Mid Mountain Foods, Inc

MID MOUNTAIN FOODS 693 Mid Mountain Foods, Inc and United Food and Commercial Workers Union, Local No 278, AFL-CIO Cases 5-CA-18680 and 5-CA- 18767 November 14 1988 DECISION AND ORDER BY MEMBERS JOHANSEN CRACRAFT AND HIGGINS On July 19 1988 Administrative Law Judge Steven M Charno issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge s rulings findings I and conclusions2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Mid Moun tam Foods Inc, Abingdon Virginia its officers agents successors, and assigns shall take the action set forth in the Order i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent contends in its exceptions that the judge s findings re fleet a bias against the Respondents position and demonstrate that the Respondent did not obtain a fair hearing After carefully examining the record we find no proof that the judge made prejudicial rulings or dem onstrated a bias against any party in his analysis or discussion of the evi dence Accordingly the Respondents contention that it did not receive a fair hearing is without merit a In adopting the judge s findings that the Respondent violated Sec 8(a)(1) of the Act by interrogating its employees we note that these find ings are consistent with the Board s standards set forth in Rossmore House 269 NLRB 1176 (1984) Mountain Foods Inc' (Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act Re spondent s answer denied the commission of any unfair labor practice A hearing was held before me in Bristol Tennessee on November 3-5 1987 2 Briefs were thereafter filed by the General Counsel and Respondent under extended due date of December 18 1987 , FINDINGS OF FACT I JURISDICTION Respondent is a Virginia corporation engaged in the wholesale distribution of food with an office and place of business in Abingdon Virginia During the calendar year preceding issuance of the consolidated complaint Re spondent in the course of its operations in Virginia pur chased and received goods valued in excess of $50 000 from points outside the State and sold and shipped goods valued in excess of $50 000 to points outside the State It is admitted and I find that Respondent is an employer engaged in commerce within the meaning of the Act United Food and Commercial Workers Union Local No 278 AFL-CIO (Union) is admitted to be and I find is a labor organization within the meaning of the Act II ALLEGED UNFAIR LABOR PRACTICES A Background During the latter part of 1986 and first part of 1987 a union organizing campaign began to gather strength at Respondents Abington facility Even before the Union began organizing publicly rumors of the campaign had reached Respondents management 3 In certain instances Respondents employees volunteered information to its management concerning the organizing campaign 4 The Union began to campaign openly by passing out hand bills at the gate to Respondents facility in the early morning hours of February 4 1987 In a speech given later that morning Respondents vice president and as sistant general manager Raymond Aman and its person nel director John Dollar stated some of our warehou semen and drivers have been contacted by a union out sider and we have also been informed that a couple of our men have been chosen to be union pushers For the foregoing reasons I find that Respondent was aware of union organizing activity at its facility prior to Febru ary 4 Jasper C Brown Jr Esq of Winston Salem North Carolina for the General Counsel Mark M Lawson Esq (White Elliot & Bundy) of Bns tol Virginia for the Respondent Robert H Necessily of Roanoke Virginia for the Charg ing Party DECISION STEVEN M CHARNO Administrative Law Judge In response to charges timely filed a consolidated coin plaint was issued on May 29 1987 alleging the Mid i At the hearing the consolidated complaint and answer were amend ed to reflect Respondents correct corporate name which appears above 2 Errors in the transcript have been noted and corrected a Respondents shipping supervisor Gary Scott credibly testified that he heard such rumors prior to February 4 1987 The script for a speech given by Respondents management within 8 hours of the campaigns public debut contained the statement that Respondent had heard rumors of the organizing campaign the fact that this part of the speech was not delivered does not diminish its probative value as a measure of Respond ent s awareness Personnel Director John Dollar was evasive when ques tioned concerning his initial awareness of the campaign and I do not credit his testimony 4 Respondents transportation manager Buddy Honaker so testified 291 NLRB No 109 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Certain of Respondents established practices provide a necessary context in which to evaluate the events of record Respondents employee handbook contains work rules prohibiting consistently poor work performance (rule 1) wasting time (rule 4) and the refusal to obey reasonable direct instructions and orders (rule 6) During the relevant period Respondent employed a formal progressive disciplinary system the first violation of one of its work rules would bring a verbal warning the second violation a written warning and the third violation discharge While documentation of a verbal warning may not state on its face that it is a warning 5 Respondents practice requires a supervisor to inform an employee that a verbal warning is being given and to offer the employee documentation 6 A written warning always explicitly states that it is a written warning 7 When an employee has not received a warning for 12 calendar months all prior discipline is removed from his record Respondents drivers manuals in effect between Feb ruary 1986 and the time of the hearing set forth a pro gressive break policy based on an 8 hour workday 15 minutes of break for 1 to 3 hours of work 30 minutes for 3 to 6 hours of work 45 minutes for 6 to 8 hours of work and 60 minutes for 8 hours or more In Decent her 1985 a meeting took place which was attended by 15 to 20 of Respondents drivers its present transporta tion manager Buddy Honaker its former transportation manager and its former personnel director Employee Harold Terry asked if Respondents drivers might take additional breaktime when they worked beyond a normal 8 hour day Honaker responded that the drivers might take 75 minutes of breaktime after working 11 hours 8 Respondents drivers thereafter followed the policy laid down by Honaker and took 75 minutes of break which they recorded in their log books this practice continued even after the commencement of the union organizing campaign 9 Because the drivers log books were turned over to Respondent I find that it was aware of and ac cepted the practice of its drivers taking 75 minutes of breaktime after working 11 hours 10 Honker so testified Dollar so testified in response to questions from the bench about how an employee could tell whether he had received a warning under Re spondent s progressive disciplinary system if the relevant documentation did not so indicate ' Respondents transportation manager buddy Honaker so testified 8 Terry and employees Charles Carter Lonnie Malone and Graham Roark so testified in a wholly credible and convincing manner Honaker remembered attending along with the other managers one of two meet ings for drivers in December 1985 but testified that breaks were not mentioned at those meetings Because I found Honaker to be a basically unreliable witness on many issues and based on the demeanor of all these witnesses while on the stand I credit the testimony of the four employees over that of Honaker 8 Carter Malone and Terry credibily so testified without controver sion 1s There is no evidence that any driver was disciplined for so doing prior March 30 1987 Respondents purported position on brief that a driver who worked 3 to 7 hours beyond a normal 8 hour day was not entitled to additional breaktime is both inherently illogical and would appear to give rise to safety problems B Alleged Interference with the Rights of Charles Carter At Approximately 8 o clock on a morning during the last half of February 1987 one of Respondents drivers Charles Carter was in the dispatch office talking with dispatchers Tony Ash and Steve Spence when Dollar en tered Spence complimented Dollar on the latter s speech at an antiunion meeting the previous evening Spence also said to Dollar that Carter could vouch for Respond ent s fairness because Respondent had taken Carter back after the latter had resigned Carter stated that Respond ent had been fair to him on that occasion but he was unsure of how fair it was to others Dollar inquired whether Carter was involved in any dealings with the Union and noted that he Dollar never needed an outsid er to talk for him because he had the backbone to speak for himself Carter did not respond and left shortly there after i i In late February Carter attended one of Respondent s antiunion meetings Approximately 6 o clock the follow ing morning Carter had a conversation with Gary Scott Respondents shipping supervisor When Scott asked if Carter had been to the meeting Carter queried what kind of meeting? Scott responded the anti union meet ing After Carter replied in the affirmative Scott com mented we sure don t need no union here do we Carter indicated that he was unsure and the conversa tion ended 12 C Alleged Interference with the Rights of Graham Roark In the early morning hours of February 4 1987 Hon aker and Respondent s assistant warehouse manager Steven Palmer had the front gate area of Respondent s facility under observation on a security monitor shortly after union representatives began passing out handbills at that location Honaker and Palmer saw Graham Roark i i The foregoing findings are based on Carter s affidavit and credited testimony Carter was a disinterested witness who made every effort to testify candidly see fn 12 infra While he was somewhat inarticulate and his testimony did not display the precision of a rehearsed statement Carter s version of events was adequately detailed and his testimony was consistent in all material respects on direct and cross examination Final ly I do not believe that an adverse inference on Carter s credibility is required by his failure to recall his prior account of challenging Respond ent s fairness Ash did not testify was not a member of the bargaining unit sought by the Union and appears to have been available to testify for either party Spence did not remember complimenting Dollar and denied participating in the conversation described by Carter Based on his demeanor on the stand and the fact that he was the source of totally in credible testimony on another material issue in this case see fn 39 infra I do not credit Spence on this point Dollar did not recall the reported conversation and denied any extended conversation with Carter any dis cussion of the Union in the dispatch office and any compliment from Spence Dollar was one of Respondent s principle spokesman aga nst the Union and had an obvious interest in the outcome of this litigation Based on his demeanor while testifying on this manner I do not credit him i2 The foregoing findings are based on Carters credited testimony While he variously testified about both a union meeting and an anti union meeting he made it clear that he was referring to a meeting con ducted by the company that he understood Scott to be asking about an antiunion meeting and that Scott had never asked about a meeting conducted by the Union Scott neither confirmed not denied the coversa tion reported by Carter MID MOUNTAIN FOODS , 695 one of Respondents drivers stop his truck and talk to the union handbillers 13 On February 6 Roark was called into a meeting with Dollar and Honaker in the latter s office Honaker initial ly asked if Roark knew the men who were in front of the plant 2 days earlier After Roark replied in the nega tive Honaker read a written warning citing Roark for committing a safety violation by turning off his lights when he stopped to pick up union literature Roark re fused to sign the warning contending that he did not cut his lights Honaker demurred demonstrating how the se curity monitor could pick up details of what occurred at the front gate but Roark continued to protest his inno cence Honaker then asked if Roark had seen the union representatives before After Roark responded affirma tively Dollar commented that Roark would be okay if the latter stayed away from the wrong crowd 14 In mid February Aman addressed an antiunion meet ing in the employee lunchroom which was attended by approximately 15 employees During that meeting Aman referred to Respondents employee handbook and asked if everyone had received a copy Roark indicated that he had not and Aman provided one Aman then asked the employees to read the handbook and Roark responded that Aman should read it Amari s presenta tion on this occasion also made reference to guarantee coupons prepared by Respondent which the employees were told to present to the Union for signature At one point during the meeting Aman raised a union authon zation card and stated that Respondent could get a court order to find out which employees had signed such a card Roark demurred and Aman told him to be quiet There is no evidence that Aman delivered his presenta tion from notes or a script on this occasion 15 Toward the end of the meeting Respondents president Harold Harwood came into the room and asked if there were any questions Roark responded that he was not allowed to talk 116 D Alleged Interference with the Rights of Harold Terry While Terry was working as a switcher in Respond ent s terminal yard on January 29 1987 he was ap proached by Scott who was not Terry s immediate su pervisor asked to ride around with the switcher During the conversation that took place as they drove Scott asked if the latter had heard any rumors about a union Terry responded that he had and Scott asked what problems existed among Respondents employees Terry replied that he did not know anyone else s problems but that he was upset over the fact that bidding for the driv ers routes was almost a month late 17 At the time of this conversation Terry and Scott lived near each other but did not interact socially 18 Respondents drivers are often directed to deliver company mailbags to stores where they are delivering merchandise On the evening of February 17 1987 Terry forgot to take a mailbag to a Vansant Virginia store On reaching the store Terry called Second Shift Supervisor Larry Jenkins and reported the oversight The mailbag was placed on the next truck going to the Vansant store and arrived before the store opened the next day On February 18 Palmer issued Terry a verbal warning for not following procedures Although drivers regularly forgot mailbags between June 1986 and the date of the hearing and these derelic tions were regularly reported to higher management 19 Respondent did not issue a single warning for the offense prior to the union organizing campaign Terry s warning was the first 20 Thereafter only one driver forgot a mailbag without receiving a warning a disciplinary omis sign caused by Jenkin s error 21 While Terry was an active union supporter and passed out union cards as early as January 1987 22 there is no Is Dollar s testimony to this effect was not controverted by Honaker 14 Findings concerning this meeting are based on Roark s credited tes timony Roark was not an experienced or articulate witness and his tests mony did not have a practiced ring He was however a disinterested witness who was capable of telling the truth even when candor was not in his personal interest Honaker testified that he did not mention hand billers and that nothing was discussed at the meeting other than the safety violation and Roark s warning Dollar testified that there was no reference to handbillers and that after the warning it was just an occa sion for us to talk at Roark s initiative about getting a GED broken eyeglasses and marital problems Such a friendly chat following the de livery of a contested warning would appear implausible even in the ab Bence of Honaker s conflicting testimony Based on the demeanor of the witnesses while testifying I credit Roark over Honaker and Dollar 15 Aman testified that he spoke from a script during a series of four or five of the first antiunion meetings he conducted Dollar testified that this series of meetings took place on February 4 and 5 The script in question makes no reference to Respondent s employee handbook or to guarant e coupons It does refer to court cases in which people were forced to testify about signing union cards-a subject that Roark testified was not mentioned during the meeting he described (Respondents charactenza tion of Roark s testimony on this point as a failure to recall is dismgen uous ) For these reasons and because the meeting described in text took place approximately 10 days after February 5 I find that it was one of the more than 15 antiunion meetings that Aman admittedly addressed without using a script 18 The foregoing findings are based on Roark s credited testimony His description of the meeting was detailed if not easily elucidated Thus Roark gave the description in text and identified Respondent s drivers who were present by name While Amari testified that he did not make the statements attributed to him during any of the meetings he conducted on February 4 and 5 he did not deny making such statements during later meetings Aman could not recall whether he had ever held up a union card at the later meetings or whether Roark had ever taken issue with him There is no evidence that Dollar attended an unscripted meet ing conducted by Amari and Scott was unable to recall what occurred during the mid February antiunion meetings 17 The foregoing findings are based on Terry s credited testimony Scott admitted that he often rode and talked with switchers as part of his duties but could not recall riding with Terry on January 29 Scott also testified that while he had heard rumors of union activity prior to Febru ary 4 he had never asked any employees about such rumors Based on their demeanor while testifying I credit Terry over Scott on this point 18 Terry s credited testimony to this effect was not controverted by Scott 19 Jenkins credibly testified thattdrivers forgot mailbags at least once a month and that all such omissions were brought to his attention and were reported by him to Honaker 20 The three write ups concerning forgotten mailbags which predat ed Terry s contained no reference to a supervisors speaking with the re sponsible employee concerning the problem-an omission that precludes any finding that these writeups were warnings See fn 6 and accompany ing text supra Thus I reject Respondents contention on brief that the September 9 1986 Curtis Cullop s writeup was a warning 21 Jenkins credibly so testified and I find his evidence to be of greater probative value than Terry s recitation of hearsay concerning drivers who forgot mailbags without receiving warnings 22 Terry so testified 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD direct evidence that Respondent was aware of his pro tected activities E Alleged Interference with the Rights of Lonnie Malone Lonnie Malone was first employed by Respondent as a driver in August 1985 Malone was an outspoken union supporter who informed Respondents management of his position regarding the Union 23 He was regarded by the Union as one of its three principal adherents from the inception of its organizing campaign I Malone s attitude In December 1986 Respondent added the job of fuel ing tractors to the duties of its switchers Malone be lieved the additional assignment was unfair and coin plamed to Honaker who counseled Malone on the lat ter s attitude on December 4 Malone then invoked Re spondent s open door policy to carry his complaint to Respondents president At the ensuing meeting Malone indicated that he spoke for all of Respondents switchers This declaration of representative status was not disputed by at least one of the switchers Harold Terry At some point before or after the conversation with Harwood Malone showed several other dnvers the memorandum assigning him additional duties and indicated his belief that the assignment was unfair Some of these conversa tions were reported to Respondents mangement who characterized Malone s activities as upsetting dnvers and creating morale problems 24 On January 13 1987 Malone entered the shipping office where he encountered Dollar and Palmer Malone complained that he was still performing the additional duties assigned him in November because Respondent was late in releasing the job bids for dnvers He went on to state that he hoped the assignment of jobs would be based on seniority this time Palmer and Dollar left the office to go home As they crossed the loading dock on their way to the parking lot Malone raised his voice and stated that if bidding was not handled fairly this time he would yell like hell On January 15 1987 Malone was issued a verbal warning 25 by Honaker 28 The first three paragraphs of that warning discuss Malone s attitude toward his added duties The next three paragraphs concern Ma lone s complaints to Palmer and Dollar on January 13 27 23 Jenkins so testified 24 Although Honaker and Dollar testified that they were informed of Malone s activities by several dnvers neither manager could recall the content of those conversations Both testified however that the dnvers did not appear to be troubled by Malone s activities There is no evidence that Malone s solicitations of support interrupted the work of Respond ent s employees 25 On brief Respondent characterizes this as a written warning Be cause the wnteup is not so denominated on its face I find Respondents characterization to be erroneous See fn 7 and accompanying text supra 26 Honaker testified that he had final authority to impose any discipline short of termination on the employees under his direction and that he was responsible for the warning to Malone 27 Because neither Malone s volume nor his profanity are referred to in the January 15 writeup I conclude that neither circumstance was a reason for the discipline The warning then states that Malone has been upsetting dnvers and has a bad attitude towards our company The warning concludes that Malone must backup our decisions and the procedures of our company or find another job The record contains documentation of a number of in stances in which other employees were disciplined for at titude problems Five of these cases involved employees who refused to work or deliberately misrepresented facts to fellow employees or supervisors four involved abu sive behavior toward supervisors and the remaining five involved leadmen or supervisors who set a poor example for their work crews There is no evidence that any em ployee other than Malone was ever disciplined for at tempting to solicit employee support for work related grievances or for bringing those grievances to the atten tion of Respondents management 2 Malone s alleged conversations with management The weight of the evidence does not establish that Malone had a conversation with Honaker and Dollar about February 3 1987 28 On February 13 Malone and Dollar met outside the fuel shed on Respondent s premises During their conver sation Malone complained of some warnings in his per sonnel file and asked Dollar to pull the file and examine them Dollar responded that he could not because he had to spend his time watching the outside people Dollar then inquired whether Malone knew the outsiders When Malone denied such knowledge Dollar responded Dammit don t lie to me you know Dollar suggested that if Malone wanted his file cleaned up the latter should inform Honaker how strong the Union s support was and which employees were involved in the cam paign Dollar concluded that he was sure Honaker would clean up Malone s file if the latter cooperated 29 3 The February 23 warning On February 17 1987 Malone made a delivery of dry freight to Kennedy s Piggly Wiggly in St Paul Virginia Shortly after Malone reached the store one of Respond ent s perishable trucks arrived to make a delivery Malone did not help the store s employees unload most of the freight on his truck 30 On February 20 Terry 28 Honaker and Dollar both denied such a conversation while Malone described one malone May have been confused as to the date of such a conversation since the January 15 meeting encompassed several of the things he described as having occured on February 3 (i e the same par ticipants threats of termination and questions concerning Malone s distn button of paper) Malone s testimony about the February 3 conversation was confused and halting and is not entitled to great weight According ly I accept the explicit denials of Respondents management on this point 29 Malone so testified Dollar admitted that a conversation with Malone took place on February 13 but denied that the Union was men tioned Given Dollar s admitted concern over the union campaign his February 6 conversation with Roark and his demeanor while testifying I credit Malone 30 Terry Jones who stated that he was present 90 percent of the time Malone s truck was being unloaded so testified I credit Jones testimony over Malone s perception that Jones was only present for a short period MID MOUNTAIN FOODS 697 Jones the assistant store manager called Honaker pri madly to complain about the recurring overlap of per ishable and dry freight deliveries In the course of their conversation Jones asked whether Respondents drivers were supposed to help unload their trucks Honaker re sponded affirmatively and ascertained Malone s identi ty 31 r A driver s failure to help unload his truck violates an explicit directive in Respondents drivers manual On February 23 Honaker issued a warning to Malone for failing to follow reasonable direct instructions The record contains three contemporaneous writeups (which are not denominated warnings) concerning failures to unload freight 4 The February 27 warning On February 25 1987 David Hayden the second shift lead receiving clerk and Jenkins discovered that Re spondent s security seal was improperly attached to a trailer used for a backhaul from White Lily While one end of the seal s metal strip had been inserted into the corresponding metal sleeve it had not been pushed far enough to engage the seal s locking mechanism A review of documentation indicated that Malone was the responsible driver 32 On February 27 Honaker prepared a written warning directed to Malone for violating rules 1 (consistently poor work performance) and 6 (refusal to obey instruc tions and orders) This document is a final warning which explicitly reiterates the following personnel ac tions A February 5 1986 written warning to Malone a December 4 1986 writeup concerning Malone s attitude (which was not a warning33) the January 15 1987 writeup concerning Malone s attitude 34 and the Febru ary 23 1987 warning The record contains writeups of two other failures to seal trailers which resulted in no finanical lost to Re spondent one of these was denominated a verbal warn ing 5 Alleged surveillance On March 17 1987 a meeting was conducted by union organizers Larry Plumb and Robert Necessily and attended by three or four of Respondents employees It was held in a first floor room of the Day s Inn Motel in Bristol Virginia and the window and the door were left open to permit the participants to attract the attention of any late arrivals Over the course of several hours at least two of the participants saw the same automobile drive slowly past on three occasions Finally Plumb and Malone left the room in order to see who was in the car Standing within 3 feet of the automobile in a well lighted parking lot Plumb and Malone both got a good look at the man in the passanger seat of the automobile before the latter raised his hand to obscure their view Both men positively identified the car s passanger as Hon aker 35 6 The incomplete trip report While filling out a new type of trip report relating to a March 14 1987 delivery Malone left one digit off of his truck s identification number and failed to sign and date the report On March 24 Palmer called in Malone and three or four other employees and went over the correct method of filling out the new form Palmer did not state that he was administering a verbal warning 36 Respondent offered no evidence that any driver other than Malone was ever disciplined for a comparable pa perwork error and it is clear that Respondent had no general policy of issuing warnings for such errors 37 7 The Piedmont distribution shipment Approximately 6 am on March 26 1987 Malone ar rived at work and picked up the paperwork related to his scheduled trip for that day (1) a copy of Respond ent s bill of lading which referenced purchase order 65238 and listed a shipment of dog food from Gaines Foods Inc of Johnson City Tennessee and (2) a copy of Respondents backhaul sheet which specified the same purchase order number indicated that the shipment would be picked up in Charlotte North Carolina and stated that the load would be on slip sheets rather than pallets Malone checked out a tractor and drove to Winston Salem where he picked up an empty trailer Pursuant to earlier instructions from his dispatcher Malone called Spence to obtain the pickup location Spence gave Malone a new purchase order number38 and instructed him to call Helen Yarborough at Piedmont distribution center in Charlotte for further information Malone wrote the new purchase order number and Yarborough s name and telephone number on a small card and contact ed her for directions when he reached Charlotte On arriving at the warehouse Malone used a Pied mont bill of lading to check the merchandise and pallets before they were loaded on his trailer That bill of lading identified a shipment of dog food loaded on 23 pallets carried the new purchase order number that Malone had 31 Jones who was a relatively disinterested and refeshingly candid wit nest so testified Palmer testified that Jones only concern was an unhelp ful driver while Honaker maintained that the driver was Jones main problem I credit Jones and conclude that Palmer and Honaker slanted their testimony to facilitate justification of Malone s censure 32 I credit the Jenkins testimony to this effect over Malone s certainty that he properly closed the security seal I do not draw any inference from Respondent s unexplained failure to produce the single piece of doc umentary evidence that could have conclusively established whether Malone had failed to properly seal the trailer 33 Honaker so testified 3 The February 27 document does not refer to either the December or January writeup as warnings 35 Plumb and Malone so testified Honaker testified that he was aware of the location of the motel but that he had not been there during the past year Plumb was not personally acquainted with Honker on March 7 but subsequently recognized Honaker as the man he had seen on that date Plumb was a conscientious painstaking witness with excellent recall For this reason and based on the demeanor of the witnesses as they testified I credit Plumb and Malone over Honaker 36 I credit Malone s uncontroverted testimony to this effect 97 Terry credibly testified that his supervisors had talked to him con cermng paperwork errors but had never told him that the talks would be documented or that he was receiving a warning 33 Honaker s testimony that purchase order numbers are never changed is controverted by one of Respondents backhaul sheets which documents such a change 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been given by Spence and indicated that Piedmont was acting as the agent of Gaines Foods After Yarborough placed a telephone call to Respondents dispatcher con cerning reimbursement for the pallets Malone signed Piedmont s pallet receipt acknowledging Piedmont s shipment of 23 pallets 39 After sealing his load Malone returned to Abindgon On his arrival at approximately 6 p in Malone took a 75 minute break which he recorded in his logbook Im mediately thereafter he proceeded to Respondents facil ity where he parked the trailer in the receiving area Malone went inside and gave the paperwork generated by Piedmont and Respondent to Hayden explaining that the purchase order number on the shipment had been changed Hayden said he would take care of the matter Malone did not complete his copy of Respondents back haul sheet for the shipment because he believed that the change in purchase order numbers had rendered Re spondent s original documentation obsolete 40 Hayden unloaded the trailer and made a note that while no goods were missing the shipment contained only 20 pal lets 4 i I find that the sealed shipment that reached Re spondent s facility contained 23 pallets 42 8 Malone s termination Honaker was apprised that Malone had not submitted a backhaul sheet on March 26 and that the latter s load on that date was short by three empty pallets In the 99 Malone so testified While Spence could not recall whether he had supplied a name and telephone number he testified that he had given Malone a pickup number supplied by the vendor rather then a new pur chase order number The most cursory examma ion of Respondents and Piedmont s bills of lading and the small card Malone filled out while on the telephone with Spence conclusively establishes that Malone was given the new purchase order number not a pickup number At the time Spence testified the parties believed that Piedmont s bill of lading would not be available to the General Counsel For the foregoing reasons and based on my observation of the witnesses demeanor while testifying I credit Malone over Spence on this point 40 After evasive testimony in response to questions from the bench Spence admitted that a new purchase order number would require new paperwork Respondent on brief contends that Malone could not have reasonably concluded that Respondent s and Piedmont s documentation referred to different shipments I reject this contention because Pied mont s documentation had a different purchase order number and related to a palletized shipment In fact Malone could not have conveyed any meaningful information by completing Respondents backhaul sheet be cause that document called for data on pallets that had no relevance to the revised shipment 41 Malone so testified Hayden testified that he did not speak with Malone but found Piedmont s bill of lading and pallet receipt on his desk when he returned from a break He further testified that none of Re spondent s paperwork concerning the shipment was present He stated that he matched the number of the security seal on the trailer with that on the paperwork and used Piedmont s purchase order number to punch out Respondents bill of lading The security seal number appears only on Respondents backhaul sheet not on Piedmont s paperwork and it seems unlikely that the new Piedmont purchase order number would cause Respondents computers to generate any documentation For these reasons and based on my observation of the witnesses demeanor while testifying I credit Malone s testimony that he spoke with Hayden and supplied the latter with both sets of documentation 42 Malone s count of 23 pallets which appears on Piedmont s pallet re ceipt is corroborated by an identical count recorded and initialed by a Piedmont employee on Piedmont s bill of lading Given the complete dis interest of Piedmont and its employees in the outcome of this proceeding I credit this evidence over Hayden s count Shortly after Malone s dis charge Hayden was promoted to the position of assistant shipping super visor course of investigating the matter Honaker reviewed Malone s logbook and noted the presence of a 75 minute break At no time during his investigation did Honaker talk with Piedmont or Malone Honaker and Dollar re viewed Malone s personnel file and prepared a letter of termination Honaker then met with Respondents presi dent and recommended that Malone be discharged Har wood agreed Respondents normal procedure of allow ing an employee to respond to allegations before impos ing discipline was suspended in this case because Hon aker had made up his mind that Malone was going to be fired On March 31 Honaker summoned Malone and read the previously prepared termination letter That letter in dicated that Malone s March 26 trip had resulted in three violations of Respondents rules failure to fill out a back haul sheet a discrepancy of three pallets and an exces sive break The letter also detailed seven prior incidents that had purportedly resulted in warnings a December 8 1985 writeup a February 6 1986 written warning the January 15 1987 writeup the February 23 1987 warn ing the February 27 1987 warning and a March 24 1987 note concerning Malone s paperwork error Ma lone s discharge was based on a combination of all of these incidents 43 During the meeting with Honaker Malone attempted to explain that he had not violated Re spondent s rules with respect to the March 26 trip but Honaker who had decided prior to the meeting to terms nate Malone did not accept the explanation The record contains limited evidence of Respondent s discipline of drivers who failed to accurately count prod uct for which they signed One driver was given a verbal warning when such a failure resulted in a $14000 loss to Respondent 44 There is documentary evidence that three employees were counseled concerning the cor rect way to fill out a backhaul sheet but there is no evi dence that any of these employees was told that he was receiving a warning Accordingly I find that Malone is the only one of Respondents employees to be disciplined for failing to fill out a backhaul sheet F Analysis The existence of a number of the violations alleged in the consolidated complaint turns on determinations of credibility Based on the foregoing findings I find that the following activities of Respondent violated Section 8(a)(1) of the Act (1) the January 29 1987 interrogation of Terry (2) the February 6 1987 implied promise of fa vorable treatment to Roark (3) the creation of an im pression of surveillance and the interrogation of and promise of benefit to Malone on February 13 1987 (4) the mid February 1987 threat that Respondent could get a court order compelling disclosure of the names of em ployees who signed union authorization cards (5) the in terrogation of Carter during the last half of February S Honaker s testimony to this effect was supported by Dollar 44 While the question is technically moot since I found that no discrep ancy existed between the number of pallets signed for and the number delivered it should be noted that discrepacy that cost Respondent $1400 merited only a verbal warning There is no evidence that a dnver was ever disciplined for a discrepancy that resulted in a loss of as little as $30 I MID MOUNTAIN FOODS 699 1987 and (6) the March 17 1987 surveillance of a union meeting The remaining allegations of violations of Sec tion 8(a)(1) are not supported by the record and will be dismissed i The General Counsel contends that Respondents Feb ruary 18 1987 warning to Terry was violative of Section 8(a)(3) of the Act In the absence of any evidence that Respondent was aware of Terry s protected activities or that Terry was the object of disparate discipline I find that the warning was not shown to be discriminatonly motivated Accordingly this allegation will be dismissed The General Counsel also contends that Malone s March 31 1987 discharge violated Section 8(a)(3) of the Act Respondent maintains that Malone s termination was based on a combination of seven different wnteups between December 8 1985 and the date of discharge Because Respondent has relied equally on a number of different grounds to justify its action its discharge of Malone cannot be sustained should any one of the grounds be found unlawful The General Counsel does not challenge the validity of the writeups dated December 8 1985 and February 6 1986 but takes issue with the wnteup of January 15 1987 on the ground that Malone was disciplined on that occasion for engaging in concerted protected activity A significant portion of the January 15 memorandum refers to Malone s complaints concerning working conditions on behalf of himself and others as well as his attempt to secure additional employee support for these complaints I find Malone s activities in this regard to be both con certed and protected Respondents characterization of these activities as upsetting drivers and creating morale problems together with the disparate nature of the disci pline imposed on Malone require a finding that the Janu ary 15 writeup was discriminatonly motivated and un lawful Under Respondents progressive disciplinary system the 1985 and 1986 writeups would have been re moved from Malone s personnel file if the January 15 memorandum had not been written The February 23 1987 warning received by Malone is supported by the record as is the final warning issued to Malone on February 27 1987 45 and I find that Re spondent would have issued both of these warnings even in the absence of protected conduct See Wright Line 251 NLRB 1083 1089 (1980) enfd 662 F 2d 899 (1st Cir 1981) In contrast the March 24 1987 writeup of Malone for an incomplete trip report is a wholly pretex tual attempt to justify his subsequent discharge First the writeup does not constitute a warning as defined by Re spondent s management Second if it were a warning it would represent an egregious case of disparate discipline Given Respondent s knowledge of Malone s union activi ties I find that the purported discipline of March 24 was motivated by Respondents demonstrated union animus The final three reasons advanced by Respondent for Malone s discharge all involve the Piedmont shipment on March 27 1987 an alleged failure to turn in a backhaul 46 The February 27 warning chronicles five prior personnel actions only one of which was both a valid warning under Respondent s progres sive disciplinary system and lawful under the National Labor Relations Act Because the warning does not explicitly rely on these earlier actions as a basis for discipline I find the discipline to be valid sheet an alleged pallet discrepancy and an allegedly ex cessive break Having previously found that Malone turned in his backhaul sheet that he had good reason for not completing it and that any attempt to complete it would have been a meaningless exercise I further find that this basis for Malone s discharge was pretextual There was no pallet discrepancy and had a discrepancy existed the discipline imposed was clearly disparate Ac cordingly I find that this reason for Malone s termina tion is also pretextual Finally the record establishes that it was Respondents policy to allow drivers to take 75 minutes of break after working 11 hours I therefore find that Malone s discipline for taking an excessive break is pretextual Thus five of the seven purported bases for firing Malone are either unlawfu146 or without effect under Respondents progressive disciplinary system Given the disparate nature of much of the discipline imposed on Malone the pattern of subterfuge and pretext engaged in by Respondent its refusal to listen to any explanation from Malone on March 31 and its demonstrated aware ness of his concerted protected activities I find that Ma lone s termination was unlawfully motivated and viola tive of Section 8(a)(3) of the Act CONCLUSIONS OF LAW 1 Respondent is an employer engaged in 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 interrogating its employees about their union membership activities or sympathies or about the union membership activities or sympathies of other employ ees Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act 4 By threatening its employees that it could get a court order compelling disclosure of the names of those employees who signed union authorization cards Re spondent has engaged in an unfair labor practice in viola tion of Section 8(a)(1) of the Act 5 By impliedly promising an employee favorable treat ment in return for refraining from associating with union supporters Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act 6 By promising benefits to its employees in order to induce them to report on the union activities of other employees Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act 7 By creating an impression among its employees that their union activities were under surveillance Respond ent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act 8 By engaging in surveillance of the union activities of its employees Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act 9 By discharging employee Lonnie Malone on March 31 1987 Respondent has engaged in and is engaging in 46 The personnel actions of January 15 and March 24 1987 were not alleged to be violations of the Act their unlawfulness is relevant only to the issue of the legality of Malone s discharge 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD an unfair labor practice in violation of Section 8(a)(1) and (3) of the Act 10 The foregoing unfair labor practices affect com merce within the meaning of Section 2(6) and (7) of the Act 11 A preponderance of the credible evidence does not establish that Respondent has otherwise violated the Act REMEDY Inasmuch as Respondent has engaged in unfair labor practices I shall order it to cease those practices and to take affirmative action designed to effectuate the pur poses of the Act Such affirmative action shall include an offer to Malone of immediate and full reinstatement to his former job discharging any replacement if necessary or if that job no longer exists to a substantially equiva lent job without prejudice to his seniority or other rights and privileges previously enjoyed Malone shall be made whole for any loss he may have suffered as a result of Respondents discrimination against him Backpay will be calculated from the date of his discharge in accordance with the formula set forth in F W Woolworth Co 90 NLRB 289 (1950) with interest as computed in New Ho- rizons for the Retarded 283 NLRB 1173 (1987) 47 Finally the inclusion of a visitatonal provision a remedy sought by the General Counsel has not been shown to be necessary in order to ensure compliance with the Board s Order See Cherokee Marine Terminal 287 NLRB 1080 (1988) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed48 ORDER The Respondent Mid Mountain Foods Inc Abing don Virginia its officers agent successors and assigns shall 1 Cease and desist from (a) Interrogating its employees about their union mem bership activities or sympathies or about the union membership activities or sympathies of other employ ees (b) Threatening its employees that it can get a court order compelling disclosure of the names of employees who sign union authorization cards (c) Impliedly promising its employees favorable treat ment in return for refraining from associating with union supporters (d) Promising benefits to its employees in order to induce them to report the union activities of other em ployees (e) Creating an impression among its employees that their union activities are under surveillance 47 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26USC §6621 48 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses (f) Engaging in surveillance of the union activities of its employees (g) Discharging or otherwise discriminating against its employees because they engage in union or other pro tected concerted activities (h) 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 necessary to effectuate the policies of the Act (a) Offer Lonnie Malone immediate and full reinstate ment to his former job or if that job no longer exists to a substantially equivalent position without prejudice to his seniority or any other rights and privilges (b) Make Lonnie Malone whole for any loss of earn ings he may have suffered as a result of Respondents discrimination against him in the manner set forth in the remedy section of this decision (c) Remove from its file any reference to the personnel actions found unlawful in this decision and notify Lonnie Malone in wasting that this has been done and that evi dence of those actions will not be used as a basis for future personnel action against them (d) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (e) Post at its Abingdon Virginia facility copies of the attached notice marked Appendix 49 Copies of the notice on forms provided by the Regional Director for Region 5 after being signed by the Respondents author ized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (f) Notify the Regional Director in wasting within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER ORDERED that the allegations of the consolidated complaint not specifically found are dis missed 49 If 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 Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board MID MOUNTAIN FOODS 701 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate you about your union mem bership activities or sympathies or about the union membership activities or sympathies of other employ ees WE WILL NOT threaten you that we can get a court order compelling the disclosure of the names of employ ees who sign union authorization cards WE WILL NOT impliedly promise you favorable treat ment in return for refraining from associating with union supporters WE WILL NOT promise you benefits in order to induce you to report the union activities of other employees WE WILL NOT create an impression among you that your union activities are under surveillance WE WILL NOT engage in surveillance of your union ac tivities WE WILL NOT discharge you or otherwise discriminate against you because you engage in union or other pro tected concerted activities WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL immediately offer to reinstate Lonnie Malone to his former job or if that job no longer exists to a substantially equivalent job and WE WILL make him whole with interest for any loss of pay resulting from his unlawful discharge WE WILL remove from our files any reference to the unlawful discipline imposed on Lonnie Malone and WE WILL notify him that this has been done and that evi dence of our unlawful conduct will not be used for future personnel action against him MID-MOUNTAIN FOODS INC