Thurston Motor Lines, Inc.

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).