Transport Co. of Texas

TRANSPORT COMPANY OF TEXAS, ETC. 681 All our systemwide bus operators and maintenance em- ployees, excluding all office and clerical employees, terminal, employees, watchmen, guards, professional employees, and. supervisors as defined in the Act. WE WILL NOT in any manner interfere with the efforts of the above-named Union to bargain collectively with us, or refuse to bargain with the said Union, as the exclusive representative of the employees in the bargaining unit set forth above. WE WILL upon request bargain collectively with the above- named Union as the exclusive representative of all employees in the bargaining unit above described and if an understanding is reached embody it in a signed agreement. All our employees are free to become or remain or refrain from be- coming or remaining members of the above-named Union, or any- other labor organization. TENNESSEE COACH COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof,. and must not be altered, defaced, or covered by any other material.. Transport Company of Texas and Transport Company, Inc. and* Truck Drivers Local Unions Nos. 657, 968, 577, 941, 568 and 47,. International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , AFL-CIO. Case No. 39-CA- 449. March 5.1956 DECISION AND ORDER On September 22, 1955, Trial Examiner Henry S. Salim issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in any unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report ati}:ehd hereto. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.'.. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The i The briefs . of the Respondent Companies were in support of the Intermediate Report and of the exceptions which were to be considered It the Board did not affirm the Trial Examiner. 115 NLRB No. 100. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge dated September 27, 1954, and an amended charge filed on October 25, 1954, by Truck Drivers Local Unions Nos. 657, 968, 577, 941, 568 and 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,' herein called the Union, against Transport Company of Texas and Transport Company, Inc., hereinafter referred to both as the Company and the Respondent,2 the General Counsel of the National Labor Relations Board issued his complaint on May 13, 1955. The complaint, as amended at the hearing on June 15, 1955, alleged that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, as amended, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint, as amended, alleges in substance that the Respondent violated Section 8 (a) (1) of the Act in that it interrogated its employees about their own and other employees' union membership, activities, and sympathies; instigated a search' of the possessions of an employee in order to gain information concerning the union activities of Respondent's em- ployees; and threatened to discontinue its business if the Company became unionized. The complaint also alleges that the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act by discharging five employees because of their union activities. Respondent's answer denied the jurisdictional allegations of the complaint and that the Charging Union was a labor organization within the meaning of Section 2 (5) of the Act ,3 and denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at San Antonio, Texas, from June 15 to 18, 1955, inclusive, before the duly designated Trial Examiner. All parties were represented by counsel and were afforded full opportunity to participate in the hear- ing, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally upon the record, and to file briefs and proposed findings of fact and con- clusions of law. Briefs were filed by the General Counsel and the Respondent and have been carefully considered. At the conclusion of the General Counsel's case the Respondent moved to dismiss the complaint on the ground that the General Counsel had failed to make out a prima facie case. The motion was denied. At the conclusion of the entire case, ruling was reserved on a motion by the Respondent to dismiss the complaint for failure of proof. Ruling was also reserved on a motion by Respondent that Section 8 (d), which is an amendment of the complaint, is barred by the limitation pro- visions of Section 10 (b) of the Act. These motions are now disposed of in accord- ance with the findings of fact and conclusions of law made in later sections of this report. Upon the entire record in this proceeding, upon consideration of the arguments and motions of counsel, including the briefs filed by the parties and citations of authorities alleged to be diapositive of the issues in this case, and from his obser- vation of the demeanor of the-witnesses; the Trial Examiner makes-the following: 1 The complete names of the Charging Parties are not set out in the caption of the coin- plaint and is therefore coriected to iead as written above. 2 The reference to Respondent in the singular is based on the findings made herein, 2nfrc, that Transpoi t Company of Texas and Transport Company, Inc , constitute a single employer within the meaning of Section 2 (2) of the Act. a Subsequently, counsel for the Respondent, during the course of the hearing, stipulated with the General Counsel's iepresentative that the Union is a labor organizati m within the meaning of Section 2 (5) of the Act TRANSPORT COMPANY OF TEXAS, ETC. FINDINGS OF FACT 4 683 1. THE BUSINESS OF THE RESPONDENT The following language is quoted from the Board's decision in The Transport (Company of Texas and Transport Company, Inc., 111 NLRB 884, in which it was found that the Respondent Companies in this proceeding constitute a single employer within. the meaning of Section 2 (2) of the Act and that the two companies are -engaged in commerce within the meaning, of the Act. The Trial Examiner takes official notice of the facts in that representation proceeding, which are hereinafter ,cited, and so finds .5 The Transport Company of Texas and Transport Company, Inc., are sep- arate Texas corporations. Each is engaged in hauling petroleum and chemical products. The Transport Company of Texas does its hauling entirely within the State of Texas. Transport Company, Inc., is an interstate operator trans- porting products between 'I exas and Oklahoma. Mr. Edgar Linkenhoger owns 98 percent of the stock of Transport Company, Inc., and more than 50 percent of the stock of The Transport Company of Texas. He is a director, president, and general manager of both Corpora- tions. As general manager, Mr. Linkenhoger is in charge of their overall opera- tions. He purchases all their equipment. The main office of the two Corporations is located in the same building in Corpus Christi, Texas. They use common payroll clerks, billing clerks, and .a single safety engineer. At Houston and Amarillo, Texas, both Corporations use the same terminals , terminal managers , and dispatchers. The drivers of the two Corporations are usually hired by the terminal man- agers in accordance with identical rules that are established by the main office. Applicants. for employment in both Corporations use the same application form. The drivers of both Companies are paid in the same manner, receive the same benefits, and work under the same rules and regulations. A driver for one Corporation may drive for the other when the truck he is assigned to breaks down. Transport Company, Inc., frequently leases its equipment and drivers to The Transport Company of Texas for an intrastate haul when the equipment and driver are returning from an interstate run without a load. Although the two Corporations have separate properties , separate trucks, and separate drivers and keep separate accounting records, in view of the fore- goirig and the entire record , including the substantial identity and centrali- zation of ownership and control , the physical proximity of the main offices, the nature of the Corporations' operations, and the similarity of working con- ditions at both Corporations, we find that The Transport Company of Texas and Transport Company, Inc., constitute a single employer within the meaning of Section 2 (2) of the Act. The record shows that Transport Company, Inc., derives revenue in excess of $100,000 annually from hauls which cross State lines. As we have found that the two Corporations constitute a single employer, we find that the Em- ployer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED It is admitted and found that the Union is a labor organization within the mean- ing of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The Union initiated an organizational campaign in the summer of 1954 to recruit members from among the employees of the Respondent. During the course of the 6 The record of transcript is hereby corrected in the following particulars : Page 9, line 7, is hereby corrected to read "Field Examiner" instead of "Trial Examiner " Page 89 line 5, is corrected to read "The objection is sustained Page 471, line 13, is corrected to read "mad" instead of "made." Page 502, line 3, is corrected to read "impute" rather than "repute " a Maxwell Brothers. 1ne., Ill NLRB 1118; Rupp Equipment Company, 112 NLRB 1315, footnote 2. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizational drive, some of the employees 4igned union authorization cards and others both signed and distributed unsigned union cards to the employees. Be- tween September 11 and 15 , 1954, five employees were discharged by the Company. The General Counsel contends that these five employees were discharged because of their union activities while the Company asserts that they were discharged for inefficiency, infractions of rules, and other legitimate causes. B. The issues The disputed issues are whether the Company : ( 1) Interrogated its employees concerning their union membership ; ( 2) instigated a search of the possessions of an employee in order to gain information concerning the union activities of the Respondent's employees ; ( 3) threatened to discontinue its business if the Union was successful in its organizational campaign ; and (4 ) discriminatorily discharged five of its employees within the meaning of Section 8 (a) (1) and (3) of the Act .6 C. The discharges 1. Events prior to the discharges C. B. McCleary , dispatcher 7 at the San Antonio terminal of the Respondent Company, testified that Oscar Schultz , Roy O. Smalley, B. R. Underwood, and William Joy, truckdrivers at said terminal , were discharged because of their union activities . He testified that about 2 weeks before these employees were discharged, William Tarver, manager of Respondent's San Antonio terminal ,8 told him that he had received a telephone call from L . C. Andrews, general manager of the Com- pany, ordering him to ascertain which of the employees under his supervision were union adherents and when he determined who these were to fire them. Virginia McCleary, wife of C. B. McCleary, first went to work as a clerk for the Respondent at its San Antonio terminal in the spring of 1953 and worked until the fall of that year when she left voluntarily . She next was employed by Respondent for a few weeks during the summer of 1954 . She testified that a few days before .the discharges of, the alleged discriminatees Tarver told her he had received a tele- phone call from Andrews , general manager of the Company, "telling him that the Union was giving him quite a bit of trouble and that lots of the boys were for it and had signed up.... And he wanted Mr. Tarver and my husband to get on to trying to finding out who in the organization at the time was signing up these boys, and as quickly as possible to get rid of those boys in order that .if a vote came they would not go Union. . . . We also discussed the fact that they had to 9 The relevant provisions of the National Labor Relations Act, as amended ( 61 Stat. 136, 29 U. S. C , Secs 151 , et seq ), are as follows : RIGHTS OF EMPLOYEES Sec. 7 . Employees shall have the right to self-organization , to form , join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection , and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in section 8 (a) (3). UNFAIR LABOR PRACTICES See. 8. (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed In section 7 ; . . r • • • t « r (3) by discrimination in regard to-hire.or tenure of employment or any term or condition of empl93 vent to encourage or discourage membership in any labor organization . . . 7 The dispatcher's principal duties were to assign drivers to trucks and to schedule their departures and returns. See footnote 74,snfre. s It was conceded by counsel for the Respondent and it is so found that Tarver was a supervisor within the meaning of Section 2 (11) of the Act. Tarver left the Company's employ on January 18, 1955, and is presently self-employed soliciting freight and sell- ing chemicals and petroleum products. TRANSPORT COMPANY OF TEXAS, ETC. 685 be discharged not in one body but along so that it wouldn't be obvious." 9 In a later portion of her testimony, Mrs. McCleary said: Mr. Tarver had asked my husband to assist him in finding out previously who was signing up the boys. At that time, of course, every person was under suspicion for being connected with the Union and were watched and under surveillance to see who the men were. After they would come in from work you could see them around gathered up talking, and you could overhear quite a bit of their conversations. And not knowing exactly how to go about it, it was decided their trucks of the ones whom they suspicioned the most would be searched for any information that might lead to it. Andrews, in his testimony, which was corroborated by Tarver, denied that he had ever ordered Tarver or anyone else to determine who of the employees were union sympathizers and to discharge them. Both Andrews and Tarver denied that they were aware of or had ever discussed with the other dischargees' union activi- ties prior to the time they were terminated. The Respondent contends that they were discharged because they were derelict in the performance of their duties and not because of union activities. 2. The discharge of William Joy Joy was employed as a truckdriver by the Respondent at its San Antonio terminal for approximately 8 months before his discharge. Joy joined the Union in June or July 1954, and shortly thereafter he began to solicit company employees to sign union membership application cards which he continued to do up until his discharge. He continued soliciting company employees after his discharge and did so until April 1955 when the Board conducted an election to determine whether the em- ployees desired to be represented for purposes of collective bargaining by the Union herein.10 These union membership application cards authorized the Union to act .;s bargaining agent for the signers with the eventual purpose of having the Union, represent the employees in collective-bargaining negotiations with the Respondent. Joy estimated that of the approximately 110 company employees eligible to vote, he obtained the signatures of about 55 of them. Joy was involved in an accident on July 12, 1954, while driving a company truck. On his cross-examination, it was elicited that he drove into the rear end of a pickup truck while traveling on a highway in the daytime and seriously injured four pas- sengers in the other vehicle as well as himself. His injuries prevented him from returning to work until August 9, 1954. On September 15, 1954, the day he was discharged, Joy testified that Tarver said to him, "'I am going to have to let you go ... on account of your wreck, your accident that you had, various some other things that's come up,' and then I im- mediately asked him he just as well tell me the truth about it. He said, 'Well, now, it's coming out of the home office,' and I asked him, 'Well what is the reason?' And then he made the statement, he said, 'Well, you should know as well as I do, on account of union activity.' " Tarver, when he testified, denied that any such conversation with respect to Joy's union activities had occurred. C. B. McCleary testified as follows: ... we had suspicioned that Mr. Joy was active in the Union. . . You have suspicions about any of your employees when you are in an administrative capacity. You have to have. I mean, that's one of those things that you do have, is opinions And you think that you know about their beliefs. Well ... to substantiate that belief I searched Mr. Joy's truck and found a book of applications to the Teamsters Union. I showed those to Mr. Tarver before he (Jdyj was dismissed." It was then. decided between Tarver and himself, McCleary testified, to attfibute Joy's discharge to the wreck he had been involved in with a company truck approxi- mately 2 months before. 9 It was stipulated that the company records show and it is so found that Schultz was discharged on September 11, McKinley (employed as a truckdriver'at the Houston termi- na]) and Smalley on September 14, and Underwood and Joy on September 15, 1954 10 Seven employees voted for and 90 against being represented by the Union and 13 ballots were not counted as they were challenged. u The General Counsel's answer to Respondent's motion for a bill of particulars (Gen- eral Counsel's Exhibit No 1-N) states that Joy's tiuck was seaiclied "on or about Sep- tember 15, 1954 " 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Mrs. McCleary was asked the circumstances surrounding Joy's discharge„ she testified: Mr. Joy had had a wreck and that was discussed as being a reason for firing him, but he had been permitted to come back to work, and then [he] also . . . had been sick, had had a heart attack. . Mr. Tarver told me about the [union] book being found in [Joy's] truck. He came to [my home] and told me be- fore my husband had ever told me; as soon as it happened he came up there and talked it over with me.... Tarver testified that Joy was discharged because he was involved in "a major acci- dent, a bad one. .. . Edgar Linkenhoger, president of Respondent, in testifying with respect to Joy's dis- charge, stated: We determined 12 that this unusual, serious wreck that he [Joy] had, that was unexplainable, in other words, it was in broad open daylight, and our investiga- tion disclosed that the truck only slowed down in front of him to turn to the right, that there was no earthly reason or excuse other than just negligence on driving, plus the fact he had apparently a slight heart attack earlier 13 which looked like it might have been possible for that to have been the cause of his wreck. For that reason we felt like he should not be allowed to drive a truck on the highways and endanger the public. Linkenhoger testified that as a result of this accident, $55,000 was paid out in damages, of which $30,000 was paid to the 4 persons injured, and that these costs were paid "mostly by the [Respondent]." 3. The discharge of Roy O. Smalley 14 Roy O. Smalley was employed as a truckdriver by the Respondent at its San An- tonio terminal in 1947, briefly in 1949,15 and the last time in December 1953, work- ing until his discharge on September 14, 1954. In the latter part of August 1954, he signed a union authorization card, but other than that he took no active role in the Union's organizational campaign. Smalley testified that at the time of his discharge on September 14, 1954, Tarver told him, "I hear you are dissatisfied with your job; I expect you better find other employment." C. B. McCleary, dispatcher at the San Antonio terminal, testified that when he and Tarver concluded that Smalley was a union sympathizer they decided to use as a pretext for discharging him that he "was a little argumentative and cross but that was just Mr. Smalley's ways. Smalley and myself have had arguments 16 but friend- ly arguments, just discussing a point, splitting a hair, you might say." McCleary also testified that he knew Smalley had belonged to a union when he was employed else- where and that he had told this to Tarver. Tarver, in turn, testified that he knew Smalley belonged to a union when he hired him. When Mrs. McCleary was questioned with respect to Smalley's discharge, she testified: Well, they couldn't find a real reason for Mr. Smalley, but he did talk quite a bit, and they decided that talking and him griping would be as good a reason as any. 12 This determination was based on written reports from E K. Womble, safety director of the Company, John E Lyle, general counsel of the Company, who conducted an inde- pendent investigation , Tarver, San Antonio terminal manager, L C Andrews, general manager of Respondent , J L Linkenhoger, acting general manager ; R. E. Buckiugbani, company maintenance engineer , the report of Jack Lancaster, adjuster of the insurance company with whom Respondent was partly insured ; convei sations with Texas highway patrolmen who investigated the accident, photographs , and also written statements from eyewitnesses to the accident. 13 Joy reportedly suffered a heart attack prior to the accident. See Respondent's Ex- hibit No. 10 and Tarver's testimony that Joy had a heart attack 4 to 6 weeks before the accident 14 The four other dischaigees' chaiges were filed on September 24, 1954, but the Smalley charge was not filed until October 25, 1954 ib In 1949, after making one trip, he was terminated when he failed to pass a physical examination due to a hernia condition 11 Tarver testified that McCleary had a personal dislike for Smalley and three of the other dischargees, Schultz, Underwood, and Joy. Tarver testified that on one occasion "[he] talked Joy out of killing McCleary." TRANSPORT COMPANY OF TEXAS, ETC. 687 She also testified that "Tarver said he was sure that Mr. Smalley also was for the Union, and he had been, as the others, neglecting his job to an extent that he had become where he was dissatisfied with his job, and he griped more about the runs he got, and. he had the same arrogance, he felt, that the others had, and he was in company with the others constantly." Tarver denied that Smalley was discharged for union activity and when Smalley was asked on cross-examination if he had ever accused company officials of firing him because of union activities, he replied that he could not recall. Linkenhoger, president of the Company, testified with respect to the discharge of Smalley as follows: The information in regards to Mr. Smalley's discharge was furnished to me by Mr. Tarver and Mr. Womble, our safety engineer that Smalley had gotten to be very disgruntled about the haul at that time that we were forced to make from Rankin back to San Antonio, but he didn't want to lay over, he didn't want to wait for a load, that he didn't want to wait for a load, that he wanted to come on back, not wait for a backhaul, which was a very necessary deal in our operation, which we was forced to insist they wait on, and that he was generally very critical of the operation of the Company, especially the San Antonio personnel. 4. The discharge of Oscar C. Schultz Oscar C. Schultz was employed as a truckdriver at Respondent's San Antonio terminal from February 1954 until his discharge on September 11, 1954. He signed a union authorization card on August 1, 1954, but neither distributed union cards nor solicited signatures. Schultz testified that prior to his discharge, Tarver had complained to him on two occasions because of his tardiness and at the time he was discharged Tarver told him he was being terminated because he had taken too much time to make a delivery. C B. McCleary testified that "it was decided [Schultz] was a union man and should be discharged." Schultz "was late to work on numerous occasions," McCleary testified, so he and Tarver decided to use this as an excuse to fire him. Schultz, Mrs. McCleary testified, "had been warned a couple of times about coming to work late and even though he hadn't come to work late in the past few days before he was fired [Tarver and McCleary] decided to discharge him for that reason." She also testified that on or about September 9, Tarver said to her- Oscar Schultz was seen with these other boys. . . . That'Mr. Schultz was with the other boys and that he had become a little arrogant in his job, and he was certain after watching them and keeping them under surveillance that he was one of the men that did sign the union card. Tarver denied that Schultz was discharged for union activity, testifying that he was fired because he was reported by another driver to have been drinking on the job, he was often late in reporting for work, he was "raising too much cain around the refinery," and customers were complaining about him and Schultz, in turn, was complaining about his working conditions. Linkenhoger, president of Respondent, testified with respect to the discharge of Oscar Schultz as follows: We found that Mr. Schultz had been late to work on several occasions, which caused us to be reprimanded by our customer and shipper for not having the delivery delivered on time, and that he had laid over too long on a haul or two to Corpus, and had been warned of this about three times before he was finally dismissed for that reason. It was also reported to Linkenhoger, by Tarver, he testified, that there had been reports about Schultz drinking while on duty. On cross-examination Linkenhoger testified that "our main objection to Schultz [was] he was habitually late to work and would take too long on these trips, take him too long to get there and back:" 5. The discharge of B` R. Underwood 17 B. R. Underwood was employed by Respondent as a truckdriver at its San Antonio terminal from May 1 to September 15, 1954. Sometime in July 1954 he signed a union authorization card but other than that he engaged in no union activities, except that he indicated to anyone who might ask 17 1 to IF refci iial to in the complaint as Billy Underwood 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him that he favored the Union. Underwood testified that at the time his employ- ment was terminated , Tarver told him he was being discharged for driving at excessive rates of speed and taking benzedrine pills (a drug used to prevent drowsi- ness), which he denied . He also testified that he never orally accused Respondent of firing him because of union activities. C. B. McCleary testified that he never discussed Underwood 's discharge with Tarver but when Underwood was terminated , the reason given by Tarver on the termination form for Underwood 's discharge and which was sent to the Company's home office at Corpus Christi, Texas, stated that Underwood had been found to be taking benzedrine pills. Mrs. McCleary testified : .. Mr. Underwood had received a speeding ticket. . . . And he had been given a warning , but they decided they could use that as a reason." Later in her testimony, she said : "And Mr. Tarver told me that he knew Mr. Underwood also was one of the union boys,18 and he said the best thing he could think of to discharge him for was the speeding ticket." , Tarver denied Underwood was discharged for union activity , testifying that the reason he was fired was because he'drove his truck at an excessive rate of speed and he was suspected of taking benzedrine while on duty. On this point, Linken- hoger, company president, testified as follows: We found from our investigation that there was a serious possibility that Mr. Underwood could have been taking benzedrine pills . . . plus the fact that we had some trailer reports at excessive speeds, not too excessive , but over and above the speed limits. A mechanic at our San Antonio terminal stated he smelled these pills in Mr. Underwood 's truck, and that he in turn had Mr. Tar- ver come out and they both smelled them . And that in their opinion Mr. Un- derwood had been taking these pills. We weren't able to develop anybody that saw him take them , but they did have this possibility of the odor and so forth in the truck, and for that reason we found that was the reason Mr. Underwood had been discharged. 6. The discharge of John C . McKinley John C. McKinley, unlike the other four alleged discriminatees , was employed at the Houston terminal of Respondent as a truckdriver . He signed a union authoriza- tion card about August 1, 1954, joined the Union on September 25, and solicited and obtained the signatures of six company employees between the early part of August and the date of his discharge on September 14, 1954. At the time he was discharged on September 14, 1954, McKinley testified, his supervisor, James Leatherman , manager of the Houston terminal, told him that he had been instructed by R. E. Buckingham , the Company's maintenance engineer, who had inspected the Houston terminal the previous day, to discharge McKinley "because' 2 transmissions in trucks he'was ' operating were damaged within a period of 2 weeks preceding his discharge. Leatherman testified that McKinley was discharged "for abuse of equipment" and he denied that McKinley had ever accused him of firing him because of union ac- tivity. When McKinley was asked on direct examination if Leatherman had ever discussed union activities with him, he answered , "Not directly." On cross-exam- ination , McKinley testified that Leatherman asked him what he thought about the - Union and "how I thought it could benefit me ." Edgar Linkenhoger testified as follows: There was no doubt in our minds after our investigation that Mr. McKinley was discharged for the fact that he abused equipment. He tore up two trans- missions in a matter of a day. He had been used, in,the shop and couldn;t.:get along with the shop foreman. He was put back on a truck and as well 'as abusing equipment just being an unsatisfactory truckdriver , employee, of the Company, generally. 7. Events subsequent to the discharges In the latter part of September , a few weeks after the discharges , Edgar Linken- hoger, president of Respondent , testified that he received a telephone call from a per- son who said his name was Smith and that he was a company driver employed at its Is Tarver testified that when he employed Underwood he knew he had belonged to a union. TRANSPORT COMPANY OF TEXAS, ETC. 689 San Antonio terminal . This person told Linkenhoger that the discharged employees would like to meet with him without Tarver or McCleary knowing about it 19 Link- enhoger agreed and a meeting was arranged and held on or about September 29 at hotel in San Antonio 20 Those present, in addition to Joy, Schultz, Smalley, and McKinley, were a former Houston terminal driver by the name of London, who had been discharged for being involved in an accident , and M. E. Simmons, a former company employee , who. after leaving the Company 's employ, attempted to organ- ize a union at Respondent 's various terminals.21 Representing the Company were its president, Edgar Linkenhoger, and its general counsel , John E. Lyle. The purpose of the meeting was to ascertain why the men had been discharged. During the course of discussing the reasons for their being fired, charges were made by the employees that McCleary and Tarver had mismanaged the San Antonio ter- minal. Joy ambiguously testified: "We discussed the men that had been fired. . . . Men was being fired each and every day over just their excuses were very poor- .which all the men had been helping us in the union activity ." On cross-examina- tion, Joy testified that of all the dischargees at the meeting , only Smalley asked Link- enhoger why he was fired. During the meeting, which lasted 3 to 4 hours, Linkenhoger produced the dis- chargees' personnel records and discussion was had with respect to the reasons indi- cated in these records, particularly the reasons stated on each dischargees' termina- tion slip.22 When all the dischargees present announced that they would like to re- turn to work for Respondent, the meeting concluded, Joy testified , with Linkenhoger stating that he would investigate conditions at the San Antonio terminal and report to them his findings at a second meeting to be arranged at a later date . Joy testi- fied that Linkenhoger stated "he would try to see that most of us men went back to work, expressing Mr Smalley's and Mr . Schultz' names. Mr. Lyle [Respondent's general counsel], told the two boys [Smalley and Schultz] that he would see that they went to work, whether or not they went to work for the Transport Company of Texas or someone - else, and he said, 'I think most all of you boys should be back to work, and we are going to try to see that each and everyone of you goes to work somewhere.' " Linkenhoger's version of the first of these two meetings is as follows: And I met with them and at that time these drivers were very concerned about why they were dismissed . They claimed they were discharged for personal rea- sons, and that the terminal manager was drunk , and this McCleary . [had] taken over and given us all so much trouble and getting us fired for any reason, at all, and that was general substance of the meeting we had here with them, was-they had all been discharged , the drivers that were there, and their main concern , the Union wasn 't mentioned , but said they didn't want any more salary, it wasn't that, just wanted to get rid of the terminal manager as well as the Safety Engineer . Mr. Joy said the Safety Engineer had ridden him unmercifully over this wreck he had. He didn't feel like he was entitled to it. . . . He didn 't see why it should be brought up at safety meetings no more. . They all wanted to go back to work. They all expressed the desire to go back to work, and several of them-Mr. Smalley said he didn't particularly have anything against Tarver ^ Said he would be willing to go back with him still as terminal manager. Mr. Joy said he would not work with [ McCleary] or Tarver, either one , there. They were contending they fired them for per- sonal ,reasons.... Mr. Joy told me that Tarver had prevented him from killing McCleary on the driveway one day In other words , they had had fights There were women involved . It was a pretty confused proposition . I spent four hours with the drivers going over the whole thing. "The testimony indicates that the reason it was requested that Tarver and McCleary be absent from the meeting was because criticism of their management of the San Antonio terminal was one of the purposes for calling this meeting 20Lrnkenhoger testified that there was no poison present at this meeting whose name was Smith 21 Undei wood , 1 of the 5 dischargees , was not present at this meeting or at the second meeting Toy testified that Linkenhoger stated at this meeting that the flu st he leas ned they had been discharged was when he received the telephone request that a meeting be -arranged On cross-examination , however, Joy contradicted himself, testifying that he #lid not moll v,hether Linkenhogei had said this. 390609--56-vol 115 45 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No mention was made during this meeting of union activities nor did the dis- chargees' accuse any of the company officials of discharging them because of their union activities 23 Simmons, the former employee who had been active in attempting to organize Respondent's employees, telephoned Linkenhoger and a second meeting was ar- ranged for October 7. All those present at the first meeting attended the second meeting except McKinley 24 and there was also present for the first time Robert Kimbrell, an assistant business agent of Local 657, a Charging Party herein. Linken- hoger then reported to those present the results of his investigation of their com- plaints. Linkenhoger testified that he told the dischargees that his investigation disclosed that McKinley could not be considered for reemployment because- his' work was unsatisfactory, and that the Respondent's insurance company would not permit Joy to be rehired because of the accident in which he was involved. With respect to the other dischargees, he testified that he told them, "We are going to do everything possible to try to put them back to work, that we felt like they were good truck drivers ... and we were going to check further and see if we couldn't get them back to work." 25 It was then proposed to Linkenhoger and Lyle, the company representatives, that the Respondent should recognize the Union, sign a contract, and thus establish a procedure in the future for processing such grievances as they had been discussing at these two meetings. The record is silent as to the company representatives' re- action to this proposal. At this meeting, as at the first, none of the participants accused the Respondent of discharging them nor any other employees because of union activities. 8. Discussion and analysis of the testimony Section 8 (a) (3) forbids an employer to discriminate against employees in order to encourage or discourage membership in any labor organization. This section outlaws discrimination for this purpose "in regard to [their] hire or tenure of em- ployment of any term or condition of employment." However, the Act does not circumscribe an employer's right to hire, discipline, or discharge an employee for reasons not forbidden by the Act, even though the employee may be an active union adherent or advocate. The employer can hire and fire at will, so long as his action is not based on union membership or intent to interfere with the purpose of the Act. And where a just ground of discharge appears, it is ordinarily a mere matter of speculation to say that the discharge was because of union membership.26 Upon examination of all the facts it must be determined whether the Respondent's dis- charge of the employees was motivated by a desire to discourage union membership or other employee activities protected by the statute. The burden of proving unlawful motivation rests with the General Counsel and it must be determined whether the evidence supports the allegations of his complaint.27 However, once the General Counsel has established a prima facie case, the burden of going forward with defense evidence falls upon the respondent Moreover, proof of an affirmative defense, such as a contention that the employee's discharge was for cause, rests with the employer but it is not the burden of the respondent to show the absence of discrimination but that of-the General Counsel to show its presence.28 However, the Board has held that the fact that a valid cause for discharge exists does not excuse a violation of the Act, if the evidence shows that the employer's real reason was to discourage union activities of the dischargees. Nevertheless, an employer's antiunion disposition, standing alone, does not justify a finding of u'n- 23 When Linkenhoger learned that Simmons, a union organizer , was present at this meet- ing, he asked why it was necessary that he be present. 24 Underwood did not attend either meeting. Schultz and Smalley testified that they never heard anything further from the Company 25 N. L. F. B. v Jones & Laughlin Steel Corporation, 301 U S 1, 45, 57. 21 Section 7 (c) of the Administrative Procedure Act (5 U S C 1000), provides that "the proponent of a rule or order shall have the burden of proof . . . and no sanction shall be imposed or i ule or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party and as supported by and in accoi d- ance with the reliable, probative. and substantial evidence " See Local 3, United Paci,ing- honse Workers of America, CIO v N L B B , 210 F 2d 325 (C A 8). 26N L. R B v Iii ady .4 viation Corporation. 224 F 2d 23 (C A. 5). TRANSPORT COMPANY OF TEXAS, ETC. 691 lawful discrimination in the face of evidence that an employee was discharged for, good cause 29 The Court of Appeals for the First Circuit in a recent case 30 stated that sub- stantial evidence must be adduced in a discriminatory discharge situation which shows: that the employer knew the dischargee was a member of the union or engaging in union activity and that he was discharged for this activity. The court went onr, to state: It need not be the only reason but it is sufficient if it is a substantial or motivat- ing reason, despite the fact that other reasons may exist. [Citing cases.]! Although the discharge of an inefficient or insubordinate union member or organizer is lawful, it may become discriminatory if other circumstances rea- sonably indicate that the union activity weighed more heavily in the decision to fire him than did dissatisfaction with his performance. Motivation is an elusive fact, and this gives rise to the difficulty of assessing the strength of the inference that [the dischargee] was fired because of his union activity,31 Determining what is the motivation for these alleged discriminatory discharge cases is a grave responsibility because of the elusive intangibles involved The legal principle that employee inefficiency is adequate cause for discharge is plain enough. The difficulty arises in determining whether, in fact, the discharges are made because of such a separable cause or because of some other concerted activities engaged in for the purpose of collective bargaining or other mutual aid or protection which may not be adequate cause for discharge. Then, too, in these types of cases, consideration must be given to the proviso in Section 10 (c) of the Act, as amended, which forbids reinstatement of an em- ployee discharged "for cause." The legislative history of the Act reveals that when the meaning of the phrase "for cause" was discussed in the Senate by Senator Taft that he had the following to say with respect to it: It merely states the present rule If a man is discharged for cause, he cannot be reinstated. If he is discharged for union activity, he must be reinstated. In every case it is a question of fact for the Board to determine. [Emphasis supplied.] 32 It would apear, therefore, in resolving this question of fact, that if upon the pre- ponderance of the testimony taken the proof creates an equipoise,33 or if any essential element necessary to make a finding of an unfair labor practice is absent or left to surmise, speculation, or conjecture, the trier of the facts is mandated by Section 10 (c) to dismiss the complaint. The Court of Appeals for the Fifth Circuit in a recent case 34 stated: Where the Board could as reasonably infer a proper collateral motive as an unlawful one, the act of the management cannot be set aside by the Board, as being improperly motivated. The trier of these facts is not prepared to state whether this holding of the court is in conflict with the Board decisions stating that where a clearly unlawful reason is one of the motivating causes of a discharge, the coexistence of a separate valid n' Sixteenth Annual Report of the National Labor Relations Board, pages 161 and 162 Seventeenth Annual Report of the National Labor Relations Board, pages 135 and 136. A. L R B v Win tin Machine Works, 204 F 2d 883, enfg 100 NLRB 279 Id at page 885 12 Vol 93' Congressional Record, page 6518, column 2 31 It might be noted parenthetically that a situation can arise whereupon a study of the entiie iecord, including consideiation of the witnesses' ciedibility, the trier of the facts concludes that the evidence on both sides creates an equipoise. It would appear that in such a situation, the complaint must be dismissed since the General Counsel has not pioved the allegations in his complaint by a preponderance of the evidence. Such a prob- ability is neither an abstract nor academic proposition as evidenced by the frequency with which Junes in a court of law are unable to arrive at a verdict. See Eastern Coal Corp. v. N. L it. B , 176 F. 2d 131, 135, 136 (C A 4), where the court said : . . the test is not satisfied by evidence . . which gives equal support to inconsistent inferences." [Emphasis supplied ] 34 N. L. it. B. v. Huber & Huber for Express, Inc , 223 F 2d 748 See also N. L. R. B. v. The Houston Chi onicle Publishing Co., 211 F. 2d 848 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason does not eliminate the unlawful aspect of the employer's action.35 It would seem, however, that in evaluating whether an unfair labor practice has been com- mitted, the legality of the employer's conduct in discharging employees involves the problem of accommodating the rights of employees under Section 7 to engage in concerted activities with the right clearly given an employer under Section 10 (c) to protect his business by dischaiging an employee "for cause." Southern Steam- ship Co. v. N. L. R. B., 316 U. S. 31, 47. Absent a situation where the facts are such that an inference may be drawn ascribing both a proper and an improper reason for discharge, either rule, assuming the Huber case conflicts with Board decisions, would be inapplicable where the evidence is such that there is no reasonable basis for inferring the discharge was "for cause"; or conversely, where the evidence clearly indicates serious employee misconduct. These preliminary observations, then, are a prelude to the most difficult question in this case: Whether the alleged discriminatees in this proceeding were discharged by Respondent, as contended by the General Counsel, in violation of Section 8 (a) (3) of the Act because of their union sympathies, or "for cause" as claimed by the Respondent. In determining this question, the burden of proof was on the General Counsel to establish and sustain the allegations of his complaint by a preponderance of the probative evidence, and where discriminatory discharges, as here, are charged, then he must establish by a preponderance of the evidence that such discharges were discriminatory.36 However, when the Respondent's explanation of the discharges is a reasonable one, that the discharges were due to the employees' unsatisfactory work, the burden of going forward with evidence shifts to the General Counsel to establish the falsity of the explanation and the truth of his own interpretation.37 The General Counsel's contention that the dischargees were fired for reasons proscribed by the Act is based, to a large extent, on the testimony of C. B. McCleary and his wife. It was they who testified that Respondent, in order to abort and discourage their employees' interest in union activities, discharged these five men -because of their sympathies for and activities on behalf of the Union, and that it was decided to allege as a pretext that they were discharged because of the inefficient manner in which they performed their duties. C. B. McCleary testified that Joy, Smalley, Underwood, and Schultz, who were all employed at the San Antonio terminal, were discharged because of their union sympathies. He did not testify with respect to the circumstances of McKinley's dis- charge, who was employed at the Houston terminal, but Mrs. McCleary testified that she knew nothing about McKinley's discharge other than Tarver told her that "he had heard McKinley had been fired and that he was another of the union boys." Mrs. McCleary testified with considerable authority indicating that she knew the intimate details surrounding the discharges of not only the San Antonio employees but also the circumstances of McKinley's discharge at the Houston terminal. It was she who testified that Tarver was the first one to divulge to her that blank union ,application cards were found in Joy's truck, yet it is undisputed that it was her husband who conceived the idea of searching Joy's truck and it was her husband who executed this plan and obtained these cards. It strains one's credulity to believe that she first received this information, not from her husband but from Tarver.36 Although Mrs. McCleary professed to have been in on the most intimate details of the plan to feret out which of the employees were union adherents, nevertheless, she admitted on cross-examination that she was neither working for Respondent at the time all this transpired nor was she acquainted with Schultz, Smalley, Under- wood, or Joy. This aspect is particularly pertinent when it is considered that she claimed to be acquainted with the low morale of the employees at the San Antonio terminal, their complaints, and the basis for their dissatisfaction with working con- ditions and company policies and this, at a time, when she was neither employed by the Respondent nor knew the dischargees. Although Mrs. McCleary claimed to know the details of the alleged discriminatees' discharges, yet, on cross-examination, she testified that when J. L. Linkenhoger, acting as Kingston Cake Company. Inc , 97 NLRB 144..5, 1451. se Indiana Metal P)ioditety Coi p v N L It 11 , 202 F 2d 613. 616 (C A 7) ; N L R B Y. Deena Products Company, 195 F 2d 330, 335 (C A 7), cert denied 344 U S 827 51 Martel Mills Corp v N' L R B , 114 P. 2d 624, 631 (C. A 4) , N L. R. B v Entwistle Mfg Co, 120 P. 2d 532, 531, (C A 4) 3Tarver acknowledged that McCleary had shown hint these blank union cards but dis• avowed any participation in it, claiming McCleary searched Joy's truck on his own initia- tive and without his knowledge. TRANSPORT COMPANY OF TEXAS, ETC. -693 general manager,39 inspected the San Antonio terminal,40 and although she spoke with him, she did not mention to him the union activities of the dischargees. Neither did her husband discuss this matter with Linkenhoger at that time. There was considerable testimony which clearly reveals that the McClearys coveted Tarver's position as manager of the San Antonio terminal and that they aspired to have Mr. McCleary supplant Tarver in his job. They had informed company officials that Tarver was often drunk while at the terminal, frequently absent from work, and generally neglecting his duties. In fact, when J. L. Linkenhoger visited the San Antonio terminal prior to the discharges in question, Mrs. McCleary did not inform him of the employees' union activities, although she testified that the company officials were most anxious to know who were union sympathizers. She did not, however, forget to tell Linkenhoger at the time of his inspection trip that Tarver was neglecting his duties. McCleary testified that after the discharges in question, the company officials expressed dissatisfaction with conditions at the San Antonio terminal and that he made two trips to the Respondent's home office at Corpus Christi, Texas, to discuss this matter, as well as his continued employment with the Company.41 The Trial Examiner noted that when McCleary was testifying with respect to his visits to the company office that he made a strained and persistent effort to inject into his testi- mony the immaterial statement that he informed the company officials of the em- ployees' union activities, although it was clear from his own testimony that the pur- pose of McCleary's meeting with company officials and the subject to be discussed was the Company's dissatisfaction with conditions at the San Antonio terminal. Mani- festly, McCleary, interjecting the question of employees' union activities, had no relevancy whatsoever with respect to the inefficient manner in which the terminal was being operated as the employees had been discharged 4 months before. McCleary did admit, however, that when he attempted to interject this irrelevant information that both Lyle, general counsel of Respondent, and J. L. Linkenhoger, acting general manager, told him they were not interested in hearing about em- ployees' union activities and refused to discuss it. Mrs. McCleary also admitted that "quite a few" other employees were discharged by Respondent at about the same time the alleged discriminatees were terminated. This admission is particularly revealing inasmuch as Edgar Linkenhoger testified that 324 truckdrivers were terminated at all their terminals during the period Oc- tober 1, 1953, to September 30, 1954.42 With respect to the San Antonio terminal, during this same period of time, there were 54 employees terminated, of which iS were voluntary and 36 involuntary, which Linkenhoger testified was not an abnormal turnover. This excessive turnover of employees might indicate that Re- spondent's personnel policies leave much to be desired but that is not within the competency of a Trial Examiner to judge nor a violation of the National. Labor Relations Act. It is, however, a significant circumstance in that the inference which might be drawn from this unusually high rate of employee terminations is that the alleged discriminatees in this case, along with many other employees who .left Respondent's employ during the same period of time, did_ so for reasons other than those proscribed by the Act and not for their union sympathies. Corrobora- tive of this inference is Smalley's testimony on cross-examination that: "It ap- peared that [Tarver] was firing people just to see new faces come in, is the way it looked to me," and Joy's testimony on cross-examination that, "The men .. . were being fired over nothing." 43 It is just as reasonable to infer that the Com- 89 J L Linkenhoger, brother of Respondent's president, was acting general manager at this time as Andrews, the general manager, was then ill. 40 Mrs McCleary testified that J L Linkenhoger was at the terminal sometime between July 1954 and January 1955 He testified that it was either in September or October 1954 His testimony is credited and it is found that he spoke with Mrs. McCleary prior to the employees' discharges '41There was evidence that this dissatisfaction was based on reports that emaity existed between Joy and McCleary and-threats to kill had been made ; someone shot at Tarver ; and McCleary and an employee had a fight. 42 On. September 11, 1954, theie were approximately 15 trucks in operation at the San Antonio terminal and 21 drivers employed there The Houston terminal had.about,,10 . trucks and 6 drivers. Respondent's Exhibit No 7 shows 321 terminations from October 11, 1953, to September 30, 1954 4' MclOnley, in describing what was discussed at the first hotel meeting, testified as to the "wholesale firing of the men that was working in the company at this one particular time." 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - pany's personnel policy of what appears to be an unusually excessive number of terminations was based and determined on what company officials thought to be sound business practice. To infer otherwise, with respect to the five alleged discriminatees involved here, would be tantamount to the Trial Examiner placing himself in the position of substituting his own ideas of business management for those of the Company. This is not permissible 44 In addition to the inconsistencies and discrepancies in McCleary's and his wife's testimony, there is also testimony which indicates that both McClearys, before and after their termination by Respondent, had threatened to avenge themselves at the expense of the Respondent, not only because McCleary failed to obtain Tarver's job but because he was fired. Mrs. McCleary also complained that she had done clerical work for Respondent for which she was never paid. Tarver testified McCleary had threatened, when they went to the Company's home office at Corpus Christi to discuss the inefficient manner in which the San Antonio ,terminal was being operated, that: "If he ever lost his job there that they were going to have to pay through the nose, and it would be quite a sum"; and that Mrs. McCleary had said, "They don't know how this little girl can scheme.... When I take the stand I can wrap those lawyers around my little finger." When Tarver was asked if he knew what the McClearys meant by these statements, he testified, "Well, they contended that they had some knowledge that they could make the company pay them, but didn't specifically state what this knowledge was." Based upon observation of the demeanor of both McClearys while testifying, particularly the vehemence which they displayed toward Respondent when mention was made of the circumstances of Mr. McCleary's discharge, and after analyzing the record, particularly their testimony and the inferences to be drawn therefrom, it is believed that their testimony is untrustworthy and can be characterized as that of -malcontents which is colored and distorted by dissatisfaction because of disappointment at not displacing Tarver as terminal manager and their resentment at McCleary being fired. For these reasons their testimony is not credited except to the extent that it is in agreement with the credited testimony.45 Joy 46 was involved in an accident while driving a company truck 2 months before his discharge.47 The damages resulting therefrom amounted to $55,000. The Re- spondent claims the accident was due to Joy's negligence and Joy admitted, at a safety meeting held on August 8, 1954, attended by Respondent's employees at which E. K. Womble, safety director of the Respondent, presided, that Womble told the assembled employees, without mentioning Joy's name, that this accident was inex- cusable and that the driver of the company truck, "probably wasn't watching his business" and that such negligence must stop. The serious accident in which Joy was involved was good cause for discharge because it would not have been condoned in any other employee 48 Indeed, Joy's negligence appears to be so inexcusable and the damages resulting therefrom so serious as to foreclose any speculation that it was used as a pretext to get rid of him because of his protected activities.49 Underwood, whose union activity consisted solely of signing a union application card and who was known by Tarver at the time he hired him to be a union member, was discharged allegedly for driving his truck at excessive rates of speed and for 44 N. L B B. v Blue Bell, Inc., 219 F. 2d 796, 798 (C. A. 5). 45 C B McCleary was discharged on January 28, 1955 48 His hesitant and faltering manner in testifying on cross-examination, which at times approached equivocation, as distinguished from the prompt and assertive manner in which he answered questions on direct, militated against his credibility. Moreover, he testified that none of the other dischargees solicited or distributed union cards to the employees with ,the exception of McKinley, who worked at Respondent's Houston terminal. At another point. in his testiinony, on'thia important a8bect of the case, however, Joy inconsistently ,stated that Underwood "helped me'tremendously in talking to the men," and "Mr Schultz, also talked for us," as well as Smalley. This is directly contrary to what Schultz, Under- wood, and Smalley testified to. For these, as well as additional reasons stated elsewhere in this report, Joy's testimony that Tarver told him he knew Joy had been engaging in 'union activities is not credited. 47 Edgar L Linkenhoger testified that Respondent's insurance company iequested that Joy should not be discharged until the accident claims of the four injured persons could be settled. 48 Tarver testified that after the safety meeting Joy indicated he had better quit because of what Womble, the safety director, had said with respect to his negligence "An additional factor in deciding to discharge Joy was the heart attack he reportedly suffered 2 months pilor to the accident. TRANSPORT COMPANY OF TEXAS, ETC. 695 taking benzedrine, a drug, while on duty 50 McCleary, at one point in his testimony, stated that he had never discussed Underwood's discharge with Tarver but at another part of his testimony he stated that the "real reason" was Underwood's "close association with Mr. Joy. . Well, their running around together there at the terminal and one always inquiring about the other one and their talking with the men." Although McCleary stated Tarver had never discussed Underwood' s discharge with him, Mrs. McCleary testified, and in effect corroborated Respondent when she testified, that ". . . Mr. Underwood had received a speeding ticket. . . . And he had been given a warning , but they decided they could use that as a reason." Revealingly significant also is the undisputed fact that Underwood, who it is alleged in the complaint was discharged for unlawful reasons, never attended any of the two hotel meetings held by Respondent for the purpose of the alleged discriminatees airing their grievances . Such action on the part of an employee whom the General Counsel claims was unlawfully discharged is not normal. If Underwood was really disturbed by what he considered his unjust dismissal, his presence at the meetings would, it appears, be inevitable in order to object to the Respondent's allegedly unjustified action. Nor is there anything in Respondent's behavior in dealing with Underwood to suggest that the subsequent discharge of Underwood was in retribu- tion for his protected activities. In fact, Underwood wrote 2 letters, 1 to J. L. Linkenhoger and another to Lyle, general counsel of Respondent,51 requesting that he be rehired, in which he made no mention of unionism. Schultz testified that his union activity consisted solely of signing a union card. The Respondent's contention that Schultz' repeated tardiness in reporting for work and taking too much time in making deliveries were the reasons for his discharge were corroborated by both Schultz himself and the McClearys. Schultz admitted that on two occasions prior to his discharge , Tarver had complained to him because of his tardiness . Mr. and Mrs. McCleary's testimony that Schultz was discharged for his union activities is not only implausible but inconsistent with the facts they testified to themselves . McCleary testified Schultz "was late to work on numerous occasions" and Mrs. McCleary testified that Schultz "had been warned a couple of times about coming to work late. .. It is found, therefore, that the record fails to reveal that Schultz' meager union activity was a motivating cause for his discharge52 Smalley, whose union activity consisted of signing a union card and whom Tarver knew had belonged to a union when he hired him, was alleged by the Respondent to be a chronic complainer who was dissatisfied with his working conditions and it was thought advisable to discharge him for that reason. McCleary, the General Counsel's witness, inferentially corroborated Respondent 's reason for firing Smalley when he characterized Smalley as "a little argumentative and cross " and admitted he had argu- ments with Smalley . Likewise, Mrs. McCleary characterized Smalley as "griping" about his working conditions and being arrogant . This statement of Mrs. McCleary's in itself is unmistakably meaningful and convincingly significant in that it corroborates Respondent's reason for discharging Smalley. Moreover, Respondent knowing at the time Smalley was hired that he had formerly been a union member indicates that Respondents were not unduly disturbed by Smalley's unionism so as to warrant an inference that Smalley's discharge might have been in retaliation for his protected activities53 On the contrary, Respondent's contention that Smalley was a chronic complainer, which finds support in the testimony of the McClearys', appears to be the more reasonable explanation for Smalley's discharge and it is so found.s4 McKinley, who signed a union authorization card and solicited and obtained the signatures of 6 company employees to such cards, was allegedly discharged 55 for damaging, within a period of 2 weeks prior to his discharge, 2 transmissions in trucks operated by him' When he was asked whether his supervisor at the Houston terminal, M Respondent believed Underwood was taking benzedrine but was unable to prove it. In this connection, see N L R B v. Arthur Winer, Inc., 194 F. 2d 370 (C. A. 7), cert. denied 344 U S 819 where the evidence was conflicting as to whether an alleged discrim- inatee was having trouble operating a sewing machine because of her inefficiency or because the machine was defective The court, at page 375, said • "The actual cause of the ma- chine failures is not inipiirtant The only inipoitant question involved here is the ques- tion of what [Respondent] believed to be the cause " [Emphasis supplied ] - 51 Respondent's Exhibits Nos. 2 and 4. sa N. L. R. B v Fuchs Baking Co., 207 F. 2d 737, 739 (C A 5) 53 Nor is these any substantial evidence that Respondent knew Smalley was a propo- nent of the Union prior to his discharge 5S Roxanna of Texas, Inc, 98 NLRB 1151, 1176-1178 55 He was discharged the day following the Respondent's equipment managers ' inspec- tion of_tbe Houston terminal. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leatherman, knew he was working in behalf of the Union, he replied that he did not know. Nor is there any substantial evidence in the record to indicate that the Re- spondent knew of McKinley's union activities prior to the date of his discharge. Moreover, when McKinley damaged 2 transmissions within a period of 2 weeks prior to his discharge, the Respondent did not need any additional motivation for McKin- ley's discharge as they were both such serious incidents as to preclude any inference that proscribed reasons motivated the Respondent in discharging him. One of the most significant factors in this proceeding is that although 4 of the alleged discriminatees filed their charges in this case 2 days prior to the first hotel meeting, and it is undisputed that the purpose of the 2 meetings between the employees and company officials on September 29 and October 7 at a San Antonio hotel was to ascertain the reasons for their discharges, not 1 of the alleged discriminatees ever accused the company officials of discharging them because of their union sympathies at either of the 2 meetings.56 Indeed, testimony by Smalley and toy, two of the alleged discriminatees, belies the General Counsel's contention that unionism was the reason for the discharges, when Smalley testified that "It appeared that [Tarver] was firing people just to see new faces come in, is the way it looked to me"; and Joy's testimony that, "The men .. were being fired over nothing." The Supreme Court had held,57 before the enactment of the Labor Management Re- lations Act of 1947 (61 Stat. 136), that the evidence necessary to make a finding of an unfair labor practice must be "substantial." Substantial evidence is such evidence as affords a substantial basis of fact from which the fact in issue can be reasonably inferred.58 Substantial evidence must be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence must have rational probative force; it must carry conviction; it must be more than a scintilla; and must do more than create a suspicion of the existence of the fact to be established. And the test is not satisfied by evidence which gives equal support to inconsistent inferences.59 In N. L. R. B. v. Stafford Operating Company, 206 F. 2d 19 (C. A. 8), the court said, at pages 22 and 23: The insertion of the word "substantial" in the Act by the amendment of 1947 did not, therefore, enlarge its meaning in that respect, but the insertion of the words "on the record considered as a whole" and the historical background of the Act and the amendment do have significance. . . . In construing the amended Act, the Supreme Court said in Universal Camera Corp. v. N. L. R. B., 340 U. S. 474, 487, 71 S. Ct. 456, 464, 95 L. Ed. 456: "Whether or not it was ever permissible for courts to determine the substan- tiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contra- dicatory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. . . . The fact in issue is the intent, motive or reason in respondents' mind for the discharge of the complainants. When the mental process actuating a person in the performance of an act is the fact for determination, oftentimes circum- stantial evidence is the only type available. Circumstantial evidence, as such, is not to be relegated to an undesirable category. But whether the facts and circumstances constituting such evidence be of such weight as to be substantial depends upon the nature of the facts shown, the consistency of those facts and circumstances with each other, their consistency with the truth of the ultimate fact, and their inconsistency with a reasonable inference of the truth of the con• verse of the fact sought to be shown, when viewed in the light of the entire record. And these facts may not be viewed "in isolation." 66 McKinley's equivocal, cryptic, and unsupported testimony, which appears to intimate that at the first hotel meeting reference was made to the men being discharged because of union activities, is not credited as there is definite and positive evidence by all the par- ticipants at both meetings to the contrary Furthermore, McKinley's own testimony re- veals that the flimsy basis for his statement rests on fiction , suspicion , and Irrelevant non sequiturs Furthermore, McKinley himself testified that he did not know whether Leatherman, his supervisor, was aware that he had engaged in union activities 69 Consolidated Edison Co v N L. it. B , 305 U. S. 197, 229 68 N. L. it. B. v. Columbian Enameling d Stamping Co , 306 U. S. 292, 299. 6e Eastern Coal Corp. v. N. L. R B., 176 F. 2d 131, 135, 136 (C. A. 4). See also foot- note 33, supra TRANSPORT COMPANY OF TEXAS, ETC. 697 The rule, as applied to cases of this nature, has been stated in Arnall Mills V. Smallwood, 5 Cir., 68 F. 2d 57, 59, and N. L. R. B. v. Ray Smith- Transport Co., 5 Cir., 193 F. 2d 142, 146, as follows- "Although the circumstances may support the inference of a fact, if it is shown by direct unimpeached, uncontradicted, and reasonable testimony which is consistent with the circumstances that the fact does not exist, no lawful find- ing can be made of its existence." And in Ohio Associated Telephone Co v N. L R. B., 6 Cir., 192 F. 2d 664, 666: "Granting that an inference may be drawn from the mere fact of participa- tion [in union activities] followed by discharge that such participation was its cause, the inference disappears when a reasonable explanation is presented [for the alleged unlawful act]." In American Smelting & R. Co. v. N. L. R. B., 8 Cir., 126 F. 2d 680, 688, this court quoted and applied the rule as stated in N. L R. B. v. Tex-O-Kan Flour Mills Co, 5 Cir., 122 F. 2d 433, where the question was whether the employer had discharged or refused to re-employ because of union membership: "In each case such membership may have been the cause, for the union was not welcomed by the persons having authority to discharge and employ. If no other reason is apparent, union membership may logically be inferred. Even though the discharger disavows it under oath, if he can assign no other credible motive or cause, he need not be believed. But it remains true that the dis- charger. knows the real cause of discharge, it is a fact to which he may swear. If he says it was not union membership or activity, but something else which in fact existed as a ground, his oath cannot be disregarded because of suspicion- that he may be lying. There must be impeachment of him, or substantial con- tradiction, or if circumstances raise doubts, they must be inconsistent with the positive sworn evidence on the exact point." Judged by, these tests and standards, it is concluded that there is not substantial evidence that the Respondent discharged the five alleged discriminatees because - of their union activities for the reasons hereinabove and hereinafter indicated. Merely showing that some of the dischargees signed union application cards and others solicited employees to sign such cards is not sufficient to establish a prima facie case. A vital element necessary to prove a violation of Section 8 (a) (3) of the Act is knowledge by the Respondent of the dischargees' union activities. In order to find that a discharge of an employee was motivated by discriminatory purposes, it must be shown that-the employer knew or believed that the employee had par- ticipated in union or concerted activities.60 What then does the record disclose in this regard? Merely showing that the dischargees signed -union cards and solicited signatures is not enough. Such evidence did not relieve the General Counsel of his burden of affirmatively proving that Respondent had knowledge of the alleged discriminatees' union activities before their discharges .61 N. L. R. B. v. Wagner Iran Works, et..al., 220 F. 2d 126, 137 (C. A. 7). A study of the record reveals that the General Counsel failed to sustain his burden of proof by a preponderance of the evidence that Respondent knew the five alleged discriminatees were union adherents at the time of their discharges, when it is considered that the notice of the Union to Re- spondent requesting recognition of it as bargaining representative of the Company's employees (Respondent's Exhibit No. 13) was not received by Respondent until September 16, 1954, the day following the date on which the last dischargee was terminated. Moreover, there is no evidence in the record that Schultz, Smalley, and Underwood were active in the Union so that the Respondent would be aware of their union sympathies. Nor is there substantial evidence to controvert Respondent's categorical denial that it was aware of the union sympathies of the dischargees prior to their terminations. In this connection, significant is C. B. McCleary's testimony, when asked what he knew about the dischargees' union activities, that until he found w "Knowledge by a respondent of a dischargee's union membership is a prerequisite to a finding that the discharge was made for that reason [citing cases] The Board has the burden of proving this knowledge and it is not sufficient that the proof be based on sus- picion or surmise " N L It B v Shen-Palley Meat Packers, Inc , et al , 211 F. 2d 289, 292 (C A 4) : Tampa Times Oo v. N L IL B., 103 F, 2d 582, 583 (C A. 5). GIMcCleaiy testified that lie did not tell J L Linkenhoger and Lyle about searching Joy's truck until January 1955, 3 months after Joy's discharge. ' 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union book in Joy's truck, he knew nothing of such activity.62 To hold that the evidence preponderates in favor of a finding that Respondent had such knowledge would be to engage in attenuated rationale, specious reasoning, and to give effect to anemic inferences. Speculation and conjecture cannot be the basis for findings ,which the Act requires to be based on substantial evidence. Moreover, the Board and the courts, in other cases, where it has been found that the respondent had committed unfair labor practices, considered a respondent's union animus. Evenhanded justice would require that where there is no substantial evidence produced by the General Counsel to show such antiunion bias, that this factor should be considered in evaluating whether the Respondent in this pro- ceeding has committed any unfair labor practices.63 There is no substantial evidence in the record to support such a conclusion. The evidence "must do more than create a suspicion of the existence of the fact to be established." 64 Therefore, the Trial Examiner is satisfied that the foregoing facts and circumstances fail to expose by a preponderance of the probative evidence that Respondent's purpose for discharging these employees was discriminatorily motivated. Conclusions with Regard to the Alleged Discriminatory Discharges 65 It is found that the weight of the evidence supports the Respondent's defense that it did not discriminatorily discharge Joy, Smalley, Schultz, Underwood, and McKinley for the following reasons: 1. For the reasons hereinbefore stated, the testimony of C. B. and Virginia McCleary is believed to be untruthworthy and inconsistent with the inherent prob- abilities of the case, and therefore not credited 2. It has not been proved by a preponderance of the probative evidence that the Respondent had knowledge that the alleged discriminatees were members of the Union or engaged in union activity prior to their discharges, and that they were discharged for this activity. 3. There is no substantial evidence of any union animus on the part of the 'Re- spondent and this is corroborated, inter alia, by the significant fact, which is un- disputed, that none of the alleged discriminatees ever charged the company offi- cials at either of the two hotel meetings with having discharged them for union activities.66 4. The evidence does not preponderate in favor of a finding that the-five dis- chargees were terminated for discriminatory reasons. The Trial Examiner believes that the evidence with respect to the five employees' discharges fails to attain the stature of even mere suspicion. Argumentatively assuming that it raises a suspicious pattern, nevertheless, suspicion is not proof and a finding of a violation of the Act cannot be based on suspicion alone 87 Ac- cordingly, it is recommended that the allegation of the complaint with respect to the alleged discriminatory discharges of the five employees be dismissed.68 m Although General Counsel 's Exhibit No 1-N states that Joy's truck was searched "on or about September 15, 1954 " McCleary testified that Tarver told him "within two weeks before the dischargefs] " that Andrews , general manager of Respondent , gave orders to fire union adherents The discharges occurred between September 11 and 15 , inclusive. a, The General Counsel's offer of proof to show that 2 former employees of Respondent were discharged for union activities occurring more than 1 year before the allegations in the complaint was disallowed In Richardson Manufacturing Company, 109 NLRB 136, 139, the Board said : "It is, of course , in direct contravention of Section 10 (b) of the Act to rely on conduct occurring prior to the 6-month statutory period as evidence of unfair labor practices." 64 N L. R B . v. Universal Camera Corp , 340 U. S. 474, 477. m In making these findings and conclusions , Respondent's Exhibit No 12 has not been considered, which is a letter from the Board field examiner to Respondent's general counsel. 66 Under certain circumstances silence may be as probative a basis for inference as words or deeds . Crane Co v James McHugh Sons, Inc., 108 F 2d 55, 59 ( C. A 10) United Electrical, Radio and Machine Workers of America ( UE), Local 1113 v. N L. R. B , 223 F. 2d 338 (C. A., D C.) ; Wittlin v Giacalone, 84 App. D. C. 140, 141, 171 F. 2d 147, 148; Standard Oil Co v. Lyons, 130 F. 2d 965 , 968 (C A. 8) e7 Punch and Judy Togs, Inc, of California, 85 NLRB 499, 500. See also U. S v. Ross, 92 U S 281, 283-284. 68 Southern Oxygen Go , Inc v. N L R. B., 213 F. 2d 738 (C A. 4). TRANSPORT COMPANY OF TEXAS, ETC. D. The alleged interference, restraint, and coercion 699- Joy testified, which Tarver denied, that on the day he was discharged and the day following his discharge, Tarver asked him how many employees had signed union cards. The day following Joy's discharge, he and another dischargee, Un- derwood, went to the terminal to return some company property. At that time, Joy testified, Tarver took him aside and, outside the hearing of Underwood, again asked him how many of the employees had signed union cards. There are here presented mutually exclusive stories with respect to the allegedly unlawful interrogation of Joy by Tarver which requires an analysis of both these witnesses' conflicting testimony as well as the resolution of their credibility. It seems incongruous to believe that if Tarver sought such information he would not have wanted Underwood to be present so that he could have asked him if he had signed a union card, and, furthermore, Underwood would have been almost- as fruitful a source as Joy from whom to extract information as to who of the other employees had signed union cards. Whether by this version Joy obviated the neces- sity of relying on Underwood for corroboration of his story of what occurred, the Trial Examiner is not prepared to state but it does raise some doubts.69 For this reason, as well as the reasons stated heretofore for being dubious of Joy's credi- bility, Joy's testimony with respect to this incident is unconvincing and is not, therefore, credited. In the light of this resolution of credibility in favor of Tarver's denial that these incidents occurred, it is found that Respondent did not violate Section 8 (a) (1) with respect to Tarver's alleged interrogation of Joy on two occasions. McKinley, who was employed at the Houston terminal, testified that on or about August 1, 1954, at the San Antonio terminal,70 Tarver "asked me if I knew of any movement to organize the Company, and I told him that I had heard of such move- ment, and he said, 'I understand the boys in the Houston terminal ... have signed up a hundred percent down there,' and I said, `Well, now, they might have. I wouldn't doubt it."' It is found that the evidence with respect to this particular instance of alleged misconduct on the part of the Respondent's supervisor does not amount to the com- mission of an unfair labor practice because mere inquiries concerning unionization standing alone and wholly divorced from any atmosphere of coercion are not regarded as violative of the Act. Such casual inquiries do not reasonably tend to restrain or interfere with the employees in the exercise of their statutory rights 71 McKinley also testified that on August 5 or 6 he had heard Leatherman, manager of the Houston terminal, state: "If the union [came] into the company he would quit and no doubt that [Mr. Linkenhoger] would shut the company up." 72, Leatherman, who had belonged to a union before going to work for Respondent, denied making this statement. Argumentatively assuming that Leatherman made this threat and that he is- a supervisor within the meaning of the Act, isolated statements made in casual conversation with fellow employees, which are not shown to have been authorized or encouraged or even known to the management, particularly where, as here, there is no evidence of Respondent's union animus, ought not to be quickly imputed to the Respondent, as its breach of the law, because under the evidence adduced in this proceeding, there is no evidence to bridge the gap so as to show that Leatherman's personal sentiments as well as his purported statement of what Respondent would do if the Union came in were shared by or were authorized by the Employer directly. Nor is there substantial evidence from which this threat could be imputed to Re- spondent when it is considered that McKinley's credibility is suspect in view of 8' Joy's testimony that Tarver asked him the day after Underwood was discharged whether Underwood took benzedrine pills is equally implausible. 70 Although It is not clear from the record It would appear that McKinley had occasion to go from Houston to the San Antonio terminal to deliver and pick up freight and that at such time he had the above alleged conversation with Tarver. 71 Lily-Tulip Cup Corporation, 113 NLRB 1267; Blue Flaah Express, Inc., 109 NLRB 591; N-'-L. B. B. v. Mzssissippi Products, Inc., 213 F. 2d 670, 673 (C. A. 5) ; N. L. It. B. v. Arnwo Drainage & Metal Products, Inc., 220 F. 2d 573, 583 (C. A. 6). 72 On cross-examination, McKinley testified that "[Leatherman] said that If the com- pany went union that Mr. Linkenhoger would shut the doors." 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fact that, in his direct testimony McKinley said that Leatherman made this -statement in the presence of other employees and, on cross-examination he incon- sistently testified that Leatherman told him this "individually." Moreover, to impute this statement to Linkenhoger, president of Respondent, the evidence should show some encouragement or ratification or such repetition on the part of other super- visory-personnel as to justify the inference of a policy which they express. Not only is McKinley's testimony with respect to this incident not believed, but further- more, the evidence in this case is not sufficient to draw such an inference, nor has the General Counsel produced evidence of facts and circumstances which may be accepted as establishing with reasonable certainty the truth of the allegations contended for 73 For the same reasons indicated in the preceding paragraph, it is found that there is not sufficient evidence upon which to predicate a finding that Respondent is liable for McCleary's instigating a search of Joy's truck in order to gain information concerning the union activities of Respondent's employees. Without minimizing the seriousness of this act, nevertheless, there is testimony by Tarver that McCleary was acting without authority.74 By itself, and in view of the absence of any evidence showing Respondent's union animus or that Respondent was discriminatorily moti- vated in discharging the five employees, the evidence with respect to McCleary's search of Joy's truck is too isolated, standing alone, to be designated an unfair labor practice or to warrant the issuance of a remedial order.75 Like a palindrome, no matter from which viewpoint the evidence is analyzed, whether from the point of view of substantive law or quantum of proof, the con- clusion is the same that there is insufficient support in the record to sustain the al- legations in the General Counsel's complaint. It is found, therefore, that the Re- spondent did not interfere with, restrain, and coerce its employees in the exercise .of the -rights guaranteed in Section 7. of the Act nor that Respondent violated Section 8 (a) (3) of the Act by 'discharging the five alleged discriminatees. In view of the foregoing conclusions, and upon the entire record, it is concluded that the- evidence warrants no finding that the Respondent committed unfair labor practices within the meaning of Section 8 (a) (1) and (3) of.the Act, and it will therefore be recommended that the complaint be dismissed in its entirety.78 CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Truck Drivers Local Unions Nos. 657, 968, 577, 941, 568 and 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act have-not been sustained. [Recommendations omitted from publication.] 73 National Furniture Manufacturing Company, Inc, 108 NLRB 1300; Chicopee Manu- facturtng Corporation, 107 NLRB 106; N. L. R B. v. Fuchs Baking Co, 207 F. 2d 737 (C A. 5) , N. L R. B. v W C. Nabors Company, 196 F 2d 272 (C A. 5). 74 It is found upon the entire record that McCleary, the dispatcher, was not a super- visor within the meaning of Section 2 (11) of the Act because Tarver, the terminal man- ager, had exclusive authority at the San Antonio terminal to hire, fire, discipline, adjust grievances, or effectively recommend any of the above, as well as the responsibility to direct the fvork of the 21-employees at;the an Antonio terminal., It is unrealistic to hold the 2 supervisors were required to direct the activities of only 21 employees.^ McCleary's testimony, therefore, that he had the authority to bite and fire is not credited 73 Sunset Lumber Products, 113 NLRB 1172, Waffle Corporation of America, 103 NLRB 895; Atlas Storage Division, P R V Atlas Industrial Center, Inc, 112 NLRB 1175; The Frohman Manufacturing Ca, Inc., 107 NLRB 1308, 1315 76 Cherry Rivet Company, 97 NLRB 1303, 1304, footnote 1; N. L R. B v. Uniiersal Cam- era Corp., 340 U S. 474, 495, 496, N. L. R. B v Dinion Coil Co., Inc., 201 F. 2d 484, 486- 491 (C. A. 2).