Wilson Freight Co.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 917 (N.L.R.B. 1980)

WILSON FREIGHT COMPANY
Wilson Freight Company and Robert Lewis Ayers.
Case 10-CA-14372
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 16, 1980, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, counsel for the Gener-
al Counsel filed exceptions and a supporting 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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
i In agreeing with the Administrative Law Judge that Ayers' dis-
charge was not violative of the Act, we rely solely on his finding that
Ayers walked off the job despite Morgan's repeated warnings that "If
you leave, you know what this means." Member Penello does not rely on
the Administrative Law Judge's citation of Suburban Motor Freight. Inc..
247 NLRB No. 2 (1980). Although no exceptions were filed with regard
thereto, Member Penello notes that he adheres to his dissent in that case.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard in Atlanta, Georgia, on August 23 and
September 13, 1979. The charge was filed by Robert L.
Ayers, an individual, on February 8, 1979, and a com-
plaint issued March 16, 1979, alleging that the Respond-
ent, Wilson Freight Company, discharged Ayers because
of his membership in International Brotherhood of
Teamsters, Local 728, hereinafter called the Union, and
because of his activities on its behalf. Respondent filed its
answer in due course denying the substantive allegations
contained in the complaint.
All parties were represented at the hearing and were
afforded full opportunity to be heard and present evi-
dence and argument. All parties filed briefs. Upon the
entire record, my observation of the demeanor of the
witnesses and after giving due consideration to the
briefs,' I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Jurisdiction is not in issue. The complaint alleges, Re-
spondent admits, and I find that at all times material
herein, Respondent has been engaged in the interstate
transportation of freight from and to its terminal in At-
lanta and elsewhere and has been and is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
11. LABOR ORGANIZATION
Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
III. UNFAIR LABOR PRACTICES
A. Background
Wilson Freight Company, Respondent herein, has had
a collective-bargaining relationship with the Union since
1964. At its Altanta location Respondent succeeded to
the contract between Associated Transport and the
Union in 1976, and all rights under that labor agreement
inuring to employees of Associated were transferred
with them intact when said employees began working
for Respondent in that year. The Charging Party, Robert
Ayers was one of these employees. He was hired Octo-
ber 3, 1977.2
When Ayers first came to work for Respondent he re-
quested that his seniority with Associated be honored by
Respondent. The terminal manager, Marvin Vaughn,
however, told Ayers that he was considered a new man
and for that reason did not have any seniority. Ayers
then went to Local 728 and talked with President Al
Johnson who confirmed that Ayers had no seniority with
Respondent because he was in layoff status at Associated
Transport when hired by Respondent. Ayers then
brought the subject up with his steward, Bill Denson,
who questioned Vaughn about it once again. Vaughn,
however, maintained his previous position, so on Decem-
ber 12, 1977, Ayers filed a grievance.
Shortly after filing his grievance Ayers became in-
volved in a conversation with Respondent's dock fore-
man, Ross Gowens,3 about his grievance. Gowens stated
that he had worked for Meadows Freight Lines for years
and was unable to gain credit for time worked there
when he came to work for Respondent and could not see
how Ayers could expect to get credit for his years at As-
sociated.4
I On November 20, 1979. General Counsel filed a motion to strike or
alternate motion to receive evidence as admission General Counsel's al-
ternate motions are both denied
Ayers had received a layoff letter from Associated dated December
17. 1974. hich, according to Ayers. protected his seniority rights with
Associated and any successor for 3 years
' Gowens is a supervisor
I do not conclude, as General Counsel would have me. that Go ens'
remark indicates animus
252 NLRB No. 128
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In January 1978, Ayers had a conversation with
Charles Chappell, the office manager," about his griev-
ance. During this conversation Chappell told Ayers that
Vaughn was in hot water because if Ayers won his
grievance, all employees would have to be given their
rightful seniority everywhere that Wilson had bought
Associated rights.6
General Counsel contends that these two conversa-
tions indicate animosity on the part of Respondent
toward Ayers because he filed the grievance. I find them
inadequate evidence thereof.
In January 1978, after Ayers completed his shift, he
was asked by his supervisor to put some chemicals into
the tractor and trailer to keep the brakes from freezing.
Ayers stated that he had completed his 8 hours, that put-
ting the chemicals into the trucks was mechanical work,
that he was not a mechanic, and that he was going
home. He then left. Subsequently Ayers was told that he
was discharged for walking off the job. Ayers went to
the union hall and told Johnson what had happened.
Johnson then went to the terminal and talked to Vaughn
about Ayers' discharge. As a result, Ayers' discharge
was rescinded and in lieu thereof Ayers was given a 1-
day suspension and a warning.
In March 1978, one of Respondent's over-the-road
drivers retired leaving an opening for another driver.
The terminal manager assigned a casual employee to the
job so Ayers went to Vaughn and told him the job
should have been posted so that city-drivers with senior-
ity could bid on the job. Vaughn told Ayers that he was
going to hire the casual permanently to fill the over-the-
road slot. Ayers then reported the situation to the Union.
Al Johnson, the Union's secretary-treasurer, called the
terminal manager and asked about the matter. When he
hung up the phone he told Ayers, who had been present
during the telephone conversation, that Vaughn had re-
peated that he was not just going to employ the casual to
fill the over-the-road slot but was going to hire him per-
manently for the job. Subsequently, the Union contacted
Respondent's home office in Cincinnati and despite the
initial position taken by Vaughn the job was eventually
posted, bid on, and gotten by a city driver.
The incident was offered by the General Counsel as an
example of Ayers' activities on behalf of the Union for
which Ayers was allegedly discriminated against. I find
that Ayers' activity was protected.
In April 1978, Ayers approached Vaughn to complain
about Respondent's subcontracting out certain city work
rather than using its own drivers. Ayers also brought the
matter to the Union's attention. Shortly thereafter the
subcontracting was discontinued.
s Ayers testified that Chlappell was the assistant terminal manager and
exercised supervisors authority by sending drisers home, calling them to
swork. alld assigning them runs lie was. according to Ayers, a dispa;ltcher
Vaughn testified that Chappell, the office manager, rn the lermilal i his
absence hut (only at Vaughln's direction. He also lestified that anyolle
called to work by Chappell had it) he called from an approved list made
up by Vaughn Chappell had authority to sign checks and to instruct em-
ployees I find him to he a supervisor.
Es idence discussed ira indicates that the effect of Avyers' gricsalnce
on Respondent ', operaltions Asas mninimal I therefore fitld that C(happell's
remark reflected most likel! his personal opilionl alnd hld ver little if
aly, hlsis in fact I hus. I do ntot conclude thlt Chappel's statement con-
linciligl inldicates anillisity onl Respionldelt's part towsrd Avers
Also in April Ayers became ill with the flu. Though
he called in on a Monday to advise Respondent that he
was ill he did not do so the next few days. He subse-
quently received a discharge notice based on his failure
to call in. Ayers went to the union hall and informed his
representative of what had occurred. He was told to go
home until he was well, then report to work. When he
reported to work, he was given his job back again.
At one point in time, not clear from the record, fol-
lowing a reorganization of management, Respondent
placed in Ayers' employee file a notice concerning ex-
cessive absenteeism. When Ayers was notified of this fact
he filed a grievance. As a result of the grievance the
notice was removed from his file.
In September 1978 Ayers won the grievance which he
had filed the previous December and was awarded full
seniority. The award resulted in Ayers being placed
higher on the seniority board than he had been before. In
toto the decision affected three employees situated at two
of Respondent's 61 terminals. The net effect appears neg-
ligible.
B. The Events of October 18, 1978
Ayers testified that on October 18, 1978, he reported
to work at 8:30 a.m. He waited in the break room until 9
a.m. at which time he punched in. Two other individuals
were present in the break room at the time. 7 After
punching in, Ayers was dispatched out with tractor H-
101 by Ross Gowens, the dispatcher. When Ayers
checked out the truck he found that it only had one
windshield wiper which was on the left side; there was
no defroster; the signal lights were extremely dim; the
right door window had been replaced with a blue tinted
celluloid window rather than glass; and the brakes were
very bad. The checking out of the truck, which took
place in the terminal yard, took about 30 minutes.
Ayers then went back to Gowens, reported the condi-
tion of the truck to him, and asked for a different truck.
Gowens replied that H-101 was the only truck available.
Ayers replied that in that case he would have to talk to
Gowens' superior, David Morgan, the terminal manager.
Ayers then went to Morgan's office and reported to
him the condition of H-101. Morgan replied that he
would have to stand behind Gowens, and if Gowens told
Ayers to drive H-101, he would have to do it. He added
that Ayers should at least take the truck out on the road
for a mile or two and then call back to the terminal and
Morgan would send him another truck. Ayers again ob-
jected to the condition of H-101 and complained how he
had recently been sent out with two other trucks in poor
condition and had almost been involved in accidents. In
describing one of the incidents, wherein Ayers was
almost struck by an automobile while putting flares out
on the highway near his stalled truck, he took off his hat,
waved it, and dropped to his knees, just as he had done
during the near accident, the day before. Morgan, how-
ever, just laughed at Ayers and insisted that he take the
truck out. Ayers said that the truck was unsafe and he
Neither of he two individuals "as called to teslilfy
" Aers had drivten this truck just once hefore It ,was the oldest truck
on the lot
918
WILSON FREIGHT COMPANY
would not take it out but that he would be glad to go to
work if he were assigned another truck. Ayers testified
that there were four other trucks available for driving
that day.
When Ayers continued to refuse to take the truck as-
signed to him and go to work and Morgan became angry
and began to raise his voice. So did Ayers. Ayers said he
was going to call the Union to get the matter straight-
ened out. Both Morgan and Ayers then left Morgan's
office. As they came out onto the dock, Bill Denson, the
job steward, happened to be standing there. Ayers there-
fore explained the entire situation to Denson, particularly
the condition of H-101, and the reasons why he was re-
fusing to drive it. In so doing, Ayers once again demon-
strated, this time for Denson's benefit, what had oc-
curred the previous day, waving his cap and playing the
scene out in graphic fashion. At this point, Morgan asked
Ayers if he had been drinking. Ayers smiled and said, "I
don't drink. You're trying to to twist it for me-for me
turning the truck down, for me to be drinking. I don't
drink." Morgan then asked Ayers to go to Hapeville
Clinic to get a blood test but Ayers countered that he
felt that he "would get a fair shake if he would go to
any private organization . . . or to Grady's Hospital."
Morgan, however, insisted that Ayers go to Hapeville
Clinic.
Meanwhile, Denson had advised Ayers that in his
opinion the Company could request a man to take a
truck out on the street. Ayers, however, disagreed and
stated once again that he would call the union hall to get
the matter straightened out. He proceeded into the break
room where he called the union hall but was unable to
contact either of the two union officials who represented
Respondent's employees. Ayers then told Morgan that
he was going to the union hall to try to get matters
straightened out, meaning apparently both the question
of his having to take out H-101 and the question of
where he should take the blood test.
Ayers got into his car and drove to the union hall
where, by that time, Freddie Thomas, one of the union
officials, had arrived at work. He told Thomas what had
occurred. Thomas then called Morgan and discussed
with him the problem or the "bad equipment" and
Ayers' refusal to drive it as well as the accusation that
Ayers had been drinking. Thomas tried to get Morgan to
put Ayers back to work. After hanging up the phone,
however, he informed Ayers that Morgan had refused to
give him his job back because he had abandoned his job
when he walked off.
Ayers testified that he had not been drinking on the
morning of October 18 and in fact does not drink at all.
Ross Gowens, Respondent's dispatcher, was called to
testify concerning the events of October 18. His version
is quite different from that of Ayers. According to
Gowens, Ayers punched in at 9 a.m. at which time he
dispatched him out on tractor H-)01.9 Ayers picked up
his written assignment, looked at it, said, "I ain't driving
that damned thing." arid threw the assignment and the
9 (io. en credibl' testified that ~ehicl e H-(101 had a short trailer
which required the use f .t single axle ractor Since Asers was, next out
and H-(IOI was the lnext tracwslr aiiatlahl. Ayers a. as signed H- 1()1
clipboard to which it was attached down on the table.' 0
Gowens replied that Ayers should talk to Morgan and
pointed through the window where Morgan and Denson
could be seen standing in the dock area. Ayers, as in-
structed, went out to the dock where Morgan and
Denson were standing and began to talk with them. He
did so for 25 or 30 minutes. He did not, according to
Gowens, go to the lot to check out H-101. After Ayers
left to talk to Morgan, Gowens went about his business.
About 9:30 a.m.'' or thereafter, Gowens walked into
Morgan's office to ask him a question. Morgan was there
with Ayers and Denson. Gowens observed that Ayers
was talking in a loud manner when he first walked in' 2
and testified further that when he walked into the office
he could smell alcohol. 3 He asked his question of
Morgan, then left.
After Gowens left Morgan's office, he noticed that
Morgan, Denson, and Ayers went back out onto the
dock again where they continued to talk. While this dis-
cussion was continuing, Gowens reassigned H-101 4 to
another driver named Lydle.' 5 Gowens described the
discussion out on the dock as a commotion. When asked
to explain his terminology he indicated how Ayers had
been swinging his hat, evidently describing his near acci-
dent of the day before.
Respondent called David Morgan' 6 to testify concern-
ing the events of October 18. According to Morgan, a
little after 9 a.m. Ayers approached him while he was
standing on the dock talking to the job steward, Bill
Denson. Ayers stated that he was not going to drive
H-101. Morgan asked him why, and Ayers replied that
he thought that H-101 was a piece of junk and that he
wanted to drive one of the two rental tractors which
were parked at the terminal. Morgan explained that the
rental tractors were only used in emergency. 8 When
Ayers continued to object to having to drive H-101,
Morgan told Aycrs that if he had been assigned to drive
H-101, he would have to drive it unless he determined
that it was unsafe in which case the Company would
o Ayers denied throwing his assignment back at (iowens that morn-
itg I credit Gowens
X Gossens initially testified that it was a little after 9 a.m when he
walked in Morgan's office. Later. he stated that it was 9:30 am. or later.
I ind the discrepancy not controlling
*2 After Gowens entered and began to ask Morgan his question. Ayers
quieted dov,n
L Gowens testified that earlier hat morning when he assigned Ayers
to 11-101. he did not notice alcohol on his breath. He also testified, how-
ecer that when he walked into Morgan's office a while later, he did
smell alcohol He did not state that it necessarily emanated from Ayers
14 There were at the time, according to (;owens. one or two rented
trucks and perhaps 2 Wilson over-the-road tractors at the terminal As
noted nfrau. Morgan testified that these could not be hooked to the trailer
which H-1()01 was scheduled to pull
s Itnbekinov lin to Gowens, t ydle did not immediately go out on his
route A Morgan testified. fra. the truck was first checked out by a
mechanic
Morgan was operations manager at the time
Morgan denied any earlier conersation with Ayers
Respondent is charged $55 per day plus mileage if the rental trucks
are used but nothing if they are not They are therefore only used if there
are no W ilson tractor aailable Morgan testified credibly that the two
W'il,si tractors at tihe terminal were over-the-road tracltrs which could
not he hitched I( the trailer already hooked it 11-101
419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a mechanic check out the truck and repair it if nec-
essary.
Ayers complained that H-101 was, indeed, unsafe to
which Morgan replied that a driver cannot simply decide
that a truck is unsafe without even getting into the cab.
He would first have to get into the unit and then deter-
mine whether or not it was safe. According to Morgan,
Ayers admitted that he had not yet tested the unit so
Morgan insisted that he do so. Denson joined the discus-
sion by attempting to assure Ayers that no driver would
be forced to drive an unsafe vehicle.
Ayers continued to object to having to drive H-101
and while on the subject of safety began to relate an inci-
dent which had occurred the day before when his trac-
tor had stalled near a busy intersection. While describing
the event Ayers physically demonstrated how he had
gotten out of his truck, placed flares out on the road, and
waved the traffic on through the intersection and away
from his truck. He related how a woman driving
through almost struck him, describing the incident in a
loud voice, demonstrating by removing his hat and
waving it in the air. Morgan testified that as Ayers went
through his description of the incident he sounded irra-
tional, appeared unsteady on his feet, and Morgan could
detect the smell of alcohol on him.
Morgan asked Ayers, at this point, if he had been
drinking. Ayers denied that he had. Morgan then stated
that he wanted Ayers to take a blood alcohol test and
explained why he thought it was necessary.' 9 Ayers re-
fused. Morgan offered to take Ayers to the company
doctor but Ayers refused the offer. Denson at this point,
asked Morgan if Ayers could have the day off. Morgan
replied that they should first find out what was going on
and discuss it. Denson then took Ayers to one side and
talked with him, after which he and Ayers entered Mor-
gan's office where Morgan had, in the meantime gone.
Denson renewed his request to Morgan to let Ayers take
the day off. Morgan refused and, after the entire situa-
tion was rediscussed, once again insisted that Ayers take
the alcohol test. Ayers again refused and accused
Morgan of forcing him to take the alcohol test in retali-
ation for Ayers' refusing to drive H-101, an accusation
which Morgan denied. When Morgan again insisted on
the blood test Ayers walked out the door. Both Morgan
and Denson followed Ayers out the door to the corner
of the dock where Morgan warned Ayers that if he left
the premises "under these circumstances" he would be
abandoning his employment. Ayers continued walking
with Morgan and Denson following him half way across
the parking lot. Ayers continued to walk in the direction
of his car while Morgan and Denson again advised
Ayers that if he left, he would be abandoning his em-
ployment. Ayers had, at one point, stated that he wished
to speak to his union representative, so Morgan and
Denson suggested that he go into the break room and
19 Morgan testified that he had authority to require an employee to
take a blood test by virtue of the bargaining agreement in effect at the
lime between Respondent and the Union. That bargaining agreement
contains the provision that being under the influence of alcohol while on
duty is grounds for discharge. The blood test, according to Vice Presi-
dent of Services and Administration Fisher, has been used within the
Company and throughout the industry as a means of protecting both the
employee ad the Company where a accusation of drinking is made.
call the union hall, but not to leave the premises. Ayers
did not follow their suggestion but stated that he would
not take the blood test, got into his car, and left. Re-
spondent takes the position that Ayers, by walking off
the job, voluntarily quit. That day, by certified mail,
Ayers was so advised.
About 2 p.m., according to Morgan, he received a call
from Freddy Thomas, the union representative, who
asked him what had happened. Morgan described the
events of that morning. Thomas then advised him that
Ayers would now agree to a blood test and requested
that he be permitted to go to his doctor and have it
done. Morgan refused to agree to a blood test at that
time since it was 4 or 5 hours later and a true reading
was no longer possible. Thomas then offered to send
Ayers to the company doctor but Morgan again refused.
Respondent called the job steward, W. E. Denson, to
testify as to the events of October 18, 1978. Denson testi-
fied that on the morning of October 18 he had been in a
meeting with Morgan between 8:30 and 9 a.m. At or
about 9:05 a.m. he and Morgan came out onto the dock
at which time Ayers came up and began talking about
tractor H-101. He told Morgan that he did not want to
drive that particular truck because it was no good, a
piece of junk, and unsafe. Denson told Ayers that before
he refused to drive a vehicle he should go out there and
check it out, then tell Morgan and himself what is wrong
with it. Ayers replied he had done so but Denson testi-
fied that they had started talking 5 minutes after Ayers
punched in and "he wasn't out of my sight until he
walked off the dock." In other words, Ayers did not
check out H-101. There followed, according to Denson,
a heated argument. Then Morgan asked Ayers if he had
been drinking and Ayers said, "no." Morgan, however,
insisted that Ayers take a blood test.20 Denson asked
Morgan to let him talk to Ayers alone. Morgan agreed
and went into his office leaving Denson and Ayers alone
on the dock. Denson told Ayers, "Don't look like we're
going to get anywhere here. Why don't you let me get
him to let you take the day off?" Ayers replied, "Well,
we'll see." Denson and Ayers were then called into his
office 21 by Morgan where they renewed their earlier dis-
cussion about Ayers not wanting to drive the truck be-
cause it was not safe.2 2
Denson testified that during the discussion in Morgan's
office he had succeeded in getting Morgan to agree to
let Ayers go home and "just mark off for that day," 2 3
but that when the three of them left the office and were
back out on the dock, Morgan stated that he could not
agree, that he wanted Ayers to take a blood test. After
several more minutes of discussion Ayers said he was
leaving and started walking across the dock with
Morgan and Denson following. Morgan then stated, "If
you leave, you know what this means." Ayers did not
2o When Denson was asked whether he, at any time, smelled alcohol,
Denson replied, "I can't say that I did or didn't."
Z' Denson recalled Gowens coming into the office during the conver-
sation between Morgan, Ayers, and Denson.
22 Denson recalled Ayers talking about the incident of the day before
hut did not elaborate to any great degree.
2:' Denson testified that he asked Morgan to let Ayers take the day off
because they were all upset due to the argument that had occurred
920
WILSON FREIGHT COMPANY
reply, as far as Denson could tell. Morgan repeated the
warning twice more but Ayers got in his car and left.
Respondent called W. L. Nicholson to testify concern-
ing certain events which occurred on October 18. Nich-
olson is owner of Nicholson & Son Diesel Service, the
company which services Respondent's trucks. On Octo-
ber 18 about 10 or 10:30 a.m., according to Nicholson,
he received a call from Morgan who asked him to come
over and check out a truck. When he arrived he was
told to check out H-101. Nicholson and another one of
his mechanics drove H-101 around the parking lot. He
had not been told what, if anything was wrong with the
truck. He checked the lights, windshield wipers,
brakes,24 and everything else. Nothing was found to be
wrong2 5 with the truck except that it needed a bulb in
one of the signal lights. 2 6 This was replaced.
On October 19, 1978, Ayers filed a grievance concern-
ing his discharge. During the week of December 4 in
Biloxi, Mississippi, the Southern Multi-state Grievance
Committee heard Ayers' case. The committee was dead-
locked and no decision was rendered. On January 9,
1979, the case was taken a step further and the Union
lost. Ayers' discharge was upheld.27
Analysis and Conclusion
The facts surrounding the discharge of Ayers on Octo-
ber 18, 1 find to be as testified to by Morgan, Gowens,
and Denson. 28 Where the testimony of Ayers differs
24 H-1IO previously had brake trouble which Nicholson repaired sonie-
lime before October R18.
2. Subsequently, on November 6, the truck was found in need of a
brake repair joh and the work was done. The truck had, however, been
used frequently between October 18 and November 6
26 Since Nicholson found only one thing wrong with H-101 while
Ayers enumerated a number of specific problems, a credibility issue arises
between Nicholson and Ayers t credit Nicholson as to his testimony
concerning the condition of H-101 on October 18. I find that Ayers' de-
scription of the truck probably was based on its condition the previous
time he was assigned to drive it. Nicholson had been called by Morgan
after the confrontation with Ayers just to check out anything that might
have been wrong with the truck and presumably to support his position
with respect to Ayers' termination.
27 As far as the record indicates, the question of whether Ayers was
discharged because of his having engaged in protected activity was never
really considered by the grievance committee though Ayers had charged
that this was one of several reasons For that reason I find that the
Board has jurisdiction Suburban Motor Freight, Inc., 247 NLRB No 2
(1980).
28 Certain minor discrepancies in the testimony of Respondent's it-
nesses have been considered but are found to he basically innocuous For
the most part Respondent's witnesses supported each other's testimony
from theirs, I do not credit Ayers. From the credited tes-
timony I find that the incident which occurred on the
morning of October 18 and which gave rise the dis-
charge of Ayers was totally spontaneous and the sole
reason for his termination. 2 9 The record is totally devoid
of any evidence which can logically be used to connect
Ayers' discharge to the protected activity in which he
had participated during his tenure with Respondent. I
find, therefore, that the General Counsel has failed to
prove that Ayers' discharge was founded on pretextual
groundst ° or that it was motivated by discriminatory
considerations. I recommend that the complaint be dis-
missed in its entirety.
CONCI.USIONS OF LAW
1. The International Brotherhood of Teamsters, Local
728, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce as
defined in Section 2(6) and (7) of the Act.
3. Respondent has not committed any of the unfair
labor practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER31
It is ordered that the complaint be, and it hereby is,
dismissed in its entirety.
and w haleer minor difference appear in the transcript I charge to a fail-
ure of menior or honest mistake rather than to a lack of v\eracity
:i" hus. I find that Ayers did not get into tractor H-101 and try it out
il the lot before refusing to drise it; that an argument ensued: that
Morgan honestly suspected Ayers of having been drinking and legiti
mately demanded he take a blood alcohol test: and that Ayers refused
and walked off the job.
'" The General Counsel, in part, relies on the disparate treatment of
another employee to support his theory that Ayers' discharge sas pretex-
tual. I find, however. that the circumstances surrounding the discharge of
the other employee are factually distinguishable
a" In the event no exceptions are filed as provided by Sec 102 4 of
the Rules and Regulations of the National Labor Relations Board, he
findings. conclusions, and recommended Order herein shall, as provided
in Sec 10248 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
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