Thurston Motor Lines, Inc.

National Labor Relations Board - Board Decisions

May 13, 1974

210 N.L.R.B. 608 (N.L.R.B. 1974)

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thurston Motor Lines, Inc. and Truck Drivers and
Helpers Local Union No. 728 . Cases 10-CA-9774
and 10-CA-9826
May 13, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On December 14, 1973, Administrative Law Judge
Lloyd Buchanan issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the Administrative Law Judge's
rulings, findings, and conclusions, but only to the
extent consistent herewith.
The Administrative Law Judge found without
exception that Respondent did not engage in any
conduct which independently violated Section
8(a)(1) of the Act. He also found without exception
that Respondent's termination of 12 employees
between August 22 and October 23, 1972,1 was not
discriminatorily motivated and therefore did not
violate Section 8(a)(3) of the Act.2
However, he found that two other employees,
Glenn M. Hoenig and James R. Messimer, were on
September 1 and October 12, respectively, discrimi-
natorily discharged in violation of Section 8(a)(3)
and (1) of the Act. For reasons stated below, we find
merit in Respondent's exceptions as to these findings.
Hoenig was hired on August 9 as a probationary
employee.3 While he could not remember whether he
was late on August 10 and 11 as claimed, he
admitted that he was late on August 30 and
September 1. He was discharged on September 1 by
Terminal Manager Shifflett after the latter was
informed by Supervisors Charles E. Schuler and
Robert Lamb that Hoenig was, inter alia, guilty of
tardiness and failure to be present for a wee'-end
assignment. In view thereof, and as the Administra-
tive Law Judge found without exception from the
General Counsel that Respondent did not engage in
any 8(a)(1) conduct which showed any Respondent
antagonism against the Union or its protagonists, we
find that the General Counsel has failed to establish
by a preponderance of the evidence that the
termination of Hoenig was unlawfully motivated.
With respect to Messimer, it is undisputed that a
driver is discharged if he is guilty of three "chargea-
ble" accidents within a 12-month period. Messimer
210 NLRB No. 96
v. as charged with three such accidents, on November
26, 1971, and July 24 and October 10, 1972. The
Administrative Law Judge questions Respondent's
reliance upon the July 24 accident on the ground that
Messimer did not receive a statement of charges.
However, apart from the fact that Messimer struck a
fixed object on this occasion, the Administrative Law
Judge has overlooked the testimony of Respondent
Vice President Holscher, which, contrary to that of
Messimer, indicates that during 1972 Respondent
had to some extent discontinued its practice of
issuing statements of charges. And while it may be
that Messimer's truck was already dented when he
took it out on October 10, it was his obligation to
inspect the truck for such dents before taking it out,
which he did not do. On these facts, and absent any
8(a)(1) finding which demonstrates union animus, it
is our belief that the General Counsel has failed to
satisfy his burden of proving that Messimer's
discharge on October 12 was unlawfully motivated.
In view of the foregoing, we shall order that the
complaint be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
I All dates below refer to 1972 unless otherwise specified.
2 In the absence of exceptions , we adopt his recommendations as to the
dismissal of these 8(a)(1) and 8(a)(3) allegations.
3 The duration of the probationary period is a maximum of 60 days.
DECISION
LLOYD BucHANAN, Administrative Law Judge: The
complaints herein (issued November 3 and 22, 1972;
charges filed September 8 and 18, October 19 and 25, and
November 15, 1972), as consolidated and amended, allege
that the Respondent Company has violated Section 8(aX3)
of the National Labor Relations Act, as amended, 73 Stat.
519, by discharging R. F. Terrell, James Stanley, Chester
Lovell Baker, Truman J. Vincent, Glenn M. Hoenig,
Ruben Whitworth, Jack T. Holcomb, Thomas L. Rampy,
Mark Cain, Lewis M. Franklin, James R. Messimer,
Donald Lee Milligan, Edward H. Rainwater, and Jimmy
Thomas between August 22 and October 23, 1972, and
thereafter failing and refusing to reinstate them, because of
their union membership and activities and other protected
concerted activities; and Section 8(a)(1) of the Act by
unlawful interrogation and by threats of layoffs and
discharge. Admitting the various discharges, the answers
deny the allegations of violation and of interference.
The case was tried before me at Atlanta, Georgia, on
January 29 through 31 inclusive, and February 1 and 2,
1972. Pursuant to leave granted to all parties, the General
Counsel has filed a brief which barely touches on the
salient issues in the case . No brief has been filed by the
THURSTON MOTOR LINES, INC.
Company. I regret that other cases and an inconvenient
physical injury have delayed issuance of this decision.
Upon the entire record on the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a North
Carolina corporation with a terminal and place of business
in Atlanta , Georgia , the nature and extent of its business in
the interstate transportation of goods , and its engagement
in commerce within the meaning of the Act are admitted; I
find and conclude accordingly. I also find and conclude
that, as admitted, the Union is a labor organization within
the meaning of the Act.
The General Counsel opens his brief with the declaration
that he "is not abandoning any position, conclusion of law,
or finding of fact favorable to the General Counsel's
contentions which can be drawn from the record as a
whole by the lack of reference to such matters in this
Brief." Such "lack of reference" is outstanding: The
General Counsel, perhaps discouraged and recognizing
that he had submitted insufficient asperges of evidence,'
admittedly "has not attempted to analyze all [or more than
very few] matters of fact and legal principles involved"
even where the record appears to offer some basis for a
claim of discrimination. The legal principles here are
simple; decision depends on the facts and the extent to
which they have been presented.
II. THE UNFAIR LABOR PRACTICES
A. The Alleged Violation of Section 8(a)(1)
Exactly when organizational activities among the Atlan-
ta terminal rank-and-file employees, such as local drivers,
dockmen, freight handlers, etc., and excluding employees
excluded in the Regional Director's Decision and Direc-
tion of Election dated September 20, 1972, began is not
quite clear. According to Whitworth, the first meeting of
the employees was held about July 22 behind a shopping
center. This meeting probably occurred about the end of
July, as Holcomb testified. Both told us that they got cards
to be signed, Holcomb at the meeting, and Whitworth that
he got cards for signature and signed one himself on
August 3. Whitworth appeared to play the leading role in
the organizational activities, and was the General Coun-
sel's leading witness. It may be important to note that
August 3, when he signed a union card, is the first definite
date vouchsafed us in contrast to the indefiniteness and
apparent uncertainty with respect to other dates men-
tioned.
Nor is it clear when union activities of any kind began,
Whitworth fixing the time in July and Holcomb about the
beginning of May. In an affidavit executed in September,
1 If this be so, a withdrawal of some or all of the claims of violation
would be more graceful and preferable to a casual, brief, and cursory
document submitted as a "brief ," making necessary a detailed review and
decision after a 5-day trial , with possible subsequent review . If not before,
609
the latter made no reference to such activities occurring
before August 5. Also unclear is whether this testimony
was received as bearing on the question of company
knowledge of union activities of some of the employees. At
any rate the uncertainties and contradictions of these
witnesses reflect on their credibility.
Reference to union activities of some sort at an earlier
time, whether in April or in May, aside from the fact that
company knowledge of any such activities is nowhere
suggested, appeared to have been injected to suggest a
reason or explanation for the later change in terminal
manager. This latter is adequately explained as we shall
see.
As for company knowledge of protected concerted
activities on the part of these alleged discriminatees, it was
admitted that the Company had such knowledge with
respect to all except Cain, Stanley, Terrell, and Thomas,
the 10 being named on a list or lists submitted to the
Company before their respective discharges. This does not
exclude company knowledge concerning the protected
concerted activities of the other four, but calls for proof.
Besides the admission of company knowledge of union
activities of certain of the employees, we have testimony by
employee Rice, which cannot be overlooked, to the effect
that there was an admission of discrimination as to all of
these employees. This is noted in the General Counsel's
brief. "I said no the others been fired because of union
activity and he done like this (motioning), so I
knew...." 2 Whatever was intended, the statement was
allegedly made by Vice President Holscher, as cited in the
brief, and not by Terminal Manager Shifflett. If, as
elsewhere, the witness or the transcript is not clear, my own
notes and recollection are to the effect that Rice testified
that Holscher admitted about a week before the election of
October 20 that, not the alleged discriminatees, but six of
the eight theretofore discharged (Rampy and Holcomb
excluded) had been fired for union activities. Certainly
with respect to Stanley and Terrell, the first two dis-
charged, on August 22 and 25 respectively, we cannot rely
on the "timing" of their discharges in relation to the
Union's demand of August 29 for recognition and
bargaining as proof that those discharges were or were not
discriminatory. Of the other two concerning whom the
issue of company knowledge was raised, Thomas was
discharged on October 18, and Cain on the day of the
Board election, October 20.
These several inaccuracies on one point, itself relatively
minor in view of more important issues raised , underscore
the absence of careful and adequate analysis. But they are
of little moment insofar as the decision here is concerned
since I credit Holscher's testimony that Rice did not ask
him about firing anyone for union activities. I do not
believe that Holscher would have made this all too pat
admission to Rice, who admitted to Holscher that he had
signed a union card in the plant. There is no claim of
discrimination against Rice.
This is not a "small plant" case . As for the four
then surely after investigation , preparation , and trial, there is no administra-
tive need for counsel to maintain and continue a position which he does not
himself appear to press.
2 This is Rice's entire reply as it appears in the transcript.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees with respect to whom company knowledge is
not admitted , we shall have to consider the evidence
concerning such knowledge . We are not compelled to rely
on the testimony, surprising or not , by both Company
President Thurston and Holscher that they first learned of
the union campaign when the election petition was
received on October 18. The Company' s headquarters are
located in Charlotte, North Carolina, and as noted the
discharges were effected in Atlanta. The testimony
concerning the 8(a)(3) allegations below is of course viewed
against the background of this knowledge by the Company
that 10 of the alleged discriminatees were union activists.
I have probably spent more time than has the General
Counsel in the attempt not to overlook any allegations of
interference , whether they be ultimately found or not.
Thus, Whitworth testified that Holscher, about August 10,
called him into the office and told him that he was the
sorriest driver that he had ever seen . Shifflett , the new
terminal manager , was present and agreed. Holscher
continued that he would give Whitworth one more chance
if the latter kept his mouth shut . Of course the broad
remedy recommended in connection with the findings of
discrimination would cover interference ; but if we must
note such allegations although they are not even men-
tioned in the General Counsel 's brief (something must
presumably be left for exceptions !), it is not clear whether
this is alleged as a threat by Shifflett "on or about" August
4 and September 1 or interrogation by Holscher "on or
about" August 30 and 31 3 In any event I would find no
violation there . If offered "as background" or "to present
the entire picture" (as if what is directly in issue were not
enough), I can think of more pleasant and less expensive
ways of wasting time. I propose to refer hereafter only to
those items which I note while concerned with the
weightier problems, in the absence of reference by the
General Counsel . The latter virtually limits his argument to
instances of alleged interrogation and I shall confine
myself here to those cited by him.
Hoenig , whose name appeared on the posted in-plant
committee list, testified that a few days before September I
Holscher asked whether his name was on the list and
remarked that he thought that Hoenig was a hard working
young man . Similar remarks alleged by amendment and
attributed to Supervisor Schuler were denied by the latter.
Concerned as we are with the allegation of interrogation in
this connection and the tendency to interfere with
protected concerted activities , I do not find such a
tendency in these remarks after the employee's name has
been posted in the plant as a member of the employee
committee . As much can be said concerning alleged
interrogation of employee Milligan by Lamb, denied by
the latter , who, testifying concerning the ability of Terrell,
impressed me as a credible witness.
The first complaint alleges that on August 31 Holscher
interrogated Baker; the second complaint alleges that
Holscher repeated the offense with Franklin on the same
day. Again , Holscher remarked that he saw the employee's
name on the list or asked whether it was on the list posted.
I find no violation there. (This is not to say that, even
though their names were posted , Holscher might not have
committed a violation had he pressed the employees in that
connection.)
Among the items covered by amendment at the close of
the trial are alleged interrogation and what might pass for
suggestions for surveillance , by Schuler, denied by him.
Whether the General Counsel was not himself impressed
by the credibility of this afterthought , I am not.
Dignifying these unnecessarily by reference to them
although they are not referred to by the General Counsel,
omission of reference to a threat by Holscher alleged in the
second complaint is quite understandable (at least one of
the General Counsel 's witnesses testified that , at a meeting
called by the Company, Holscher told the employees that
the drivers were free to do as they wanted : to be for the
Union or against it), as is failure to mention an allegation
and testimony concerning interrogation and another threat
by Holscher, denied by him. I find no violation in any of
these items.
There appears to be further confusion of allegations with
respect to Holscher or Shifflett . I shall not attempt to
pursue these further.
Finally in this connection, interrogation of Turman by
Holscher is alleged by amendment ; possible threat in the
words that they would "have to stop it" is not alleged. I
credit Holscher's denial . While Turman was a rank-and-
file employee at the time , he was known to be "a Company
man."
The claim, even if relied upon despite its uncertainty, of
union activity before August 1, when Shifflett became
terminal manager , does not strengthen the General
Counsel's case. Not only has company knowledge of such
activity not been shown , but according to the record, it was
under Setzer, the prior manager , that conditions at the
terminal deteriorated . Under such circumstances, no
suspicion would attach to otherwise appropriate and
nondiscriminatory action taken by Shifflett. The question
remains whether the discharges here were lawful regardless
of union activity before his appointment as manager.
Bearing in mind the quotation from Erie Resistor,4
immediately below , the alleged independent interference is
here nevertheless relatively unimportant in view of the
many and more serious allegations of discrimination. If
there be somewhere in this case any evidence of interfer-
ence , alleged or fully litigated, it has not been pointed out
to me , and it is certainly exiguous. The warranted remedy
for the instances of discrimination found covers independ-
ent interference . Nor can it be said that allegations,
indefinite as made and not specifically cited at the trial or
by brief, were fully litigated . On the other hand, the
instances of discrimination found are no less such even in
the absence of so -called independent interference.
B. The Alleged Violation of Section 8(a)(3)
We proceed now to the allegations of discriminatory
discharge , with little if any aid long ago recognized and as
stated in the Erie Resistor case as follows:
When specific evidence of a subjective intent to
3 Refutation and findings could be no more specific than the proof
4 The Erie Resistor Corporation, 373 U S 221, 227 (1963)
THURSTON MOTOR LINES, INC. 611
discriminate or to encourage or discourage union
membership is shown, and found, many otherwise
innocent or ambiguous actions which are normally
incident to the conduct of a business may, without
more, be converted into unfair labor practices.
On the other hand, the deplorable conditions at the
terminal, and the Company's efforts to remedy them, to the
point of transfer of top management officials, explain
drastic steps taken even to the point of discharging drivers
with as much as 8 years' seniority.
The facts concerning alleged discrimination in this case,
to a great extent received in triplicate, first from the
General Counsel and then both orally (sometimes cumula-
tively) and by documentation from the Company, clearly
indicate the findings and conclusions to be made. Despite
the volume of testimony received, there has been little
conflicting testimony or need to base credibility findings
on demeanor. With respect to most of the alleged
discriminatees (as could have been disclosed in a pretrial
investigation) and particularly those not found herein to be
sufficiently supported by the proof, determinations could
be made on the basis of the testimony received before the
General Counsel rested. Many of the alleged discrimina-
tees admitted facts, in some cases supplied by testimony of
company rules or requirements, which indicated that their
discharges were warranted, as might have been found
during investigation before the complaint issued. In only
one case (Messimer) is there a suggestion of disparate
treatment where another employee, not alleged to have
been discriminated against, went undisciplined.
In one situation, not directly relevant to the issues here, a
suggestion of disparate treatment appears to be explainable
(although this was not spelled out) by the practice of
handling discipline, other than where there are three
chargeable accidents, at the plant level. We shall see that
Dispatcher McRae, a supervisor, refused to reprimand
three employees and resigned. Setzer, before he was
transferred, had also failed to take action deemed
necessary by the Comoany.
As we begin our analysis of the evidence concerning the
various alleged discharges, it may be noted that there was
no need to regale us with possibly lawfully sufficient
derelictions only to declare later that these or some of them
were not relied on at the time of discharge and were not the
Company's motivating factors; or that no further conclu-
sion can be drawn from an exhibit offered by the
Company.
Whatever the General Counsel's expectation or hope
before this case was tried, it was only partially supported
by the evidence received. The reasons for discharge of the
alleged discriminatees whose claims are dismissed, such
reasons supported by the proof received, were such that it
cannot be said that but for their union activities they would
not have been discharged or that such activities even in
part prompted the discharges. Their violations were clear
and flagrant and it does not appear that the Company was
guilty of disparate treatment as by committing other such
transgressions to go unpunished.
It will be seen that with respect to various employees the
General Counsel has not refuted the reasons declared for
the discharge. In such cases we are asked to consider the
timing of the discharges . While suspicion is noted at
several points, it is not tantamount even cumulatively to
probative evidence beyond that noted and relied upon.
If action taken against several long time employees
appears to be harsh , we are not to substitute our judgment
for the Company's so long as unlawful discrimination has
not been shown.
A price is frequently paid for mistakes. If, as appears in
several instances , some of these young men are not self-
disciplined , the Company is not responsible for their
shortcomings , personally or with respect to their work. The
lack of maturity in some of the alleged discriminatees must
be recognized for an understanding of the actions and
reactions testified to by the various witnesses , and even in
some cases for their manner in testifying . Both in the
reported activities and on the stand were manifest an
assertiveness and an air of bravado which militate against
attention to job requirements , against industrial peace to
the extent that this depends on mutual respect or "getting
along," and even against orderly conduct on the witness
stand.
This is no permanent blot: One can grow wiser as older.
But we are here evaluating facts as they existed in 1972.
One can learn to obey lawful regulations and, as long as
that authority exists which makes possible a rise or
progression to positions of authority , to recognize authori-
ty even as noblesse oblige applies to those in authority.
Mutual and reciprocal regard for others, their rights and
privileges , and recognition of one's own duties and
obligations are needed for attainment of industrial, as
other, harmony.
The Atlanta terminal is one of approximately 11 class 1
terminals operated by the Company, there being 31
systemwide , the class 2 and 3 terminals being smaller. The
Company has approximately 2,300 employees, of whom
some 170 are at the Atlanta terminal . It stands uncontrad-
icted that freight should not be on the dock more than 24
hours as it is brought in from various places for
transshipment . Setzer, previously terminal manager in
Knoxville, where he had conducted a successful operation,
was transferred to Atlanta , where he operated in 1971 until
he was replaced by Shifflett and transferred back to
Knoxville. Shifflett was hired in July 1972, spent I week in
Atlanta and another at company headquarters in Charlotte
for orientation , and then took over the Atlanta terminal on
August 1. The home office had learned in the latter part of
1971 and early 1972 that there was a very ziggurat of
freight in Atlanta as it was not being delivered, that
pickups were being missed , that claims by customers were
running high , that drivers were working more hours than
necessary and taking excessive breaks , and that business
was being lost: In short that the terminal was in deplorable
condition and that the Company was being hit in the most
vulnerable spot, its pocketbook.
If ever the phrase "legitimate business considerations" is
applicable , it is here in the effort made to improve
operations as was testified at the trial by one witness and
another, again and again , a outrance and even after the
conditions at the terminal and the consequent loss of
business were admittedly recognized at the trial. Union
support and activity and notice thereof to the employer do
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not entitle the employees concerned to special indulgence,
nor exculpate them from acts which warrant discharge. In
short, protected concerted activity does not immunize
employees against discharge for cause.
This is not a case of anticipation of loss of business
because of poor performance. As we shall further see,
customers were complaining, and business was being
lost-this besides the falsified records and unlawful stops
and failure to make stops, which justified discharge
regardless of loss. Nor is this a case where, without
supervening events, accepted preexisting conditions sud-
denly became intolerable with the advent of a union.
Holscher, company vice president in charge of personnel,
testified that, whereas he never spent more than 1 day and
I night at a class 1 terminal, he was at the Atlanta terminal
for days at a time between January and October 1972, this
indicated by an exhibit received in evidence. Other
company officials, including President Thurston, Director
of Operations Brantley, Wilkins, corporate vice president
in charge of finance, and Ramsey, manager of claims and
claims prevention, spent so much time in Atlanta that for
the first time the Company rented an apartment there.
Attempts were made to analyze the situation. The office
manager was released, as was another office employee;
McRae a city dispatcher, resigned (date not given) because
he refused to reprimand, as instructed, three drivers who
stayed at a coffeeshop after they left the terminal (they
were not disciplined, this aspect not fully tried), and the
dock supervisor was released on August 1, the day that
Shifflett took over. It is clear that the Company had
sufficient reason for discharging those employees before us
who failed to perform satisfactorily aside from union
activity of which the Company had knowledge.
As a memorandum in evidence indicates, Holscher and
Brantley met with the Atlanta employees on August 3, the
former introduced as the new terminal manager; the men
were told that the Company would no longer tolerate their
poor work and that excessive breaks would result in
discharge; also that the Company had "encouraged" Setzc,
to take disciplinary action but that he had failed to do so.
The city drivers expressed dissatisfaction in certain
respects which we need not here detail.
Specifically, Brantley spoke of company form 15, which
is the driver's pickup record, the poor production record,
etc., etc., and warned that the Company was going to
straighten the terminal out. The form indicates the driver's
stops, the amount of time spent and freight at each stop,
assists the Charlotte office in its record keeping for
prorating, and is of important assistance in connection
with customer complaints. Brantley announced that,
because of the serious conditions in the terminal, the
drivers would not have to fill out the portions of the form
concerning delivery, but that the pickup portions must
show time of arrival at and departure from the shipper's
place of business, this to be filled out at the shipper's. He
also told the men that loafing would not be tolerated and
that the Company would be out checking on the drivers;
that a radio like that in the trucks would be installed in the
cars used for checking, the weight of the credible evidence
indicating that an area known as Stone Mountain could be
reached by radio from the terminal.
Holscher testified , lest the discharges before us appear
unusual in number, that there was a great turnover after
January 1, 1972; more in the first 6 to 8 months than in the
last quarter . Excluding the 14 alleged discriminatees, there
were 40 other discharges between February 7 and
November 24. Except for any discharge for three chargea-
ble accidents , which Holscher must sign , terminations are
made at the terminal level.
1. Terrell
Terrell, employed by the Company for approximately 2
years, first as a general warehouseman and more recently
as an interline checker , was the first of these 14 alleged
discrimmatees to be discharged . He testified that he signed
a union card on approximately August 5 (probably August
3) at the meeting in the shopping center and gave the card
to Whitworth , and that he attended a union meeting about
a week later ; his work was never critized . His timecard
missing when he reported for work on August 22, he asked
his immediate supervisor, Lamb, about it, the latter
replying that he did not know whether Terrell had been
fired and suggested they go into the office to find out. As
Lamb acknowledged, he told Terrell that he would have
made a good boss. Shifflett came in about a half hour later
and explained to Terrell that his work was good but that he
was slow and that it was decided at a foremen's meeting to
fire him; Shifflett himself did not know enough about
Terrell's work. He told the supervisors that production
must improve, especially on the dock, and that they were to
take necessary action. According to Lamb, he himself told
Terrell that the latter's work was good but slow.
Terrell testified that there had been no work quota
before that time but that he had heard of production. He
admitted that two other interline checkers had been
discharged in February because they were slow.
While maintaining that Terrell was a good checker,
James, who worked with him and was called by the
General Counsel, did not disagree when Lamb said that
James did twice as much work; he could not say whether
he did more than Terrell.
There is no evidence of company knowledge of the first
meeting of the men or of the union meeting a week later, or
of Terrell signing a card. With Shifflett's testimony that the
decision to f.,e Terrell had been made at a foremen's
meeting, this may have been the first such step taken by
Shifflett in an attempt to remedy conditions at the
terminal. The testimony does not support the allegation of
unlawful discrimination against Terrell, and I so find and
conclude.
2. Stanley
Stanley was employed by the Company for a little more
than a month . He attended one union meeting, at which he
signed a card. Without detailing his testimony which
indicates sufficient justification for discharge , I note no
evidence of company knowledge, and find and conclude
that he was not discriminatorily discharged.
3. Vincent and Baker
Vincent and Baker, each employed as a driver by the
THURSTON MOTOR LINES, INC. 613
Company for a little more than a year, were discharged on
August 31. The former testified that on that day (he could
not recall the time) he went to American Honda as he
noted on his pickup record but, although it is a "real big
place," and he guessed it was open, he could not get
anyone there to answer any of the three dock doors or the
side door; he went there again "a little later" but did not
remember when he made either stop. He denied knowing
that he went the second time because he had been told that
Honda was mad because its freight had not been picked
up. He testified that on his second call, Honda was closed;
that he made several stops between Honda and a final stop
at a coffeeshop, where he found Baker. He was at the latter
place, he testified, about 30 minutes.
According to his pickup record, Vincent was at Honda
from 2:25 to 2:30 and then again from 5:30 to 5:32. He
denied that he had been told about coffeebreaks although
he admitted that at a company meeting the men were told
that the whole place would have to shape up; and that
breaks were not limited although "it is customary to take
10 minute coffee breaks." Nor did he recall, although not
denying it, being told that the Company would check up
on drivers loafing.
He weakly testified that he was not at the coffeeshop as
long as 40 minutes while he and Baker "were waiting for
the traffic to clear up." Traffic sometimes "takes a long
time to clear up." As he left the coffeeshop, he saw
Holscher and safety patrolman Wood, who waved to him.
At the terminal, further according to Vincent, Holscher
charged him with being in the coffeeshop for 40 minutes,
and his reply was that they were not "there that long."
When Shifflett telephoned Baker that night and said that
he had heard that the latter had spent 40 minutes in the
coffeeshop, Baker replied, "If that's what they told you.
(sic)"
Further, were it shown, as it was not, that there was a
known and general practice of extended breaks, the
Company had for good reason made known that it
expected improvement in work habits and in the work
accomplished. Employees could ignore such pronounce-
ments at their own risk, and are not to complain of
measures taken against violations.
Were the defense that lengthy or excessive breaks had
been permitted, we would consider the parlous situation at
the terminal and the change in managers to correct that
situation. Else there would be basis for finding that the
conditions were longstanding and continuing, and that the
discharges were prompted by the union activities. But no
such defense is presented by the attempts to minimize and
justify the breaks taken. The observed activity, or lack of it,
on the routes, and the falsification of the pickup records
justified these discharges. Not only was there a good
reason for these discharges, but the reason given was not a
mere pretext.
Holscher then told both Vincent and Baker that he had
no authority to fire them (nonpolitical decentralization?),
but that he was grounding them; they were to see Shifflett
in the morning before punching in. As noted above,
Shifflett telephoned Baker at home that night, Baker
having said that he would prefer that, and declared his
discharge. Vincent did not describe his own discharge
beyond the conversation with Holscher.
While Baker's pickup card for that day was not received
in evidence , he admitted that he was with Vincent at the
coffeeshop. Vincent's pickup card and the testimony of
those employees clearly indicate their unreliability both on
the job and on the stand . I have not overlooked the fact
that Holscher was not quite reliable in his testimony that
Wood's notations on August 31 were made in time
sequence. Wood could have noted his observations in
sequence even if not so recorded . The paper received in
evidence recited observations first , then a comment by
Wood with respect to the driver pickup forms to be filed,
and then the observation which referred to the failure to
make the pickup at Honda.
According to Holscher , the drivers had been told that
they would be checked, and he and Wood made spot
checks, saw Vincent and Baker coming in together night
after night , and timed them on August 31. He noted on
their records that they had falsified company records and
stolen time . Shifflett expanded on this.
It does not appear that inaccuracies in pickup forms are
characterized by such blatant misstatements; nor is
disparate treatment charged . We have already noted
McRae 's resignation after he refused to reprimand three
men, and that a dock supervisor was released on August 1.
I find and conclude that neither Vincent nor Baker was
discriminatorily discharged.
4. Hoenig
Hoenig was employed on August 9, and discharged on
September 1. His supervisors were Lamb, then Schuler. He
testified that he was never told that he was unable to
perform his assumed tasks or that he was not working
right; he denied that he was ever criticized for his work or
for being late. Schuler had allegedly told him that he was a
good worker but made no reply when Hoenig later
questioned him about telling Shifflett otherwise.
Hoenig testified further to performing various jobs,
including hostling, although he admitted that Shifflett told
him he would have to be there 6 months before performing
such work. One of the poor jobs with which Schuler
charged him was in fact hostling. Indeed, Schuler testified
that Hoenig was classified as a yard hostler . We have here
a reflection on Shifflett's credibility.
When Shifflett charged Hoenig on September 1, he said
that it was because Hoenig was late and not a good worker.
Schuler admitted that he told Hoenig that he was a good
boy, but not that he had called him a good employee. That
the latter was not said is not as significant as the fact that
Schuler did not charge Hoenig with being a poor employee.
Lamb , Hoenig's supervisor for about a week , did not recall
but thought that Hoenig's work was probably satisfactory
since he was shifted to assist elsewhere where needed, this
supervisor's impression being that the change represented
the Company's favorable opinion of Hoenig.
While probationary status may warrant discharge when
the employer reasonably anticipates unsatisfactory per-
formance on the basis of service already performed, even
though such anticipation would not be applicable in the
case of a permanent employee so-called , it does not appear
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Hoemg's work was unsatisfactory. Shifflett testified
that the two supervisors told him that Hoenig was guilty of
poor work and lateness, and failing to appear for work on
the weekend when he was supposed to work.
With respect to lateness , Hoenig admitted that he was
late 2 of the last 3 days. Shifflett testified that he spoke to
Hoenig about it on September 1, not August 31, then that
he thought he had on both the 31st and the 1st, and after
further probing by counsel for the Company, that he
"probably" had on both days; finally, he was more positive
that it had been both days. Only part of the company
records were produced in connection with the claim of
excessive lateness . As for failure to work on a weekend, at
least one workweek had intervened before September 1
inasmuch as he was discharged on a Friday. Some
connection may be found in the stipulation that the
timecards show that Hoenig worked overtime every day
covered. by the cards except the day on which he was
discharged, this at least suggesting that his work was not
poor.
These witnesses and their testimony left the impression
that the reasons stated by Shifflett were not in fact those
for his discharge of Hoenig. I find and conclude that the
latter was discriminatorily discharged.
I recall the finding above that the interrogation of
Hoenig did not constitute violative independent interfer-
ence under the circumstances. But this does not dispose of
the question whether the fact that his name was on the list,
played a part in the decision to discharge him. Nor did
Holscher explain his desire to identify the person with the
name . This is but an additional suspicious circumstance; in
any event it does not lessen the evidence of discrimination
nor support Shifflett's alleged reasons for the discharge.
5. Whitworth
Whitworth, employed by the Company for approximate-
ly 2 years, apparently played the leading role in organiza-
tional activities . As the General Counsel's principal witness
and most active proponent, he told us that during 1971 and
1972 the turnover among employees was "unbelievable."
There is no basis for assuming that all such terminations
were voluntary, and certainly not that they were discrimi-
natory prior to the advent of the Union and to company
knowledge thereof.
Whitworth was a sharp witness and exceptionally
evasive . He testified that he had no trouble at any time
with respect to his work, and that he had been promoted
from other jobs. He testified further that on September 7
he was called to the office, where Shifflett allegedly
mentioned his own prior references to Whitworth's
activities on the job, and that he himself now spoke of
filing charges with the Board (none of this claimed to be
violative); Shifflett also said that hey had previously told
Whitworth that he had one more chance, that he was a
piece of freight short the night before and that he was now
laying him off. According to Whitworth, he replied that
there must have been an error on the dock and that
everybody knew that it was because of the Union, and that
he would go to the Board . When Whitworth went to get his
checks the following day , Shifflett allegedly told him, "If
you got a Union in you stayed laid off all the time (sic)
...." This may be the threat alleged to have been made
by Shifflett on September 8.
Later Whitworth told us that, when he was discharged,
Shifflett told him he was one piece of freight over and one
piece short , the latter a sofa. Admittedly on August 4
Holscher had told Whitworth that he was the sorriest
driver he had ever seen , that he had been short in checking
in money , and that he should have been fired for an
ancient fight with another Company 's driver.
Returning to September 6, Shifflett allegedly told
Whitworth that the overage was a shipper's error although
Whitworth admitted that he was supposed to have a bill
covering each piece of freight . His testimony, delivered in
Stengalese, adds up to the fact that the driver is supposed
to check the freight record from a shipper against the bills
and that Whitworth did not do this , thus winding up with a
piece over from one shipper and a piece short from
another . Beyond these facts , if I have not already so
indicated , Whitworth was an unreliable witness.
A document was available and received in evidence to
prove the overage and shortage noted above on September
6. Also received was a document showing that Whitworth
on September 1 had brought in two damaged cartons of
drugs , and a photograph showing cartons scattered and
contents spilled when Whitworth brought his truck in. He
claimed that he had not stacked tnY freight and was not
spoken to about that damage.
The Company 's stated defense is that Whitworth was
guilty of a long series of acts of misconduct . This may go
back to his 2-year old fight early in his employment by the
Company. It culminated in the acts which occurred a few
weeks before his discharge and at the very time of
discharge.
Even were the Company happy to discharge Whitworth,
it had sufficient and valid reason to do so unless it acted
discriminatorily . There is no evidence of disparate treat-
ment as by permitting other drivers to bring in damaged
merchandise, overages, or shortages . A memorandum was
received which recited various warnings in Whitworth's
personnel file; it was read to him by Holscher . The various
items were discussed with Whitworth by Holscher and
Shifflett on August 4. I find and conclude that Whitworth
was not discriminatorily discharged.
6. Holcomb
Holcomb, a longtime employee, gave us an account of
events on September 12, when he was discharged,
beginning with his arrival at the terminal at 7 a.m., the time
when he was supposed to have his load delivered at a
customer's place of business, through a now-compelled
long wait at the customer's, being unloaded about 1:30
p.m.; then calling and receiving further assignments; then
not having change to call again, getting a glass of tea in a
coffeeshop, getting another pickup assignment and arriving
to find another driver, Rampy, already there. Whereupon
5 Whitworth 's earlier testimony , noted above , was that Holscher had told
him that.
THURSTON MOTOR LINES , INC. 615
he stayed to help Rampy and, after they "got through,"
tried to call the terminal, found the line busy (although he
later explained that, when the dispatcher's line was busy,
he "would automatically be connected with the switch-
board") and adopted Rampy's suggestion that they return
to the restaurant for a glass of tea.
The line to the terminal still busy, Rampy said he would
call on his radio (why he had not done that before was not
explained) and, driving off, would blink his lights if there
were any orders. But Rampy "didn't make any effort to
stop so we came on to the terminal."
At the terminal Holcomb was sent to the office, where he
was no more persuasive than he was at the trial: He told
Holscher that his watch was broken, that he was not in the
coffeeshop either time more than 10 or 20 minutes. Asked
at the trial what he said about calling the Company, he told
us that Holscher and Shifflett asked about his "Pick Up
Record" and that he replied that he estimated or "guessed"
the time in and out of each customer; he was accurate only
with respect to the time he left the terminal in the morning
and the time he returned. Holcomb's work had never been
criticized.
Here we balance a complete cock-and-bull story 6 against
a veteran employee with a good record. Holscher testified
that, when he arrived at the restaurant at 4:30, Holcomb's
tractor was already there. Holcomb came out at approxi-
mately 5 o'clock and arrived at a customer's 10 minutes
later, but did not back his trailer up, Rampy being already
there. The two drivers left at 5:20 and returned to the
restaurant, where they emerged at 6:05 or 6:10, driving
toward the terminal.
To what extent the Company should have made
allowance for the falsification of Holcomb's record (he was
offered an opportunity to resign) and his attempts to
brazen it out before Holscher and Shifflett is not for us to
say. Mine or another's opinion of the seventy of the
discipline is irrelevant. Nor in these egregious circum-
stances am I prepared to conclude that he would not have
been discharged but for his union activity. The pattern,
with another employee involved, as we shall now see,
aggravated the situation. I find and conclude that
Holcomb was not discriminatorily discharged.
7. Rampy
Rampy, employed by the Company for 5 years, was
discharged by Shifflett on the morning of September 13
"for squandering time." Rampy's stay at the restaurant
with Holcomb has already been described. A few minutes
later, Rampy radioed the dispatcher that he and Holcomb
were then leaving the last customer (the one they had seen
before going to the restaurant). After Holscher and Wood
passed the two drivers, Holscher heard Rampy call out on
his radio "Watch out up front, the safety boys are out-the
wheels are out here." Rampy testified that he may have so
radioed the other drivers; he did not recall! He denied
none of this.
According to Rampy, he and Holcomb arrived at the
restaurant between 5:15 and 5:25; he radioed the terminal
6 His account was so manifestly unreliable and untrue that I halted
cross-examination at one point
about 6:10 that they were then leaving the customer where
they had stopped before going to the restaurant . I find and
conclude that no unlawful discrimination against Rampy
has been shown.
8. Rainwater
Rainwater , like Holcomb a longtime employee , went to
see Shifflett on October 10 when his timecard was not in
the rack . When asked why he was late 2 or 3 days that
week , he replied that he had car trouble . (In an affidavit to
the Board he stated that Shifflett had charged him with
being late approximately six times ; the affidavit made no
reference to car trouble.) Shifflett showed him other slips
indicating latenesses (53 minutes late on September 14)
concerning which he testified that Turman , a substitute
dispatcher from August 21 through September 17 but
before and thereafter a rank-and-file employee , had told
him to come in an hour later that day. Approximately a
month before Rainwater's discharge in October, Turman
had allegedly given him permission to be late.
This testimony concerning his Iatenesses, substantially
corroborated Shifflett , including the latter's testimony that
he had on October 10 told Rainwater that he had been late
six times in a row. Received in evidence was a reprimand
issued to Rainwater for lateness a month before . If various
written reprimands were not shown to Rainwater , Shifflett
declared them orally . His termination notice recited
Chronic Lateness.
Rainwater testified that drivers never made a point of
being exactly on time : If late , they told the dispatcher the
reason when they arrived . He testified further that he did
not like Shifflett 's posted schedule , and that the latter had
not spoken to him about lateness in the last 30 days before
his discharge. He admitted that he had been late every day
of the week prior to his discharge , apparently taking into
his own hands his displeasure with Shifflett's schedule. I
find and conclude that Rainwater was not discriminatorily
discharged.
9. Messimer
It is undisputed that a driver is discharged if he is guilty
of three so-called chargeable accidents within a year. The
terminal supervisor effects all discharges except those
involving chargeable accidents . Accidents are reported to
the safety department in Charlotte , and Holscher testified
that "many times in any terminal , when an accident is
reported into the safety department in Charlotte, the
terminal manager may not know at that time that that is
the employee's third chargeable . Therefore, when the
accident report hits Charlotte and the safety department,
they trigger the thing. They go through their files and if
they come up and this is the third chargeable , then they
issue the grounding notice from Charlotte and, of course,
according to our company rules, three chargeable acci-
dents within a 12 month period is a dischargeable
offense." 7
Messimer, employed some 3 1/2 years, was discharged
on the morning of October 12, his card was not in the rack.
r Although, as Holscher testified , the terminal manager many times may
not know that an offense is the employee 's third, he later testified that the
(Continued)
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shifflett told him he was discharged by the safety
department in Charlotte because he had had three
accidents. These were allegedly on November 26, 1971,
and July 24 and October 10, 1972. Messimer testified that
on the latter date he had found a dent on his return to the
terminal and himself asked Shifflett to look at it; he had
not seen it before and therefore had not noted it on his
pretrip report. He told Shifflett that if the truck were hit, it
was while he was loading and unloading it on the dock;
somebody else hit it, he had not. Shifflett replied that he
would communicate with the ICC "to see if they could
charge him with this last accident...." and then ge! 2a
touch with Messimer. If the ICC determined8 that the
accident was not chargeable to Messimer or the facts so
indicated to the Company, the discharge was not warrant-
ed.
On cross-examination it developed that Messimer ques-
tioned the charge against him in connection with the
second accident also, that of July 24. Despite the lengthy
and intensive questioning of Messimer by company
counsel and myself concerning this accident, it was not
clearly established that Messimer was at fault or reason-
ably chargeable with it. He had received a statement of
charges after the November 26 accident, concerning which
there is no issue. He signed that statement, which was given
to him by Setzer, the terminal manager at that time. He
was not given and did not sign a statement of charges after
the alleged accident of July 24.
Messimer's testimony that a driver must first receive a
statement of charges before he is charged with a chargeable
accident is supported by his further testimony that the
office manager in July told him to fill out an accident
report, that he would send it to Charlotte, and that, if the
Company wanted to charge Messimer, it would send him a
statement of charges. Since he did not receive such a
statement he was apparently never charged with any
accident in July, when he had struck a fixed object. This
stands in direct contradiction to Holscher's testimony that
hitting a fixed object is automatically chargeable regardless
of circumstances.'°
The reasonableness and accuracy of the practice of
submitting a statement of charges as testified by Messimer
are indicated by the fact that, unlike other discriminatory
action which is subject to the terminal manager's discre-
tion, discharge is automatic and is declared at the home
office if not noted at the terminal (this instance, we recall,
was so noted) after three chargeable accidents. But aside
from reasonableness, the fact remains that, although
Messimer was given a statement of charges after the first
accident and signed it, he was not given such a statement
after the second although company procedure called for
one if he was being charged.
If all of this indicates that the Company did not consider
the second accident a chargeable one, the reason cited for
Messuner's discharge was sham and a pretense. Added to
this evidence is further testimony received from another
employee, which puts in question the Company's reliance
on the October 10 incident. Driver McDonald testified
that, a few days after Messimer 's discharge, he told
Shifflett that he had seen the dent in the tractor on the day
before Messimer drove it. Asked why he had not put it on
his pretrip report on October 9, he told Shifflett that he did
not discover it until after he had taken the tractor out.
Indicating a wilful disregard of the rule, McDonald said,
"Well I just didn't think anything of it, but if you want to
walk out there and look at every dent that rolls in and out
this gate, you'll walk your legs to death." He further
testified that he asked Shifflett why he had fired Messimer
and, told that it was for failing to report the dent on the
pretrip inspection report, McDonald virtually challenged
Shifflett, "Well I didn't put it on mine either and you didn't
discharge me for it."
If this was not a third accident chargeable to McDonald
for which he could be discharged, it does not appear that
McDonald was even charged with an accident on that
account, in contrast with Schuler's statement to employee
Rice that he was prepared to speak to the supervisor and
rescind a reprimand if it proved to be unwarranted. There
is no suggestion of such consideration given to possible
rescission of the serious penalty imposed on Messimer
since, whatever the treatment accorded McDonald, the
latter's statement that he was responsible for not reporting
the dent was not questioned.
Rescission might be considered the fair and decent thing
to do. But because the Respondent may not agree on what
is fair and decent, and this is not our function, the issue in
any event being whether there was unlawful discrimina-
tion, the significance here lies in the fact that no action was
taken against McDonald despite his admitted violation of
the rule. This may suggest agreement with Messimer's
position that preinspection was arduous and not to be
expected. But, regardless of that, it indicates that the
Company did not in fact consider this a reason for
disciplinary action. Finally in this connection, we have a
Burnup and Sims i i situation, where the employer, even if
acting in good faith, was mistaken in its belief that the
employee was guilty of the conduct cited as the reason for
the discharge. Messimer had not in fact been guilty of a
third accident. Thus the Company did not fairly abide by
its own rules whether it relied on the three-accident rule or
on the failure to make an inspection and report. There was
clear evidence in this situation which called for correction
of the action unwarrantedly taken against Messimer. That
action could have been promptly rescinded.
Wood testified that mechanics make routine checks but
that the driver is responsible for a pretrip inspection and
report; also that McDonald had not made such a report
and, despite the latter's admission, the Company was now
faced with a choice between discharging Messimer,
discharging McDonald, and discharging both.
Whatever the explanations for so many other discharges
with the advent of union activities, Messimer's discharge
and the failure to reinstate him upon receipt of the
information vouchsafed Shifflett by McDonald indicate
lint two accident reprimands were in Messimer 's file and were chargeable 10 This is a rather reckless declaration and an incredible (I do not speak
when the report of the third came through of reasonableness) rule as one can picture a truck rammed from behind and
a The facts here remain even if the ICC makes no such determination pushed into a fixed object
9 N.L.R.B v Burnup & Sims, 379 U S. 21, 23 (1964) 11 Supra
THURSTON MOTOR LINES, INC.
that his known union activities were a factor, if not the
determining factor. Indeed, Messimer's case heightens the
suspicion of discrimination against other employees.
The various facts, including the failure to charge
Messimer previously with the second accident, McDo-
nald's admission that any dereliction was his, and the
failure to penalize McDonald lead to the conclusion that
Messimer 's performance was not in fact the Company's
reason for discharging him; I do not credit the Company's
stated reason for this discharge. I find and conclude that
Messimer was discharged because of his union activities.
Nevertheless, while the reasons cited for Messimer's
discharge are inadequate, they were not altogether con-
jured up by the Company. They do not so reflect on the
other discharges as to indicate that the reasons cited for the
latter were pretextual.
10. Franklin
Franklin, employed throughout 1971 and until October
18, 1972, was discharged, according to the Company, for
defacing company property on what served as the
company bulletin board. One of the "background" but
apparently irrelevant items, since he was not discharged for
that reason was that he had falsified his employment
application, something which was discussed the day the in-
plant sheet was posted, with his name second on it; he was
not discharged because of the falsification, the Company
not taking advantage of a possibly legitimate reason. No
more relevant except to support the Company's decision is
Franklin's testimony, supported by Holscher, that on
September II Holscher asked Franklin whether he had put
a poster up and, when Franklin replied in the affirmative,
told him that it was against the rules and a serious offense.
After these items and more, we arrive at October 18.
While he and other drivers were waiting for a meeting
which Thurston, president of the Company, had called,
Franklin wrote on one of many posters or newspaper
clippings which the Company had put up, "Written by
Thurston Press." Shifflett charged him with defacing
company property, to which Franklin replied that the
poster did not have the Company's name on it. When
Shifflett asked whether he would take a garbage can
because it did not have the Company' s name on it,
Franklin arrogantly replied that he would not since he did
not want a garbage can. Shifflett thereupon told him that
he was fired. Franklin admitted on cross-examination that
on September 11, after Holscher had warned that the
offense was serious, he added that if Franklin did it again
he would be fired.
Then followed the October 18 incident. Franklin at first
also denied that he had portrayed Thurston "as a drinking
man wrapped up with a woman, drinking champagne." He
admitted that he had drawn arrows pointed to an
individual on one of the posters and written, "Thurston
himself ." Then he did admit that he had portrayed
Thurston smoking cigars and drinking champagne with a
bejeweled lady. He reluctantly admitted defacing other
posters. Unless we adopt such euphemisms as "playful
pranks," Shifflett here exercised proper discipline. I find
and conclude that Franklin's discharge was not violative.
11. Thomas
617
Thomas was employed for approximately 6 months.
Bright and fresh in manner, he was also exceptionally
assertive . While he was not included on the in-plant list, he
told Shifflett on October 17, while discussing unionization,
that his father worked at a unionized plant, a union is good
for the workers, and that he would like to attend a union
meeting the next evening and hear their side . We recall the
allegation of interference by Holscher.
The Company denied knowledge prior to his discharge
that Thomas was in any way involved with the Union. In
fact, he did not sign a union card . I would not infer,
considering Thomas ' frankness that the Company suspect-
ed that , contrary to the facts , he was engaged in union
activities despite his indicated interest or curiosity.
Admittedly Thomas did not "get along" with Robinson,
his foreman. On October 18, the latter told him that the
Company had decided to terminate him because they
could not get along together , and because Thomas was
frequently late and not willing to work . On October 16 he
had been scheduled to work with a man who was coming
from Charlotte to train him; he testified that he did not
know that he kept the man waiting for an hour for him to
arrive; he was not told that.
It is clear that Thomas was not wilfully late; but it is
equally clear that his school schedule led to many
latenesses and early departures , which we need not now
detail , so that he at times worked as few as 5 hours a day
although Robinson told him that he was needed 50 to 60 or
60 hours a week , as Thomas admittedly realized. Robin-
son's conclusion that Thomas was more interested in the
school than in his job is correct; and this certainly was not
a satisfactory condition from the Company's point of view.
Even after work shifts were set up and he was given a
choice of shifts , Thomas was repeatedly and regularly
unavailable to do the work which the Company admittedly
and reasonably required.
Granted that he hurried from school to his home and
then to the terminal , and that he left early only when he
had to for school , his latenesses and early departures
nevertheless prevented necessary and required perform-
ance on the job. (General discipline and morale problems
in this respect were not explored. Nor were we informed
how soon a replacement was found for Thomas.)
However commendable and important to him his
attendance at school , the Company was concerned with his
attendance on the job. Exculpation for his manifest
shortcomings in the latter connection is not to be found in
his expressed interest in information concerning the Union
and any indication that he might support it.
If ever timing justifiably arouses suspicion of discrimina-
tion, it does here . But Thomas' new work schedule had
begun about 2 weeks before the election on October 20. He
had thereafter been constantly late or absent despite his
own selection of the schedule and, because of school, he
would not work overtime as requested . Indeed, as noted, he
worked many short days. A few days before his discharge
he told Shifflett that he was trying to get his school
schedule changed to fit the job ; but he did not effect that.
How long the Company should have permitted this, or
that it should not have at all, we cannot say. There now
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intruded the conversation with Holscher on October 17
concerning the Union ; and the next day, again late,
Thomas was discharged by Robinson, the supervisor who
generally directed him and with whom he had arranged his
new work schedule . Robinson cited Thomas' latenesses, his
unwillingness to work overtime, and the fact that they did
not "get along together." (We have noted that this last was
accurate and a continuing situation.)
Suspicious timing? Certainly! But with far less certainty I
declare my own inability, bearing in mind that the election
was scheduled for October 20, to infer that the discharge
on October 18 was prompted by the talk on October 17. I
cannot overlook Thomas' egregious attendance record,
subordinating his arrival and departure times to his
attendance at school.
12. Cain
We dabble in silliness as we consider Cain's claim. He is
one of the four with respect to whom company knowledge
of union activities is not admitted. Injured on the job on
June 30, he testified that he returned on July 3 and left
again on July 4, when he told his foreman, Dunn, and
Setzer, superintendent at the time, that he might have to
leave at any minute because his nose would start bleeding
when he bent over. His card was missing the following day,
and the foreman told him that he had taken it because
Cain had left the day before without telling anyone.
On October 13, Cam returned to the terminal and gave
Shifflett a so-called release by a neurosurgeon (who cited
dates different from those testified to by Cain) to whom he
had been referred. Shifflett replied that the release was not
sufficient ; the Company required a full report. Cain
ap eared for the election on October 20, but was told by
Shifflett to go to the office. After casting a challenged
ballot, Cain got what he termed a release from the
company doctor, which stated that he could return to work
on October 23. He gave it to Shifflett, who said it was still
not what the Company needed and told him to get off 12
the property; as far as Shifflett was concerned, Cain had
been terminated when he walked off the job and quit-all
of this according to Cain himself. He had signed a union
card on September 21, during the time when he was not
working. That day he also signed an in-plant sheet which
was not sent to the Company. Cain also testified that for
about 2 weeks after September 21, he and other employees
sat on a hill, watched trucks come in, and distributed union
handbills.
The claim of discrimination appears to be based on what
would be an unwarranted inference, as I indicated at the
trial, that the Company learned of Cain's limited union
activities described above. Admittedly he was not in
physical condition to perform thejob when he last applied
and for several months thereafter; and he failed to produce
a medical report which was reasonably required of him.
Admittedly Cain "had lost a lot of memory back then,"
and had and still has blackouts and nose bleeds. It was in
this connection that Shifflett told him a full report was
required, a report which he never submitted. Although
every job at the plant necessitates bending over, the
neurosurgeon told him he could not do that, and Cain so
informed Shifflett, then declaring that he could. It
developed later that his blackouts stemmed from a
motorcycle accident in August away from the job.
Finally we were told that on his last day at work he told
his foreman, a doctor, and others that he was going into the
military service. Although he did not enter the service, he
later told Shifflett that he was "entitled to [his] job because
of [his] military service ." Cain had not been in the service;
he "was on delayed entry." He does claim veteran's rights
for the reason that he might have been , or at one time
thought he would be, in the military service!
Of company witnesses' testimony , it need be added that
Shifflett testified that he did not know of Cain until the
latter came to his office and asked to return to work.
Checking, Shifflett was told of Cain's accident in the yard,
that he had walked off the job, and that he had told his
foreman and the girl in the office that he had gone into the
service. I find and conclude that Cain was not discrimina-
torily discharged.
13. Milligan
Milligan was employed in July 1971, and became a
driver in May 1972. He was admittedly displeased when
Foreman Dunn discharged his brother shortly before
October 23, when he himself, outside the dispatch office,
loudly made an ugly, disparaging, and morale-destroying
comment concerning Dunn, who was in the dispatch office
at the time and whom they were admittedly "discussing."
Dunn heard Milligan's remark and took him to Shifflett's
office , where Milligan first denied making the remark; but,
as Dunn testified , after a fellow employee declared that
Milligan had said it, the latter admitted it. According to
Milligan himself , when Shifflett asked why he had lied, he
replied that he "needed to feed [his] family." Milligan
explained, "I'd like to keep my job." He was immediately
discharged , the reason given being "insubordination,
discourtesy , and numerous other reprimands in the file."
According to Milligan, Dunn began to ride him after he
signed the in -plant sheet . He further testified that, although
they were not on the best of terms, he did not know why;
he admitted that Dunn spoke to him two or three times
about getting all of the shipments off his truck. Except for
a couple of items which he did not recall , Milligan denied
that he had made a series of errors during his last 2 months
on the job. Bearing in mind Milligan 's admitted falsehood
at the time of his discharge, and the absence of any other
claim of discriminatory treatment by Dunn, I credit the
latter's testimony that he had justifiably been reprimanding
Milligan about his work. Dunn was not questioned further
concerning the reprimands or asked to produce any. I find
and conclude that there was no unlawful discrimination
here.
Having thus noted that the employee violations were
flagrant, I should add my impression that despite the
response to my attempt to limit the testimony to what was
material to the issues to be determined, and the claim by
12 Shifflett explained that since Cain was not on company time, he would company property unless he had a proper medical document . (As noted, he
have to go around through the front door , and that he was not to come on had returned and cast a challenged ballot.)
THURSTON MOTOR LINES, INC. 619
counsel for the Company of a lack of preparation and and
inability to state the reasons for the various discharges,
documents and full explanations were received which, as
we have seen, specifically listed alleged reasons for various
discharges and indicated generally very careful prepara-
tion.
There was considerable discussion near the close of the
trial prior to receipt of a four-page report by Brantley to
Thurston, dated November 3, offered by the Respondent
because, as I was told, it further indicated the horrendous
conditions which obtained at the terminal and which made
changes necessary. I was reluctant to accept this document
because we had received so much testimony on this point
and there appeared to be no issue with respect to it. It was
finally received in evidence but, because of the time
already spent in that connection, and because the discus-
sion concerning its admission was limited to it as proof of
the pile up of freight, I did not read it until after the trial
had closed.
Considering the slight attention to this document
displayed by the General Counsel's representatives, I can
but wonder whether they read it. Further, the impossible
thought intrudes that the Company's insistence on its
receipt, under the circumstances then existing and the
condition at the dock recognized, suggests that the
document may not have been adequately considered by
counsel for the Company.
To my surprise, the document at least suggests possibili-
ties which might be adverse to the Respondent. If, as now
indicated, older employees had prompted those who were
younger, both in age and in point of service, many of the
latter now alleged discrimmatees, to perform poorly, it
would have been in order and altogether relevant to
inquire who those older employees were, what was their
relationship or attitude toward union activities (James
testified that the road drivers were fighting the Union),
whether any action had been taken against them, etc., etc.
Such matters were not pursued by the General Counsel
nor, as now explained, by myself. We have seen that the
record amply supports a finding of general turmoil and
poor work at this terminal. If there was disparate treatment
of the older men and if this was discriminatorily concomi-
tant with union membership or lack of it, these were not
shown. Whatever doors have been opened by the assidu-
ousness or persistence of counsel for the Company, they
were not entered . There is no warrant for us now to
undertake guesses or to indulge in suspicion ; conceivably
all adverse suspicion and possibilities might have been
explained away had the matter been pursued.
It was testified without detail but without contradiction
that, during the period of difficulties and production and
service problems which here concern us, there were many
terminations of employment. To what extent such termina-
tions involved the older men referred to in this report by
Brantley we do not know. But here again there is no
evidence of disparate treatment accorded such older
employees or, for that matter, whether or not they were
known to be union supporters.
The burden of proving disparate and discriminating
treatment of employees is the General Counsel 's. We have
neither objection nor contradiction of the testimony that
employees would soldier on the job unless pay rates were
increased.
I realize that "antiunion bias and demonstrated unlawful
hostility are proper and highly significant factors for Board
evaluation in determining motive." 13 But union animus
were not shown to have entered into the decisions to
discharge, other than in the instances found.
Should any doubt linger concerning those found to have
been lawfully discharged-doubt born of timing and
animus-there is a sweet certainty (sweet because of the
certainty which, pro or con, is always sought) 14 with
respect to findings concerning violative discharge.
As for the coincidence between those fired and those
named on the lists submitted by the Union, we have
reviewed the reasons for discharge in each case. Except
where disparity has been found, as in Messimer's case,
there is no evidence of disparate treatment accorded
employees not on the lists . Certainly acknowledged union
activity did not bar nondiscriminatory discharge. Nor is
there any question here of condonation of any of the acts
which have been cited as reasons for the discharges.
[Recommended Order omitted from publication.]
13 N L R B v Dan River Mills, Incorporare4 274 F 2d 381, 384 (C.A 5, 14 I Samuel 16.7.
1960).