dissenting.
The petitioner is a small businessman caught in the toils of what many would regard as an overly enthusiastic enforcement of the National Labor Relations Act in a marginal case. Had I been the General Counsel of the National Labor Relations Board I would, I think, have declined to file the charge. Had I been the Administrative Law Judge I might have made different credibility determinations. But I cannot say that the Administrative Law Judge’s finding that McDonald and Kovach were discharged for engaging in concerted activity, a finding with which the Board unanimously agreed, lacks evidentiary support in the record as a whole. I can do no better than to quote from Administrative Law Judge Stevensen’s opinion:
On either Tuesday or Friday of the week of January 16, President Snow informed the drivers that because deliveries had fallen behind that week, they might be called in to work on Saturday if the weather permitted. No comment was forthcoming from the drivers. On the way home that day, McDonald and Kovach, who lived together, decided they should get time and a half if they were required to work Saturday. That evening the two of them discussed the matter again, agreeing that they would not work Saturday unless they received time and a half pay. They said he would go along with them if the other truckdrivers would. No other drivers were contacted.
Early Saturday morning, January 21, President Snow directed Supervisor Lipovitch to call the drivers and tell them to come to work. McDonald was the first driver called. McDonald asked if he would be paid time and a half, and Lipovitch put Snow on the telephone. McDonald repeated his question, and Snow informed him he had not worked 40 hours that week, and premium pay was paid only after 40 hours. McDonald stated he would not come in unless he was paid time and a half. Snow told him if he refused to come today, he would not be needed Monday or any other time. A short time later, Snow, who was aware that McDonald and Kovach lived together, called Kovach to come to work. Kovach told Snow he was sticking with McDonald and would work only if he was paid time and a half. Snow let Kovach know he would be discharged if he did not work that day. Future possible conduct by either the employees or management was not discussed in either conversation. When Snow telephoned David Howell, Howell said he could not come to work because he was snowed in. McDonald also telephoned Howell, and Ho*73well told McDonald he was not working either.
Snow waited for McDonald and Kovach most of the morning, thinking they would change their minds and report for work. When they had not reported by noon, Snow terminated them. Howell was not terminated because he had what Snow considered an acceptable excuse. The fuel-delivery trucks were driven that day by the drivers who did report supplemented by mechanics and salaried employees.
The facts set forth above establish that employees McDonald and Kovach, who were unrepresented and had no established means of presenting grievances or complaints, engaged in a concerted refusal to work on Saturday, January 21, 1978 because the Respondent would not pay them time and a half for working that day. The record also establishes that the Respondent, through its knowledge that McDonald and Kovach lived together and Kovach’s specifically informing President Snow that he was sticking with McDonald, had reason to believe the two men were acting in concert, (footnotes omitted) (emphasis added).
The italicized findings establish that President Snow knew, when he terminated McDonald and Kovach at noon on Saturday, that they were engaged in concerted activity with respect to overtime pay. The telephone conversations with McDonald and Kovach on Saturday morning took place, and the Administrative Law Judge believed that Kovach told Snow he was sticking with McDonald. The majority, without the benefit of personal observation of the witnesses, has chosen to do its own factfinding. Our scope of review under the National Labor Relations Act does not permit such action. See 29 U.S.C. § 160(e) (1976); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Thus, while I sympathize with the result, I respectfully dissent.