Affiliated Foods, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1999

328 N.L.R.B. 1107 (N.L.R.B. 1999)

AFFILIATED FOODS, INC. 1107
Affiliated Foods, Inc. and United Food and Commer-
cial Workers Local Union 548, AFL–CIO, CLC.
Case 16–CA–18695 (1–2)
August 4, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
On March 11, 1998, Administrative Law Judge Kelt-
ner W. Locke issued the attached bench decision, sup-
plemented by a written certification and Order dated
April 13, 1998. The General Counsel filed exceptions
and a supporting brief. The Charging Party also filed
exceptions.
The National Labor Relations Board has delegated 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,1 and conclusions, as
modified below, and to adopt the recommended Order.
We affirm the judge’s conclusion that the General
Counsel has failed to prove by a preponderance of the
evidence that the Respondent violated Section 8(a)(3)
and (1) by terminating employees Ronald Hunt, John
Weeks, and Alphonse Fred Buss.2 We disagree, however,
with the judge’s finding that language about unions in
the Respondent’s employee handbook was not evidence
of the Respondent’s animus against unions and those
who support them. The handbook described the Respon-
dent as “a union-free organization” and expressed the
view that “that a union would be of no advantage to any
of us . . . (and) would hurt the business on which we all
depend for our livelihoods.” The Board has held that
statements such as these, although alone not rising to the
level of unfair labor practices, may still be used to show
animus. E.g., Lampi LLC, 327 NLRB 222 (1998); Gen-
corp, 294 NLRB 717 fn. 1, 731 (1989).3 The General
Counsel has failed, however, to prove a nexus between
the Respondent’s union animus and the decisions to dis-
charge the three employees. Even if we were to find that
the General Counsel had met the threshold burden of
proving antiunion motivation, we agree with the judge’s
further finding that the Respondent proved it would have
discharged the three alleged discriminatees even in the
absence of their protected union activities. We shall
therefore adopt the recommendation to dismiss the
8(a)(3) allegations of the complaint.

1 The General Counsel and Charging Party have excepted to some of
the judge’s credibility findings. 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.
2 We note that the General Counsel did not allege that any of these
employees engaged in protected concerted activity independent of their
union activity or that the Respondent discharged them in violation of
Sec. 8(a)(1) for such activity. Indeed, at the hearing, counsel for the
General Counsel specifically disclaimed relying on such a theory with
regard to Weeks and Buss.
3 Contrary to his colleagues, Member Hurtgen does not find that the
above-cited handbook provisions constitute evidence of animus such as
to support a violation of Sec. 8(a)(3). In his dissenting position in Wire
Products Mfg. Corp., 326 NLRB 625, 630 (1998), Member Hurtgen
found that where, as here, employers make statements that neither
threaten nor promise, but merely express a preference that their em-
ployees remain unrepresented, those statements are not unlawful.
Rather, they constitute expressions of free speech protected under Sec.
8(c). Applying the same rationale here, Member Hurtgen finds that
such 8(c) statements similarly cannot be used to establish animus in
support of an 8(a)(3) violation. In particular, Member Hurtgen relies
on the statutory language of Sec. 8(c) which specifically provides that,
where a statement comes within the protection of that provision, it
“shall not constitute or be evidence of any unfair labor practice.” [Em-
phasis added.]
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Timothy Watson, Esq., for the General Counsel.
David Fielding, Esq. and Frank Parker, Esq. (Fielding, Barrett
& Taylor), for the Respondent.
James L. Hicks Jr., Esq., for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on March 9 and 10, 1998, in Amarillo, Texas. On March 10,
1998, after all parties had rested, I heard oral argument,1 and on
March 11, 1998, issued a bench decision pursuant to Section
102.35(a)(1) of the Board’s Rules and Regulations, setting forth
findings of fact and conclusions of law. In accordance with Sec-
tion 102.45 of the Rules and Regulations, I certify the accuracy of,
and attach hereto as “Appendix A,” the portion of the transcript
containing this decision.2 The Order is set forth below.
On these findings of fact and conclusions of law and on the en-
tire record in this case, I issue the following recommended3

1 During oral argument, the General Counsel asserted that “you can-
not rebut a General Counsel’s case with hearsay evidence.” (Tr. 504.)
As announced in the bench decision, I found that the Government did
not make a prima facie case.
I also concluded that Respondent did, in fact, establish that it would
have discharged the three alleged discriminatees regardless of their
protected activities. Based in part on reports which Respondent’s man-
agement considered in making the discharge decision, Respondent had
a reasonable, good faith belief that the three employees had engaged in
the misconduct described in the evidence which the General Counsel
would characterize as hearsay. However, such evidence is not hearsay
on the issue of Respondent’s motivation and it would not be necessary
for Respondent to prove that the misconduct actually occurred to meet
its burden on rebuttal. See, e.g., GHR Energy Corp., 294 NLRB 1011,
1012–1013 (1989).
2 I order the transcript corrected in accordance with Appendix B to
this decision. [Omitted from publication. Corrections have been noted
and corrected in Appendix A.]
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, these 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.
328 NLRB No. 165
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
ORDER
It is recommended that the complaint be dismissed in its en-
tirety.
APPENDIX A
P R O C E E D I N G S
540
JUDGE LOCKE: We’ll go on the record now.
This is a bench decision in the case of Affiliated Foods, In-
corporated, and United Food and Commercial Workers, Local
Union 540, AFL–CIO–CLC, case number 16–CA–18695–1
and –2. It is issued pursuant to Section 102.35, Subparagraph
(10), and Section 102.45 of the Board’s rules and regulations.
Respondent has admitted in its answer the allegations raised
in certain paragraphs of the General Counsel’s complaint.
Based upon those admissions and the record as a whole, I make
the following findings of fact:
At hearing, the General Counsel orally amended paragraph
1(e) of the complaint to allege that the original charge in case
16–CA–18695–2 was filed by the Charging Party on June 23,
and a copy was served upon Respondent by first class mail on
the same date.
Also at hearing, Respondent stated that it does not contend
that it has not received adequate notice of the charges in this
case.
I find that the original charge in case 16–CA–18695–1 was
filed by the Charging Party and served upon Respondent by
first class mail on May 23, 1997; that the first amended charge
in 16-CA-18695–1 was filed by Charging Party and served on
Respondent by first class mail on June 3, 1997; that the second
amended charge in case 16–CA–18695–1 was filed by Charg-
ing Party
541
and served upon Respondent on June 13, 1997; that the third
amended charge in case number 16–CA–18695–1 was filed by
the Charging Party on June 17, 1997, and served upon the Re-
spondent by first class mail on June 18, 1997;
That the original charge in 16–CA–18695–2 was filed by the
Charging Party and served upon Respondent by first class mail
on June 23, 1997; and that the first amended charge in case
number 16–CA–18695–2 was filed by the Charging Party and
served upon Respondent by first class mail on July 1, 1997.
Respondent has admitted facts establishing that it is an em-
ployer engaged in commerce within the meanings of Section
2(2), (6), and (7) of the Act. Specifically, Respondent has ad-
mitted and I find that at all times material to this case, it has
been a Texas corporation, with a facility in Amarillo, Texas,
and is engaged in the business of wholesale grocery distribu-
tion, as alleged in paragraph 2 of the complaint. I find that the
General Counsel has proven the allegations in paragraph 2 of
the complaint.
Respondent has admitted that during the 12 months before
the complaint, which issued October 15, 1997, in performing
the business operations described in paragraph 2 of the com-
plaint, it purchased and received goods, services, and materials
valued in excess of $50,000 directly from points located outside
the state of Texas. Therefore, I find that the General Counsel
has proven the allegations in paragraph 3 of the complaint.
542
I also find that the General Counsel has proven the conclu-
sion alleged in paragraph 4 of the complaint, that at all material
times, Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Therefore, I
find that the Respondent is subject to the jurisdiction of the
National Labor Relations Board.
Respondent has admitted and I find that the Charging Party
is a labor organization within the meaning of Section 2(5) of
the Act. The Respondent has admitted and I find that the fol-
lowing individuals are its supervisors within the meaning of
Section 2(11) of the Act and its agents within the meaning of
Section 2(13) of the Act: the director of warehouse operations,
Paul Siebenthal; the director of human resources, Don Barclay;
the director of produce, who is also the assistant director of
perishable operations, Harold Callaway; the employee relations
manager, Kay Kropff; supervisor Joe Moore; and supervisor
Barry Marcum.
The parties also stipulated at hearing that the director of
transportation, Bobby Sutton, is a supervisor, and I so find.
The Respondent has also admitted the allegations in com-
plaint paragraph 8 that on about June 20, 1997, it terminated the
employment of employees John W. Weeks, Alphonse Fred
Buss, and Ronald G. Hunt. I find that the General Counsel has
proven the complaint allegations in paragraph 8.
The Respondent has denied the remaining allegations of the
543
complaint, which I will summarize as follows.
Paragraph 7 of the complaint alleges that since about May
20, 1997, and on various dates thereafter, Respondent, by Paul
Siebenthal, Harold Callaway, Joe Moore, and Barry Marcum,
engaged in surveillance of and more closely supervised its em-
ployees because they supported the union.
Paragraph 10 of the complaint alleges that the conduct al-
leged in paragraph 7, that is, surveillance of employees and
more close supervision of employees because they supported
the union, violates Section 8(a)(1) of the Act.
Paragraph 10 of the complaint alleges that Respondent’s dis-
charge of employees Weeks, Buss, and Hunt, as alleged in
complaint paragraph 8 and admitted by Respondent, violates
Section 8(a)(1) of the Act, and that these unfair labor practices
affect commerce within the meaning of 2, 6, and 7 of the Act.
Paragraph 11 of the complaint alleges that Respondent’s dis-
charge of employees Weeks, Buss, and Hunt violates Section
8(a)(3) of the Act, affecting commerce within the meaning of
Section 2, 6, and 7 of the Act.
As noted, Respondent has denied these allegations. I make
the following findings:
Affiliated Foods, Incorporated, which will be referred to as
the Respondent or the Company, provides groceries and other
merchandise on a wholesale basis to supermarkets, grocery and
544
convenience stores which own shares in the company. Addi-
tionally, the Respondent makes sales to other institutions, large
institutions which are not in the retail grocery business. These
institutions do not own shares of the Respondent, and their
accounts for a relatively small portion of the Respondent’s
revenues.
The retail store operators which do own shares of the Re-
spondent elect its board of directors. These retail stores are
AFFILIATED FOODS, INC. 1109
located in a wide area, as shown by the composition of the cur-
rent board of directors. Its members operate businesses in
Texas, Colorado, and New Mexico.
The Company operates a warehouse complex in Amarillo,
Texas, and its drivers take merchandise from there to the vari-
ous retail stores owned by their customers.
In about May 1997, United Food and Commercial Workers,
Local Union 540, AFL–CIO, here referred to as the Charging
Party or the Union, began trying to organize the employees at
this warehouse complex, including the truck drivers. On May
19, 1997, the Union sent the Company a letter, listing the
names of 20 employees who were members of the Union’s in-
plant organizing committee. These 20 include the three alleged
discriminatees named in the complaint, Ronald Hunt, John
Weeks, and Alphonse Fred Buss.
According to the complaint, on May 20, 1997, the day after
the Union sent the Company the letter announcing its organiz-
ing
545
drive and identifying its employee organizing committee, the
Company began engaging in surveillance of and began more
closely supervising its employees because they supported the
Union.
Independent of the discharges of Hunt, Weeks, and Buss,
which the complaint alleges to violate both Section 8(a)(3) and
8(a)(1) of the Act, this allegation of surveillance and stricter
supervision is the only allegation that Respondent violated
Section 8(a)(1).
In evaluating whether a statement or act interferes with, re-
strains and coerces employees in violation of Section 8(a)(1) of
the Act, the Board applies an objective test. An employer’s
motivation for the statement or the act is irrelevant.
Similarly, whether or not a particular employee was actually
coerced or considered himself to be is not relevant. Rather, the
Board determines whether Section 8(a)(1) has been violated,
based upon whether the statement or act in question reasonably
would interfere with, restrain, or coerce employees in the exer-
cise of their rights guaranteed by Section 7 of the Act.
Respondent adduced testimony that during this time period,
it did increase supervision because management had received
reports about instances of vandalism or potential vandalism.
Transportation director Bobby Sutton testified that management
had received reports of tampering with the thermostat settings
546
on refrigeration units which would cause perishable items to
spoil and of tampering with pins which couple a trailer to the
tractor portion of a truck. If a driver pulled out without know-
ing that a trailer was effectively coupled to the tractor, Sutton
testified, it could cause substantial damage to the trailer.
Because of these reports, Sutton said, management increased
its supervision of the warehouse complex. There is no substan-
tial evidence contradicting this testimony. Additionally, based
upon my observations of Sutton while he testified, I find no
reason to doubt this testimony which I credit. Sutton impressed
me as a reliable witness, and I credit all of his testimony.
As previously noted, I do not take into account manage-
ment’s motivation for increasing the amount of supervision, but
I do take into account the fact that management did increase the
supervision as Sutton testified. Moreover, I do take into ac-
count whether the increased supervision reasonably would
communicate to the employees any message pertaining to the
union organizing drive and specifically whether it communi-
cated a message which interfered with, restrained, or coerced
employees in the exercise of their Section 7 rights.
Truck driver John Weeks testified that he saw more supervi-
sors during the union organizing campaign. This
547
testimony, of course, is consistent with Sutton’s testimony that
more supervisors were present because of the reports of vandal-
ism and the need to prevent it.
Weeks also testified that on one occasion, he put pro-union
handbills in one of the bathrooms at the Respondent’s facility.
After seeing a supervisor go in, he went back and discovered
that the handbills were gone.
On one occasion Weeks also placed some pro-union hand-
bills in the lounge. Weeks testified that after he left the lounge,
he looked through a window and saw two supervisors, Bobby
Sutton and Paul Siebenthal, in the lounge. Weeks’ testimony
does not persuade me that the Respondent either engaged in
surveillance of the employees’ union activities or created the
impression that it was engaging in such surveillance.
To the contrary, Weeks’ testimony about looking through the
lounge window suggested that it was just as likely that he was
keeping the supervisors under surveillance as the other way
around.
Weeks demeanor while testifying about this matter suggested
that he drew some amusement from it, as he might from a
game. However, as previously noted, the Board applies an
objective standard of evaluation Section 8(a)(1) allegations.
Therefore, Weeks’ reaction does not compel a conclusion that
other employees would not be coerced, just because Weeks did
not have this reaction.
548
Employee Chance Hull testified as a witness for the General
Counsel. The Union’s May 19, 1997, letter listed Hull among
the 20 employees on the Union’s organizing committee. Ac-
cording to Hull, during the organizing campaign, the supervi-
sors stayed later than usual and, to quote Hull, “they followed
us around everywhere we went.”
Hull further testified that supervisors stayed in the smoking
and break areas. On cross-examination, Hull admitted that he
had heard that a number of drivers had complained that their
units had been tampered with and that someone had turned up
the thermostats on refrigeration units. I do not rely upon Hull’s
testimony in deciding whether or not there had been such com-
plaints of vandalism, because Hull’s testimony on this point
would be hearsay and probably second- or third-hand hearsay.
However, Hull’s testimony on this point is material, because
in essence a Section 8(a)(1) violation consists of the communi-
cation of a coercive message in some manner. The message
may be communicated either by words or by action. In this
case, the complaint does not allege that Respondent made any
statement which interfered with, restrained, or coerced employ-
ees in the exercise of Section 7 rights.
Instead, the Section 8(a)(1) allegation here alleges that Re-
spondent interfered with, restrained, and coerced employees by
increasing the number of supervisors and by supervising em-
ployees more closely, in other words, an action which would
549
communicate a message to employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
Since the Government has not alleged that the Company
made any statement associating these actions with the union
drive and since the record does not show that the Respondent
ever made such a statement, any anti-union message contained
in these actions must be an implied message rather than an
explicit one. To determine whether employees would be likely
to infer an anti-union message from their observations of in-
creased supervision, it is necessary to look at the context of this
event.
On the one hand, it appeared to coincide with the union
campaign which might lead employees to associate the two.
On the other hand, if employees also had received information
that some drivers had reported incidents of vandalism, the sud-
den appearance of the extra supervisors would be less likely to
convey a message relating the supervision to the Union’s orga-
nizing drive.
For this reason, Hull’s testimony that he heard that the Com-
pany had received reports of vandalism is relevant, and it is
relevant whether or not the Company actually had received
such reports of vandalism.
Another employee, Charles Fox, also testified that he ob-
served increased supervision at the same time as the Union’s
organizing drive. Fox, who is also known as Gene Fox, is one
of the 20 pro-union employees whom the Union identified in its
May 19, 1997, letter to the Company.
550
Fox described one occasion in which he believed supervisors
followed him into a restroom. Fox’s testimony did not con-
vince me that he actually had been followed around for any
substantial period of time by a supervisor, although it does raise
the possibility that supervisors once came to look for him while
he was in one of the stalls in the men’s room. Even if they did,
there is no evidence which would link their looking for Fox on
this occasion with anything concerning the Union.
In this case, there was no collective bargaining agreement
which limited the Respondent’s use of supervisors to oversee
the work. The Respondent had a right to use as many supervi-
sors as it needed to accomplish its lawful objectives of seeing
that the work was done and preventing vandalism.
Although the law prohibits an employer from using supervi-
sors to engage in surveillance of employees’ union activities,
the evidence does not establish that the Respondent’s supervi-
sors engaged in such surveillance or created the impression of
it. The fact that there were supervisors in the employee lounge
might tend to make it a less likely site for discussions about the
union, but it did not make their presence unlawful. Supervisors
had a right to be in the lounge, just as did employees.
The fact that supervisors took down handbills posted on the
employer’s property also is not unlawful nor does the complaint
allege it to be. The Union had no more right to post handbills
551
on company walls than the Company would have to post them
on the walls of the union hall.
Additionally, it may be noted that two witnesses testified that
they had asked supervisors for copies of anti-union handbills
the supervisors were distributing, and the supervisors refused to
give them copies. The complaint does not allege that this con-
duct was violative, and I do not find it to be so.
In other respects, the evidence does not establish that the Re-
spondent made any statement which associated the increased
supervision with the union drive, and as noted, at least some
employees were aware that the employer had received or pur-
portedly had received reports of vandalism occurring, which
provides a basis for additional supervisors being present that
was unrelated to the union organizing drive.
In these circumstances and applying an objective standard, I
find that the increase in supervisors did not violate Section
8(a)(1) of the Act. In other ways, I do not find that the allega-
tions of paragraph 7 of the complaint have been established,
and I recommend that it be dismissed.
In deciding the Section 8(a)(3) allegations raised by com-
plaint paragraphs 8 and 10, I will consider first the case involv-
ing Ronald G. Hunt, one of the Respondent’s drivers. On June
13, 1997, Hunt and another driver were in a truck, making a
delivery to an Allsup’s convenience store in Spur, Texas.
According to Cindy Campbell, who was then the store man-
ager
552
and then named Cindy Longoria, Hunt came into the store in a
rude manner and began asking questions about a car which was
blocking the path to the spot where the truck could be un-
loaded.
When Hunt learned that the driver of the car was in the rest-
room, he demanded several times that the store personnel get
her out of the bathroom and have her move her car. He also
stated that they, meaning the truck drivers, could turn the car
into a compact car, presumably by running over it with the
truck.
Campbell also testified that a little later, Hunt asked her and
a store clerk which of them was going to help unload the truck,
referring to the truck as a “son of a bitch” or a “sucker.” Ac-
cording to Campbell, after Hunt left, several customers in the
store commented on his rudeness, and she telephoned the Re-
spondent to complain.
The dispatcher who received her complaint noted it, so that
later in the day, the Respondent’s transportation director,
Bobby Sutton, became aware of the incident. He spoke with
Campbell by telephone, and an investigative process began
which led to Hunt’s discharge. The employee termination form
in evidence as Respondent’s Exhibit 8.1 indicates that Hunt’s
last day worked was June 13, 1997, although he did not sign the
form until June 23, 1997.
The reason given on the termination form was “rude, inap-
propriate, and offensive conduct at stockholder’s location
553
in the presence of store employees and customers, and failure to
follow AFI delivery policy (leaving store before they could
check in delivery).”
Hunt denied demanding that the store manager get the cus-
tomer out of the ladies restroom to move her car and also de-
nied asking the store personnel to help unload the truck. In-
stead, he testified that he asked them, “Which one of you has
the honor of accompanying me outside.”
He also testified that the assistant store manager signed the
delivery form. Hunt’s testimony also suggests that either cus-
tomers were not present in the store or were not close enough to
hear what was said.
However, Hunt did not deny making the statement about
turning the customer’s car into a compact car. I must therefore
decide which witness to credit and will begin that analysis by
looking at Hunt’s testimony regarding turning the customer’s
car into a compact car.
AFFILIATED FOODS, INC. 1111
The General Counsel’s questions sought to characterize this
statement, which Hunt admitted, as a joke. Hunt went along
with this characterization, but his demeanor did not suggest that
he was particularly convinced by it, and he did not appear par-
ticularly convincing.
On the other hand, Campbell was a convincing witness. I
credit Campbell’s testimony for two reasons. First, she is a
totally independent witness who now works neither for the
554
Respondent nor for one of its customers. By comparison, Hunt
has a substantial interest in the outcome, because he stands to
regain his job.
Second, Campbell’s demeanor as a witness, particularly
upon cross-examination by the Union, impressed me. The Un-
ion’s counsel tried to get Campbell to admit she complained to
Respondent about Hunt, not because she was offended by what
Hunt did, but out of what might be called a bureaucratic “cover
your actions” motivation. When Campbell disagreed, the
cross-examining attorney persisted. Campbell’s indignation
apparent from her demeanor demonstrated that she considered
herself to be the party abused by Hunt’s action and that she did
not believe that she had any need to justify or cover her own
actions.
Therefore, her reaction to this persistent cross-examination,
apparent in her demeanor, helped persuade me as to her
reliability as a witness. Clearly, she regarded Hunt’s conduct
as brutish and offensive. She would not have had this reaction
if Hunt had behaved as he claims. I credit Campbell.
In determining whether Hunt’s discharge violated the Act, I
applied the framework established in Wright Line, 251 NLRB
1083 (1980) enfd. 662 Fed. 2d 899, 1st Circuit (1981), cert.
denied 455 U.S. 989 (1982).
Under Wright Line, the General Counsel must first make a
prima facie showing “sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
555
decision” to take the action which allegedly violated Section
8(a)(3).
Once the General Counsel has made such a showing, the
burden then shifts to the employer “to demonstrate that the
same action would have taken place even in the absence of the
protected conduct.” That’s Wright Line, again, 251 NLRB at
1089. If the General Counsel does not present evidence estab-
lishing such a prima facie case, then the Respondent does not
have to demonstrate that it would have taken the adverse em-
ployment action anyway.
The General Counsel may establish the prima facie case by
proving the following four elements. First, the alleged dis-
criminatee engaged in union or protected concerted activities.
Second, the Respondent knew about such activity. Third, the
Respondent took an adverse employment action against the
alleged discriminatee. And, fourth, there is a link or nexus
between the protected activities and the adverse employment
action.
At the first step, the evidence establishes that Hunt engaged
in considerable protected activity, including handing out union
literature, talking to employees about the union, and wearing a
union cap during his work. The Government has satisfied this
step.
At the second step, the evidence also establishes that the
Company knew about Hunt’s union activity. The Union’s May
19,
556
1997, letter to the Company identifies Hunt as a member of the
Union’s organizing committee. The evidence, therefore, proves
the second Wright Line requirement.
At the third step, the evidence establishes that the Company
took an adverse employment action against Hunt. It discharged
him. The General Counsel, therefore, has proven the first three
Wright Line requirements.
However, I conclude that the Government has not proven the
fourth requirement, that is, a link between Hunt’s protected
activity and the adverse action against him. Such a link may be
established by proof that the Company, by acts or statements,
has interfered with, restrained, or coerced employees in the
exercise of Section 7 rights in violation of Section 8(a)(1) of the
Act.
The complaint in this case alleges only one count of inde-
pendent violation of Section 8(a)(1), and I have found that the
evidence does not prove this allegation. In other respects, the
Government does not allege and the evidence does not establish
a violation of Section 8(a)(1).
The General Counsel contends that I may find the necessary
link by looking at statements the Respondent has made about
unions, even though the Government does not allege that these
violated the law. These statements may be found in handbills
issued by the Company in response to the union campaign and
in the employee handbook, all of which are in evidence in this
557
proceeding.
The Respondent contends, on the other hand, that the First
Amendment bars consideration of its lawful statements to show
motivation for its action. Such an interpretation, however,
often would make it impossible to prove motive in many differ-
ent kinds of cases. The First Amendment does not go that far.
It prohibits Government from engaging in prior restraint of
expression, but it does not prevent Government from consider-
ing that what a person says might mean something.
Although the First Amendment does not bar me from con-
sidering Respondent’s lawful statements as evidence and mo-
tive, Section 8(c) of the National Labor Relations Act does
have an effect upon the extent to which I may consider lawful
statements which the Respondent has made.
Section 8(c) states, “The expressing of any views, argument,
or opinion or the dissemination thereof, whether in written,
printed, graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the provisions of
the Act, if such expression contains no threat of reprisal or
force or promise of benefit.”
I find that the statements in question do not contain any
threat of reprisal or force or promise of benefit, and that they
fall within the coverage of Section 8(c). However, the Board
has stated that “conduct that may not be found violative of the
Act may still be used to show anti-union animus,” without
558
transgressing Section 8(c). See Gencorp, 294 NLRB 717, foot-
note 1, 1989, citing General Battery Corp, 241 NLRB 1166 at
1169, 1979.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112
Therefore, I will consider the Respondent’s lawful state-
ments as to the issue of animus, but will do so in a manner con-
sistent with the provisions of Section 8(c) and with the Board’s
doctrine as expressed in the Gencorp decision.
Considered in this manner, the Respondent’s lawful state-
ments do not establish the link required by the fourth step of the
Wright Line framework. These statements expressed Respon-
dent’s opinion that unions were detrimental and the Respondent
would take all lawful steps to oppose the Union at its facilities.
The Respondent never stated that it would do anything un-
lawful. If the Respondent had made other statements which
violated the Act or if it had engaged in conduct which violated
Section 8(a)(1), I would be less inclined to take seriously the
Respondent’s use of the word “lawful.” However, there is no
evidence that the Respondent made any statements which vio-
lated Section 8(a)(1). The complaint alleges only one count of
independent violation of Section 8(a)(1), and I have found that
the evidence does not establish this violation.
In this context, free of 8(a)(1) violations, I will not assume
that Respondent’s lawful words mean other than what they
expressly say. The words are limited to opposing unionization
559
in lawful ways. Considering these words in the manner al-
lowed by Section 8(c) and the Board’s policy expressed in
Gencorp, I do not find that they establish the nexus required by
step four of the Wright Line test.
The General Counsel also asserts that the timing of Hunt’s
discharge is sufficiently suspicious to support an inference of
discriminatory motive. I do not agree. The Union’s organizing
drive had been going on for at least a month. Additionally,
there does not appear to be any connection between any par-
ticular instance of Hunt engaging in protected activity and the
decision to discharge him. Moreover, Hunt’s last day of work
was June 13, 1997, the same day as the incident in question.
In sum, I find that the General Counsel has not satisfied the
fourth element of the Wright Line analysis with respect to
Hunt’s discharge, and therefore has not established a prima
facie case. Therefore, I recommend that this allegation be dis-
missed.
Next I will discuss the discharges of employees John Weeks
and Alphonse Buss. They are both truck drivers and were driv-
ing partners at the time of the material events.
On about June 3, 1997, they took a load from the warehouse
in Amarillo for delivery at a Kelloff’s store in Antonito, Colo-
rado. Weeks was dissatisfied with this load at the time he left
the Respondent’s warehouse. He considered the trailer to
560
have been loaded poorly and that the load was too large for the
type of trailer used.
When he got to the store in Antonito, Weeks spoke to the as-
sistant store manager, Jason Rendon, and encouraged Rendon
to write a letter, complaining about the way the truck was
loaded. Rendon did write a letter, which stated in pertinent
part, “Today’s truckload (truck number 11) was unsafe for
drivers to unload. Load was put on a 48-foot trailer and should
have been put on a 53- or 57-foot trailer. Things seemed inten-
tionally loaded wrong. This kind of load holds the drivers up
for us as well. I would appreciate it if this would not happen
again.”
Weeks also purchased a disposable camera while at the store,
and in the presence of store personnel, photographed the inside
of the trailer containing merchandise. Weeks later gave Ren-
don’s letter, as well as a letter he had written, to management.
However, Weeks did not give management the photographs he
had taken.
Management received a complaint about this incident, and
transportation director Sutton issued Weeks a written warning.
Sutton also directed that Weeks and Buss should not return to
the Kelloff’s store. I credit Sutton’s testimony, based upon my
observations of the demeanor of the witnesses.
On a June 13, 1997, run, the same team, Weeks and Buss,
did return to the store. They were not assigned to deliver any
merchandise there. Weeks claimed to have been asleep at the
561
time Buss pulled the truck into the store parking lot. Although
Buss testified that he stopped to use the restroom, he also ad-
mitted that he saw assistant store manager Rendon and asked
him, “What happened about the letter, Jason.”
The Respondent learned about this incident and conducted
an investigation which led to the discharge of Weeks and Buss.
Employing the Wright Line analysis, I find that the General
Counsel has satisfied the first three requirements. Weeks and
Buss were active union supporters, identified as organizers by
the Union’s May 19, 1997, letter to the Company, and each was
discharged, which was an adverse employment event.
However, the Government has not satisfied the fourth re-
quirement of a link between the protected activities and the
adverse actions. For the same reasons applicable to Hunt, dis-
cussed previously, a preponderance of the evidence does not
establish unlawful motivation.
I do not find that the circumstances of the discharge or the
reasons given by Respondent for them raised any indication of
pretext. Respondent investigated the facts fully, but it had done
likewise in earlier cases not involving union adherents or a
union organizing drive.
I find that the General Counsel has not established a prima
facie case, but even assuming such a case, I would find that
Respondent has rebutted it with respect to all three alleged
discriminatees.
562
Respondent’s customers are also its owners. The Union
suggests that this relationship is less than arm’s length, but the
Government does not allege any alter ego or single-employer
status, and I do not find that to be the case here.
However, considering the internal politics of associations in
general, including in particular the cooperative association
which owns the Respondent, I believe it is very likely that
management officials considered themselves especially vulner-
able because the same persons who had the power of the purse
as customers also had the executive power by electing a board
of directors which could replace the current managers with
others.
Considering this fact, it is logical that Respondent would
place a high premium of keeping good relations with its cus-
tomers who were also its shareholders. Hunt’s conduct obvi-
ously created an ugly and unprofessional image and cannot be
defended.
Weeks’ conduct also was unacceptable. He impressed me as
deriving some pleasure from shaking things up, and I do not
criticize that quality in any way because of the relationship
between progress and challenging the status quo. Although I
don’t criticize the quality in any way, I do take it into consid-
AFFILIATED FOODS, INC. 1113
eration in evaluating Weeks’ conduct at the store and the way
he went about this conduct.
Based upon my observations of Weeks, I find that when he
went to the Colorado store and talked to Rendon, he did so
563
rather dramatically. His taking photographs of the truck, as if
to document a safety violation, was also done dramatically and
certainly was intended to create a stir.
The Union argues that Weeks did these actions in part be-
cause of Weeks’ support for the union. Perhaps he did, but I
find that they were not activities which were protected by the
National Labor Relations Act.
Moreover, it is clear from Rendon’s subsequent letter to the
Company, dated June 5, 1997, that when Weeks urged Rendon
to write a letter and dictated its contents to Rendon, Weeks did
not tell Rendon about the connection between the letter and the
Union, if there were such a connection. In these circumstances
Weeks was not engaged in any activity protected by the Act.
Additionally, I should note that I do not credit Weeks’ testi-
mony to the extent he denies dictating the letter to Rendon.
The letter obviously refers to a truck-trailer in the terms a truck
driver would use; for example, it talks about the length of the
trailer. And in agreement with Rendon’s later letter, I find that
Weeks dictated much of Rendon’s earlier letter to him.
As to Buss, the evidence establishes that Respondent had a
reasonable basis to believe he was not candid in explaining why
he stopped at the Kelloff’s store after Sutton’s order that they
should not return. He claimed it was to visit the restroom, but
the evidence shows he then talked to Rendon about the letter.
564
Because of this apparent lack of candor, Respondent clearly
would be reasonable in suspecting that Buss and Weeks were
trying to reignite a controversy which involved one of Respon-
dent’s customers and shareholders and did so in violation of
Sutton’s orders.
The General Counsel and Union also contend that the Re-
spondent may not rely upon hearsay evidence as a means of
rebutting the Government’s prima facie case. As noted, I do
not find that a preponderance of the evidence establishes such a
prima facie case. However, I also note that the law does not
require a company to conduct an investigation before discharg-
ing an employee in a manner consistent with the Federal Rules
of Evidence or even with the Administrative Procedures Act.
In fact, the law does not even give me authority to examine
Respondent’s investigative process to determine whether or not
it was fair. I may look at it only to determine whether the Re-
spondent’s actions indicate the presence of an unlawful anti-
union motive.
Respondent conducted a remarkably thorough investigation
and did not act precipitously in discharging these three indi-
viduals. Moreover, the thoroughness of the investigation was
in keeping with how it investigated incidents involving other
employees before discharging them. Therefore, I do not find
that the investigative process itself indicated any unlawful mo-
tivation.
565
Respondent was entitled to place a high value on its relation-
ship with its customers and shareholders, and to insist that driv-
ers followed the prescribed procedures for dealing with them.
These procedures included having customers telephone the
home office, using the WATS line for that purpose, to deal with
problems.
Although the Union suggests that the problems that Weeks
had with the truck were not the sort of problems that could be
handled with a telephone call, that argument goes to the sound-
ness of the rule and not to the Respondent’s right to enforce it.
In sum, I find that the General Counsel has not established a
prima facie case with respect to the discharges of these indi-
viduals, but even assuming that the evidence established such a
case, the Respondent has demonstrated that it would have taken
the same action against Hunt, Weeks, and Buss, even in the
absence of protected activity.
Therefore, I recommend that the complaint be dismissed in
its entirety.
As soon as I receive the transcript of this proceeding, I will
issue a certification. Upon transfer of the case to the Board, the
parties will be notified, and their time for appeal will begin.
Finally, I would like to add quite sincerely that I have been
extremely impressed with the courtesy and the
566
professionalism of all counsel in this case, as well as with the legal
quality of their presentations and their representation. It has truly
been a pleasure, working with such able attorneys, and I appreciate
it.
The hearing is closed.