Submitted Under Third Circuit Rule 12(6) Jan. 10, 1980.
Before Gibbons, Rosenn and Garth, Circuit Judges.
Petitioner Tri-State Truck Service, Inc. asks this court to review and set aside a National Labor Relations Board order which found that Tri-State had engaged in unfair labor practices in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by discharging two of its employees, James McDonald and Thomas Kovach, and which ordered Tri-State to cease and desist from such unfair labor practices and to reinstate the employees with back pay. 241 NLRB No. 32. The Board cross-petitions for enforcement of its order. We find that the Board's conclusion that Tri-State violated the Act is not supported by substantial evidence on the record as a whole.*fn1 Therefore, we grant the petition for review and deny the Board's cross-petition for enforcement.
Tri-State is engaged in the business of selling fuel oil to businesses and private homes. It supplies more than half of the fuel oil sold in the West Virginia counties of Hancock and Brooke and in Washington County, Pennsylvania. Fuel oil deliveries are made by five permanent drivers employed by Tri-State.
During the work week which began on Monday, January 16, 1978, Tri-State was forced to suspend its regular operations for two days due to a heavy snowfall. On Tuesday of that week, prior to closing down early for the day, Tri-State's president, William Snow, informed all of the drivers, who had been gathered together in the garage, that they might have to work during the weekend in order to make deliveries which were cancelled due to the snow storm. It is uncontested that none of the employees made any comments with respect to Snow's statement; none of them protested; no one asked any questions pertaining to premium pay or any other condition of weekend work. See T.R. at 12-13, 25-26 (McDonald's testimony); T.R. at 73 (Kovach's testimony). Hearing no response, Snow returned to his office after speaking to the drivers.
The record contains no evidence that McDonald, Kovach or any of the other employees had any further conversation during the week with Snow or any other management official, in regard to weekend work.*fn2 There was evidence, however, that some of the employees had discussed the matter among themselves. McDonald and Kovach, who lived at McDonald's home, had several conversations to the effect that they should receive time and one-half for weekend work. In addition, they called David Howell, a fellow driver, who apparently shared their concern. But it bears repeating that there is no evidence in the record that any of these employees expressed these concerns to management or that management had any knowledge that any employees had met to discuss weekend work or any other work-related matter.
It was not until Saturday, January 21, 1978, that Tri-State's management, for the first time, heard anything about any claims for premium pay. Early Saturday morning, Snow instructed the fuel oil supervisor, Lipovitch, to call the drivers into work. McDonald was the first driver called. He asked Lipovitch if he would receive time and one-half for working on Saturday. Lipovitch responded that McDonald had better talk to Snow, to whom he handed the telephone. When McDonald repeated his question to Snow, Snow explained that McDonald was not entitled to time and one-half pay because he had not yet worked forty hours in that week. McDonald responded that he would not work unless he received the premium rate. At that point, Snow warned McDonald that if he did not come in on Saturday, he need not come to work on the following Monday. Snow then terminated the conversation. Immediately after the phone call, McDonald told his wife and Kovach that he had been fired. On learning this, Kovach told McDonald that he would "stick with" him in his demand for premium pay. T.R. at 19-20.
Within an hour, Snow called Kovach. Kovach also asked if he would receive time and one-half pay for Saturday work. When Snow responded in the negative, Kovach told him that he was "sticking with" McDonald*fn3 and then asked if that meant he should not report for work on Monday. Snow responded that Kovach should draw his own conclusion. T.R. at 47, 62-63.
After these conversations, Snow waited until noon for McDonald and Kovach to report to work. When they did not arrive, their trucks were sent out with substitute drivers. Snow admitted, however, that had McDonald and Kovach reported to work later Saturday morning, they would have been reinstated.
McDonald's and Kovach's charges against Tri-State were tried before an Administrative Law Judge. The Law Judge found that McDonald and Kovach had been engaged in concerted activity related to their wages and working conditions, which was protected under the National Labor Relations Act.*fn4 Moreover, the Law Judge held that Tri-State had reason to know of this concerted activity when Kovach and McDonald were fired, because the Law Judge found that Snow knew the two employees lived together and that Kovach had specifically informed Snow that he was "sticking with" McDonald. Accordingly, the Law Judge concluded that Tri-State violated section 8(a)(1) of the Act when it fired the two employees. This conclusion was upheld by the Board.
We hold that the Board's determination that Tri-State knew that its employees were engaged in concerted activities which were protected under the Act, is not supported by ...