness of the irregularity, and that if something had happened to this
truckload of mail while it sat unguarded for 12 hours in Frederick, Mary-
land, the Post Office would have canceled Respondent 's contract to
carry mail . In fact, according to Mullikin , that exact thing had happened
to a former company operated by Mullikin after a driver abandoned a
load
MASH TRANSPORTATION
charged, did not violate Section 8(a)(3) of the Act.
Moreover,, argues Respondent, the fact that Combs and
Scheid's abandonment of truck 68 directly followed, and
was a consequence of, their allegedly protected refusal to
drive, does not cloak their unauthorized act with, pro-
tected status-while leaving a worksite for safety reasons
may be protected activity under some circumstances-
there was nothing inherently dangerous about the parked
truck which required Combs and Scheid, to abandon it,
and this abandonment, without Respondent's permission,
was insubordinate and placed the Respondent at a great
risk. Consequently, assuming their refusal to drive was
protected activity, Combs and Scheid's subsequent aban-
donment of the truck ,was not-that it has long been held
and recognized that an employee's misconduct, in the
course of the exercise of his statutory rights, eliminates
the "protected" status of that activity and leaves him
vulnerable to discharge, and that Combs and Scheid's
abandonment of the truck, not reasonably' related to any
concern for safety, did not fall under any "protected"
status, and given the resulting risk thrust on the 'Re-
spondent, furnished just cause for their discharge.
In my evaluation of these arguments by Respondent, it
should first be noted, and it is` undisputed, that -on the
day here in question Combs asked Mullikin for permis-
sion to take the truck to a nearby truckstop to get me-
chanical help, but that Mullikin would not permit: this.
Combs and Scheid were then instructed by Mullikin to
put the keys inside the track, lock it, and leave it at the
truckstop and that he would send someone to recover
the vehicle.
Under such circumstances , it is difficult to successfully
maintain that Combs and Scheid abandoned the truck, or
left it without permission-the bottom line is that, Mlli-
kin told them what to do under these circumstances, and
they then followed his instructions, and there was noth-
ing in those instructions containing any requirement
whatsoever that they stay with the truck as he specifical-
ly stated that someone would be sent to pick it up, and
certainly from this statement a reasonable inference that
Combs and Scheid should get home any way they could
and, under these circumstances, taking a bus home
should not have been unexpected even though it was not
directly authorized.
Counsel for Respondent further argues, as aforestated,
that the action taken by Combs and Scheid put the Com-
pany at a great risk of being fined or having its mail con-
tract canceled. However, it appears to me that Mullikin
was the party who was willing to take this risk. On Sep-
tember 11, he was fully aware that Combs and Scheid
would not drive without lights on the trailer and that the
truck in question was being parked. He was also unwill-
ing to have the lights fixed at the regular truckstops on
the route home (the one at Frederick and the one at
Breezewood), and he was ,further unable to offer Combs
and Scheid any other alternatives.
As detailed previously herein, Combs and Scheid were
likewise engaged in protected concerted activity in the
summer months of 1985, and as a result Scheid had been
left with at least two outstanding tickets while driving a
company truck, that he had to pay himself or was re-
451
sponsible for,15 and then on the latter occasion, when
Combs inquired whether the Company would provide a
lawyer if they got "locked up," iit_ Ohio, Mullikin replied
that they would have to get their'own lawyer.
There is no doubt that these earlier circumstances of
concerted protest also played a part in 'the decision and
plausibility not to drive without lights on the return trip
in September (Scheid 'had` enough tickets), and this com-
bination of circumstances, all protected 'concerted activi-
ty, then resulted` in the ` discriminatory discharge of
Combs and Scheid on September 12 because they en-
gaged' in a good-faith 'strike' in final efforts to protest
unsafe working conditions. `
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and that the Re-
spondent take the affirmative action provided for in the
Order below, and which I find necessary to effectuate
the policies of the Act.
It having been found that Respondent discriminatorily
discharged Mark-Combs and CraigScheid, I recommend
that Respondent offer them immediate and full reinstate-
ment to their, former :or substantially equivalent positions,
without prejudice to seniority or' other rights and privi-
leges, and. make them whole for any loss of earnings they
may have suffered by reason of the discrimination
against them by payment of a sum of money equal to
that which they would have normally earned ' from the
date of Respondent's discrimination, less net earnings,
during the period. All backpay, provided herein shall be
computed with 'interest on a quarterly basis,' in the
manner described by the Board in F. W. Woolworth Co.,
90 NLRB 289 (1950), and with interest thereon comput-
ed in the- manner and amount' prescribed in Florida Steel
Corp., 231 NLRB 651 (1977). See generally, Isis Plumbing
Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of-Section 2(6) and (7) of the Act.
2. By engaging in conduct described and, detailed in
section III, above, Respondent has 'engaged in and is en-
gaging in unfair labor practices within the meaning -of
Section 8(a)(1) of the Act.
3. The above-described unfair, labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'6
'a Scheid testified , "We had already received 2 tickets for unsafe
equipment. I was not going to get any more . I was not going to be re-
sponsible to pay for any more "
16 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Mash Transportation, Inc., White-
land, Indiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging , terminating , laying off, or otherwise
discriminating against employees because of their pro-
tected concerted activity.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights to self-organization to form, join or assist labor or-
ganizations, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section 7
of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Mark Combs and Craig Scheid immediate
and full reinstatement to their former job or, if such jobs
no longer exist , to substantially equivalent positions, and
make them whole for any loss of pay and other benefits
in the manner set forth in the remedy section.
(b) Post at it place of business copies of the attached
notice marked "Appendix." 17 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Respondent 's authorized repre-
sentative , shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(c) Preserve and, on request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records, time-
cards, personnel records and reports, and all other re-
cordes necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Remove from its files any reference to the termina-
tion of Combs and Scheid and notify them in writing
that his has been done and that evidence of this unlawful
action will not be used as a basis for future discipline
against them.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge , terminate, layoff, or other-
wise discriminate against employees because of their pro-
tected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Mark Combs and Craig Sheid rein-
statement to their former jobs or a substantially equiva-
lent ones and make them whole for any loss of earnings
they may have suffered as a result of the discrimination
against them.
WE WILL remove from our files any reference to the
discharge of Mark Combs and Craig Scheid and notify
them in writing that this has been done.
MASH TRANSPORTATION, INC.
17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."