Thurston Motor Lines

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 385 (N.L.R.B. 1981)

THURSTON MOTOR LINES
Thurston Motor Lines and General Teamsters Local
Union No. 528. Case 10-CA-15933
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 26, 1981, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions 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
conclusions2 of the Administrative Law Judge and
to adopt his recommended Order.3
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 Respondent, Thurston
Motor Lines, Athens, Georgia, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products;
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In the absence of exceptions thereto, the Board adopts, pro forma, the
Administrative Law Judge's conclusion that Michael Sims was a supervi-
sor within the meaning of Sec. 2(11) of the Act.
3 Member Jenkins would award interest on any backpay owed Blaine
Hunsinger on the basis of the position set forth in his partial dissent in
Olympic Medical Corporation, 250 NLRB 146 (1980). He would not rely
on Wright Line, a Division of Wright Line. Inc., 251 NLRB 1083 (1980), as
establishing that the General Counsel must prove a prima facie case; this
has been the General Counsel's burden since the statute was enacted
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge:
This case was heard in Athens, Georgia, on March 13
and 19, 1981. The charge was filed by General Team-
sters Local Union No. 528, herein called the Union, on
June 16, 1980,1 and the complaint based on the charge
was issued on July 28 alleging that Thurston Motor
Lines, herein called the Respondent or the Company,
All dates are in 1980 unless otherwise stated.
violated Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended, herein called the Act, in dis-
charging its employee, Blaine Hunsinger. The sole issue
presented by the case is whether Hunsinger was dis-
charged because of his involvement in activities on
behalf of the Union.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the positions and arguments of the parties, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a North Carolina corporation with
an office and place of business located at Athens, Geor-
gia, where it is engaged in the interstate transportation of
freight by truck. During the calendar year preceding the
issuance of the complaint the Respondent derived gross
revenues in excess of $50,000 from the interstate trans-
portation of freight. The complaint alleges, the Respond-
ent's answer thereto admits, and I find that the Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. It is further
alleged, the Respondent admits, and I find that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
Blaine Hunsinger, hereafter called Hunsinger, was em-
ployed by the Respondent at its Athens, Georgia, termi-
nal on August 8, 1973, and at the time of his discharge
on May 22 was working as a city truckdriver. Hunsinger
testified without contradiction that he had received no
warnings or reprimands concerning his work during the
time of his employment at the Respondent. Robert Bell,
the Respondent's terminal manager from about 5 months
prior to Hunsinger's discharge, conceded that Hunsinger
was "basically" a good worker and a "hustler type,"
who "tried to strive, in a lot of ways, to out perform the
other drivers, like he was in competition or something."
Hunsinger began the union organizational activity
among the approximately 13 employees utilized by the
Respondent at Athens by writing the Union in December
1979. Subsequently, Hunsinger received blank authoriza-
tion cards for the Union which he passed out to the
other employees during January. According to Hun-
singer, who testified that he signed a union card himself,
no other employee distributed union cards among the
Respondent's Athens employees.2
The record does not reflect whether Hunsinger's inter-
est in the Union was whetted by his temporary part-time
work in December 1979 for Carolina Freight Carriers, a
2 The Union conducted its campaign among the employees on a sys-
temwide basis. thus including the Respondent's other terminals in other
cities. It was stipulated by the parties that this activity culminated in the
Union's filing of a petition on April 9 after which a decision and direc-
tion of election was issued by the Board on June I and an election was
conducted, partly by mail ballot, around July I
258 NLRB No. 48
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company whose employees were represented by the
Union. Hunsinger's testimony was, however, that he did
work for that company with the express knowledge and
permission of Howell E. Newton, the Respondent's ter-
minal manager at the time. Moreover, Hunsinger testified
that shortly after that brief period of employment with
Carolina lasting about 3 weeks during December 1979,
Newton told Hunsinger that he had to turn in a list to
the Respondent's home office of the Respondent employ-
ees who had ever worked for a union freight line. Hun-
singer told Newton he no longer worked for Carolina at
the time.3
In addition to distributing union cards at the Respond-
ent's Athens terminal, Hunsinger related that in late Jan-
uary as he was leaving the Respondent's terminal prem-
ises he stopped for a few minutes to talk to a union rep-
resentative, Mosely, who was distributing leaflets to em-
ployees at the terminal gate. While so engaged, Hun-
singer observed Michael Sims, a billing clerk and dock
foreman for the Respondent, 4 standing at the terminal
doors some 15 to 20 yards away looking out.5
Also in January, based upon Hunsinger's testimony,
Sims engaged Hunsinger in a discussion about the Union
in the terminal office in the presence of office clerical
Holly Harper concerning the Union and union benefits.
While Hunsinger reported that the conversation began
by Sims asking him questions about the Union, he failed
to relate the specific questions.6
Sims initially testified for the Respondent that he had
no conversation with Hunsinger about union benefits, but
I Newton, who at the time of the hearing was no longer employed by
the Respondent, was called by the Respondent and denied Hunsinger's
testimony both with respect to knowledge about Hunsinger's part-time
work for Carolina and the making of a list of employees who had
worked for a "union" freight line. While Newton testified that the Re-
spondent was not concerned with whether employees worked elsewhere
on their off time so long as it did not interfere with their work at the
Respondent, he admitted that at least one employee, not Hunsinger, had
specifically asked for permission or approval to work elsewhere on his
off time. Hunsinger's testimony on having asked Newton for approval to
work at Carolina was plausible and delivered in a credible and convinc-
ing manner. I credit him where his testimony differs from that of Newton
who, I find, was less persuasive.
' At the hearing the Respondent took the position that Sims was not a
supervisor or agent. The record reveals, however, that Sims directed the
work of the terminal after the terminal manager left in the evening and
prior to shutdown of the terminal at night. In performing his work, Sims
directed employees in the loading of trucks, dispatched trucks, selected
employees for overtime work, initialed timecards of employees and re-
leased them to go home upon his determination that the work had been
done. Terminal Manager Robert Bell concedes that employees were told
that Sims was "over the dock" and Sims was "dock foreman." If Sims,
who worked part-time and otherwise was a full-time student at a local
university, were not a supervisor, it would mean that the Respondent al-
lowed its terminal to remain open and its employees to work without su-
pervision from the time Bell left the premises until closing, a period of
from 2 to 5 hours. See Sumco Manufacturing Co.. Inc.. Summit Grinding
Company. 251 NLRB 427 (1980); Ludwig Fish & Produce. Inc.. 220 NLRB
1086 (1975). Accordingly, I conclude that Sims was a supervisor within
the meaning of Sec. 2(11) of the Act.
' Sims denied having seen Hunsinger talking to Mosely. In view of
Sims' admission that he observed other drivers leaving the terminal refus-
ing to take handbills from Mosely. I find it highly unlikely he would
have failed to notice one who would stop to talk to Mosely. According-
ly, and since I was impressed with the sincerity and earnestness of Hun-
singer, I credit Hunsinger that Sims did observe him.
I No coercive interrogation was alleged in the complaint or argued by
the General Counsel.
on cross-examination recalled that he talked to Hun-
singer at some point about the Union. Holly Harper,
called by the Respondent, was vague in her recollections
and could recall no specific conversations between Sims
and Hunsinger about the Union in her presence, but con-
ceded that Sims and Hunsinger may have discussed the
Union in her presence with other drivers also present.
Hunsinger's recall appeared to be generally good and his
sincerity has already been noted. That his testimony was
not the product of imagination or fabrication is indicated
by the concessions of Sims and Harper that there may
well have been some discussions sometime between Sims
and Hunsinger about union benefits. Accordingly, I
credit Hunsinger's claim that such discussion took place
as he testified.
There was one additional occasion when the Union
distributed handbills at the Respondent's front gate. That
was early April after the Union had filed its representa-
tion petition and Mosely was distributing literature to the
employees announcing the filing of the petition. That the
Respondent was aware of Mosely's identity and the fact
of his handbilling on this occasion was established in that
part of Hunsinger's uncontradicted testimony to the
effect that he heard Sims inform Bell that the union
people were out in front of the gate. Bell thereafter
walked over and looked out of the terminal to personally
confirm Sims' report. Shortly thereafter, Hunsinger left
the terminal and again stopped and talked to Mosely at
the gate for a few minutes.
B. The Discharge
On May 21 Hunsinger drove a tractor-trailer rig not
regularly assigned to him.' He experienced trouble with
a clutch pin which had slipped out and made the clutch
inoperable.8 Hunsinger was able to effect a temporary
repair by simply reinserting the pin, but without some re-
tainer on the pin it could be expected to come out again.
Hunsinger related that when he returned to the terminal,
he talked to Bell on the dock and advised him of the
trouble with the clutch pin, but told Bell he would like
to drive that tractor on a permanent basis. Bell indicated
approval, according to Hunsinger. Hunsinger further tes-
tified he also asked if he could take the truck home to his
father-in-law's shop and repair the clutch pin with no
cost to the Company. According to Hunsinger, Bell re-
sponded that it was "okay." 9 Thereafter, Hunsinger fin-
ished up his work at the terminal after Bell had gone
; Tractor 628 which Hunsinger was driving on May 21 was normally
driven by another more senior employee who on this date was trying out
a new truck to determine whether he wanted to drive the new truck on a
regular basis.
'Trouble with the clutch pin appeared to be a recurring problem since
the regular driver had periodically experienced the same difficulty.
9 This alleged response of Bell differs in Hunsinger's pre-hearing state-
ment to the Board in which he had related that Bell only nodded his
head affirmatively. I do not view this difference as a significant one im-
pairing Hunsinger's credibility. While Hunsinger testified that two other
drivers were on the dock at the time about 20 feet away. there is no evi-
dence that either heard any remarks between Bell and Hunsinger.
386
THURSTON MOTOR LINES
home, and then told Sims that he was taking tractor 628
home to fix it. 0
Hunsinger did in fact take the tractor home with him
and did in fact repair the clutch pin." No evidence was
presented that Hunsinger had any other purpose in
taking the tractor home than to repair it, nor was there
any evidence that he abused the tractor or utilized it for
personal gain during the time he was away from the Re-
spondent's premises. Hunsinger returned the repaired
tractor to the Respondent's premises the following morn-
ing when he reported for work.
Hunsinger worked as usual on May 22, but after re-
turning to the terminal at the end of the day he was
called into Bell's office where Bell told him that he was
going to have to terminate him. When Hunsinger asked
why, Bell responded that he had taken the tractor off
company property without permission. Hunsinger pro-
tested that Bell had given him permission, but Bell reiter-
ated that Hunsinger had taken the vehicle and "brought
it on yourself." Hunsinger offered to pay for any fuel
used in taking it home, but to no avail. The discharge of
Hunsinger was completed with the surrender of his keys
and identification card. While Hunsinger telephonically
attempted to take the discharge up with Bell's supervi-
sor, Levengood, that same evening he was told that the
matter was in Bell's hands. Accordingly, the next day he
returned to the terminal to pick up his paycheck and
again saw Bell and asked for his job back. The request
was denied.
C. Contentions of the Parties
The General Counsel contends, based upon Hun-
singer's testimony, that the Respondent was well aware
of Hunsinger's union activities and sympathies and that it
discharged him because of such activities and sympa-
thies. In support of the position that the Respondent
knew of Hunsinger's union sympathies the General
Counsel points to Sims' observation of Hunsinger talking
to Mosely, and the fact that Hunsinger had outlined
union benefits in a conversation with Sims. Moreover,
the General Counsel urges that even if direct knowledge
of Hunsinger's union activity was not established, such
knowledge could be inferred under the "small plant doc-
trine."
With respect to the discharge, the General Counsel
argues that the discrimination against Hunsinger was
shown by the specious if not entirely false reason for the
discharge, the time of the discharge during the pendency
of the representation petition, the fact that the discharge
was accomplished without warning, and the absence of
any unsatisfactory employment history on Hunsinger
which might otherwise justify the imposition of the
harsh penalty of discharge.
Finally, as evidence of the pretextual nature of the dis-
charge, the General Counsel relies on Hunsinger's addi-
'o Sims in his testimony concedes that Hunsinger specifically) told him
he was taking the tractor home with him. Sims told Hunsinger that if it
was all right with Bell, it was all right with him.
" There is no evidence that the repair was not made and, on the con-
trary, the regular driver of 628, Blanchard Hart, testified that he had en-
countered no further problem with the clutch pin following Hunsinger's
discharge.
tional testimony that he and other employees had taken
trucks home before on prior occasions without being
reprimanded or disciplined therefor. More specifically, in
this regard, Hunsinger testified that in 1975 he had taken
a straight truckS2 home with the knowledge and permis-
sion of then Assistant Terminal Manager Newton for use
in moving his personal effects when changing homes.'3
Further, Hunsinger related that on another occasion in
1977 he took a tractor home with Newton's permission
to install a CB radio in it and on still another occasion,
about February 1979, took a straight truck home to put
an AM/FM radio in it.'4 Hunsinger also testified, with-
out specific contradiction, that two employees, Charles
Miller and Ray McGinn had taken trucks home with
them in 1979. Hunsinger admitted that he had not taken
any trucks home after Bell became terminal manager in
January and before May 21.
Through Bell the Respondent denied that the existence
of a union campaign was a consideration in Hunsinger's
discharge. According to Bell, the Respondent had a
policy, uniformly adhered to while he was terminal man-
ager, not to allow employees to take company trucks
home due to insurance and safety concerns as well as the
possibility of misuse of the trucks. He specifically denied
indicating approval of Hunsinger taking tractor 628
home on May 21 and, on the contrary, testified Hun-
singer did not specifically ask to take the tractor home,
and ultimately conceded as much when told of his dis-
charge on May 22. Although Bell testified that Hun-
singer had mentioned on May 21 that he could take the
truck to his father-in-law's shop to fix it, Bell had re-
sponded "something to the effect" that he would have
Lee, the local mechanic, fix it. '5 However, Bell conceded
that Lee had left for the day and he had not specifically
requested Lee to repair the truck. Bell first became
aware of Hunsinger's taking the truck home when upon
coming into work the next day he noted that Hunsinger's
personal vehicle, a pickup truck, had not been moved
from the terminal overnight. Upon inquiry, he learned
that Hunsinger had taken the Respondent's truck home
and he thereupon made the decision to discharge him
after checking telephonically with his superior in the Re-
spondent's home office. When Hunsinger returned to the
terminal from his route in the afternoon, Bell effectuated
his first discharge of a company employee. Bell conced-
ed that he did not talk to Hunsinger prior to making the
discharge decision, nor did he even check his personnel
1 A straight truck as used herein refers to a truck having a cab perma-
nently affixed to the load bed and is to be distinguished from a tractor-
trailer rig.
" The Respondent conceded that its past practice was to allow its em-
ployees to utilize its trucks in moving to new homes.
" While he denied that he had ever given Hunsinger permission to
take a truck home to put a radio in it, he admitted that he had once al-
lowed Hunsinger to take a truck to his father-in-law's shop to ee about
having some brakes repaired. Again, I credit Hunsinger where his testi-
mony contradicts Newton's. Hunsinger's recall was impressive inasmuch
as he specifically related the vehicle numbers of the trucks he testified
ahout. I am convinced that his testimony in this regard was reliable and
accurate.
' Hunsinger admitted that the usual procedure for the repair of me-
chanical problems was to advise the dispatcher in writing and then if the
repair was not made, to report it to the terminal manager
387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
file to consider Hunsinger's employment history and its
effect on the discharge decision. In short, it was the Re-
spondent's position that Hunsinger was discharged for
cause, i.e., removal of a tractor from the Respondent's
premises without permission.
D. Conclusion
Critical to a finding of a violation in this case is the
determination of whether the Respondent knew of the
union activities and sympathies of Hunsinger. Based
upon the record considered as a whole and that portion
of Hunsinger's testimony I have already credited, I con-
clude that the Respondent did have such knowledge.
Thus, it is clear that Hunsinger was observed by Sims
talking to Mosely whose identity as a union representa-
tive was known to the Respondent, so Hunsinger's union
sympathies and inclinations would be immediately sus-
pect. Sims admitted that he had observed other drivers
leaving the premises during Mosely's handbilling and
they were not "taking anything." Under such circum-
stances, a driver who took the handbills or stopped and
talked to Mosely must be regarded as sympathetic to the
Union. I conclude therefore that there was direct knowl-
edge of Hunsinger's sympathies.
Even assuming that there was no direct knowledge of
Hunsinger's union activities or sympathies, there is sub-
stantial evidence on the record from which such knowl-
edge may be inferred. Such an inference here is warrant-
ed under the Board's small plant doctrine. See Wiese
Plow Welding Co., Inc., 123 NLRB 616 (1959). There
were only about 13 employees employed by the Re-
spondent at the Athens terminal. Hunsinger was the only
employee shown to have distributed union cards. There
is no evidence he attempted to hide his union activity or
sympathy. He discussed and explained union benefits
with Sims, and he, with Newton's knowledge as I have
found, had worked on a part-time basis for a short while
for an employer whose employees were represented by
the Union. The Respondent was interested in such prior
employment as demonstrated by Hunsinger's credited
testimony that Newton sometime in December 1979 was
compiling a list of employees who had worked for
"union" employers. Bell's personal interest on the point
was revealed by his candid admission that he was "inter-
ested" in knowing whether employees were engaged in
union activities. Moreover, he was admittedly aware of
the union activity at the terminal from the first week he
started work at the terminal sometime in January. Bell
further admitted that Hunsinger had voiced frequent
complaints concerning his working conditions. And Hun-
singer testified without contradiction that at a company-
called meeting for the purpose of expressing opposition
to the Union on May 8, Hunsinger had raised a question
of Bell regarding layoffs by seniority. In view of such
complaints and questions during the existence of the
union organizational campaign, Hunsinger would have
had to be regarded as a likely union supporter. Finally,
while he at one point testified he did not know whether
Hunsinger fit into a procompany or prounion slot, Sims
answered a question by the General Counsel about
whether Hunsinger had ever said anything to Sims dem-
onstrating Hunsinger's union support by the evasive and
unconvincing reply, "No, not directly."
Considering all the foregoing, I am persuaded that an
inference that the Respondent was aware of Hunsinger's
union activities, sympathies, and inclinations is warrant-
ed. 6 I draw that inference here.
In considering Hunsinger's discharge it is not the
Board's function to second guess an employer's imposi-
tion of discipline including discharge, so long as such dis-
cipline is not imposed for a reason unlawful under the
Act. But where the asserted reason for the discharge is
alleged to be pretextual, the employer's response to the
employee's alleged offense must be carefully considered.
As stated by the Fourth Circuit in Neptune Water Meter
Company, 551 F.2d 568, 570 (1977):
The rule is that if the employee has behaved
badly, it won't help him to adhere to the union, and
his employer's anti-union animus is not of control-
ling importance. But if the employee is a good
worker and his breach of the work rules trivial, the
more rational explanation for discharge may be invi-
dious motivation. Such motivation can be found
from the absence of any good cause for discharge.
This must be so unless we are willing to assume
something we know to be false; that businessmen
hire and fire without any reason at all.
In the end after weighing all relevant factors in-
cluding particularly the gravity of the offense, an
unfair labor practice may be found only if there is a
basis in the record for a finding that the employee
would not have been discharged, though he may
have been subjected to a milder form of punishment
for the offense, except for the fact of his union ac-
tivity.
Thus, careful examination of the asserted reason for
the discharge in the instant case is necessary to assess the
Respondent's true motivation, not to substitute Board
judgment on the overall fairness or wisdom of the em-
ployer in the discharge. As was said in Shattuck Denn
Mining Corporation (Iron King Branch) v. N.L.R.B., 362
F.2d 466, 470 (9th Cir. 1966):
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be availa-
ble that is not also self-serving ... . If [the trier of
fact] finds that the stated motive for the discharge is
false, he certainly can infer that there is another
motive. More than that, he can infer that the motive
is one that the employer desires to conceal ....
A determination on whether Hunsinger had actual per-
mission to take the tractor home on May 21 to fix it is
significant, but not controlling, in assessing the truth or
falsity of the Respondent's defense here. I have carefully
considered Hunsinger's testimony where it contradicted
l A to Z Portion Meats, Inc., 238 NLRB 643 (1978), enforcement
denied 643 F.2d 390 (6th Cir. 1981); Coral Gables Convalescent Home.
Inc., 234 NLRB 1198 (1978); Friendly Markets. Inc., 224 NLRB 967
(1976); Ludwig Fish & Produce, Inc., supra: Hadley Manufacturing Corpo-
ration, 108 NLRB 1641 (1954).
388
THURSTON MOTOR LINES
that of Bell regarding permission to take the truck home.
I have already noted Hunsinger's sincerity. Bell's recall
appeared to be less positive and specific concerning his
remarks to Hunsinger on May 21. It follows, based on
Hunsinger's testimony which I credit over that of Bell,
that permission was granted to take the truck home and
the Respondent's asserted basis for discharge was nonex-
istent. But, even if Bell did not grant specific permission
to Hunsinger to take the truck home, I would neverthe-
less find that the discharge was pretextual as argued by
the General Counsel. I am persuaded that Hunsinger un-
derstood that he had permission since, even by Bell's tes-
timony, there was no express refusal for him to do so,
only a reply that Bell would have Lee, who was not
available at that time, look at the problem. Hunsinger
had taken trucks home before without any problems, and
there was no published or specifically announced rule
that employees could not take a truck home. Hunsinger
made no effort to surreptitiously remove the truck. He
clearly told Sims what he was going to do. There was
no showing that he abused or misused the truck, nor was
there any evidence that Hunsinger did anything with the
truck other than repair it with the hope he might be able
to drive the truck on a regular basis. The Respondent ad-
mittedly did not lose any use of the vehicle by virtue of
Hunsinger's taking it home overnight.
In light of the foregoing, the Respondent's imposition
of the extremely harsh penalty of discharge is largely out
of proportion to the alleged offense of Hunsinger. The
discharge is even less understandable in light of Hun-
singer's record of 7 yearst 7 of unblemished employment 18
by the Respondent. The Respondent's reaction is all the
more perplexing because Bell did not attempt to ascer-
tain any explanation by Hunsinger for taking the truck
home before the discharge decision was made. More-
over, there is no effort by Bell to ascertain or consider
whether Hunsinger's actions were based on good inten-
tions or whether there were any mitigating circum-
stances. Bell did not even ascertain if Hunsinger had re-
paired the tractor. Given all these circumstances, plus
the fact that the Respondent had a disciplinary system
under which it could have imposed a lesser penalty con-
sisting of a written warning for Hunsinger's alleged of-
fense, and even if specific permission had not been grant-
ed to Hunsinger to take the truck home on May 21, I am
'' Hunsinger, according to the record, was about the third most senior
employee of the Respondent.
" The Respondent did not dispute the absence of any warnings given
to Hunsinger during his employment. However, and notwithstanding
Bell's admission that Hunsinger was a good employee and a "hustler,"
the Respondent sought to show that Hunsinger was less than an ideal em-
ployee and that some of his other faults were a consideration in his dis-
charge. Thus, Bell testified that he had trouble with Hunsinger not call-
ing in prior to his lunch breaks rather than afterwards and had talked to
him about it around four times. He made no contention, however, that he
ever issued any specific warnings to Hunsinger regarding this. Accord-
ingly, and since this "problem" was not mentioned to Hunsinger at the
time of his discharge, and because Bell admitted that Hunsinger strove to
out-perform other drivers in his work, I completely discredit Bell's testi-
mony that this "problem" played a part in the decision to discharge Hun-
singer. The attempt to adduce an additional defense to the discharge, a
defense which I conclude is spurious, serves only to support an inference
as to the unlawfulness of the real reason. Grede Foundries. Inc., 211
NLRB 710 (1974), enfd. 521 F.2d 1403 (D.C. Cir 1975)
persuaded that the stated reason for the discharge was in
fact false.
Since I find the asserted reason to be false I must as-
certain the Respondent's real motivation. In assessing the
real motivation for Hunsinger's discharge, it must first be
observed that there is no evidence of independent viola-
tions of Section 8(a)(1) of the Act which ordinarily serve
to establish that degree of union animus sufficient to sup-
port a conclusion of unlawful discrimination. However,
both Bell and Sims admitted that the position of the Re-
spondent was not exactly neutral on the union issue.
Thus, Bell testified that the Respondent's position on the
Union was "we did not need a union." Similarly, Sims
testified that the Respondent's position was that it would
be in the drivers' "best interest" not to unionize. In any
event, the Board has held that union animus may be in-
ferred from the entire set of circumstances surrounding
the discharge. Patrick Plaza Dodge, 210 NLRB 870
(1974), enforcement denied in pertinent part 522 F.2d 804
(4th Cir. 1975). Considering the entire record herein and
the factors already laid out above and the conclusion
that the asserted basis for Hunsinger's discharge was a
contrived and false one, I am convinced that the infer-
ence is warranted that the real reason for the discharge
was an unlawful one; i.e., Hunsinger's union activities. I
therefore conclude that the discharge of Hunsinger vio-
lated Section 8(a)(3) and (1) of the Act as alleged in the
complaint. 9
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce and an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discriminatorily discharging Blaine Hunsinger on
May 22, 1980, the Respondent has engaged in and is en-
gaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated the
Act in the discharge of Blaine Hunsinger I shall recom-
'9 While this case has been discussed and analyzed above in terms of a
pretextual basis for the discharge, application of the principles announced
by the Board in Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083 (1980), relative to employer motivations in discharges would yield
the same result. The traditional pretext analysis is "essentially the same"
as the analysis set forth in Wright Line. See Wright Line, supra, 251 at
1091. See also Guerdon Industries, 255 NLRB 610 (1981). In any event.
considering the record as a whole I would conclude that the General
Counsel established a prima facie case of a violation of the Act with re-
spect to Hunsinger's discharge. and the Respondent failed to adequately
rebut it. More specifically, the Respondent failed to show any precedent
four discharging or reprimanding employees for taking a company vehicle
home, and, on the contrary, the credited testimony of Hunsinger estab-
lished that he and other employees had previously been allowed to take
such vehicles home on appropriate occasions without encountering disci-
pline therefor. Thus, the Respondent has failed to demonstrate that Hun-
singer would have been discharged in the absence of his protected con-
duct
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mend an order that it cease and desist from discrimina-
torily discharging employees and take certain affirmative
action necessary to effectuate the policies of the Act. I
shall recommend an order that it offer immediate and
full reinstatement to Blaine Hunsinger, without prejudice
to his seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of earnings he
may have suffered by reason of his unlawful discharge
by the Respondent. Backpay with interest thereon is to
be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).20
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER2
The Respondent, Thurston Motor Lines, Athens,
Georgia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees because of their interest in, or activity on
behalf of, a labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Blaine Hunsinger immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings he may have suffered by reason of his unlawful
discharge by Respondent in the manner set forth in the
section herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
:1 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.
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Athens, Georgia, terminal copies of the
attached notice marked "Appendix." 22 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Respondent's
representative, shall be posted by the Respondent imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days of the date of this Order, what
steps the Respondent has taken to comply herewith.
22 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against employees because of their interest in,
or activity on behalf of, a labor organization.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their rights under the National Labor
Relations Act.
WE WILL offer Blaine Hunsinger immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges previously enjoyed, and WE WILL
make him whole for any loss of earnings he may
have suffered by reason of our unlawful discharge
of him, with interest.
THURSTON MOTOR LINES
390