Thurston Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 23, 1981

255 N.L.R.B. 173 (N.L.R.B. 1981)

THURSTON MOTOR LINES, INC. 173
Thurston Motor Lines, Inc. and Chauffeurs, Team-
sters, and Helpers Local Union No. 391, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case I -CA-8842
March 23, 1981
DECISION AND ORDER
On November 28, 1980, Administrative Law
Judge Charles M. Williamson issued the attached
Decision in this proceeding. Thereafter, the Gener-
al Counsel filed exceptions and a supporting brief.
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 conclusions2 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.
I The General Counsel has implicitly excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Stand-
ard 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.
In sec. III (b), par. 12, of the Administrative Law Judge's Decision, the
following sentence appears: "Holscher allegedly replied that he 'did not
have in my hands records of J.C's performance."' The record shows that
the Administrative Law Judge meant to state that, according to Ms.
Roach, Holscher replied that she did not have Rorie's performance re-
cords in her hands. We hereby correct the error.
In fn. 14, last sentence, of his Decision, the Administrative Law Judge
inadvertently substituted the name "Roach" for the name "Holscher."
The corrected sentence reads as follows: "In view of the lapse of time (7
months) I do not find it surprising that Holscher's memory on this point
was vague."
2 In sec. IV, par. 6, of his Decision, the Administrative Law Judge
commented that it was doubtful that Holscher's statement that he was
"appalled" to discover that Rorie had been engaged in union activities
would have constituted a violation of Sec. 8(a)(l) if it had been made to
employees, citing Wilker ros. Co., Inc., 236 NLRB 1371 (1978). We find
it unnecessary to pass upon, and do not pass upon, the Administrative
Law Judge's statement and citation.
DECISION
STATEMENT OF THE CASE
CHARLES M. WILLIAMSON, Administrative Law Judge:
This case came to hearing before me in Greensboro,
North Carolina, on June 30 and July 1, 1980. The com-
plaint was issued on February 15, 1980, pursuant to a
charge filed on January 4, 1980, and an amended charge
filed on February 14, 1980. The complaint alleged that
Thurston Motor Lines, Inc. (hereafter referred to as Re-
255 NLRB No. 19
spondent), violated Section 8(a)(1) of the Act by (1) in-
terrogating employees concerning their union member-
ship, activities, and desires; (2) interrogating employees
concerning the union membership, activities, and desires
of fellow employees; (3) threatening employees that se-
lection of the Union as their collective-bargaining repre-
sentative would result in their having no place to work;
and (4) soliciting an employee to speak against the Union
to fellow employees. The complaint further alleged that
on or about December 17, 1979, Respondent violated
Section 8(a)(3) of the Act by the discharge of employee
J. C. Rorie. All parties were afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. The
Charging Party and the General Counsel filed post-hear-
ing briefs, both of which have been carefully considered.
Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, and
having considered the post-hearing briefs, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a motor freight carrier with a facility at
Greensboro, North Carolina, is, and has been at all times
material herein, a corporation licensed to do business in
the State of North Carolina, operating under a certificate
of convenience and necessity issued by the Interstate
Commerce Commission. During the preceding 12
months, which period is representative of all times mate-
rial herein, Respondent received gross revenues in excess
of $50,000 for services performed directly outside the
State of North Carolina, and transported materials from
the State of North Carolina to points directly outside the
State of North Carolina, valued in excess of $50,000. The
complaint alleges, Respondent admits, and I find that Re-
spondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits, and I find, that the the Charging
Party is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Organizing Campaign, Efficiency Measurement
System, and Alleged 8(a)(1) Violation
This case revolves around certain events during an or-
ganizing campaign undertaken by the Charging Party at
Respondent's Greensboro, North Carolina, terminal. This
campaign began about the middle part of August 1979
when an organizer for the Charging Party named Mum-
ford began handbilling Respondent's Greensboro termi-
nal.
I There was evidence that the organizing campaign encompassed all of
Respondent's trucking terminals A representation case petition was filed
on April 7, 1980. as Case I -RC-4866.
THURSTON MO RLINES, I C~~~~~~~~~~~~~~~~~~~~.17
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In June 1979, several months prior to the start of the
Charging Party's organizational campaign, Respondent
hired one Edward Moss, an industrial engineer. Moss
was hired for the specific purpose of conceiving and in-
stituting a control system to measure the productivity of
Respondent's employees. The purpose of the system was
to derive a measure of wages paid versus trucking rev-
enues generated 2 and supply a method of controlling this
ratio. Following his hire, Moss conducted a study by
riding with various of Respondent's Greensboro drivers.
This survey included all the areas and types of runs cov-
ered by the drivers. On the basis of his work, Moss was
able to arrive at a figure representing the average time
per stop on a driving run. This figure was then used as a
standard for computing the efficiency, expressed as a
percentage, for each pickup and delivery driver during a
working day. Drivers who made quick pickups and de-
liveries (stops) attained a higher percentage of efficiency.
After a preliminary testing, the measurement system was
phased into the Greensboro terminal's operations in late
September or the first part of October 1979. Counsel for
the General Counsel specifically disavowed any claim
that the conception and implementation of this system
for measuring employee efficiency implied a discrimina-
tory purpose on Respondent's part.
The General Counsel presented two witnesses-
Ronald Glenn and J. C. Rorie-to substantiate his allega-
tions of violation of Section 8(a)(1). Glenn testified that
in the latter part of August 1979, he was approached by
Terminal Manager Jimmy Dolinger. Glenn had just
punched in and Dolinger requested that he step into Do-
linger's office. Only Glenn and Dolinger were present.
Dolinger allegedly began the conversation by saying,
"he guessed that I noticed the guys, or Mr. Mumford, at
the gate handing out hand bills for the Union." Dolinger
then allegedly asked Glenn what he thought about it."
Glenn replied that "I didn't think a lot about it because
my father and brother and uncle are associated with the
Local 391, and that I had seen my father and my brother
lose almost everything they had in the strike, and that I
was, you know, not for it." Dolinger then allegedly com-
mended Glenn for his attitude and commented further:
Q. Do you recall anything else being said in that
conversation?
A. Well, he asked me if I could talk to some of
the guys that were for the union, and convince
them, you know, get them over to my way of
thinking, that he would appreciate it, and that, you
know, the names of the ringleaders and so forth that
I could supply him with, you know, he would more
than appreciate that, that if the union went in that
he would lose his job.
I went on to ask him why. I said "Well, they
would need a Terminal Manager anyhow, why
would you lose your job"; and he said, "Well, that
is the way that it works."
2 There was credible evidence that in the summer of 1979 wage costs
at the Greensboro terminal were higher, as measured against total rev-
enues, than those at others of Respondent's terminals. Respondent's basic
purpose was to get more freight delivered per dollar of wage cost: i.e., to
raise the productivity of its work force.
J. C. Rorie testified that toward the end of September
1979, Dolinger left a note on his timecard directing him
to report to the office, only he and Dolinger were pres-
ent. According to Rorie, Dolinger began by observing
that Rorie appeared to be "worried about something."
Rorie replied, "As far as I know, I wasn't worried about
anything." Dolinger then said he had made inquiries to
the salesmen "and they had been inquiring, you know
about me, and my customers and everything, and every-
body said that I seemed to be doing my job" and he said
"it seemed like to him that I might be worried about
something since the union man had been up there."
Rorie again said he "didn't know of anything that was
bothering me." The conversation then allegedly contin-
ued as follows:
Q. What happened next, if anything?
A. I believe at that time, he asked me how I felt
about the union; as far as I can remember.
Q. What did you tell him.
A. I told him that I hadn't given it a thought.
Q. Do you recall anything else being said?
A. Yes, he wanted to know how the rest of the
guys felt about it. I told him I didn't know. I hadn't
heard them say.
Dolinger then allegedly commented that Rorie might
know if the other men had said anything about the union
because he appeared to get along well with the men.
Rorie replied that he tried to get along well with every-
one. Dolinger allegedly replied that Rorie "wouldn't
have to get involved with the Union." Rorie again stated
that he "wasn't involved with the Union." Dolinger
commented, "that the union would tear the company up
. . . if the Union come in and tore the company up, we-
all wouldn't have a place to work." In describing how
the Union operated, Dolinger allegedly stated:
A. That the union would only handle five loads
of freight going out of state, and the Company, we
would operate, you know, interstate freight, deliv-
eries that are picked up on the outside, the "union
just wouldn't mess with that type of freight."
Rorie testified that Dolinger then began to discuss his
production ratings:
Then he told me about my production was down
some 70 percent, and I didn't know what he meant
by "70 percent" because that is the first time that I
had ever heard anything of that type, and I asked
him what it was; "Am I doing my work every day
like doing my deliveries and pickups" and he said
"as far as he know, I was" and I asked him, I said:
"Well, if I am doing everything that I am told to
do, what more can I do. What can I do to improve
myself because I don't want to get fired"; and he
said that he didn't know that he hadn't fired nobody
since he had been there; he said that some of the
drivers had quit since he had been there; but he
didn't fire them.
THURSTON MOTOR LINES, INC. 175
B. The Discharge of J. C. Rorie
Rorie testified that when the handbilling began in
August 1979, organizer Mumford appeared at the gate of
the terminal about every 2 weeks. On these occasions,
Rorie took a leaflet and sometimes engaged Mumford in
conversation.3 On the occassions when Mumford hand-
billed, Respondent's supervisors also passed through the
gate on their way to work. 4 Rorie stated that he saw
Dolinger passing through in at least one instance when
Rorie spoke with Mumford at the gate, but Dolinger did
not stop nor could he have overheard the two of them
talking. Rorie and Dolinger basically agree on this por-
tion of their testimony, except that Dolinger denied ob-
serving Rorie having anything to do with Mumford.
Rorie was discharged on December 17, 1979, because,
as Respondent contended, he experienced difficulties
with his production under Respondent's new efficiency
measurement system. Respondent presented (Resp. Exhs.
4-7) the history of Rorie's experiences with the efficien-
cy measurement system. Following the conversation
with Dolinger on September 27, 1979, which concerned
failure to meet the standards, Rorie was interviewed on
October 19, November 16, November 23, and November
30, 1979, by Operations Manager William H. Knowles,
Jr. In each instance, Rorie's percentage efficiency ap-
pears to have been in the seventies, 16 to 20 percentage
points below the contemporary terminal average for sim-
ilar drivers.5
The General Counsel presented Joyce Roach, the
manager of Added Dimensions, a specialty store located
in the Carolina Circle Mall, Greensboro, North Carolina.
This store was one regularly served by Rorie. Roach tes-
tified that a Thurston delivery was made to her store just
prior to Christmas 1979 and, noticing that Rorie was not
driving, she questioned the driver concerning his ab-
sence. The driver informed her that "J.C. [Rorie] had
been fired." Roach then testified that "it was, you know,
a shock that J.C. would have been fired at this time, or
any time because of his performance." Roach inquired
whether there was anyone she could call about Rorie's
discharge and was given the name of Franz Holscher,
Respondent's president, located in Charlotte, North
Carolina. Roach telephoned Holscher immediately there-
after and expressed her dismay over Rorie's discharge.
Holscher allegedly replied that he "did not have in my
hands records of J.C.'s performance." Roach admitted
that that was true. Holscher then allegedly stated that he
did have J.C.'s name "with others on a piece of paper as
beginning a union, or having something to do with the
union." Roach then suggested that the union was the
cause of Rorie's discharge. According to her, Holscher
replied, "No, it had nothing to do with it." Following
3 Mumford did not testify although he made an appearance on behalf
of Charging Party on the second day of the hearing. I make no inference
from his failure to testify.
I Dolinger testified that Mumford gave him union literature on these
occasions.
I Although it apparently played no role in the decision to discharge,
Respondent also presented (Resp. Exhs. 23-24) Rorie's history for De-
cember 10, 1979, through December 17, 1979. The efficiency ratings are
mostly in the seventies. There is a low of 63 percent on December 17 and
a high of 86 percent on December II. These figures reflect no real im-
provement in Rorie's performance during his last week of employment.
the initial conversation with Holscher by about 5 or 10
minutes, Roach received a telephone call from Holscher
wherein he verified her identity.
IV. ANALYSIS AND CONCLUSIONS
Respondent's witness Dolinger testified that the con-
versation with employee Glenn, set forth above, oc-
curred when Glenn approached him one morning seek-
ing to have his starting time moved up to an earlier hour.
Dolinger explained that this could not be done for busi-
ness reasons. Dolinger denied questioning Glenn about
the union activity at the terminal and stated that Glenn,
raising the subject, voluntarily explained to him the un-
fortunate experiences members of his family had had
with a union. During the course of the conversation, Do-
linger suggested that Glenn let other employees know
about the experiences of his relatives. Dolinger specifi-
cally denied asking the identity of union ringleaders,
seeking to learn of the union activities of other employ-
ees, or threatening that employee would have no place
to work if the Union were successful in its organizing
effort.
Dolinger admitted talking to Rorie toward the end of
September 1979. He stated that he left word with the
dispatcher for Rorie to see him before going out on his
run for that day. The conversation took place because of
concern about Rorie's difficulty with the new efficiency
standards. Dolinger noted that Rorie was "right at the
bottom of the list" as regards efficiency. The conversa-
tion began with Dolinger asking if Rorie were having
any troubles on his trucking run; whether his truck was
being misloaded; 6 or whether he was being run all over
town instead of his area. Rorie replied that he was
having none of these problems except that sometimes his
truck "could have been loaded a little better." Dolinger
testified that Rorie could give no reason for his low pro-
ductivity and that the efficiency system was explained to
him on this occasion. 7 Dolinger stated that during this
conversation, in a further effort to ascertain what factor,
if any, could be affecting Rorie's productivity, he asked,
"J.C. if that activity was affecting him, if there was
somebody harassing him, or giving him a bad time; over
that, something that might cause him not to be as pro-
ductive as he should be." Dolinger explained that other
drivers had come to him saying that "there were certain
individuals [employees] out in the parking lot of a night
when they were going home, threatening to sign cards
and mail in with their names on it."8 It was this verbal
harassment to which Dolinger referred in talking with
Rorie on September 27.
6 If freight is loaded in the wrong order on the truck it may be neces-
sary to partially unload the truck at some of the earlier stops on the
route. The alternative is to make the stops out of order thus increasing
the mileage driven on the run. Both alternatives are disastrous as far as
driver efficiency is concerned.
I Prior to and while instituting the efficiency system Respondent con-
ducted meetings with its drivers for the purpose of explaining it. These
meetings occurred on August 16, 1979, and November 15, 1979. See
Resp. Exhs. I and 2. Rorie, when questioned on this topic, did not deny
being present at the meetings.
" Dolinger said there were some eight employees involved. I credit
Dolinger in that he received these reports. I make no finding as to the
truth of the reports.
THURSTON M TOR LINES INC.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's witness Holscher testified that he re-
ceived a telephone call from Roach after J.C. Rorie was
discharged. He stated that he did not talk to Roach at
first desiring to check on the matter with Dolinger in
Greensboro. After checking with Dolinger, Holscher
called Roach. Holscher's account of the conversation
(which he was unable to date) does not differ materially
from that of Roach. Holscher readily admitted that
copies of union "handouts" distributed at the Greensboro
terminal were regularly forwarded to the Charlotte of-
fices of Respondent and that one of these "handouts"
had on it the names of Rorie, Whitt, and Myers identi-
fied as "the organizers" of the union. In discussing Rorie
with Roach, Holscher stated that he referred to this
"handout,"9 telling Roach that Rorie's participation in
the union was one of a number of things unknown to
him about Rorie's discharge; he testified further:
. . . and they had not only his name but they had
two other names; I think it was Mr. Whitt and Mr.
Myers were the names who were on there, and
mentioned that they were the organizers, and so,
when I called her back the second time, I said, "I
am sorry to hear that you think we did him an in-
justice," I said, "I was also appalled to find out this,
that he was out there actively trying to organize
our company" because I had the piece of paper in
my hand.
As between Dolinger, on the one hand, and Rorie and
Glenn on the other, I credit Dolinger. Counsel for the
General Counsel argues in the case of Glenn that he
should be credited because he was testifying against the
interest of his current employer. Southern Paint & Water-
proofing Co., Inc., 230 NLRB 429, 431, fn. 11 (1977).
However, on demeanor considerations, I find Dolinger
the more believable. In addition, I note that Dolinger, at
the time he testified, was no longer in the employ of Re-
spondent and, therefore, possessed no motive that would
cause him to "tilt" his testimony in Respondent's favor.
As regards Rorie, I cannot credit his halting version of
the September 27, 1979, interview as against Dolinger's
clear and concise testimony. I therefore find that counsel
for the General Counsel has not proved by a preponder-
ance of the evidence that Respondent violated Section
8(a)(1) of the Act in the Dolinger conversations with
Glenn and Rorie. In the case of Glenn, I specifically find
that the conversation began at Glenn's instigation and
that the subject of the union was raised by Glenn. Cf.
PPG Industries, Inc., Lexington Plant, Fiber Glass Divi-
sion, 251 NLRB 1146 (1981). 1 find that the conversation
with Rorie on September 27, 1979, was directed toward
ascertaining what problems, if any, he was having in
meeting efficiency standards and that Dolinger's inquiry
9 The "handout" was never identified or placed in evidence. In view
of the facts that Rorie did not identify himself as an "organizer" of the
union (nor did any other witness) and that neither Whitt nor Myers was
so identified, I find difficulty in determining that a union "handout" so
identified them. The original charge in this case has all three names set
out on it. In view of the total inability of either Holscher or Roach to
give any date for their conversations except "around Christmas," it is
possible that the document alluded to by Holscher is, in fact, the charge
dated January 4, 1980. This determination is not, however, essential to
my construction of this case.
about verbal harassment by other employees was not di-
rected to the question of Rorie's union activity but to his
work performance. I do not find that Dolinger interro-
gated either Glenn or Rorie concerning their own or
others' union activities, or that he asked anyone to give
him the names of the "ringleaders." While Dolinger ad-
mitted asking Glenn to relate the story of his relatives'
troubles to the rest of the employees I do not find that
this request, couched in the form "if people came to him
with questions and all about it, would he explain it to
them" violated Section 8(a)(1) of the Act. Cf. Marsh Fur-
niture Co., 230 NLRB 580 (1977) (employee directed by
supervisors to speak against union to union activist).
Respondent hired Moss several months prior to the
start of the union's organizing effort for the purpose of
increasing the efficiency of its terminal operation. Re-
spondent measured this efficiency by taking wages paid
as a percentage of shipping revenue. Respondent's wit-
ness Holscher testified that prior to the introduction of
Moss's system the Greensboro terminal's wages paid
were running about 17 or 17.5 percent of revenues. The
overall average for all of Respondent's terminals was
13.5 percent. Following the introduction of Moss's
system, the Greensboro terminal went down to 14.73
percent, a distinct improvement. Counsel for the General
Counsel does not contend, and I do not find, that the in-
troduction of the efficiency measurement system was for
a discriminatory purpose. I find, instead, that the mea-
surement system was instituted for the business related
purpose of increasing driver efficiency and improving it
to the end that the productivity of the work force would
increase. There remains for decision the question of
whether the measurement system was employed in a dis-
criminatory fashion so that Respondent might rid itself of
union adherent Rorie. Granted, arguendo, that Respond-
ent's managers, Dolinger and Holscher, were aware of
Rorie's union adherence, 0 I cannot find that that fact
motivated Rorie's discharge. From the start, Rorie
proved unable consistently to bring his productivity per-
centage up to the terminal average. He was counseled by
Dolinger on September 27, 1979,1" and warned by
Knowles on three later occasions that fall and early
winter.12 Lengthy and exhaustive cross-examination of
Respondent's managers failed to reveal any gross errors
in the application of the measurement system to Rorie's
work performance. Rorie was unable, while working, to
give any satisfactory explanation of why his efficiency
10 Dolinger testified he took union leaflets from Mumford at the gate
and forwarded them to the Charlotte location on a routine basis. If any
of these "handouts" mentioned Rorie's name, as Holscher testified, both
he and Dolinger must be presumed to know that fact and thus be aware
of Rorie's support for the union.
I Dolinger candidly admitted his regret that Rorie could not improve
his productivity on a steady basis. Dolinger indicated that Rorie was a
willing and friendly employee. My own observation of Rorie while he
testified confirmed Dolinger's observations. However, in my opinion.
Rorie never really understood the new system whereby his work per-
formance was being measured.
12 Counsel for the General Counsel puts emphasis on the fact that Do-
linger never counseled with Rorie after September. I cannot find any-
thing of a discriminatory nature in this fact. Knowles was operations
manager, a position where driver efficiency would constitute one of his
main concerns. Knowles warned other drivers.
THURSTON MOTOR LINES, INC. 177
percentage lagged far behind that of other drivers. He
gave no explanation at the hearing. Counsel for the Gen-
eral Counsel suggested that Rorie's truck was old, but
there was credible evidence that, on occasion, when
other drivers temporarily replaced Rorie, they succeeded
in meeting the efficiency standards. Additionally, no spe-
cific instances were adduced to show that the age of
Rorie's truck, as such, resulted in any significant break-
down time for which Rorie would have been compensat-
ed under Respondent's system. Counsel for the General
Counsel also suggested that Rorie performed time-con-
suming services for Respondent's customers in an at-
tempt to hold old business or obtain new. There was
some evidence that Respondent desired its drivers to
maintain good customer relations and obtain additional
business and, it is suggested, Rorie was following Re-
spondent's policies in an attempt to do this. One problem
with this suggestion is that it fails to show why Rorie's
performance should have been so much lower than the
average of his fellow drivers with no evidence that he
obtained additional business. Another, and more basic
problem, is that Respondent's (nondiscriminatory) busi-
ness judgment dictated its driver requirements, e.g., de-
liveries and pickups took precedence over other consid-
erations. Finally, I note that Respondent maintained a
force of salesmen charged with the basic responsibility of
obtaining revenue-generating business.
Counsel for the General Counsel placed great weight
on the testimony of Roach. Her testimony, however,
showed no admission by Respondent of discriminatory
discharge. Indeed, she testified that Holscher specifically
denied discharging Rorie because of union-related con-
siderations when she made that suggestion. The most
that can be gleaned from Roach's and Holscher's ac-
counts of their conversation is that (1) at the time of the
conversation-sometime after Rorie's discharge-
Holscher was aware of Rorie's union adherence and (2)
that Holscher said he was "appalled" to find out that
Rorie was involved in an organizing campaign. That
Holscher was "appalled" may reflect union animus' 3
there is no doubt that Respondent did not wish to be or-
ganized-but it is doubtful that this statement if made to
employees would have constituted a violation of Section
8(a)(1). See Wilker Bros. Co., Inc., 236 NLRB 1371
(1978) (supervisors who expressed "shock and surprise"
to employees at union activity held not in violation).
This ambiguous remark will not support the superstruc-
1a The statement might also reflect unhappiness on Holscher's part that
Respondent had discharged a union adherent and might be facing an
unfair labor practice case. This speculation is not, however, germane to
my view of the case, although it is an interesting one if, as previously
surmised, the document Holscher was viewing during the telephone con-
versation was the January 4, 1980. charge.
ture of inference counsel for the General Counsel wishes
to build. The decision to discharge Rorie was made and
executed at the Greensboro terminal by Dolinger. There
is no evidence that Holscher knew of the discharge,
much less directed it, prior to the discharge. 4
Finally, I find no evidence of discriminatory intent in
the timing of the discharge. Rorie had been warned on
November 16, November 23, and November 30- 3
successive weeks. Dolinger credibly testified that he re-
viewed Rorie's performance figures up to December 7 or
December 14 prior to discharging him and found them
"consistently low." The record so reflects. Other drivers
(Whitt and Myers) were discharged around the same
time. t5 I find that Rorie was not discharged in violation
of Section 8(aX)(1) and (3) but was, in fact, discharged for
cause, viz, his consistent failure to achieve a reasonable
productivity level.
CONCLUSIONS OF LAW1 6
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 7
The complaint is dismissed in its entirety.
'4 Barbara Glenn, wife of Ronald Glenn, and J. C. Rorie both testified
on rebuttal that they called Holscher after Rorie's discharge. Neither tes-
tified that Holscher appeared to be aware of the discharge. I have taken
into account in evaluating Holscher's testimony that both these calls
probably antedated Roach's call and that Holscher indicated he learned
of Rorie's discharge from Roach. In view of the lapse of time (7 months)
I do not find it surprising that Roach's memory on this point was vague.
'5 Whitt and Myers were both alleged as discriminatory discharges in
the original charge in this case. The charge was amended on February
14, 1981, to delete their names. Respondent presented their work records.
These records are as poor as Rorie's.
'6 The Charging Party contended in its brief that the Board has previ-
ously found this Respondent guilty of unfair labor practices. I take judi-
cial notice of that fact, but the "fact that there has been a history of un-
lawful hostility to unionization does not serve alone as a substitute for
proof that the action taken in the present instance was discriminatorily
motivated, nor does it serve to shift the burden to the Respondent to es-
tablish its innocence." J. P Stevens d Co.. Inc., 181 NLRB 666. 667
(1970).
17 In the event no exceptions are filed as provided by Sec. 02.46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, 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.
THURSTON M TOR LINES, INC.