Central Freight Lines, Inc.

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Freight Lines, Inc. and Teamsters Freight, Tank Line and Automobile Industry , Employees Local Union No. 988 a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 23-CA-5557 January 16, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On September 29, 1975, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, counsel for the Acting Gen- eral Counsel filed exceptions and a supporting brief, and the Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings,' and conclusions I of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and, hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. i Counsel for the Acting General Counsel has excepted to certain credi- bility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolu- tions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (C A. 3, 1951). We have carefully examined the record and find no basis for revers- ing his findings. In adopting the conclusions of the Administrative Law Judge, we do not rely on his findings that the fact that the charge was not filed until 3 weeks after employee Durham was terminated gives rise to an adverse inference regarding the merits of Durham's allegations DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This pro- ceeding was heard in Houston, Texas, on July 29 and 30, 1975, upon a charge filed on April 21, 1975, and a com- plaint issued on June 6, 1975, alleging that Respondent violated Section 8(a)(3) and (1) of the Act by discharging, and refusing to reinstate, Joseph Lee Durham because of his union activities. In its duly filed answer, Respondent denied that any unfair labor practices were committed. Af- ter close of the hearing briefs were filed by the General Counsel and the Respondent. Upon the entire record in this proceeding, including careful consideration of the posthearing briefs, and my ob- servation of the witnesses while testifying, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Central Freight Lines, Inc., is a Texas corporation with its principal office and place of business located in Waco, Texas, and with terminals located in various cities in Tex- as, including Houston, the sole facility involved herein, from which it is engaged in intrastate shipping, transport- ing, and interlining by truck of general freight and cargo moving in interstate and intrastate commerce. During the 12-month period preceding issuance of the complaint, a representative period, Respondent, in the course and con- duct of said operations, purchased goods and materials val- ued in excess of $50,000 directly from firms located outside the State of Texas, which goods and materials were shipped directly to Respondent's places of business in Tex- as from points outside of that State, and derived revenues exceeding $50,000 from transporting, within the State of Texas, commodities bound to and from points outside the State of Texas. The complaint alleges, the answer admits, and I find that Respondent is, and at all tines material has been, an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Teamsters Freight, Tank Line and Automobile Industry Employees Local Union 988 a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, is, and at all times material, has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The sole question presented in this proceeding is whether Joseph Lee Durham was discharged on March 31, 1975,' because of his activity on behalf of the Union, as the Gen- eral Counsel claims, or because of a history of work dere- lictions, discovered upon investigation of Durham's in- volvement in an incident, allegedly involving his negligent handling of freight, as Respondent contends. Prior to his discharge, Durham had been employed by Respondent as a pickup and delivery driver for some 9 i All dates refer to 1975, unless otherwise indicated. 222 NLRB No. 67 CENTRAL FREIGHT LINES, INC. years. As such, he was one of some 235 drivers assigned to Houston responsible for the pickup and delivery of freight from various of Respondent's customers within fixed routes in the greater Houston area. There is no history of collective-bargaining for any of the drivers assigned to the Houston terminal. Prior to 1975 and dating back to the period 1968 through 1970, Durham was among the drivers who engaged in organizational ac- tivity on behalf of the Charging Union . During that cam- paign, Durham actively engaged in solicitation of authori- zation cards, and was among the employees signatory to a letter sent by the Union to the Employer, dated October 29, 1968, notifying the latter, inter alia, that an organization campaign was underway, and that the employees whose signatures appeared thereon, had signed cards designating the Union as their representative . That campaign appar- ently was unsuccessful, ending sometime in 1970. Witness- es called by the General Counsel, including Durham, testi- fied that in the period immediately preceding the discharge, Durham had personally taken the initiative to renew organizational activity at the Houston terminal. The General Counsel argues that Durham 's union activi- ty furnished the impetus for his discharge . By way of de- fense, it is urged that the evidence does not disclose that at the time of the discharge any agent or supervisor of Re- spondent possessed knowledge of recent union activity on Durham's part, and, further, that the discharge was grounded solely on the results of an investigation, prompt- ed by a- customer complaint on March 28 concerning the manner in which Durham allegedly handled a freight deliv- ery, which investigation convinced Respondent's officials that continued employment of Durham would be contrary to Respondent's best interest: With respect to the events of March 28 , it appears that Durham was to make a delivery, consisting of four cartons of banded or sealed freight containing air pollution control equipment at the premises of TAPCON, one of Respondent's customers . That afternoon, according to the testimony of Terminal Manager Schroeder, he received a telephone call from Bill Vaughn , TAPCON's president. According to Schroeder, Vaughn seemed to be upset and complained that a driver, who had just made a delivery failed to use his lift gate, but instead pulled a shipment off the back of the truck allowing it to fall and hit the ground. Vaughn expressed concern to Schroeder as to possible damage to the freight, and requested Schroeder to send someone out to examine it. Vaughn also allegedly reported that he preferred not to deal with the driver involved be- cause the driver's attitude was poor and advised Schroeder that in the future he did not want that particular driver to 2 Durham testified that in the course of this earlier campaign while he was soliciting cards in the parking lot, or dock area, he was approached by James Poston, Respondent's pickup and delivery supervisor , and told that he had no right to come on the parking lot for such purposes Durham also testified that Bill Cobb, an alleged supervisor , came to his house in January 1969, and in reference to the October 29, 1968, letter , told Durham that he should discontinue his role in the organization effort. When Durham indi- cated that he believed in what he was doing and would continue, Cobb allegedly replied that it would be harmful to his job if he continued. Other than these two incidents, dating back some 5 years before the discharge, there is no evidence whatever that Respondent's supervisors or agents ex- pressed any hostility to employee efforts to organize 389 make deliveries to his premises. Vaughn could not identify the driver as Durham, but he gave Schroeder the truck number and,the freight bill number . Following this conver- sation, Schroeder contacted Jim Poston instructing him to send someone out to make an investigation .3 Poston contacted Asa Price, one of Poston's subordi- nates, who described himself as a pickup and delivery su- pervisor, and instructed Price to go to the premises of TAPCON to pacify the customer, determine if there was any damage to the freight, and to prepare a report as to what had occurred. According to Price, when he went to TAPCON's premises, and met with Vaughn, Vaughn in- formed him that the driver backed his truck up to the deliv- ery door, and before seeking instructions as to how Vaughn wanted the freight unloaded , started to unload. When Vaughn opened another adjacent door and requested that the delivery be made there, Vaughn told Price that the driver got mad and pulled the shipment off the truck with- out using the lift gate, allowing the cartons to hit the con- crete pavement below. Price further testified that none of the cartons had been opened at the time of Price's arrival and,the exterior of the boxes did not appear to be dam- aged. According to Price he was informed by Vaughn that each box contained a unit separately valued at $225. Upon opening the cartons, Vaughn and Pirce discovered that one unit had been damaged . The extent of the damage could not be determined, since the damaged unit would have to be returned to the factory for determination as to whether it had to be replaced or could be repaired. According to Price, Vaughn indicated that the particular driver involved had made deliveries to him in the past 2 years, and that he never had a good word to say.4 Price embodied all his findings in a written report and returned to the terminal about 4 p.m. that same day. He went to Poston's office, reporting that Vaughn had calmed down. Price indicated that he had discovered that Durham was the driver, and went on to express to Poston what Vaughn had told him and what he had observed as a result of his visit to TAPCON. Poston told Price that, if he al- ready had a written report on the matter, to leave it on his desk, but if not to write one up. That evening, Price placed his written report on Poston's desk. Poston did not exam- ine the report before leaving work that evening.5 On Monday, March 31, Poston arrived at the terminal between 4 and 4 :30 a.m. At that time, Price's report was on Poston's desk. In addition another report, prepared by Price, was on his desk, summarizing Price's discussions with dispatchers, concerning Durham, which expressed the view, that from the standpoint of the dispatchers , Durham was not very good to work with, since his attitude was very poor in that he insisted on working set hours rigidly, did no more than he had to do, and would not help out in any way unless it would allow him to get' off early. Having reviewed` the reports submitted by Price, Poston pulled Durham's personnel file. That file contained evi- dence that Durham recently had been responsible for a number of driver errors. In this respect it is noted that, under the Employer's practice, when driver errors are dis- 3 Based on the credited testimony of L.O. Schroeder. Based on the credited testimony of Asa Price. 5 Based on a composite of the credited testimony of Price and Poston. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD covered, a notation to that effect is made on the freight bill related to the delivery involved, the incident is discussed with the driver, and thereafter a copy of the freight bill is placed in the driver's personnel file. Durham's personnel file included eight freight bills signifying driver errors on his part in the period, January 31 through March 14, 1975. Of these, three involved deliveries made in February 1975, and four involved deliveries made in March 1975, all with- in a 26-day span. They reflected repeated errors including three instances in which Durham had returned to the ter- minal, while short cargo that he had signed for, three in- stances of damaged freight, and two more instances in which his freight was improperly marked.' Poston claims that he did not immediately make up his mind to terminate Durham, but that same morning dis- cussed the matter with Schroeder, bringing the latter up to date on the reports made by Price and what he had discov- ered upon a review of Durham's file. At that time, Poston indicated to Schroeder that he saw no reason, under the circumstances, why Durham should not be terminated. Schroeder agreed. When Durham arrived for work on the morning of March 31, Poston called him to his office and questioned him about the TAPCON incident. Durham denied that he had any problem in connection with that delivery, specifi- cally disclaiming that he yanked the load off the truck, instead explaining that he eased the shipment down on his legs and then lowered it to the pavement. Poston, after expressing doubt that Durham could remove some 250 pounds off of the truck in that manner, then called Price in to relate Vaughn's version of what had happened, Durham denied that the delivery had been made in the manner re- lated by Price and also denied that Vaughn was angry at the time. After reviewing with Durham the discrepancies noted on the freight bills in his personnel file, Poston told Durham that under the circumstances, he would have to be terminated. After this, Durham acknowledged to Poston that he had made some mistakes, but asserted that while some discipline might have been in order, he did not feel a discharge was justified. When Durham continued to plead for his job, Poston told him he could talk to Schroeder or Kallan, Respondent's president; in Waco, if he wished.? Following the discharge, Durham attempted, without success, to see Schroeder who at that time was unavailable. He did, however, locate Garland Mitchell, Respondent's assistant terminal manager. Durham informed Mitchell that Poston terminated him because of damaged freight and customer alienation. Durham indicated that while he was probably at fault, termination for that reason was too harsh. Durham appealed to Mitchell to himself review the personnel file, and expressed that he had been with the Company for 8 years and if given another chance, would do better. Mitchell offered little consolation, and simply informed Durham that if Respondent condoned Durham's 6 There is no evidence that any other of Respondent's drivers had a com- parable history of indiscretions. 7 The foregoing is based essentially on the credited testimony of Schroe- der, Poston, and Price, with the above findings as to what transpired at the discharge interview, based on a composite of the testimony of Poston and Durham. performance, it would have to do so in the case of every driver, and Central Freight had to establish guide lines for employee behavior and to abide by them in making judg- ments in the best interest of the Company and its other employees. After this Durham requested that he be permit- ted to talk to Schroeder. Since Schroeder was still not available, Durham went to TAPCON, where he told Vaughn that Respondent had sent him home because of damage to a motor delivered by Durham the previous Friday. He also advised Vaughn that Respondent's officials indicated that Vaughn had reported him as having a bad attitude and having deliberately yanked freight off his truck. According to Durham, Vaughn denied this, stating that his comments to Price concerning the attitude of Respondent's drivers was not directed at Durham, but at other drivers. Durham also tes- tified that when he told Vaughn that he had heard that the damage to TAPCON's equipment was between $225 and $260, Vaughn replied that that was wrong and that it would take only $25 to $30 at-the most to fix. Durham, during this conversation, requested that Vaughn write a letter to the Company, which could be used by Durham in the effort to get his job'back. Vaughn offered to telephone Respondent and Durham indicated that he could do that as well. At that point Vaughn telephoned Schroeder and told Schroeder that Durham was at TAPCON and report- ed that Respondent sent him home because of Vaughn's , complaint. Vaughn said that his complaint was not to- wards Durham but other drivers. Vaughn further informed Schroeder that the damage was not necessarily what Respondent's officials felt, but.that the equipment would be sent to the factory and at most it would cost $25 or $30 to repair. Vaughn, according to the further testimony of Durham, stated to Schroeder that the latter had always done his part in unloading. According -to Durham the phone conversation was concluded with Vaughn stating that, if there was anything he could do to help Durham get back on the payroll, Schroeder should not hesitate to call. After the phone conversation, Vaughn prepared a note which recited as follows: Mr. Schrader (Sic), After talking with you today I realize that you are probably holding Joe responsible for all the com- plaints I made to Asa Price last Friday. Some of these complaints were directed against other drivers-namely not helping unload freight. Joe has always done his part in helping unload freight. If you have any questions concerning the above, please give me a call. Bill Vaughn President Subsequently Durham returned to the terminal and went to Poston's office. He asked Poston to read the letter from Vaughn. Poston indicated that, in view of Durham's past record, they had not changed their minds and that, at that point, any change in the Company's position would have to come from Schroeder. Durham then went to see Schroeder, CENTRAL FREIGHT LINES, INC. offering the letter to Schroeder who apparently also de- clined to read it, advising Durham that he had been dis- charged for reasons beyond the TAPCON incident, that he had been costing the company too much money, and that he had been terminated effective March 31. Durham then left the terminal. Durham at sometime thereafter went to the union hall to report his termination, and while the record is unclear as to when he did so, it does appear that an unfair labor practice charge relative to his discharge was filed on April 21, 1975. Tending to support the defense is the undisputed and entirely credible evidence to the effect that Respondent, in 1974, sustained substantial losses in consequence of driver errors. Troy C. Carruth, a driver holding the same classifi- cation as Durham, who was called by the General Counsel, on cross-examination acknowledged that he attended a stockholders meeting in January 1975, in which one of the major subjects of discussion was the huge company losses attributal to, driver mistakes, such as misplaced freight and damage claims. At that meeting the stockholders were told that changes would be made, and that management would begin clamping down on the drivers. Carruth acknowl- edged that, at the Houston terminal, since January 1975, management had taken a tougher stand on the drivers in the pickup and delivery department to eliminate errors of the type reflected in Durham 7s personnel file. Nonetheless, the reasons advanced by Respondent in support of the claim that Durham was terminated for rea- sons unrelated to any union activity, are not free of suspi- cion. If the testimony of Durham, Ed Turner, the Union's business agent, and Carruth is to be believed, the discharge followed closely Durham's securing union authorization cards in a renewed attempt to organize the Houston driv- ers. In addition, the disinterest of Poston and Schroeder in the Vaughn letter, despite the fact that Vaughn's com- plaints had allegedly prompted the investigation culminat- ing in Durham's discharge, hardly reflects the compassion one would expect in the case of an employee with some 9 years' tenure. Also curious was Asa Price's voluntary ef- fort, before a disposition to terminate Durham was indi- cated, to obtain and prepare a report on Durham's rela- tionship with the dispatchers. Price's explanation for his action in this regard was not convincing, and, further, it struck me as somewhat unusual that one, whose statutory authority as a supervisor is denied, as Respondent had done in Price's case,' ,and who testified that he had no authority to recommend discharge or discipline, would on his own take steps to build a case against an employee. Also of interest was the testimony of assistant terminal manager, Mitchell, that without examination of Durham's personnel file, he recalled the errors designated on Durham's freight bills, from having seen them, as they rou- tinely passed across his desk, prior to their insertion in Durham's personnel file. The question that rises here is 8 Perhaps in recognition of the possibility that Price's action in this re- spect might be viewed as unusual, Respondent, in its brief, while maintain- ing its position that Price was not a supervisor, "does not dispute" that Price was a managerial employee. Although, consistent with the General Counsel's claim, I have assumed that Price, Cobb, and the dispatchers are supervisors, in the view I take of the case, there is no need to make a finding as to their status. 391 why, if Mitchell, with his broader responsibility and au- thority, could recall errors made by Durham, Poston, Durham's immediate supervisor, with lesser authority then Mitchell, was not mindful of the same facts until after he examined the personnel file. In short it is a fair assumption that if Mitchell had a running recollection of drivers guilty of repeated errors, Poston, Durham's immediate supervi- sor, would have similar knowledge. Yet despite the finan- cial burden imposed on the Company as a result of these errors, no effort was made either to warn or otherwise dis- cipline Durham, an employee of long standing, until the TAPCON incident. Unquestionably against this back- ground, the effort by Schroeder to diminish the TAPCON incident, when he was confronted by Durham with Vaughn's letter, places the defense in a somewhat shaky posture, giving rise to concern as to why, if Durham's driv- er errors were known by management, did Respondent de- fer corrective or disciplinary action until March 319 Despite the foregoing, this is not a case where questiona- ble aspects of the explanation offered in defense of a dis- charge warrants an overarching inference of union-related discrimination. For the deficiencies in the General Counsel's case are even more critical and, in,the circum- stances, are not to be overlooked or reconciled through the inference-drawing process. Thus, aside from the absence of indication that Respondent possessed any recent, substan- tial animus toward union activity, there is no evidence or reasonable basis for inferring that Respondent, at any time prior to the discharge, was aware of any union activity on Durham's part.10 Detracting further from the General Counsel's case is my doubt as to the veracity of Durham. For example Dur- ham does not deny that Vaughn indicated to, him that he complained to the Company concerning the delivery of March 28. Yet, Durham's account of the circumstances un- der which he made that delivery is completely free of any suggestion of improper action on his part and is difficult to reconcile with the undisputed fact that Vaughn did register such a complaint. Furthermore Durham's story that he un- loaded a pallet -containing four separate cartons, weighing 9 Although generally unimpressed with the General Counsel's claim that certain postdischarge actions by Respondent were unprecedented, and hence support the claim of discrimination , I specifically reject the testimony of drivers Horak and Carruth that, after the discharge, Respondent posted a notice, setting forth the reasons for Durham's discharge. This discredited aspect of their testimony impressed me as a byproduct of the drivers ' honest confusion stemming from the fact that Respondent posted a notice an- nouncing Company ' policy against publicly baring the reasons for a dis- charge, which was followed by a meeting at which day drivers were none- theless informed of Respondent's reasons for Durham's termination. - 10 Testimony offered by the General Counsel that Durham had discussed the Union on various occasions in the period preceding his discharge in the driver ready room, is insufficient to support an inference of knowledge. The driver ready room is apparently where the pickup and delivery drivers as- semble in the morning to obtain their freight bills and delivery assignments for the day. Despite the small size of the room, the presence of,some 30 drivers at that tune would generate a noisy atmosphere Furthermore the witnesses offered by General Counsel testified most vaguely as to the nature of the prounion statements made by Durham and their tuning in relation to the location of Respondent's supervisors or alleged supervisors at times when such statements were made. In my opinion even though the dispatcher room was adjacent to the driver ready room, and even assuming that the dispatchers were supervisors, the evidence adduced fails to support a rea- sonable inference that Respondent was aware of any statement by Durham concerning the Union on such occasions 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 238 pounds, by resting it on his knees and then shift- ing it to the ground, some 4 feet below the bed of the truck, struck me as implausible. Although Vaughn did not testify, I do not believe that Durham afforded an accurate picture of what transpired at TAPCON on March 28.11 Durham's incredible testimony in this respect raises questions as to his overall objectivity, and casts doubt on the General Counsel's testimony that, shortly before the discharge, Durham engaged in significant union activity. Indeed, Durham's lack of credibility and certain other as- pects of this record render entirely plausible the observa- tion in Respondent's brief that "the discharge of Durham triggered the organizational efforts and prior to Durham's discharge there were no union organizational efforts at the Company." In this regard, although Durham testified that he actually distributed authorization cards during the week preceding his discharge, not one employee was called to corroborate that they had been approached for such pur- poses. Durham also testified that he obtained said cards after talking with the older drivers who had resisted organi- zation in the past, but who, in mid-March, signified that they were ready to go union. Here again, not one driver was examined in substantiation of Durham. Indeed, one of the older drivers called by the General Counsel, Willie Ho- rak, simply testified that since January 1975, Durham had been engaged in on-going conversations with him about starting a union campaign. Horak's testimony does not in- dicate that there was any change in Durham's position since January, nor does his testimony suggest that he was even aware that Durham intensified his organizational ac- tivity in March 1975. Another of the senior drivers, Troy Carruth, testified that he heard Durham make comments on the Union a number of times, and that in mid-March, Durham did say "It was time for us to move." Indeed the, only testimony tending to substantiate Durham was through Carruth who did testify to an incident in which he was complaining about his inability to read the freight bills in Durham's presence. According to Carruth% after he made a gesture of disgust, Durham reached/in his pocket and pulled out "some union forms, slips,"/and said "when we get a union in here we can break some of this s-h-i-t up." Although Carruth's testimony at least arguably tends to confirm that Durham possessed cards during the period preceding his discharge, his account neglects to mention that he as one of the older employees was canvassed by Durham, or that Durham solicited his signature to a card. Although Carruth was basically truthful it was my impres- sion that he may well have been mistaken as to the nature of the documents brandished by Durham on that occasion, and in the absence of a foundation-or further development of Carruth's testimony as to how he knew what these docu- ments were, my doubt as to whether Durham at that time, actually possessed such cards persists. My disbelief of Dur- ham was not allayed by the General Counsel's attempt at corroboration through the Union's business agent, Ed ii Because of this view of the evidence, the General Counsel's claim that Respondent is not liable for concealed damage to freight does not contri- bute to my suspicion as to the reasons assigned for the discharge . G C. Exh 6 does establish that carriers are liable for damage they cause to freight, as would be the case here. Turner. Turner did relate that Durham telephoned him on March 10, 1975, and again on March 17 concerning the interest of drivers in organizing, and that on March 22 Durham came to the union hall and picked up authoriza- tion cards. The reliability of Turner's testimony was brought into question by his specific recollection of the precise dates on which the foregoing contacts were made, contrasted with his inability to recall the precise date on which Durham informed the Union of his discharge.' It will be recalled that, while the discharge occurred on March 31, the unfair labor practice charge was not)iled until April 21, giving rise to the question of why/if the discharge had occurred so shortly after Durharn:had ob- tained authorization cards, no effort was made to invoke Board processes until the latter date. From, Turner's inex- plicable inability to recall the date on which Durham came to the union hall to report his discharge, curiosity was aroused as to whether Durham did of in fact go to the union hall at a date more proxi ate to the filing of the charge than the General Co /sel's motivation theory would have me believe. My Suspicion was further enforced by consideration of other events following the discharge. Thus, undisputed evidence establishes that Respondent's drivers were disturbed by Durham's discharge and that they manifested their concern in several ways, including attendance at a union meeting on April 12. Faced with this renewed driveer'interest in organization, it seems only logi- cal that thy/Union would have acted promptly to seek re- dress ofAhe grievance, which, finally, after 5 years had ralliec1 he drivers to again seek out the Union; unless, that is, the available evidence did not support an actionable unfair labor practice at that time. In sum it is my impression from the record as a whole, that the evidence offered in support of the complaint's theory that the discharge was timed suspiciously on the heels of Durham's alleged active initiation of a union cam- paign, raises even more basic questions than Respondent's explanation for the discharge. Considering the lack of union animus during the period in question, and the failure of the General Counsel to establish that the discharge was made by Respondent with knowledge of any union activity on Durham's part, and my substantial doubt as to whether Durham actually obtained and began soliciting union au- thorization cards prior to his discharge, the deficiencies in the General Counsel's case are not to be excused by an inference drawn solely from the fact that Respondent's of- ficials may have acted unreasonably, unfairly and in cal- lous disregard of his length of service in perfecting their action against Durham. Accordingly, I find that the Gener- al Counsel has failed to establish by a preponderance of the evidence, that Respondent on March 31, 1975, termi- nated Joseph Durham because of his union activity. CONCLUSIONS OF LAW 1. The Respondent is an Employer engaged in com- merce within the meaning of Section 2(6) and (7) of the 12 Turner testified that he made notes of the alleged contacts with Dur- ham on March 10, 17, and 22, but did not do so when Durham informed him of the discharge Turner could not explain his failure to make a note of this latter visit by Durham to the union hall CENTRAL FREIGHT LINES, INC. Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not violate Section 8 (a)(3) and (1) of the Act by discharging and refusing to reinstate Jo- seph Lee Durham. Upon the basis of the foregoing findings of fact and con- clusions of law, upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER13 393 The complaint in this proceeding is hereby dismissed in its entirety. 13 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes.