Mid-Mountain Foods

National Labor Relations Board - Board Decisions

Sep 21, 2000

332 N.L.R.B. 251 (N.L.R.B. 2000)

MID-MOUNTAIN FOODS 251
Mid-Mountain Foods, Inc. and United Food and
Commercial Workers International Union, Lo-
cal 400, AFL–CIO, CLC and John C. Widener
and International Brotherhood of Teamsters,
AFL–CIO. Cases 11–CA–17354, 11–CA–17379,
11–CA–17398, 11–CA–17414, 11–CA–17479, and
11–CA–17496–2
September 21, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On August 5, 1998, Administrative Law Judge Pargen
Robertson issued the attached decision. The Respondent
and Charging Party Local 400 each filed exceptions and
a supporting brief. The Respondent filed an answering
brief.
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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2 as
modified below and to adopt the recommended Order as
modified.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
We also find without merit the Respondent’s allegations of bias on
the part of the judge. On our full consideration of the record, we find
no evidence that the judge prejudged the case, made prejudicial rulings,
or demonstrated bias in his credibility resolutions, analysis, or discus-
sion of the evidence.
We deny the Respondent’s motion to reopen the record and intro-
duce new evidence. The evidence sought to be adduced by the Re-
spondent, even if credited, would not require a different result. Accord-
ingly, the Respondent has not shown the “extraordinary circumstances”
required under Sec. 102.48(d)(1) of the Board’s Rules and Regulations
to warrant a reopening of the record.
2 In adopting the judge’s findings that the Respondent violated Sec.
8(a)(1) of the Act by threats of termination and of futility in selecting
the Union, we do not rely on his finding that employee John Widener’s
comments about the Respondent’s perishable drivers constituted pro-
tected concerted activity. We note that the judge’s recommended Order
does not advert to this finding.
In adopting the judge’s animus findings, we note that in another re-
cent case the Respondent was found to have violated Sec. 8(a)(1) of the
Act by unlawfully interrogating employees, threatening stricter en-
forcement of plant rules, threatening discharge and job loss, and by
removing prounion literature from employee break areas. The Respon-
dent was also found to have violated Sec. 8(a)(3) of the Act by giving a
written warning to an employee (Steven Warner, also a discriminatee in
the instant case) who missed work when subpoenaed to testify at a
Board representation hearing. Further, an August 1996 election was set
aside because of the Respondent’s misconduct. Mid-Mountain Foods,
(Mid-Mountain I), 332 NLRB 19 (2000). We also note that the events
of the instant case occurred not long after those in Mid-Mountain I, and
that the same people were involved in several violations found in both
cases.
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by suspending Tony Or-
field with a final warning and by later discharging him.
The Respondent has excepted to this finding. We find
merit in this exception and, for the reasons stated below,
we reverse the judge’s finding as to Orfield.3 We assume
arguendo that the judge correctly found that a prima facie
case was established, but we conclude that the Respon-
dent successfully rebutted it.
The judge rejected the Respondent’s contention that,
irrespective of order selector Orfield’s union activities, it
would have taken the same actions against him because
he twice negligently damaged its property in disregard of
established safety practices.
The judge noted that Orfield had two accidents, one in
October 1996 and the other in January 1997. In the first
one, Orfield backed his SGX machine (a machine de-
signed to lift one or two pallets several inches off the
floor and transport them) through a curtained door, strik-
ing the leg of a rack and causing tons of butter to fall
from the rack and cover his machine. In the second one,
Orfield tried to drive his SGX through closing doors
without first pulling the cord that would open them, re-
sulting in damage to the doors. After the first incident,
Orfield received a final warning and a suspension. Or-
field was discharged after the second incident.
The judge apparently rejected the Respondent’s argu-
ment largely because he found that the Respondent’s
reliance on the amount of damage done in the October
1996 incident was a pretextual afterthought, as demon-
strated by the different estimates of damage its witnesses
made at the hearing. However, Supervisor Randy
Noonchester, who conducted the primary investigation,
estimated the damage at $4700. In any event, the fact
that different supervisors may have estimated the damage
differently does not establish that the matter was never
investigated or that the Respondent’s reliance on this
factor was pretextual.
Further, the final warning given to Orfield in October
1996 stated that any further improper conduct would
result in termination. (Indeed, under the Respondent’s
policy, it could have terminated Orfield after the first
accident, but chose not to do so.) Orfield, who signed
the final warning, knew this, as did his coworker Jerry
Price, who, according to the testimony of Supervisor
Trey Browning, asked Browning not to write up Orfield

3 Chairman Truesdale and Member Hurtgen join in this section of
the decision. Member Fox has dissented.
332 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 252
for the second incident because it would cost Orfield his
job.
Nor was Orfield treated disparately. Employee Ron
Ryan was suspended and received a final warning after
an accident similar to Orfield’s October accident, and the
Respondent terminated Johnny Coalson when he violated
work rules after receiving a final warning. Even assum-
ing that the judge correctly characterized the January
accident as “minor,” the fact remains that Orfield was
involved in a second accident 3 months after receiving
his final warning, which stated that another infraction
would result in his dismissal. In these circumstances, we
find that the Respondent has shown that it would have
warned, suspended, and discharged Orfield even in the
absence of his union activities. We therefore conclude
that the Respondent’s actions were not unlawful.
Contrary to our dissenting colleague, we do not find
that the Respondent has shown only that it might have
punished Orfield in the absence of his protected activi-
ties. We emphasize the significant cost to the Respon-
dent of Orfield’s October 1996 accident, as estimated by
the supervisor who conducted the primary investigation
of the damage, as well as the suspension and final warn-
ing given to employee Ryan for a similar accident. Con-
trary to the assertion of our dissenting colleague, Re-
spondent investigated the accident prior to the discipline
that was imposed 2 days later. Although the precise
amount of damage had not yet been computed at that
time, it was at least clear that the damage was substantial.
We recognize that other employees may have received
lesser punishments for other accidents. However, with-
out more, this does not establish disparate treatment, par-
ticularly in light of the seriousness of Orfield’s accident.
2. Contrary to our dissenting colleague, we agree with
the judge that the Respondent unlawfully terminated
Ronnie Brooks when it refused to reinstate him following
a disability and unlawfully issued a written warning to
Larry Nunley.4
Brooks had been employed by the Respondent for over
10 years when he went out on a medical leave on August
5, 1996. By letter dated January 13, 1997, the Respon-
dent informed Brooks that he would reach his 183-day
maximum allowable disability leave on February 11 and
advised him that he would be terminated if he did not
return to work by that date or request an extension. Pre-
sumably in response to the Respondent’s letter, Brooks
received his physician’s clearance to return to work Feb-
ruary 24 and, on February 5, forwarded the clearance to

4 Chairman Truesdale and Member Fox join in this section of the de-
cision. Member Hurtgen has dissented.
the Respondent along with his request for a 13-day ex-
tension of his disability leave.
The Respondent received Brooks’ extension request on
the same date that the Respondent reviewed the union
authorization cards, one of which Brooks had signed
before he went on medical leave. A few days later, the
Respondent learned that Brooks was a potential witness
for the General Counsel in an upcoming hearing. Within
a few days of that, on February 14, the Respondent de-
nied Brooks’ request for an extension and terminated
him.
Although our dissenting colleague assumes that the
General Counsel has demonstrated that Brooks’ pro-
tected conduct was a motivating factor in the Respon-
dent’s decision to deny his request for an extension and
discharge him,5 he finds that the Respondent carried its
burden of proving that its decision would have been the
same even in the absence of that protected conduct. Ac-
cording to our colleague, the Respondent carried its bur-
den by demonstrating that it has always denied requests
for such extensions of disability submitted in the past and
reserved the right to do so in its letter to Brooks. We
disagree.
As the judge points out, Brooks requested an extension
of his disability leave from February 11 to 24—only 13
days. All of the past requests that were denied by the
Respondent sought extensions of unlimited duration.
Contrary to our colleague, the Respondent demonstrated
only that it had a practice of denying requests that were
for unlimited duration, not a practice of denying requests
for any extension at all. The Respondent also fails to
explain why, if it had a practice of denying all extension
requests, it invited Brooks to submit a request for an ex-
tension in the first place, knowing that the request would
be summarily denied.6 Finally, the Respondent does not
explain why, when Brooks submitted his request for an
extension on February 5, the Respondent waited until
February 14, three days after the 183-day disability pe-
riod had expired, to deny the request, thus depriving
Brooks of an opportunity to seek clearance to return to
work before the time had expired.
The only event intervening between the Respondent’s
January 13 invitation to Brooks to apply for an extension
and his February 14 termination is the Respondent’s dis-
covery of his involvement in union activity. To establish
its affirmative defense under Wright Line, the Respon-
dent was required to show that even in the absence of
5 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
6 Although our colleague relies on the fact that the Respondent re-
served the right to deny Brooks’ request, it gave no indication that it
would do so.
MID-MOUNTAIN FOODS 253
this discovery, it would have discharged Brooks as it did,
not merely that it might have done so or that it had the
right to do so. Cadbury Beverages, Inc. v. NLRB, 160
F.3d 24, 31 (D.C. Cir. 1998). Given the timing of the
discharge, the inconsistency between inviting a request
for an extension and then firing Brooks when he made
one, and the failure to show a pattern of rejecting similar
limited-duration extension requests in the past, we find
that the Respondent failed to prove its defense. Accord-
ingly, we find that it unlawfully discharged Brooks in
retaliation for his union activity.
We also find that the Respondent unlawfully disci-
plined Nunley for a misshipment in February 1997. Here
again, our dissenting colleague assumes that the General
Counsel has shown that Nunley’s union activity was a
motivating factor in the Respondent’s decision to disci-
pline him for the error but finds that the Respondent has
satisfactorily met its burden of rebuttal by showing that it
has issued similar disciplinary warnings in the past. In
fact, the Respondent concedes that it has not invariably
issued written warnings for similar infractions. As noted
above, under the Wright Line test, it is incumbent on the
Respondent to demonstrate not only that it has some-
times issued similar warnings in the past but that it would
have issued a warning to Nunley for his conduct without
regard to his union activity. The Respondent has failed to
make this crucial showing. Accordingly, in agreement
with the judge, we find that the record establishes that
the Respondent’s issuance of a warning to Nunley vio-
lated Section 8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mid-
Mountain Foods, Inc., Abingdon, Virginia, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraphs 2(a) and (b)
and reletter the subsequent paragraphs.
“(a) Within 14 days from the date of this Order, offer
immediate and full reinstatement to John Widener, Ran-
dall Perdue, and Ronnie G. Brooks to their former posi-
tions or, if those positions no longer exist, to substan-
tially equivalent positions without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
“(b) Make John Wilder, Randall Perdue, and Ronnie
G. Brooks whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against them
plus interest, in the manner set forth in the remedy sec-
tion of the judge’s decision.
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful unex-
cused absence, verbal and written warnings, suspensions
and discharges of John Widener, Randall Perdue, Daniel
Hounshell, Steve Warner, Coy Wolfe Jr., Ronnie G.
Brooks, and Larry Nunley, and within 3 days thereafter
notify those employees in writing that this has been done
and that the warnings and discharges will not be used
against any of them in any way.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER FOX, dissenting in part.
I join Chairman Truesdale in all respects except that,
contrary to his and Member Hurtgen’s position, I would
adopt the judge’s findings that (1) the Respondent vio-
lated Section 8(a)(3) and (1) when it issued a 3-day sus-
pension and “final warning” to employee Tony Orfield in
October 1996 and, (2) because that unlawful warning
was admittedly a predicate for the Respondent’s 1997
discharge of Orfield, the Respondent violated Section
8(a)(3) and (1) when it discharged him.
As the judge found, there was abundant evidence that
in October 1996, Orfield was known to the Respondent
as an outspoken union supporter. During an organizing
campaign leading up to a representation election in Au-
gust 1996, Orfield had recruited 20 out of 35 employees
in two different departments to sign authorization cards,
and, while wearing a shirt with the Union’s logo on it,
had explained to one of the Respondent’s supervisors
that he would not attend a company meeting because he
did not wish “to go listen to the Company’s lies.” Not
long thereafter, Warehouse Manager Wes Basham, who
was the primary decisionmaker in the October discipline,
told Orfield, “I’m glad you showed your true colors,”
and, after asserting that employees would need permis-
sion to go to the bathroom if the Union got in, added:
“Mr. Orfield, you’re a young man. You just built a new
house, got a beautiful wife, and two beautiful kids, and []
I’d hate to see you lose all that.” The Union lost the Au-
gust election, but challenged the election through objec-
tions, which were pending in October 1996.1
In October, while backing a forklift truck through a
warehouse door, Orfield accidentally struck the leg of a
rack containing pallets of butter, and the butter was dam-
aged when the rack collapsed. Two days later he was
told by Warehouse Manager Basham and a supervisor
that he was being given a 3-day suspension and “final
warning” for the accident. Under the terms of the warn-

1 I take administrative notice of the Union’s loss of the election and
filing of objections in Board Case 11–RC–6147.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 254
ing, Orfield would be discharged if had a further accident
for which he was at fault.
Given the Respondent’s knowledge of Orfield’s union
activity, the apparent hostility expressed to it by Manager
Basham, and Basham’s issuance of discipline to Orfield
at a time while the Union was challenging the election
results, I agree with the judge that the General Counsel
has established that Orfield’s union activity was a moti-
vating factor in the decision to issue the October disci-
pline. (I note that my colleagues assume arguendo that
the General Counsel established this “prima facie case”
of discrimination.) Thus, under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the burden shifts to the Re-
spondent to show that it would have disciplined Orfield
in that fashion even in the absence of his union activity.
The Respondent sought to carry this burden by point-
ing to its discipline of employee Ron Ryan, who had
received a final warning for an accident, and employee
Johnnie Coalson, who had been discharged for an acci-
dent after he had received a final warning. As the judge
found, however, Coalson had not merely had an accident,
but had fallen asleep on his machine and had failed to
report the ensuing accident. As for Ryan, even assuming
his accident was comparable to Orfield’s October inci-
dent, the Respondent’s discipline of him does not estab-
lish that it would have issued the suspension and warning
to Orfield even in the absence of his protected activities.
As the judge pointed out, the evidence showed numerous
other instances of employees who had had accidents
(e.g., hitting a door with a forklift, tearing an “eye wash
station” off the wall, knocking a heater down from above
a freezer door) and who merely received “verbal” warn-
ings or were told to “be more careful.” The judge also
reasonably rejected the Respondent’s attempt to charac-
terize Orfield’s October accident as especially serious
because of the amount of damage done and because it
represented “misuse of equipment.” As the judge
pointed out, all of the recorded accidents, including those
for which mere oral warnings were given, could be said
to have involved misuse of equipment. As for the
amount of damage, he noted that the amount of damage
had apparently not been investigated and quantified at
the time of the final warning, and that damage estimates
given by the Respondent’s witnesses at the hearing var-
ied widely. Accordingly, he concluded, the Respon-
dent’s claim that it relied on the seriousness of the dam-
age was an “afterthought” to justify action that had actu-
ally been taken for unlawful motives.
The record thus establishes at most that, even absent
Orfield’s protected activities, the Respondent might have
punished Orfield in October 1996, as it had Ryan, rather
than imposing the lesser measures taken against other
employees for involvement in accidents. This is not the
same as establishing by a preponderance of the evidence
that it would have done so—the burden that the Respon-
dent must meet to establish its affirmative defense under
Wright Line. Cadbury Beverages, Inc. v. NLRB, 160
F.3d 24, 31 (D.C. Cir. 1998).
Accordingly, I would find that the suspension and final
warning issued to Orfield in October 1996 violated Sec-
tion 8(a)(3) and (1), and, as a result, his discharge in
1997, predicated in part on that warning, was also unlaw-
ful.

MEMBER HURTGEN, dissenting in part.
Unlike my colleagues, I conclude that the Respondent
acted lawfully as to Ronnie G. Brooks and Larry Nunley.
In each instance, I assume arguendo that the judge cor-
rectly found that a prima facie case was established, but I
conclude that the Respondent successfully rebutted it.
Brooks
The judge rejected the Respondent’s argument that it
terminated Brooks because he was absent from work for
more than 183 days, the maximum number permitted
under the Respondent’s policy. He noted that Brooks
made a timely request for an extension of the period, and
that Respondent refused that request. The judge also
noted the Respondent’s evidence that it has denied com-
parable requests for extensions of sick leave. However,
he distinguished these on the basis that in those cases the
employees requested indefinite extensions, whereas
Brooks sought only 13 days of additional leave.
This reasoning misconstrues the nature of the Respon-
dent’s burden of rebuttal. In response to the General
Counsel’s prima facie case that Brooks was unlawfully
terminated, the Respondent has come forward with a
lawful and credible explanation of its action, based on a
policy of which Brooks was aware. That explanation
makes it clear that Brooks would have been terminated
even if he had not engaged in protected activity. More
particularly, the Respondent sent Brooks a letter about 1
month before the 183-day deadline, stating that he would
be terminated on February 11, 1997, if he had not re-
turned to work or requested an extension by that date.
The Respondent further wrote Brooks that the decision to
grant or deny a request for an extension was within its
discretion. In addition, the Respondent’s employee
handbook, which Brooks had received, states that there is
no guarantee of reemployment upon an employee’s re-
turn to work from disability leave and that, if an em-
ployee is unable to return to work after at least 183 days,
he will be terminated from the Respondent’s active pay-
MID-MOUNTAIN FOODS 255
roll. Brooks acknowledged that he was aware of these
policies.
Concededly, the Respondent offered Brooks an oppor-
tunity to request an extension of the leave period. How-
ever, there was no guarantee that the request would be
granted. The past practice in this respect is shown by the
Respondent’s uncontradicted evidence that it had denied
the requests of other employees seeking extensions be-
yond the 183-day leave period. Indeed, there is no evi-
dence that such a request has ever been granted. The fact
that these denied requests were for indefinite extensions,
rather than for a set period, does not render them irrele-
vant. There is no evidence that the Respondent, in the
past, has drawn a distinction between indefinite exten-
sions and limited extensions. The distinction is that of
my colleagues, not that of the Respondent.
Finally, there is nothing suspicious or abnormal about
the timing of the Respondent’s action. Brooks made the
request on February 5 and, perforce, the Respondent
made the decision shortly thereafter. In sum, the critical
facts are: the Respondent has the 183-day rule (of which
Brooks had notice); it has denied the requests of other
employees who requested extensions; and there is no
evidence that the rule was disparately enforced. Thus,
there is no evidence or claim that employees who were
not union supporters were granted extensions for speci-
fied periods of time. Accordingly, I find that the Re-
spondent has shown that it would have discharged
Brooks even in the absence of his union activities. I
would therefore dismiss this 8(a)(3) allegation.
Nunley
The judge rejected the Respondent’s contention that it
properly warned Nunley for misshipping product on Feb-
ruary 27, 1997. The judge apparently rested this conclu-
sion on his findings that: Nunley acted as a representa-
tive at a Board hearing for 2 weeks during February
1997, shortly before the misshipment; unlike employee
Eugene Osborne, Nunley received a written (as opposed
to oral) warning for his misshipment; unlike Osborne,
Nunley was not a habitual misshipper, having committed
no infractions before February 27; and Nunley’s offenses
were less serious and numerous than those of employee
Craig Price, who was warned and later discharged after
charges were filed alleging that Nunley and Osborne had
been disciplined unlawfully. My colleagues agree with
the judge’s analysis. I disagree.
The first of the judge’s findings, concerning Nunley’s
activity at the hearing, pertains to the prima facie case,
which, as noted above, I assume arguendo to have been
established. With respect to the alleged disparity be-
tween the treatment of Nunley and that of Osborne, I
cannot accept the proposition that Nunley was treated
more harshly than Osborne because of Nunley’s union
activities. The fact is that both employees were known
union activists.
Nor do I find that the judge’s comparison of the treat-
ment of Nunley and Price supports finding a violation.
On the contrary, it is clear that Nunley misshipped the
product in question, and that the Respondent routinely
(though not invariably) warns employees who do so.
Indeed, each of Price’s misshipments resulted in a warn-
ing and he was eventually terminated because there were
so many of them. None of these facts gives rise to the
inference that Nunley was treated disparately. Accord-
ingly, I conclude that the Respondent lawfully warned
him.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten our employees with dis-
charge or with the discharge of other employees because
of their union activity.
WE WILL NOT threaten our employees with the futil-
ity of selecting a union including International Brother-
hood of Teamsters, AFL–CIO; United Food and Com-
mercial Workers International Union, Local 400, AFL–
CIO, CLC; or any other labor organization.
WE WILL NOT issue unexcused absences, verbal and
written warnings, suspensions and discharges, or other-
wise discriminate against any of our employees for sup-
porting International Brotherhood of Teamsters, AFL–
CIO; United Food and Commercial Workers Interna-
tional Union, Local 400, AFL–CIO, CLC; or any other
union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 256
WE WILL, within 14 days from the date of the
Board’s Order, offer John Widener, Randall Perdue, and
Ronnie G. Brooks full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make John Widener, Randall Perdue, and
Ronnie G. Brooks whole for any loss of earnings and
other benefits resulting from our illegal actions against
them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful unexcused absence, verbal and written
warnings, suspensions and discharges of John Widener,
Randall Perdue, Daniel Hounshell, Steve Warner, Coy
Wolfe Jr., Ronnie G. Brooks, and Larry Nunley and, WE
WILL, within 3 days thereafter, notify Widener, Perdue,
Hounshell, Warner, Wolfe, Brooks, and Nunley in writ-
ing that this has been done and that the absence, warn-
ings, suspensions, and discharges will not be used against
any of them in any way.

MID-MOUNTAIN FOODS, INC.

Donald Gattalaro, Esq., for the General Counsel.
Ronald I. Tisch, Esq., of Washington, D.C. and Mark M. Law-
son, Esq., of Bristol, Virginia, for the Respondent.
George Wiszynski, Esq., of Washington, D.C., for UFCW.
DECISION
PARGEN ROBERTSON, Administrative Law Judge. This
hearing was held on November 5 through 7, 1997, and April 6
through 9, 1998, in Bristol, Virginia. The charges were filed on
various dates beginning on February 6, 1997. A consolidated
complaint issued on August 28, 1997. This decision is based on
review of the entire record and briefs filed by the Respondent
and General Counsel.
I. JURISDICTION
Respondent admitted that it is a Delaware corporation with
facilities located in Abingdon, Virginia, where it is engaged in
the cooperative wholesale grocery warehouse and distribution
business. It admitted that during the past 12 months at its Ab-
ingdon, Virginia facilities, it purchased and received goods and
materials valued in excess of $50,000, and it sold and shipped
products valued in excess of $50,000, directly from and to
points outside Virginia. It admitted that it has been an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the National Labor Relations Act (the Act), at material
times.
II. LABOR ORGANIZATION
The record shows that United Food and Commercial Work-
ers International Union, Local 400, AFL–CIO, CLC (UFCW)
and International Brotherhood of Teamsters, AFL–CIO (Team-
sters) have been labor organizations within the meaning of
Section 2(5) of the Act, at all material times.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
The complaint alleges violations of Section 8(a)(1), (3), and
(4) of the Act including threats, written warnings, unexcused
absence, suspensions, and discharges. A substantial portion of
the evidence relates to more than one allegation. For that reason
I have included several allegations under one heading in many
of the matters below.
Threat of Termination; Threat of Futility of Selecting the Un-
ion; Told Employees that Others would be Terminated because
of the Union; Gil Johnson; Threaten Futility of Selecting a
Union; John Dollar; Suspensions; Discharges; and
John Widener
John Widener worked for Respondent for 8–1/2 years. He
was a truckdriver. Widener participated in the Teamsters orga-
nizing activities from October 1996. Respondent posted a letter
from the Teamsters in December 1996. Widener was named in
that letter as being on the Teamsters organizing committee (GC
Exh. 6).
Widener testified that he met with John Dollar and Jesse
Lewis in Lewis’ office on April 7, 1997. John Dollar com-
mented there would never be a union at Mid-Mountain Food.
He said that the union was no good for the people.
Respondent’s president, Jesse Lewis, admitted that John
Widener supported the Teamsters and that Widener asked to
see him. Lewis recalled meeting with Widener during March
1997.1 Widener was off on disability leave at that time. Lewis
asked John Dollar to be in the meeting. Among other matters
John Widener talked about perishable drivers. Widener said he
did not believe it was right that perishable drivers made 20
cents an hour more than dry drivers. Widener also suggested
that perishable drivers had too much time to make their routes
and that their time should be reduced. Lewis replied that the
routes had been timed and that Widener could bid on a perish-
able route if he desired. Lewis denied that John Dollar said that
the union was no good, or was bad for the people or there
would never be a union at Mid-Mountain.
John Dollar no longer works for Respondent. He was for-
merly the director of operations and human resources. He re-
called meeting with Jesse Lewis and John Widener and that
Widener talked about the perishable drivers having too much
time on their runs. Dollar testified there was no discussion
about unions. He denied that he said there would never be a
union at Mid-Mountain.
Widener was suspended on April 10 allegedly for having
failed to report an accident. He noticed damage on truck 3034
on April 9, including cracks on the fender, abrasions on the
bumper, and scuffmarks but did not report it because it was old

1 Carolyn Henderson, the former secretary in human resources, testi-
fied that John Widener received disability benefits from February 7
until around March 18, 1997 (see R. Exhs. 90(a)–(f)). During March
while he was in to pick up his disability check, Widener told Henderson
that he wanted to see Jesse Lewis. Lewis came down and he and
Widener left the office together.
MID-MOUNTAIN FOODS 257
damage. He had seen similar damage to other trucks and had
not reported “old” damage.
Robert Nudder drives a truck in perishable. As a perishable
driver he usually left around the time the dry drivers were re-
turning from their runs. Nudder noticed John Widener drive in
as Nudder was waiting to punch in. When Nudder walked out
he noticed a split on the fender of one of Respondent’s trucks.
He was not aware of whether it was the truck John Widener had
been driving. The truck had been pulled around for fueling but
the cab had not been lifted. Nudder mentioned the split fender
to fueler Troy Gobble.
Troy Gobble noticed damage to tractor 3034 after pulling it
to the fuel station. The damage was to the fender well on the
passenger side. Gobble reported the damage to dispatcher Ray
Poston. Gobble was told to park tractor 3034 so that Bill Bass
and Mike Tate could examine it and to write out what had oc-
curred. Dispatcher Ray Poston testified that Troy Gobble re-
ported damage to a tractor driven by John Widener. Poston
examined the tractor and took pictures of the damage. He filed
a daily report mentioning the damage.
William Bass is Respondent’s transportation manager. Bass
testified that he received a report of damage to truck 3034 from
Ray Poston on April 10, 1997. The report included a picture of
the damage. Bass checked the truck and noticed a scratch from
the signal light back about half way of the fender. At that point
there was a break in the fender. The signal light was cracked.
Bass checked the condition reports and saw that Widener was
the last driver of truck 3034 and had reported no damage. Bass
told Supervisor Steve Spence to make a followup investigation
on the incident. Spence testified about his observation of the
damage to truck 3034.
Bass and Steve Spence spoke to Widener the next day. Bass
asked Widener if he had damaged truck 3034. Widener replied
that if he had damaged the truck it would only have been an
accident and to just fill out an accident report. Bill Bass told
Widener that he was suspended until the incident could be in-
vestigated. Spence recalled that Widener said that he did not
recall damaging truck 3034 but that he could have damaged it.
Widener said if he did damage the truck it was an accident and
to just write him up for an accident. Bass testified that Spence
reported to him that he had talked with the driver that drove
3034 before Widener and learned that the driver, Vance Rust,
said the truck was not damaged when he turned it in. Spence
testified that he also talked with Troy Gobble who fueled the
truck when Widener returned and David Sanders who fueled
the truck before Widener went out. The truck was not damaged
when Widener went out and it was damaged when he returned.
Driver Vance Rust testified that he told Bill Bass there was no
damage to truck 3034 when he last drove it. Rust did not talk to
Steve Spence about the damage.
Robert Nudder recalled being asked by Bill Bass and Steve
Spence if he had seen anything regarding damage to truck
3034. Nudder noticed the damage to 3034 as he was leaving on
his run. Ernest Barger testified that he works for TMI and per-
forms maintenance on Respondent’s trucks. In April 1997, Bill
Bass asked him to examine damage to tractor 3034. He recalled
damage to the fender and he identified pictures of that damage
(R. Exh. 76–d). Michael Brooks is the owner of a body repair
company in Bristol. He has done repair work on Respondent’s
trucks. Brooks has examined pictures of the damage to tractor
3034. He did not examine the tractor but was asked to estimate
the cost of repair.
William Bass met again with Widener on April 15 and in-
formed him of the results of the investigation. Widener denied
that he had damaged the truck. Bass told Widener that he would
get back to him when a decision was made. At a subsequent
meeting 2 days later, Bass told Widener that he was terminated.
Widener was discharged for failure to report an accident (R.
Exh. 75). Bass admitted that he knew that Widener supported
the Teamsters. Spence testified that Respondent has fired other
employees for failure to report accidents including David
Ramey and Wayne Spence. Ramey was fired before and
Spence was fired after the discharge of Widener.
John Widener testified that Bill Bass told him that he was
suspended on April 10. Bass told him that he had cracked a
fender on tractor 3034 and that the damage had been discovered
about 5 minutes after Widener clocked out. Blass phoned
Widener the following Friday and told him to report to the front
office. Blass and Steve Spence met with Widener and told him
that he was discharged because of the April 9 accident.
Widener denied that he had an accident on April 9.
Ronnie Kell testified that he spoke with Supervisors Gil
Johnson and Mike Tate about John Widener on April 7, 1997.
Gil Johnson said that he was going to let the drivers know what
kind of man John Widener was. Johnson told Kell to tell
Widener that “if he wanted to stir up some stink, that stink was
here to stir up and he was the stink, that [Widener’s] days were
numbered and they were going to weed out the troublemakers.”
Johnson and Tate told Kell they would do what they could to
save Kell’s job. Kell asked Johnson if he had not been a sup-
porter of the union at one time. Johnson replied that he had
been. A few days before the April 7 conversation, Gil Johnson
told Kell that “Mister Redneck (John Widener) went down and
told them that he could run any perishable or produce driver’s
run two hours quicker than any one of them could and this and
that, just stirring up trouble.”
Kell inspected truck 3034 after he heard that John Widener
had been suspended on April 10, 1997. Kell noticed a 4” to 6”
crack in the right fender and it looked to him like someone had
wiped a substance on the steering tire on the right side to make
it look like the tire had been curbed. Kell testified the crack
appeared to be caused by stress from normal wear and tear. He
testified that the fuelers occasionally pull the hood up from the
rear by grabbing the fender and that action tends to contribute
to stress fractures in the fender.
When Fred Badger came in on April 7, there were rumors
that Johnson and Tate were saying that John Widener had de-
manded that something be done about the produce and milk
drivers. Widener had returned to work from surgery on April 6.
Badger suggested confronting Widener to determine what was
actually happening. In an April 7, 1997, meeting with Johnson
and Mike Tate, Gil Johnson told Badger that maybe Badger
was not happy with his job and that Gil Johnson wanted to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 258
know who had been calling Jesse Lewis a liar.2 Johnson said
that drivers had been going up and down the road cussing on
their CB about Mid-Mountain. Badger told Johnson that the
drivers thought that Johnson was the one starting these rumors.
Johnson said that he was and that he was “going to expose John
Widener to be the loud mouth trouble maker that he is,” and
that the president of the company gave him authority to do so.
He said that Widener’s days here were numbered and so was “a
group of other people.” John Widener was fired some 4 or 5
days later.
Road Supervisor Gilbert Johnson denied telling an employee
to say goodbye to Widener. He denied telling anyone around
April 7 that union supporters would be terminated. Johnson
testified that employee Tom Colley came to him and said he
had a heated discussion regarding John Widener saying the
perishable drivers had too much time on their runs. Nothing
was said about the Union. Johnson and Assistant Transportation
Manager Mike Tate decided to ask Ron Kell and Fred Badger
about the problem.3 They met separately with Kell and Badger.
Johnson denied saying that Widener was a loud-mouthed trou-
blemaker. He denied telling anyone that Widener’s days were
numbered.
Assistant Transportation Manager Mike Tate testified that
Tom Colley came to him and Gil Johnson about an argument in
the breakroom. He and Johnson called in Colley, Ron Kell, and
Fred Badger and talked to each separately. Tate denied that
Johnson said that John Widener was a troublemaker and a
loudmouth. Widener was called “red-neck” during the meeting.
That is his “CB” nickname. Johnson did not say that union
supporters would be terminated. Tate admitted knowing that
Widener, Kell, and Badger all supported the Teamsters. They
were named on a list of Teamsters supporters that was received
as General Counsel’s Exhibit 6. Tate admitted that he knew of
Widener’s Teamsters activity before his conversations with
Kell and Badger.
Donnie Ross is a truckdriver. He has worked for Respondent
for 5 years. Around April 12, after hearing of Widener’s al-
leged accident in truck 3034, Ross reported to Supervisor Bill
Blass that a crack in the fender had been apparent when he
drove that truck on April 5 and 6. He told Bass on April 12, that
the crack was only a little bit bigger than it had been on April 6.
Blass told Ross that Widener had scuffed the tire. Ross checked
the tire. He testified there was something that tasted like “anti-
freeze or something” on the tire. Ross told Bass that he had
seen the fuelers pick up the hoods of the trucks by the fenders.
Greg Davis drove truck 3034 on March 2, 18, and 19, 1997.
The right fender had an approximately 4-inch straight crack.
Davis did not report the crack because he felt it was normal

2 As shown above Company President Jesse Lewis met with John
Widener. According to Lewis’ testimony, Widener had complained that
the perishable drivers made too much money and had too much time for
their deliveries. The record including the testimony of Kell and Badger
show that Widener’s meeting with Lewis and Dollar happened before
April 7. Therefore, I find that Widener was mistaken in his testimony as
to the date he met with Lewis and Dollar.
3 Both Kell and Badger were among the 15 drivers listed on the Un-
ion’s December 20, 1996 notice to Respondent of its organizing com-
mittee. Respondent posted that letter in its drivers’ breakroom.
wear and tear. After Widener was discharged Davis looked at
the fender and saw that the same crack had increased to 6 to 8
inches long. He testified that the crack had been pulled out
because there were no scratches around it to indicate a blow to
the fender. He saw a liquid such as antifreeze or windshield
washer fluid on the tire. Davis testified that several of Respon-
dent’s tractors have cracks similar to the one on 3034.
Jimmy Anderson drove truck 3034 the day before Widener
was discharged. Anderson did not recall whether he examined
the fender that day.
Road Supervisor Gilbert Johnson testified that Jimmy Ander-
son told him that he had driven truck 3034 a day or two before
Widener and he had not seen any damage to the fender or tire.
Anderson said that he could be mistaken but he did not recall
seeing anything.
Findings
Credibility
I have considered the credibility of John Widener, Jesse
Lewis, John Dollar, Robert Nudder, Troy Gobble, Ray Poston,
Bill Bass, Steve Spence, Vance Rust, Ernest Barger, Michael
Brooks, Ronnie Kell, Fred Badger, Gilbert Johnson, Mike Tate,
Donnie Ross, Greg Davis, and Jimmy Anderson in view of
their demeanor and the full record. I was especially impressed
with the testimony of Ronnie Kell and Fred Badger. Respon-
dent currently employs Kell and Badger. Kell and Badger met
with Gil Johnson and Mike Tate in separate meetings on the
same day. It was obvious from their testimony that Johnson and
Tate were addressing the same issue in each meeting and that
issue was a timely one in view of other evidence showing that
John Widener had met with Company President Jesse Lewis
and expressed concern with the different treatment afforded
perishable and denied dry drivers. I also credit the testimony of
John Widener. I do not credit the denials by John Dollar and
Jesse Lewis, that Dollar said that the Union was no good for the
people and that it would never get in at Mid-Mountain.
I was also impressed with the demeanor and testimony of
Greg Davis and Donnie Ross. Both remain employed by Re-
spondent. The Board has consistently been impressed by testi-
mony of current employees where it is shown those employees
demonstrated good demeanor and appeared to testify truthfully.
William Bass appeared to exaggerate his testimony. His tes-
timony showed more damage to tractor 3034 than that of earlier
reports. For example, Respondent’s written reports regarding
damage to tractor 3034 do not mention any damage to the tire.
Bass told Donnie Ross that John Widener had scuffed the tire
on 3034 but there was other evidence to the contrary. For ex-
ample Greg Davis examined the tire after Widener was sus-
pended and he testified there was no tire damage. I do not credit
the testimony of William Bass or Supervisor Steve Spence.
Spence worked under Bass and appeared to testify as Bass. I
credit the testimony of Kell, Badger, Widener, Davis, and Ross
and discredit testimony of others, which conflicts with their
testimony.
Conclusions
Threat of Termination; Threat of Futility of Selecting the Un-
ion; Told Employees that Others would be Terminated because
MID-MOUNTAIN FOODS 259
of the Union; Gil Johnson; Threaten Futility of Selecting a
Union; John Dollar

As shown above, there is no question but that Respondent
was aware of John Widener’s support of the Teamsters. Ronnie
Kell spoke with Supervisors Gil Johnson and Mike Tate about
John Widener on April 7, 1997. Gil Johnson said that he was
going to let the drivers know what kind of man John Widener
was. Johnson told Kell to tell Widener that “if he wanted to stir
up some stink, that stink was here to stir up and he was the
stink, that [Widener’s] days were numbered and they were
going to weed out the troublemakers.” Johnson and Tate told
Kell they would do what they could to save Kell’s job. Kell
asked Johnson if he had not been asupporter of the Union at
one time. Johnson replied that he had been. A few days before
the April 7 conversation, Gil Johnson told Kell that “‘Mister
Redneck’ [John Widener] went down and told them that he
could run any perishable or produce driver’s run two hours
quicker than any one of them could and this and that, just stir-
ring up trouble.”
Also during an April 7, 1997 meeting Gil Johnson told Fred
Badger that maybe Badger was not happy with his job and that
Gil Johnson wanted to know who had been calling Jesse Lewis
a liar. Mike Tate was also in that meeting. Johnson said that
drivers had been going up and down the road cussing on their
CB about Mid-Mountain. Badger told Johnson that the drivers
thought that Johnson was the one starting those rumors. John-
son said that he was and that he was “going to expose John
Widener to be the loud mouth trouble maker that he is,” and
that the president of the Company gave him authority to do so.
He said that Widener’s days here were numbered and so was “a
group of other people.” John Widener was fired some 4 or 5
days later.
As shown above, I am convinced that Kell and Badger testi-
fied truthfully despite the denials of Gil Johnson and Mike
Tate. On April 7, 1997, both Kell and Badger were known
Teamsters supporters. As shown above Tate admitted that both
were listed in the Teamsters’ December letter listing its orga-
nizing committee. When another employee complained about
an argument regarding comments by John Widener, it was two
Teamsters committee employees that were called in to explain
the argument. John Colley, the employee that complained, was
not shown to be a union supporter. He was not listed on the
Teamsters organizing committee. Respondent currently em-
ploys Ronald Kell and Fred Badger. Badger has worked for
Respondent for 13 years. His as well as Kell’s testimony was
detailed especially regarding the April 7 conversation with
Johnson and Tate. Conversely, although Johnson and Tate ad-
mitted talking with Kell and Badger, their testimony involved
general denials and was not detailed.
John Widener met with Respondent President Jesse Lewis
during March or April 1997. Lewis testified that Widener
talked about the perishable drivers making 20 cents an hour
more than the dry drivers and having too much time for their
deliveries. Widener testified that John Dollar was present dur-
ing that meeting and that Dollar said there would never be a
union at Mid-Mountain and that the Union was no good for the
people. At the time of that meeting John Widener was a known
Teamsters supporter. He was listed in the Teamsters organizing
committee on the Teamsters’ December letter to Respondent.
As shown above, I credit the testimony of Widener.
The testimony of Ronald Kell and Fred Badger showed that
Supervisor Gil Johnson and Assistant Transportation Manager
Mike Tate were aware of rumors regarding what John Widener
had said to Company President Jesse Lewis. Johnson told
Badger that president of the Company had given him authority
to expose John Widener to be the loud mouth troublemaker that
he is. Johnson told Badger that he had heard that maybe Badger
was not happy with his job and that he wanted to know who
had been calling Jesse Lewis a liar. Badger had taken the posi-
tion during arguments with other drivers that they should ask
Widener for his version of what had occurred during his con-
versation with Company President Jesse Lewis.
The credited testimony of Ronnie Kell showed that Gil John-
son told him that John Widener’s days were numbered and they
were going to weed out the troublemakers. Johnson implied
that Kell’s job was also in danger by stating they were going to
do what they could to save Kell’s job. When Kell asked John-
son if Johnson had not been a union supporter at one time,
Johnson did not say that he was not referring to the Union.
Instead Johnson agreed that he had once favored the Union.
Moreover, as shown above the credited evidence shows that the
Union was brought up by John Dollar during the meeting in-
cluding Jesse Lewis and John Widener during which Widener
referred to the perishable drivers. As shown above, Respondent
knew both Kell and Widener were Teamsters supporters. The
credited testimony of Fred Badger showed that Johnson threat-
ened him that the days were numbered for John Widener and a
group of other people.
The record also showed that Johnson’s reference to Widener
stirring up stink involved both Widener’s conduct on behalf of
the Teamsters and Widener’s comments regarding the perish-
able drivers. The credited evidence showed that among other
things Widener complained that the perishable drivers were
making 20 cents an hour more than the dry drivers. Complaints
about wages on behalf of a group of employees have consis-
tently been found to constitute protected concerted activity.
Johnson’s comments to Kell included reference to Widener’s
days were numbered and they were going to weed out trouble-
makers and Johnson’s comments to Badger included that
Badger was not happy with his job and that Widener’s days
were numbered and so was a group of other people.
Widener’s comments involving the perishable drivers consti-
tuted protected activities and Respondent’s threats because of
that activity constitute a threat of termination in violation of
Section 8(a)(1). Additionally, as shown above, Kell testified
that he asked Johnson if he had not been a union supporter. In
responding Johnson said nothing to show that he was not talk-
ing about the Union. That response supports a determination
that Johnson’s comments to Kell involved, at least in part, com-
ments about Widener’s Teamsters activities. Moreover,
Widener’s comments during the conversation in either March
or April, with Lewis and Dollar, dealt with the perishable and
the dry drivers. Widener complained that the dry drivers, in-
cluding himself, were making 20 cents an hour less than the
perishable drivers and that the perishable drivers were allowed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 260
too long to make their runs. Lewis testified to the effect that he
deduced from Widener’s comments that Widener wanted him
to reduce the hourly rates for the perishable drivers and to
shorten the time allowed them to make their runs. However, a
reasonable person could have determined from those comments
that Widener, a dry driver, was complaining that the dry drivers
were being deprived of equal treatment regarding pay and
hours. That construction shows that Widener’s comments con-
stituted concerted activity regarding conditions of employment
for the dry drivers. I find that Johnson’s comments to Kell and
Badger constitute threats that employees would be terminated,
because of the Union. The comments by John Dollar during the
March or April 1997 meeting with John Widener and Jesse
Lewis that the Union was no good for the people and there
would never be a union in Mid-Mountain constitute a threat of
futility of selecting the Union.
Suspensions; Discharges; and John Widener
As to whether Respondent illegally suspended and/or dis-
charged John Widener, I shall first consider whether the Gen-
eral Counsel proved through persuasive evidence that the Re-
spondent acted out of antiunion animus. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); NLR.B v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
The full record showed without dispute that John Widener
was an open Teamsters supporter and that Respondent knew of
Widener’s support of the Teamsters. Respondent’s witnesses
admitted that Widener was listed among the 15 members of the
Teamsters’ organizing committee (GC Exh. 6). The credited
record also showed that Respondent harbored animus against
the Teamsters and against John Widener’s Teamsters and pro-
tected activities. As shown above Respondent’s supervisors and
agents engaged in 8(a)(1) activity including threats to discharge
Widener. Shortly before Widener’s discharge, Supervisor Gil
Johnson threatened two employees that Widener’s days were
numbered, that Respondent was going to weed out troublemak-
ers and the days were also numbered for a group of other peo-
ple. Moreover, that evidence revealed that Johnson told em-
ployees that he had the Company president’s authority to ex-
pose John Widener. Those threats to the employees were made
on April 7, 1997. John Widener was suspended on April 10. He
was subsequently discharged before the end of the suspension.
That evidence shows that Respondent was motivated to dis-
charge Widener’s by his Teamsters and protected concerted
activities. Manno Electric, 321 NLRB 1 fn. 12 (1996).
There remains a question as to whether Respondent proved it
would have discharged Widener in the absence of union and
protected concerted activities. Wright Line, supra; NLRB v.
Transportation Management Corp., supra.
Respondent contended that it discharged Widener because he
failed to report an accident. Respondent argued that Widener
damaged the fender on tractor 3034 on his April 10 shift and
that Widener’s condition report did not show that damage.
Some of the evidence in that regard is not in dispute. Tractor
3034 was driven by Widener on April 10 and Widener’s condi-
tion report did not show any damage to tractor 3034.
There was a question as to the amount of damage. Robert
Nudder testified that he noticed a split in the fender of one of
the trucks shortly after seeing John Widener drive in. Nudder
told Troy Gobble about the damage. Dispatcher Ray Poston
testified that Troy Gobble reported damage to the tractor driven
by John Widener. All the written reports are in evidence and all
show there was a crack in the right fender. However, Transpor-
tation Manager Bill Bass testified that damage to tractor 3034
involved a cracked signal light and a scratch back to about half
way of the wheel well where there was a break.4
There is also a question of whether Widener was driving the
tractor when damage occurred. The record contained no direct
evidence of Widener being involved in an accident.5 Vance
Rust drove the tractor on April 9. Rust testified that tractor
3034 was not damaged when he drove it. However, Greg Davis
testified that tractor 3034 had a 4-inch crack when he drove it
on three occasions in March 1997. After Widener was sus-
pended Davis looked at the tractor and saw that the crack had
had been pulled out and was then 6 to 8 inches long. Supervi-
sor Johnson testified that Jimmy Anderson told him that he had
driven tractor 3034 a day or two before Widener and that he did
not notice anything. However, Donnie Ross testified that he
reported to Transportation Manager Bass that a crack in the
fender had been apparent when he drove tractor 3034 on April
5 and 6. Bass replied to Ross that Widener had scuffed the tire.
I find that the testimony of Donnie Ross is critical to the de-
termination of whether Respondent would have discharged
Widener in the absence of his union or protected activities.
Respondent currently employs Ross. Donnie Ross credibly
testified that he examined tractor 3034 after hearing that
Widener was suspended on April 10. He then spoke to either
Steve Spence or Mike Tate about the damage. Afterward
Transportation Manager Bill Bass came to Ross and said that
he understood that Ross had some information. Ross told Bass
that the same crack was on the fender when he drove tractor
3034 on April 5 and 6, only the crack was now a little bit big-
ger. He told Bass that the crack was pulled out not pushed in.
Bass replied that Widener had scuffed the tire. Ross replied that
the substance on the tire was sweet tasting and he hoped that
nobody peed on it because he had just tasted it. Bass laughed.
Ross said that the crack had always been there and Bass just
shrugged. Ross testified that he also confronted Bass with the
fact that the fuelers pick up hoods by the fenders because it’s
easier than picking them up from the front. On cross-
examination Ross was asked to demonstrate on an actual fender
in the courtroom, how someone pulling on the fender could
cause damage. Ross pulled the fender and damaged it by
enlarging a crack and actually pulling a section of the fiberglass

4 Ernest Barger testified that Bill Bass asked him to examine damage
to tractor 3034 in April 1997. Michael Brooks testified that he exam-
ined pictures of damage to tractor 3034.
5 In comparison to Bass’ decision to discharge Widener despite the
lack of direct evidence that Widener was involved in an accident, Bass
testified that he decided that he could not discharge Jimmy Anderson
because, as Bass explained, we “could not for sure say that he com-
pletely falsified his log or his trip summary.” Anderson and Randall
Perdue were followed during portions of their runs to Pigeon Forge and
Sevierville, Tennessee, on April 19, 1997 (see below).
MID-MOUNTAIN FOODS 261
fender off in his hand. Ross testified that many of Respondent’s
trucks have damage similar to that on tractor 3034. Transporta-
tion Manager Bass did not dispute the testimony of Donnie
Ross.
Ross’ testimony established several critical factors. First, he
had put Respondent on notice that tractor 3034 was damaged
before April 10. Donnie Ross told Transportation Manager
Bass that the crack existed on April 5 and 6. The April 9 report
of Vance Rust showed no damage, as did the April 10 report of
John Widener.6
Second, Ross’ testimony as well as other evidence including
the testimony of Greg Davis, showed that other drivers includ-
ing Vance Rust had driven tractor 3034 while it was damaged
and had failed to note the damage on their condition reports.
Third, when Bass responded to Ross’ comments, he ignored
Ross’ point that the fender was damaged before April 10 and
said that Widener had scuffed the tire. However, before that
moment no one had openly raised a question regarding damage
to the tire. The written reports showing what Troy Gobble and
Roy Poston found do not mention damage to a tire. Moreover,
those reports say nothing about additional matters included in
testimony by William Bass. There is no mention of damage to
the signal light or a scratch from the signal light to the crack.
Instead those reports dealt exclusively with a crack in the right
front fender. I am convinced on the basis of that evidence and
the full record that Bass exaggerated in his testimony as to the
extent of damage.7
I am convinced from the above and the full record, that Re-
spondent failed to show that it would have suspended and dis-
charged John Widener in the absence of his protected concerted
and union activity. Although there were reports of damage to
tractor 3034, I find that it was not unusual for tractors to show
damage nor was it unusual for the drivers to fail to note damage
on their condition reports. The issue of whether tractor 3034
was damaged may have been presented to Respondent on April
10. However during the time before the actual discharge of
Widener, Respondent learned that tractor 3034 had been dam-

6 The record showed that the drivers do not routinely note all dam-
age on condition reports. Evidence including pictures, shows that sev-
eral of the tractors were damaged including damage similar to that
shown on a picture of tractor 3034 (R. Exh. 76d). (See for example
pictures of another tractor showing cracks that had been repaired by
rivets (GC Exh. 12).) Instead drivers appeared to note only new dam-
age. (For. example John Widener testified he did not report damage
even though there was old damage to tractor 3034 on April 10. Widener
testified that was his practice. Greg Davis testified there was damage to
the right fender of tractor 3034 when he drove it on March 2, 18, and
19, 1997. Davis did not report that damage. He felt it was due to normal
wear and tear.) In fact despite considerable evidence showing that there
was a crack in the fender of tractor 3034 before April 10 (albeit it was
not as large as it was on April 10), condition reports including the April
9, 1997 report from Vance Rust, showed absolutely no damage any-
where on the tractor. (E.g., Greg Davis testified that tractor 3034 had a
4-inch crack in the fender in March, 1997. Donnie Ross testified there
was a crack in the fender when he drove it on April 5 and 6, 1997.)
7 I am mindful of other evidence regarding examination of tractor
3034 after Bass checked the damage. However, the cracked signal light,
the scratch back to the crack and the scuffed tire were not reported as
new damage by employees that noted the crack on April 10.
aged before April 10. It learned that drivers other than John
Widener had failed to note damage to tractor 3034 on their
condition reports. Respondent learned that Widener as well as
Vance Rust denied that he had damaged tractor 3034.
Finally, I am convinced that Respondent through the testi-
mony of Transportation Manager William Bass, engaged in
pretext in an effort to establish that it did not engage in illegal
activity. The full record showed that Bass exaggerated his basis
for discharging Widener. Bass testified that his actions were
based on a determination that tractor 3034 had damage includ-
ing a cracked signal light, a scratch back from the light and a
crack in the fender as well as a scuffed tire. Damage to the
signal light and the scratch were not included in reports submit-
ted to Bass. Additionally, the credited testimony of Donnie
Ross proved that Bass told him in effect that regardless of what
damage had occurred before April 10, John Widener had
scuffed a tire. That damage to the tire was also not supported by
reports submitted to Bass. I find that Bass was untruthful in his
testimony as to the reason why he discharged John Widener.
Wright Line, supra; Waste Steam Management, 315 NLRB
1088 (1994); and Harmony Corp., 301 NLRB 578 (1991).
I find on the basis of the credited record that Respondent
failed to prove that it would have suspended and discharged
John Widener in the absence of his union or protected activi-
ties. The record established that Widener was suspended and
discharged in violation of Section 8(a)(1) and (3) of the Act.
Randall Perdue
Randall Perdue was also a driver. He was a member of the
Teamsters in-plant organizing committee and he handed out
Teamsters literature. The Teamsters wrote Respondent on De-
cember 20, 1996, and named the members of that in-plant
committee. Perdue was included in that list of 15 employees
(GC Exh. 6). The Teamsters’ letter was posted in Respondent’s
breakroom.
Transportation Manager William Bass admitted that he knew
that Perdue and John Widener supported the Teamsters.
Perdue was terminated because of an alleged incident on
April 19, 1997. Respondent provided an April 23 memo to
Perdue’s personnel file, which indicated that he was in viola-
tion of work rules 1 and 7 and stated:

On Saturday (sic), April 19, 1997, you clocked in at Mid-
Mountain at 3:00 p.m. and departed at 3:20 p.m. for your run
to store #609 (Sevierville). Later you made a stop at exit #36.
At 4:36 p.m. you departed exit #36 and arrived at store #609
at 5:45 p.m. At 6:15 p.m. you had finished switching your
trailer and parked beside the store. Your tractor remained
parked until you pulled out at 8:15 p.m. When you arrived at
Mid-Mountain you reported that you had 30 minutes of over-
time for a road delay (traffic).

Randall Perdue testified that he was held up by traffic during
his April 19 run. He testified that he did stop at exit 36 where
he saw two other drivers. Perdue followed driver Jimmy
Anderson from exit 36 on down interstate highway 81, to inter-
state 40, then to route 66. He and Anderson were caught in
traffic on route 66. Perdue testified that he arrived at the
Sevierville store at 6:15 p.m. As shown below, Jimmy Ander-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 262
son also testified that he and Perdue were caught in traffic as
they entered Sevierville and that the traffic came to a halt be-
fore reaching Perdue’s delivery store. After dropping off his
loaded trailer, Perdue attached an empty trailer to his tractor
and pulled around to the side of the store. He stopped there,
went into the store and had someone sign his bills, returned to
the truck, worked on his logbook and checked out the tractor
and trailer. Perdue left the store at 6:45 p.m. On the drive back
to Abingdon, Perdue stopped at the Omelet Shoppe at exit 19 at
9:30 p.m. He stayed at the Omelet Shoppe until 10 p.m. and
then drove to Mid-Mountain where he finished his routine and
clocked out at 10:30 p.m. Perdue submitted a summary sheet
for 30 minutes overtime.
Jimmy Anderson testified that he was driving to Pigeon
Forge, Tennessee, while Perdue was driving to Sevierville,
Tennessee. For part of the outgoing trip Anderson and Perdue
ran in tandem. They met at exit 36 where Anderson had
stopped for a soda. The traffic was heavier than normal as
Anderson and Perdue drove into Sevierville. Perdue and Ander-
son discussed the matter over their CB radios. Both testified
about how Perdue needed to be in the left-hand of the two right
lanes, in order to make a wide turn into the Sevierville Food
City store. The traffic was heavy and the two trucks came to a
stop. Perdue testified that he turned into the Sevierville store at
6:15 p.m.
Transportation Manager William Bass testified that he met
with the drivers when he took over his job in February 1997.
He told the drivers that he would be monitoring their trip re-
ports, that he would be riding with them and that he would be
riding their routes.
Bass noticed that Randall Perdue’s regular Saturday run to
Sevierville from March through April 9, showed traffic delays
in the Sevierville area. He decided to go to Sevierville with
road supervisor Steve Spence and monitor the Saturday traffic.
On April 19, he and Spence drove to Sevierville. Bass and
Spence stopped at exit 36 and noticed trucks driven by Perdue
and Jimmy Anderson leaving a truck stop. After getting coffee
Bass and Spence left and caught up with Perdue and Anderson
as they were exiting the interstate. They followed the trucks.
Perdue turned in at the store he was to deliver to in Sevierville
and Bass and Spence continued on behind Anderson toward
Pigeon Forge. Bass and Spence testified that Perdue and
Anderson did not encounter traffic in or before Sevierville. It
was 5:45 p.m. when Perdue turned in to the Sevierville store.
Bass encountered traffic congestion between Sevierville and
Pigeon Forge and turned back to Sevierville. Bass and Spence
parked in a McDonald’s restaurant at 6:15 p.m., from where
they observed Perdue’s truck that was parked at its delivery
store in Sevierville. Bass testified they observed there was no
traffic congestion in that area.
Bass and Spence continued to observe Perdue’s truck at the
Sevierville store until Perdue left at 8:15 p.m. Bass testified that
Perdue should have been at the Sevierville store for 30 minutes.
Bass and Spence followed Perdue after he drove away from
Sevierville.
Bill Bass and Steve Spence testified that after leaving
Sevierville at 8:15 p.m., Perdue drove directly to the Abingdon
facility where Perdue arrived and clocked out at 10:30 p.m.
Bass testified that he and Spence did not return to the Abingdon
facility after watching to insure Perdue was going there. Instead
they drove home. Bass said nothing about how they handled
transportation if any; they used to come to work that day. Bass
testified that he did not return to the facility until he reported to
work on Monday, April 21. Steve Spence testified that upon
deciding to drive to Sevierville on April 19, he and Bass “got
one of the Company vehicles.” Spence testified that he and
Bass followed Perdue back to Mid-Mountain.
Perdue clocked out at Mid-Mountain at 10:30 p.m. Perdue
claimed 1/2-hour overtime on his trip summary because of
traffic congestion. Bill Bass received Perdue’s trip report when
Bass returned to work on April 21. He checked Perdue’s DOT
log and saw that Perdue had also claimed overtime in his log.
Bass along with Steve Spence, talked to Perdue when Perdue
next returned to work on April 23. Bass told Perdue that they
had witnesses that placed him at the Sevierville store for 2
hours. Perdue said there was traffic congestion that he was in a
restaurant with friends and was only delayed slightly. Perdue
said that he left the store at 6:45 p.m. Bass terminated Perdue
(see GC Exh. 7).
Perdue testified that he was called in and discharged on April
23. At the end of the meeting Supervisor Steve Spence looked
at Perdue and commented “well, it was good while it lasted,
wasn’t it, hero?” Randall Perdue denied that he told Respon-
dent that he was quitting at any time before April 19. Steve
Spence denied that he told Perdue that it was good while it
lasted hero.
Jimmy Anderson ran 2 hours 45 minutes overtime on April
19. Anderson was not disciplined for claiming overtime. He did
receive a written warning for being late arriving at the Pigeon
Forge store (R. Exh. 64). Bass testified that they could not jus-
tify termination of Anderson in view of their failure to follow
him during his entire route. For that reason they could not be
sure that Anderson had completely falsified his report and log.
Anderson was not shown to have been a known Teamsters
supporter.
The General Counsel introduced a document (GC Exh. 9),
which indicated that Perdue terminated his employment on
April 13, 1997. Human Resources Assistant Carolyn Henderson
testified that she was formerly the secretary in human re-
sources. She made a keying error regarding the computer print-
out for Randall Perdue (cf. GC Exh. 7 and R. Exh. 83). Hender-
son keyed in the date April 13 when she should have keyed in
April 23. The documents do not show when they were pre-
pared. Henderson testified that she did not have the necessary
information to prepare Respondent Exhibit 83 until she re-
ceived General Counsel’s Exh. 7 is dated April 23, 1997. Kip-
pie Lambert is a payroll supervisor. He testified that he pre-
pared form documents showing benefits entitlements for termi-
nated employees. He sent a letter to Randall Perdue showing
Perdue’s date of termination as April 1, 1997. That date was
based on information supplied by Carolyn Henderson in human
resources.
MID-MOUNTAIN FOODS 263
Findings
Credibility
As shown above, I found in the heading under John Widener,
that William Bass was not a credible witness. Steve Spence
testified in support of Bass. However, in one area even their
testimony appears to conflict. Bass testified that he did not
return to Mid-Mountain after the Sevierville trip. Instead he
drove home and did not return until April 21. Bass’ testimony
causes concern as to what happened to his and Spence’s respec-
tive vehicles used to drive to work. Steve Spence testified that
he and Bass selected a company automobile after arriving at
work on April 19 and that they returned to Mid-Mountain after
the trip to Sevierville. Spence’s version appears to make more
sense in consideration of what happened to their vehicles. Of
course there is a possibility that both came to work by means
other than their own automobiles but none of that was ex-
plained in the record. Instead the record shows only that Bass
testified that he drove home without going to Mid-Mountain
and Spence appeared to testify that the two did stop at Mid-
Mountain. In view of my findings here, demeanor, and the full
record, I do not credit either Bass or Spence to the extent their
testimony conflicts with credited evidence. To the extent there
is conflict between the three, I credit Randall Perdue.
Of the witnesses that testified regarding this matter I was
most impressed with the demeanor of Jimmy Anderson. Ander-
son is a current employee and he was equally responsive to
both direct and cross-examination. I credit the testimony of
Anderson over that of other witnesses.
Conclusions
As to whether Respondent illegally discharged Perdue, I
shall first consider whether the General Counsel proved
through persuasive evidence that the Respondent acted out of
antiunion animus. Manno Electric, 321 NLRB at 1 fn. 12;
Wright Line, supra; and NLRB v. Transportation Management
Corp., supra.
The testimony is not in dispute but that Randall Perdue was
an open Teamsters’ supporter and that Respondent knew of
Perdue’s support of the Teamsters. The credited record also
showed that Respondent harbored animus against the Team-
sters. As shown above, Supervisor Gil Johnson threatened Fred
Badger that John Widener and a group of other people’s days
were numbered. The threats by Johnson were made on April 7.
As shown above I found that Respondent illegally discharged
John Widener on or around April 15 because of his union and
concerted activities. The incident that allegedly resulted in
Perdue’s discharge occurred on April 19.
Perdue was treated differently than another driver that was
not shown to be a union supporter. Although Jimmy Anderson
claimed 2-3/4 hours’ overtime for his April 19 run, Bass elected
not to discharge Anderson because he could not say that Ander-
son “completely falsified his log or his trip summary.” Instead
Anderson was given a written warning for late arrival at his
Pigeon Forge delivery store (R. Exh. 64). According to Bass he
elected to drive to Sevierville on April 19 in order to check
traffic congestion. He and Spence passed through Sevierville at
5:45 p.m. and continued to follow Anderson enroute to Pigeon
Forge until they were stopped by traffic congestion. After re-
turning to Sevierville Bass noted there was no traffic conges-
tion in that area. Perdue delayed at Sevierville until 8:15 p.m.
but claimed only 1/2-hour overtime as opposed to Anderson’s
claim. I credit Anderson’s testimony showing there was traffic
congestion in Sevierville.
The evidence supports a determination that Respondent was
motivated to discharge Perdue by his union activities.
There remains a question of whether Respondent proved it
would have discharged Perdue in the absence of union activi-
ties. Wright Line, supra; and NLRB v. Transportation Manage-
ment Corp., supra.
Respondent contended that Perdue was discharged because
he allegedly falsified records regarding an April 19 trip to
Sevierville, Tennessee.
Perdue was assigned to drive from Respondent’s facility in
Abingdon, Virginia, to a Food City grocery in Sevierville, Ten-
nessee, and to return to Abingdon. Everyone agreed that
Perdue’s shift started at 3 p.m. Perdue testified that he started
on his run at approximately 3:30 p.m. As shown above
Perdue’s termination memorandum noted that he left Mid-
Mountain at 3:20 p.m.
The road map shows that the distance from Abingdon to exit
36 on interstate 81 is approximately 58 miles.8 From there
down interstate 81 and interstate 40, to the Sevierville/Pigeon
Forge, Tennessee exit at Route 66, is another approximately 52
miles. From that exit Sevierville is approximately 9 miles and
Pigeon Forge is approximately 8 miles beyond Sevierville. An
amusement park called Dollywood is on route 66 between
Sevierville and Pigeon Forge.
William Bass testified that Perdue arrived at Food City in
Sevierville at 5:45 p.m. That shows that Perdue made the drive
of approximately 119 miles in 2 hours and 25 minutes. That
time includes a stop off exit 36 and Perdue and Anderson driv-
ing from exit 36 at a speed which permitted Bass and Spence to
catch the two trucks some 52 miles beyond exit 36 (i.e., before
the two truck drivers exited on route 66).9
Bass testified that Perdue did not leave Sevierville on the re-
turn trip until 8:15 p.m. Perdue drove directly to Mid-Mountain
where he finished his shift and clocked out at 10:30 p.m.
Therefore, the return trip including clock out time required 2
hours and 15 minutes.
According to Randall Perdue’s testimony he drove from
Mid-Mountain (Abingdon) to Sevierville in 2 hours and 45
minutes. Included in that time was his stop at exit 36 and the
traffic congestion near Sevierville. Perdue’s drive back to Mid-
Mountain included one-half hour at an Omelet Shoppe. Perdue
testified that he arrived there at 9:30 and left the Omelet
Shoppe at 10:00 p.m., drove the remaining 3 miles to Respon-
dent’s facility, wrapped up his work and clocked out at 10:30

8 1997 Rand McNally Road Atlas, United States, Canada, Mexico.
9 Respondent introduced two notes from Perdue’s personnel file (R.
Exh. 62). The notes appeared to be exactly the same except that one
contained a notation. The notes included “CI 300p depart 320p Ran-
dall stopped at exit # 36 4:20p. departed exit #36 at 4:36 p arrived at
store # 609 at 5:45 p (15 min early finished switching and parked at
6:15 p (here one note had the notation ‘slept for 2 hours’) Left #609 at
8:15 p after arriving at Mid-Mt.—turned in a trip summary for 30 min
O.T. for Road delay (traffic)”.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 264
p.m. The Omelet Shoppe was 3 miles short of his Mid-
Mountain destination. Perdue’s testimony shows that he made
the drive to the Omelet Shoppe in 2 hours and 45 minutes.
Perdue’s daily log completed when he arrived back at Mid-
Mountain, supports his testimony (R. Exh. 63).
As in the case of John Widener, there was testimony from a
current employee. Jimmy Anderson testified about the trip to
Sevierville. As shown above, Perdue caught Anderson at exit
36 and they drove together from there until Perdue turned off at
the Food City grocery in Sevierville. Anderson’s testimony
directly conflicts with that of Bass and Spence. Anderson testi-
fied that the traffic was congested before he and Perdue reached
Sevierville Food City and that the traffic forced he and Perdue
to come to a stop. In view of his demeanor and the full record
including Anderson’s status as a current employee I credit his
testimony.
I have concluded from the record that Perdue left the Abing-
don facility at 3:20 p.m. That is the time reflected on the only
documents showing the departure time. Perdue’s testimony that
he arrived at the Food City grocery in Sevierville at 6:15 p.m.
appears correct in view of the credited testimony of Jimmy
Anderson showing they were stopped in traffic before reaching
Food City.
If consideration of the two versions of the return trip I notice
that Perdue testified that he drove straight from Sevierville to
the Omelet Shoppe between 6:45 and 9:30 p.m. That means he
required 2 hours and 45 minutes to drive 3 miles less than the
full trip back to the Mid-Mountain facility. Under Bass and
Spence’s version Perdue left Sevierville at 8:15 p.m. and ar-
rived back at Mid-Mountain in Abingdon at about 10:15 p.m.
As to the return trip, I do not credit the testimony of William
Bass and Steve Spence. The credited evidence shows that
Perdue arrived at the Food City grocery in Sevierville later than
the time set by the testimony of Bass and Spence.
That evidence illustrated that Respondent engaged in pretext
in order to discharge Randall Perdue. That finding is further
supported by the conflict in the testimony of William Bass and
Steve Spence regarding what occurred when they returned to
Abingdon on April 19. Bass testified that they did not return to
Mid-Mountain. Instead they drove directly home and Bass did
not return to Mid-Mountain until April 21. Spence testified they
selected a company car to drive to Sevierville and returned to
Mid-Mountain upon finishing their trip. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); Waste Steam Management, Inc.,
supra; and Harmony Corp., supra.
In view of the above I find that Respondent failed to show
that it would have discharged Randall Perdue in the absence of
his Union activities. Respondent engaged in pretext in order to
discharge Randall Perdue. I find that Respondent discharged
Randall Perdue in violation of Section 8(a)(1) and (3) of the
Act.
Written Warning; Suspensions; Discharges; Tony Orfield
Tony Orfield worked for Respondent from 1992 until 1997.
He was an order selector. Orfield engaged in union activities
including soliciting employees to sign union cards and wearing
shirts and hats with union insignia. He successfully recruited 20
out of 35 people in perishable and produce to sign union cards.
During August 1996 Supervisor Jim Phipps asked Orfield if he
wanted to attend a company meeting. Orfield was wearing an
UFCW shirt and when he turned around Phipps could see
UFCW on the front of the shirt. Orfield told Phipps that he
didn’t “want to go listen to the Company’s lies.” Warehouse
Manager Wes Basham came to Orfield and said, “Well, I’m
glad you showed your true colors.” Basham told Orfield that if
the Union got in there he would have to ask permission to go on
break or go to the bathroom. Wes Basham said, “Mr. Orfield,
you’re a young man. You just built a new house, got a beautiful
wife, and two beautiful kids and he said I’d hate to see you lose
all that.”
Basham admitted talking to Orfield about his union shirt. Or-
field was the only employee that wore a shirt in Basham’s shop.
He denied telling Orfield that the Company would close if it
turned union.
Orfield had an accident in the warehouse in October 1996.
His forklift hit the leg of a rack as he backed through a flap
door. He called the supervisors immediately. Four supervisors
came. Orfield asked if he would receive a writeup. Supervisors
Vaughan and Noonchester said that he would not be written up
because it was an accident and that accidents happen. They said
that Jeff Boyd has accidents all the time. Two days later, Or-
field was told by Wes Basham and Jim Caudill that he was
being suspended and written up for the accident. Orfield said
that he did not think that was fair because Jeff Boyd has all
kinds of accidents without being written up. The supervisors
replied they were not talking about Jeff Boyd but were talking
about Tony Orfield. He told them that Vaughan and Noonches-
ter had told him that he would not be written up. Basham and
Caudill said that Orfield was not getting written up because of
his accident but because he had violated company policy by
backing through the door. He was given 3 days suspension and
a final warning. When Orfield returned after his suspension, he
asked his supervisors and fellow employees about the rule pro-
hibiting backing forklifts through a flap door. None of the su-
pervisors or employees had heard about that rule. Orfield saw
all three of his supervisors’ back forklifts through flap doors
after he returned to work.
James Caudill is assistant warehouse manager. He was for-
merly a receiving supervisor. Orfield told Caudill that he had an
accident as Caudill was walking through the dairy cooler. Or-
field’s machine (a SGX) had hit a rack. Orfield told Caudill that
he had lost control of his SGX as he was coming through the
curtain. The rack leg was bent backwards and Orfield’s SGX
was covered with tons of butter. Caudill reported the accident
to night shift shipping supervisor Randy Noonchester. Caudill
performed an investigation the following day at the direction of
Wes Basham. He measured the distance from the rack to the
doors (curtain) and concluded that Orfield had been operating
his SGX improperly and that had caused the accident. Caudill
based his findings on Orfield’s statement that he had come
through the door (curtain) fork-first, which means the machine
was running backwards. James Caudill submitted his investiga-
tion report to Respondent (R. Exh. 6) and he met with Wes
Basham after submitting his report. Orfield was awarded a final
warning (R. Exh. 3). Caudill denied there was any mention of
MID-MOUNTAIN FOODS 265
the Union when Orfield was awarded the final warning. He also
denied that Orfield was told he would not receive any punish-
ment during a conversation while Caudill was present.
Randy Noonchester testified that he investigated Orfield’s
October 1996 accident. He examined the accident scene and
took a statement from Orfield. He determined that Orfield went
through curtained doors driving his SGX backward and lost
control. Orfield’s SGX struck a rack containing approximately
12 half pallets of butter. The rack leg crumpled and the rack fell
covering the SGX with butter. The value of the damaged butter
was estimated to be $4700. Noonchester submitted a report to
Wes Basham (R. Exh. 4). Noonchester denied that he told Or-
field that he would not be written up. The decision to suspend
Orfield was based on discussions involving Wes Basham and
consultation with the human resources department to insure
they were following precedence. The normal practice is to al-
ways check with human resources prior to administering disci-
pline. Noonchester testified that he did not personally make a
recommendation as to the level of punishment to award Orfield.
He denied that he knew that Orfield was a union supporter at
the time of the accident.
Randy Vaughn recalled Orfield having two accidents. One
involved some pallets of butter. Vaughn went to the accident
site. The forks on Orfield’s SGX were pointed toward the butter
rack and away from the door curtains. The butter from the rack
had fallen on top of Orfield’s SGX. Vaughn believes he told
Orfield that he would not lose his job over the accident because
“they try to do is be fair.” He denied telling Orfield that he had
been disciplined because of his union activity and he denied
that he told Orfield that he would not be warned.
James Day was another supervisor that testified about Or-
field’s October accident. He heard about the accident after re-
turning to work following time off.
Perishable Manager Wes Basham testified that Orfield re-
ceived a warning in October 1996 (R. Exh. 97). He met with
Orfield and James Caudill and gave Orfield the warning. Ba-
sham had accident reports from Noonchester and Caudill and a
written statement from Orfield. Basham testified that Orfield
could have been terminated for that incident. Basham estimated
the value of the damaged butter at $1500 to $2500. He checked
with human resources, as was the usual routine, before issuing
disciplinary action to Orfield. Another employee, Ron Ryan,
had received a warning for a similar occurrence (R. Exh. 7).
On January 20, 1997, Orfield tried to follow another forklift
(Jerry Price) through the apple room cooler door. The door
closed on his forklift. He called Supervisor Trey Browning and
Browning asked what had happened. Orfield explained that he
had not pulled the cord that closed the door but that it had shut
on his machine. Orfield mentioned that perhaps the cord had
hung on Jerry Price’s forklift. Price came back to the accident
scene and agreed that the cord may have snagged on his ma-
chine. Browning filled out an accident report that night with
Orfield’s help.
Darrell Millard is a switcher for Respondent. He described
the doors into the apple room as being like elevator doors. They
open and close by pulling cords outside and inside the apple
room. Millard was standing near the doors when Tony Orfield
approached. Jerry Price had just gone through the doors and
they were beginning to close, as Orfield was 2 or 3 feet away.
The doors caught on Orfield’s machine as he passed through.
Millard did not see the cords snag on either Price or Orfield’s
machines.
Trey Browning formerly worked for Respondent as produce
team leader. He noticed Jerry Price drive through the doors and
he swept trash out of the way for Price to place his pallets.
Tony Orfield yelled at Browning and he walked over and saw
the doors had closed on Orfield’ SGX. Browning talked with
Orfield and Jerry Price. Neither said anything about cords
snagging on their equipment. Browning denied that he said that
the cord could have snagged on either Price or Orfield’s
equipment. Browning submitted a note to Wes Basham (R.
Exh. 8). In a subsequent conversation Jerry Price told Browning
to tell Basham that Price was the one that hit the door. Price
said they’d just write him up but if it was Orfield that hit the
door, Orfield would be fired (see R. Exh. 9(a)). Browning de-
nied that he knew Orfield to be a union supporter.
When Orfield reported the next day, Supervisor Terry Boyd
said he would have to see Wes Basham. Basham told him they
had to terminate him. Orfield asked why since he had done
nothing wrong. Basham said something about Orfield getting
off his machine, pulling the cord to close the doors and then
calling Trey Browning.
Perishable Manager Wes Basham testified about Orfield’s
discharge. After receiving a report from Trey Browning (R.
Exh. 9), Basham phoned Browning and discussed the accident.
Basham then checked with human resources. He learned that
another employee, Johnny Coalson, had been terminated under
similar circumstances (R. Exh. 11). Basham met with Orfield
and Terry Boyd and informed Orfield of his termination (R.
Exh. 98). He admitted that he knew of Orfield’s union activity
but he denied that he said anything to Orfield about union activ-
ity.
Jerry Price is a forklift operator in produce. On January 20,
1997, Price saw Tony Orfield coming across the dock about to
enter the apple cooler. Price drove through the door and set
some pallets down on the dock. He heard Tony Orfield yell for
a supervisor. Orfield was standing by his forklift. Price walked
over and heard Orfield explain to Supervisor Trey Browning
that he had not pulled the cord to shut the door. Price told
Browning that he had not pulled the cord when he came
through the door but that it was possible the cord had hung on
Price’s machine. Price also talked to Supervisor Terry Boyd.
He told Boyd that the only explanation was that the cord had
hung on Price’s machine. The following Monday Wes Bessham
said that he wanted to explain to Price why Orfield had been
fired. Bessham said the company was just being consistent with
what they had done in other cases. Bessham told Price that he
had conducted tests and he was convinced that Orfield had
pulled the cord on the inside of the apple room. Price replied
that he did not believe that is what had happened.
Price recalled that forklift operator Tandy Southerland had
an accident in October or November 1996, on the same door as
Price. The door was damaged. Southerland was not discharged.
Southerland did not show whether or not he supported the
UFCW.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 266
Findings
Credibility
I was impressed with the demeanor of Tony Orfield, James
Caudill, Randy Noonchester, Darrell Millard, Trey Browning,
and Jerry Price. The testimony of Orfield regarding his conver-
sation with Basham about the UFCW was not disputed by Ba-
sham. Basham denied that he threatened Orfield that the plant
would close if the Union came in but he did not deny that he
otherwise threatened Orfield. I credit Orfield. As shown below,
I also credit evidence showing that Orfield was treated in a
disparate manner.
Conclusions
I shall first consider whether the General Counsel proved
through persuasive evidence that the Respondent acted out of
antiunion animus. Manno Electric, supra; Wright Line, supra;
NLRB v. Transportation Management Corp., supra.
As shown here Tony Orfield engaged in UFCW activity and
Respondent was aware of his support of the UFCW. Orfield’s
credited testimony proved that Wes Basham told him that he
would have to ask for permission to go on break or to the bath-
room if the Union got in and Basham threatened Orfield by
saying he would hate to see Orfield lose his family and new
house. Basham admitted that he talked to Orfield in August
1996 after noticing that he was wearing a union shirt. Basham
did not deny the comments testified to by Orfield. He denied
that he threatened Orfield that the facility would close if it turns
union. However, Orfield did not testify that Basham made a
threat to close. Although Basham’s conversation with Orfield
was not alleged as a violation, I credited Orfield’s testimony,
which shows a serious threat because of Orfield’s union activi-
ties. In view of all the matters that occurred in early 1997, as
shown in this decision, the timing of Respondent’s discharge of
Orfield is significant. In view of that evidence, the evidence as
shown herein of Respondent’s antiunion animus and the timing
of its action against Tony Orfield, I find that the General Coun-
sel proved prima facie that Respondent was motivated by union
animus to suspended and discharged Tony Orfield.
There is a question as to whether Respondent would have
suspended and discharged Orfield in the absence of his union
activities. Tony Orfield had two accidents while working for
Respondent. As shown above he received a final warning and
suspension for an October 1996 accident and he was discharged
for another accident in January 1997. Wes Basham admitted
that Orfield did not have an accident before October 1996.
In October 1996 Orfield backed through a flap (curtain) door
and struck the leg of a rack. Tons of butter fell from the rack
and covered Orfield’s machine (SGX). On January 20, 1997,
Orfield tried to drive his SGX through an opening as the doors
were closing. The doors closed on his machine. There was dis-
puted evidence regarding why the doors closed. However, there
is no dispute but that Orfield entered the doors without having
first pulled the cord that opened the door. Instead Orfield saw
another machine come through the door and he tried to pass
through before the door closed after that machine.
Respondent argued that Orfield was not treated with dispar-
ity. Wes Basham testified that former employee Ron Ryan was
suspended and given a final written warning because he hit a
pallet rack leg while operating a forklift (R. Exh. 7). Ryan was
suspended on December 1, 1995. Also, Basham testified that
employee Johnny Coalson was fired when he had an accident
after he had received a final warning. Coalson was terminated
on December 17, 1996 (R. Exh. 11). Respondent questioned
Tony Orfield regarding the discipline of Johnny Coalson. Or-
field testified that Coalson had fallen asleep on his scrubber
machine and ran into a pallet leg. Coalson failed to report the
accident.
Disciplinary actions resulting from accidents were not lim-
ited to Orfield, Ryan and Coalson. Documents contained in
General Counsel’s Exh. 16 show that several employees re-
ceived either a talking to or a verbal warning for damage to
equipment or merchandise.
Tandy Sutherland received a verbal warning on December 9,
1996, because he hit the door that enters the apple room with an
SGX. Brad Webb received a verbal correction report on May
22, 1994, when he tore an eye wash station off the wall as he
was picking up yellow cart with a tow motor. An undated
memo shows that Bill Osboard “got pallet jack caught in dairy
cooler door. Motor runs but when you pull the cord the doors
won’t open. I cautioned him to be more careful.” A July 11,
1995 memo reflected that Jeffrey Boyd bent a rail while letting
the boom down of a forklift. Eugene Tuell was issued a verbal
correction report on May 24, 1994, for “knocking the heater
down from above the freezer door.”
A memo was written regarding David Atwell damaging a
door on February 27, 1991. A memo dated November 13, 1988,
showed that Mike Harmon had been talked to about hitting a
door as he was taking a stack of pallets outside. The memo
noted that the door will not close all the way down because of
the damage. David Kiser was talked to about his damaging 27
cases of cat food. Kiser was stacking a pallet of product when
“he ran into the back stack causing them to fall.”
Assistant Warehouse Manager James Caudill distinguished
Orfield’s October final warning from other disciplinary actions.
He testified that Orfield was suspended for “misuse and the
amount of damage done.” I find that explanation fails to sup-
port a finding that Orfield would have been suspended then
discharged, in the absence of Union activities. As to Caudill’s
testimony that Orfield’s case should be distinguished because
he misused his equipment, the above documents show that all
the incidents included therein involved misuse of equipment
and none, (with the exception of Ron Ryan and Johnny Coal-
son) resulted in more than a verbal warnings. Ron Ryan was
suspended but not discharged. Coalson fell asleep on his scrub-
ber machine and did not report the accident on the day of the
occurrence.
As to “the amount of damage,” the testimony of Respon-
dent’s supervisors illustrates that issue was never investigated
and was an apparent afterthought. The evidence shows that no
one bothered to determine the amount of damage and there had
been no discussions as to damages. At the hearing James
Caudill estimated the damage at $500. Wes Basham estimated
the damage at $1500 to $2500. Randy Noonchester estimated
the damage at $4700. I am convinced that there would not have
been such confusion in estimates if the supervisors had fully
considered the matter of damages in determining the severity of
MID-MOUNTAIN FOODS 267
Orfield’s punishment. Instead the evidence shows that Respon-
dent engaged in pretext in an effort to justify Orfield’s suspen-
sion and discharge. Wright Line, supra; Waste Steam Manage-
ment, supra; and Harmony Corp., 301 NLRB 578 (1991). I find
that the record failed to show that Respondent would have sus-
pended, given a final warning and discharged Tony Orfield in
the absence of union activities and that Respondent violated
Section 8(a)(1) and (3) by suspending and discharging Orfield.
Ronnie G. Brooks
Ronnie Brooks was an aisle forklift operator. He started
working for Respondent in October 1985. Brooks called in sick
on August 5, 1996. Eventually, he had surgery on his hand and
was off work on medical leave. On February 5, 1997, his phy-
sician signed a release for Brooks to return to work on February
24 (GC Exh. 3).
Respondent wrote Brooks on January 13, 1997, that he
would reach his maximum allowable disability leave on Febru-
ary 11 (GC Exh. 2).10 Respondent advised Brooks that he
would be terminated if he did not return to work by February
11 unless he made a written request for an extension of his
leave. Director of Human Resources Mark Millwood testified
that Respondent reserved the right to terminate anyone out with
a disability for over 6 months (see employee handbook—R.
Exh. 24).
Brooks participated in the UFCW organizing campaign be-
fore he went on sick leave, by signing a UFCW authorization
card. The parties stipulated that counsel for the General Coun-
sel and Respondent reviewed Union authorization cards signed
by employees including Books, on February 6, 1997. Respon-
dent posted a list of names of witnesses for the upcoming
NLRB hearing and counsel for the General Counsel shared an
index of card signers with Respondent on February 10, 1997.
On February 6, 1997 (GC Exh. 4), Ronnie Brooks submitted
a written request for an additional 2 weeks of leave. On Febru-
ary 14 Respondent wrote Brooks denying his request and ter-
minating his employment (GC Exh. 5).
John Dollar no longer works for Respondent. He was for-
merly the director of operations and human resources. Dollar
testified that Brooks was terminated because he was on disabil-
ity leave for over 183 days. Respondent denied Brook’s request
for an extension for two reasons. One, it was company policy to
deny extension of disability leave and two, Brook’s job was no
longer needed and had been eliminated. Dollar recalled that
Respondent always discharged employees that exceeded 183
days disability leave.
Findings
Credibility
Significant evidence regarding Brooks is not in dispute. I
find that Brooks engaged in Union activities and that Respon-
dent learned that Brooks had signed an authorization card when
it reviewed cards signed by employees on February 6, 1997.
Respondent also learned on February 10 that Brooks was a
potential witness for the General Counsel in an upcoming hear-
ing. The evidence is not in dispute as to other factors including

10 The Tr. at p. 760, erroneously reflects that I referred to the attor-
neys as “children.” I correct the record and strike the word children.
Brooks disability leave, the fact that Respondent notified him
of his potential termination (GC Exh. 2), his request for exten-
sion of leave and his termination (see GC Exh. 5).
Conclusions
I shall first consider whether the General Counsel proved
through persuasive evidence that the Respondent acted out of
antiunion animus. Manno Electric, supra; Wright Line, supra;
NLRB v. Transportation Management Corp., supra.
As shown above, Respondent learned that Ronnie Brooks
had signed a union authorization card on February 6, 1997. On
February 13, it discharged Brooks. In view of my findings
herein regarding animus and the evidence showing knowledge
and timing, I find that the General Counsel proved prima facie
that Respondent was motivated by antiunion animus to dis-
charge Ronnie Brooks.
There is a question of whether Brooks would have been ter-
minated in the absence of his union activities. On January 13,
1997, Respondent advised Brooks that he would be discharged
“unless you request a personal leave of absence through the
Human Resources Department.”
On February 6, Brooks requested 2 additional weeks of leave
until May 24, 1997. He attached a February 5, 1997 memo
from a physician showing that Brooks may return to work
without restriction on February 24, 1997.
On February 14, Respondent wrote Brooks that his request
was denied and his employment terminated.
The above shows that Ronnie Brooks complied with condi-
tions expressed in Respondent’s January 13 letter. Respondent
offered evidence that it has denied request for extensions of
sick leave. However, those instances showed the employees
requested extensions of medical leave without date for the leave
to expire and it was apparent that each anticipated a long period
of extended leave. On the other hand, Brooks asked for a defi-
nite time of only 13 days additional leave. Respondent also
contends that it has no need for Brooks in that it was never
necessary to fill his job. However, Respondent stated in its
January 13 letter to Brooks that it could have reassigned him to
another job.
I find that the record failed to show that Brooks would have
been terminated in the absence of union activity. Respondent
terminated his employment in violation of Section 8(a)(1) and
(3) of the Act.
Written Warnings; Daniel Hounshell
Daniel Hounshell has worked for Respondent for over 11
years. He operates a forklift. Hounshell attended UFCW meet-
ings and wore a T-shirt to work about once a week during the
organizing campaign. Hounshell was shown on a December 18,
1996 TV newscast while he was attending a UFCW meeting in
Abingdon. That film was shown on a local newscast. Only two
African-American employees supported UFCW and Hounshell
was the only one shown on the December 18 news.
Tony Lewis asked Hounshell to work overtime on December
19. Hounshell declined saying he needed to leave. Lewis re-
plied that “Mahoney needs to talk to you.” However, Mahoney
never came to see him and Hounshell clocked out about 4 min-
utes before 5 o’clock. Lewis admitted that he knew that Houn-
shell was a single parent and Hounshell had told him that he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 268
could not work overtime without prior notice because he had to
pick up his child. Lewis admitted that he told Jeff Mahoney that
Hounshell had a problem with working over on December 19.
Lewis was aware that Hounshell frequently wore a UFCW shirt
to work. He wore the shirt after the election.
On December 23 Tony Lewis told Hounshell that Mahoney
would like to talk to him about December 19 but Mahoney did
not show up that day. Nevertheless, Hounshell was awarded a
verbal warning. He met with Tony Lewis and Alvin Olinger in
the conference room. Lewis told Hounshell that he was a good
worker but Hounshell was given the verbal warning for leaving
and not working overtime without checking with Jeff Mahoney
(R. Exh. 96).
Assistant Warehouse Manager Jeff Mahoney was formerly in
charge of receiving. It snowed in December 1996 and everyone
was asked to work over. Anyone that could not work overtime
was to tell his or her team leader. The following day employees
were again asked to work overtime. At that time anyone that
expressed an unwillingness to work over was told to report to
Mahoney. Daniel Hounshell received a warning for leaving
without checking with Mahoney (R. Exh. 96). Hounshell did
not report to Mahoney and he did not work overtime. Several
employees including union supporters Coy Wolfe, John Sykes,
and Freddie Hall asked to be excused that day and all were
granted authority to leave without working overtime. All those
employees were listed as union committeemen on a letter re-
ceived by Respondent (R. Exh. 2). That letter was mailed by
the UFCW on July 23, 1996. Mahoney testified that he was
unaware that Hounshell appeared on TV at a UFCW meeting.
Mahoney testified that he could not remember whether he
approached Coy Wolfe or Wolfe approached him, regarding
whether Wolfe would work overtime. He admitted that he
probably approached Wolfe after being told by Tony Lewis that
Wolfe could not work overtime. Mahoney admitted that he
went to John Sykes and confirmed that Sykes could not work
overtime after learning that from Tony Lewis. He admitted that
he saw some employees at the time clock and gave them per-
mission to leave before working overtime. Those included
some that were not listed on the UFCW organizing committee.
When asked about approaching Daniel Hounshell, Mahoney
testified that Hounshell left about 5 minutes early that day.11
That was before Mahoney arrived at the clock.
Dry Warehouse Manager Buddy Honaker testified that he
asked employees to work overtime on December 18 or 19,
1996, following a snowstorm. He told the employees to see
their team leader if there was a problem with working overtime.
Jeff Mahoney and Mark Hartzog were appointed point men to
insure the necessary shipments were made. Honaker admitted
that Hounshell had worn a UFCW shirt and hat.
Hounshell had never been disciplined for refusing to work
overtime before December 19 even though he had actually
refused to work overtime on a number of occasions.
John Sykes is a forklift operator. He was one the UFCW or-
ganizing committee and he wore UFCW paraphernalia to work.
He did not wear the UFCW paraphernalia after the August

11 Hounshell’s verbal warning (R. Exh. 96) shows that he left 4 min-
utes early.
1996 election. Oher UFCW supporters continued to wear
UFCW T-shirts after the election. Sykes saw Daniel Hounshell
at a UFCW meeting on the December 18, 1996 11 p.m. TV
news. Hounshell had on a vote yes UFCW T-shirt. Hounshell is
one of only three African-Americans that worked for Respon-
dent and one of two that supported UFCW.
Tony Lewis asked John Sykes to work overtime on Decem-
ber 19. Sykes replied that he had car trouble and could not work
overtime. Lewis said that was okay. He said nothing about
seeing Jeff Mahoney. Mahoney did come by Sykes’ work-
station that day and asked if Sykes had car trouble. Mahoney
then said okay and walked off. As Sykes was leaving work with
some other employees, Mahoney pointed to him and repeated
that Sykes had car trouble. He also pointed to some of the other
employees and said something about why each was leaving.
Those other employees leaving included Coy Wolfe, Mike
Harmon, Freddie Hall, and Curtis Henley. Mahoney did not tell
anyone they could not leave.
Tony Lewis asked Mike Harmon to work overtime on De-
cember 19, 1996. Harmon said that he could not work overtime,
that he had to pick up his son at the babysitter’s. Later, Jeff
Mahoney saw Harmon at the timeclock and said, “[S]o you
have to go pick up your son,” and Harmon nodded that was
correct. Mahoney told the employees that left that Respondent
would expect them to work overtime in the future because there
was going to be some bad weather.
Findings
Credibility
I was impressed with the demeanor of Daniel Hounshell,
John Sykes, Tony Lewis, and Buddy Honaker.as to this particu-
lar issue. I was not impressed with the demeanor of Jeff Ma-
honey and I do not credit his testimony to the extent it would
show that he did not treat Hounshell discriminatorily.
Conclusions
I shall consider whether the record showed that the Respon-
dent acted out of antiunion animus. Manno Electric, supra;
Wright Line, supra; NLRB v. Transportation Management
Corp., supra.
As shown throughout this decision Respondent demonstrated
animus against the UFCW. The evidence reveals that Daniel
Hounshell was shown on TV news at a UFCW meeting while
wearing a “vote yes” shirt. The credited record showed that
Hounshell was discriminatorily warned for refusing to work
overtime on the day after that TV program. The record showed
that no one else was disciplined for refusing to work overtime
on December 19. I find that evidence supports a finding that
Respondent warned Hounshell because of its union animus.
Respondent contended that it would have warned Hounshell
in the absence of his union activity because he failed to follow
directions and check with Jeff Mahoney before leaving on De-
cember 19. I find that the record does not support Respondent.
Other employees also failed to check with Mahoney. Mahoney
was standing at the timeclock and he commented to several
employees regarding why they could not work overtime. Ma-
honey testified that he did not see Hounshell but that was be-
cause Hounshell left before Mahoney reached the timeclock. I
MID-MOUNTAIN FOODS 269
do not credit Mahoney’s testimony in that regard. Instead I
credit Hounshell that he saw Mahoney as he was leaving on
April 19 and that he and Mahoney “looked eye to eye.” Al-
though Hounshell may have left 4 minutes early on December
19, he was not disciplined for leaving early. I am convinced and
find that Respondent engaged in pretext in claiming that Houn-
shell would have been warned in the absence of his UFCW
activity. Wright Line, supra; Waste Steam Management, supra;
and Harmony Corp., 301 NLRB 578 (1991). I find that Re-
spondent was motivated by union animus to warn Hounshell
and the record failed to show that Hounshell would have been
warned in the absence of his union activity. I find that he was
warned in violation of Section 8(a)(1) and (3) of the Act.
Larry Nunley
Larry Nunley operates a forklift. He was a representative for
the Teamsters during NLRB hearings in February 1997. Nunley
was called to the training room after February 27, 1997, where
he met with Supervisors Mark Hartzog and Alvin Olinger.
They told Nunley that he had misloaded a pallet on store 606
that should have gone to store 602. Nunley reminded Hartzog
and Olinger that they had said they would not do anything
about that incident because the truck went there every day.
Hartzog and Olinger replied that they had a picture taken by a
lady in the store showing that it was Nunley’s misload. Nunley
stated that the picture did not show that he was the one that had
loaded the pallet. Nunley was given a writeup (R. Exh. 35).
Greg Johnson is an auditor for Respondent. He is responsible
for checking the quality of work. Johnson recalled a misship-
ment by Larry Nunley in February 1997. Johnson received a
phone call from the manager of store 606 complaining that she
had received the misshipment. He denied that he talked with
Nunley about that incident and he denied that he told Nunley or
Tim Alderson that he thought that Tim Salyer was responsible
for the misshipment.
Alvin Olinger testified about the February 1997 misshipment
to store 606. He denied telling Nunley that he thought Tim
Salyer was responsible for the misshipment or that Nunley’s
action would be overlooked. Salyer had loaded for shipment to
store 602 but that shipment was not set to depart until some 5
hours and 15 minutes after the shipment departed for store 606.
Olinger denied telling Nunley that Bobby Collins had a mis-
shipment that had been overlooked. Alvin Olinger testified that
contrary to testimony by Eugene Osborne, Price, Collins, and
Chapman did receive warnings. Price was written up three
times and was ultimately terminated for misshipments (R. Exh.
42, 43). Chapman was given a verbal warning on August 29,
1986 (R. Exh. 46) and Bobby Collins received a verbal on May
12, 1986 (R. Exh. 47). Olinger testified that Salyers should not
have received a warning. Instead that misload was the respon-
sibility of Larry Nunley and Nunley received the warning.
Olinger testified that company supporter Bernie Gobble re-
ceived a notation for two misloaded pallets on September 1,
1995 (R. Exh. 48).
Mark Hartzog, supervisor (team leader), denied telling
Nunley that Nunley’s misshipment would be overlooked.
As shown below, Eugene Osborne testified that he heard
about misshipments around once each month and that employ-
ees are not always disciplined for misshipments. Employees
Tim Salyers, Bobby Collins, Craig Price, and Charlie Chapman
had misshipments and were not disciplined.
As shown above, Bobby Collins testified that he never did
anything to show that he supported the union. He has been
responsible for two misloads. Once in 1996, Alvin Olinger told
Collins that Collins had a misload. Collins was not disciplined.
He was told that he had a second misload in June. That was
about six months after his first misload. Collins talked to first
Alvin Olinger then Buddy Honaker, but was not disciplined for
that occurrence. Collins admitted that Bernie Gobble had re-
ceived a warning because of a misshipment.
Findings
Credibility
I observed the demeanor of Larry Nunley, Greg Johnson,
Alvin Olinger, Mark Hartzog, Eugene Osborne, and Bobby
Collins. I am convinced that Nunley and Collins were truthful
in view of their demeanor and the full record. Both are cur-
rently employed by Respondent and each has worked at Mid-
Mountain for 12 years.
Conclusions
The test in determining whether a warning constitutes an un-
fair labor practice requires that I first consider whether the Re-
spondent acted out of antiunion animus. Manno Electric, 321
NLRB 1 fn. 12 (1996); Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); NLRB v. Transportation Management Corp., 462 U.S.
393 (1983).
As in all the above cases, the record established Respon-
dent’s animus towards unions and it showed that Nunley was
acting as representative for the Teamsters during NLRB hear-
ings in February 1997. As in the allegations regarding Eugene
Osborne, I am concerned with whether Nunley was treated in a
disparate manner.
Several of the employees noted by Alvin Olinger for mis-
shipments were involved during the 1980s and up until 1995. A
note was made about Bernie Gobble misloading two pallets on
September 1, 1995. Eugene Osborne was previously noted for
misshipments in 1986, 1989, 1991, 1993, and 1994.
After the UFCW filed charges on March 13, 1997, alleging
the disciplinary actions against Osborne and Nunley were
unlawful, Respondent disciplined and finally discharged Craig
Price. Price was given a written warning on April 9, 1997, be-
cause he misshipped 45 cases of product. The written warning
noted that Price had received a verbal warning for misshipment
on March 14, 1997. Price was discharged on May 16, 1997,
because he misshipped a pallet of goods to store 685 that
should have gone to store 686, and a cigarette and tobacco or-
der to store 610 that should have gone to store 40; and he failed
to ship a pallet of repack product to store store 632. Eugene
Osborne’s alleged illegal disciplinary action was a January 20,
1997 verbal warning for “misshipment of two pallets of spe-
cials for store # 827, Eugene shipped to store # 678.”
Respondent was not consistent in its practice of disciplining
employees for misshipments. Occasionally, as in the case of
Bobby Collins, employees were not disciplined for misship-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270
ments. However, in numerous other occasions employees were
warned and even discharged for that infraction.
Nevertheless, I am convinced that Larry Nunley was treated
with disparity. Nunley was shown to have engaged in protected
activity at a NLRB hearing immediately before his written
warning. He acted as NLRB representative during 2 weeks of
hearing in February and the misshipment occurred on the next
to last day in that month. As shown below, unlike Eugene Os-
borne, Nunley received a written warning and unlike Osborne,
Nunley was not shown to have been a habitual violator of the
policy against misshipments. Nunley did not have a misship-
ment before February 27. Additionally, Nunley must be distin-
guished from Craig Price. Price was disciplined after charges
were filed alleging that Nunley and Osborne were illegally
disciplined for misshipments and an examination of Price’s
warnings and discharge (R. Exhs. 41, 42) shows that Price’s
offenses were far more serious and numerous than Nunley’s.
Respondent violated Section 8(a)(1) and (3) by warning
Nunley.
Eugene Osborne
Eugene Osborne has worked for Respondent for over 12
years. His present job is HBA order selector. Before becoming
an order selector in 1997, he worked on the receiving dock.
Osborne participated in the UFCW campaign and was listed as
a member of the UFCW organizing committee in the Union’s
July 23, 1996 letter to Respondent (R. Exh. 2). Osborne handed
out literature and wore UFCW tee shirts and hats to work. He
assisted counsels for UFCW and the General Counsel at a
NLRB hearing in February or March 1997 and he acted as
UFCW observer during the NLRB election.
Supervisor Jim Phipps issued a verbal warning to Eugene
Osborne for a misshipment (R. Exh. 34) on January 20, 1997.
The General Counsel does not contest that Osborne had a mis-
shipment. Previously Osborne had been warned for misship-
ments in 1986, 1987, 1989, 1993, and 1994.
Osborne heard about misshipments around once each month
and employees were not always disciplined for misshipments.
Employees Tim Salyers, Bobby Collins, Craig Price, and Char-
lie Chapman had misshipments and were not disciplined.
Respondent offered evidence that Price, Collins, and Chap-
man did receive warnings. Price received warnings and was
ultimately terminated for misshipments (R. Exhs. 42, 43).
Chapman was given a verbal warning on August 29, 1986 (R.
Exh. 46) and Bobby Collins received a verbal on May 12, 1986
(R. Exh. 47). Alvin Olinger testified that Salyers should not
have received a warning. Instead that misload was the respon-
sibility of Larry Nunley and Nunley received the warning.12
Olinger testified that company supporter Bernie Gobble re-
ceived a notation for two misloaded pallets on September 1,
1995 (R. Exh. 48).
As shown above, Bobby Collins testified that he never did
anything to show that he supported the union. He testified about
his responsibility for two misloads in 1996. In early 1996, Al-
vin Olinger told Collins that Collins had a misload. Collins was

12 As shown above, I found that Respondent engaged in unfair labor
practices by warning Nunley.
not disciplined. He was told that he had a second misload later
that year. That was about six months after his first misload.
Collins talked to first Alvin Olinger then Buddy Honaker but
was not disciplined for that occurrence.
Jim Phipps denied that he said to Eugene Osborne “if you
don’t have a misshipment every so often you’re not working
hard enough.” Phipps admitted that Osborne did tell Phipps that
another supervisor (probably Mark Hartzog) had made that
statement to Osborne.
Findings
Credibility
Bobby Collins impressed me as a truthful witness in view of
his demeanor and the full record. I credit his testimony. As to
Eugene Osborne, I observed nothing, which caused me to doubt
his testimony. However, I am convinced in view of documen-
tary records to the contrary that Osborne was wrong in his tes-
timony that Respondent did not discipline other employees
including Bobby Collins, Craig Price, and Charlie Chapman
because of misshipments. As to the conflict between Osborne
and Phipps, in view of his testimony and demeanor, I am not
convinced that Phipps was truthful. As to that matter I credit
Osborne.
Conclusions
I first consider whether the Respondent acted out of anti-
union animus in warning Osborne. Manno Electric, 321 NLRB
1 fn. 12 (1996); Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
As in all the above cases, the record established Respon-
dent’s animus towards unions and it showed that Osborne was
disciplined during the time he was engaged in union activity.13
The primary question is did Respondent treat Osborne in a
discriminatory manner because of his activity on behalf of
UFCW. As shown above several of the employees were noted
for misshipments. A note was made about Bernie Gobble mis-
loading two pallets on September 1, 1995. Osborne was previ-
ously noted for misshipments in 1986, 1989, 1991, 1993, and
1994.
After the UFCW filed charges on March 13, 1997, alleging
the disciplinary actions against Osborne and Nunley were
unlawful, Respondent disciplined and finally discharged Craig
Price. Price was given a written warning on April 9, 1997, be-
cause he misshipped 45 cases of product. The written warning
noted that Price had received a verbal warning for misshipment
on March 14, 1997. Price was discharged on May 16, 1997,
because he misshipped a pallet of goods to store 685 that
should have gone to store 686, and a cigarette and tobacco or-
der to store 610 that should have gone to store 40; and he failed
to ship a pallet of repack product to store 632.
Osborne’s alleged illegal disciplinary action was a January
20, 1997, verbal warning for “misshipment of two pallets of
specials for store # 827, Eugene shipped to store # 678.”
13 However, the record showed that Osborne did not act as represen-
tatives for either the Union or NLRB in hearings and the election, until
after his January 1997 warning.
MID-MOUNTAIN FOODS 271
As shown above, Respondent was not consistent in its prac-
tice of disciplining employees for misshipments. Occasionally,
as in the case of Bobby Collins, employees were not disciplined
for misshipments. However, in numerous other occasions in-
cluding a September 9, 1994 written warning to Osborne, em-
ployees were warned and even discharged for that infraction.
Under those circumstances I find that the General Counsel
failed to show that Respondent treated Osborne in a discrimina-
tory fashion. In making that determination I note that nothing
was shown in the way of noticeable union activity by Osborne
after the summer until after he received his January verbal
warning. His assistance at a NLRB hearings and election did
not occur until after the verbal warning, in February and March
1997. I find that the General Counsel failed to prove that Os-
borne was treated in a disparate manner because of his Union
activity.
The 8(a)(4) and (3) Allegations; Unexcused Absence;
Steve Warner
Steve Warner works for Respondent as an order selector.
Warner was subpoenaed and appeared at a NLRB hearing on
February 10. He testified on February 13 and 14, 1997. Warner
phoned Respondent and was permitted absences on Tuesday
and Wednesday of that week. When he phoned in on Thursday,
he was told he would have to talk to a supervisor. Supervisor
Jim Phipps told Warner that he would get an unexcused ab-
sence because he had not called in within the 30-minute time
frame. Warner told Phipps that they knew he had been subpoe-
naed to be in court and that he was calling in as a courtesy to
Respondent. Warner hung up. When he phoned in the next
morning he talked with Phipps again. Phipps asked which su-
pervisor had Warner given his subpoena to and Warner replied
that he had not brought the subpoena in yet but that he would
do so the next day. Phipps replied okay. Warned did bring in
the subpoena two days later and gave it to Phipps. However, he
has never been advised that the unexcused absence for that
Thursday was removed from his record.
Jim Phipps, supervisor (team leader), testified that Steve
Warner phoned in and said that he had to testify at a NLRB
hearing and would not be at work. Warner was scheduled to
report at 6:30 a.m. and did not call in until 7:02 a.m. Phipps
told Warner that he was supposed to call within 30 minutes of
his starting time and this would have to be an unexcused ab-
sence. When Buddy Honaker came in around 8 a.m., Honaker
and Phipps decided to give Warner an excused absence (R.
Exh. 15). The decision was based on the fact that Warner’s call
was within 2 minutes of the required 30-minute deadline.
Findings
Credibility
The facts regarding this allegation are not in dispute.14 Al-
though Phipps told Warner that he would receive an unexcused
absence, the absence was actually excused.

14 Respondent brought out that Warner testified in the prior hearing
that he would have signed anything when he signed his affidavit. De-
spite that fact there was no contrary evidence showing that Warner was
not told he would receive an unexcused absence. Supervisor Phipps
corroborated that testimony.
Conclusions
The evidence shows that Respondent did not issue an unex-
cused warning to Steve Warner. Instead he was told he would
receive an unexcused warning. Respondent did not tell Warner
that it had decided against issuing the unexcused warning. Gen-
eral Counsel argued that action amounted to the issuance of a
verbal unexcused absence.
The test in determining an unexcused absence allegation is
the same as that of a discharge.15 I shall consider whether the
record showed that the Respondent acted out of antiunion ani-
mus. Manno Electric, supra; Wright Line, supra; NLRB v.
Transportation Management Corp., supra.
The record established that Warner called in within the 30-
minute timeframe specified in Respondent’s handbook. He was
placed on hold by the operator and did not talk to Supervisor
Phipps until 10 minutes after he placed the call. The record also
shows without dispute, that Warner was calling to notify Re-
spondent that the would be absent to attend a NLRB hearing
pursuant to a subpoena. I find that evidence shows that Phipps
was motivated by Warner’s presence at the NLRB hearing to
tell Warner he was being awarded an unexcused absence. Re-
spondent failed to show that it would have told Warner his
absence was not excused in the absence of his presence at the
NLRB hearing. Therefore, I find that Respondent engaged in
violation of Section 8(a)(1) and (4) by telling Steve Warner that
he would receive an unexcused absence.
Written Warnings; Coy Wolfe Jr.
Coy Wolfe worked at Respondent as a forklift driver, until
September 22, 1997. Wolfe signed an authorization card,
signed up for the UFCW organizing committee and wore
UFCW T-shirts and hats at work.
After hearing that Daniel Hounshell was disciplined for not
working overtime on December 19, Coy Wolfe wrote a state-
ment in support of Hounshell. The parties stipulated that
Wolfe’s statement was turned over to Respondent pursuant to
subpoena on February 13, 1997. On February 24, 1997, Coy
Wolfe was written up for poor work performance. He was
given the warning in a meeting with Jeff Mahoney and Tony
Lewis. After giving him the warning, Tony Lewis told Wolfe
not to take it personally. Wolfe asked Lewis if Lewis had come
in at any time during the week and not found Wolfe working.
Lewis replied, “[N]o, every time I come in there, you was do-
ing your job.”
Assistant Warehouse Manager Jeff Mahoney testified that
Coy Wolfe was given a written warning in February 1997 for
having a tremendous number of outs (R. Exh. 20). Wolfe had
been working in the repack area for a week. David Leland a
supervisor, explained that “out” is basically a picking slot that
has no merchandise in it—no quantity on hand. When Leland
came to work on February 22, 1997, there were excessive outs.
However, there was in-bound stock still there from the day
before. The repack motor man for that week had been Coy
Wolfe. Wolfe was not assigned to work on February 22. Leland
15 There is no dispute but that unexcused absences may result in dis-
ciplinary action while excused absences may not.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 272
testified that Wolfe had not asked for help during that week
(see R. Exh. 21).
Tony Lewis testified that he was told about outs on February
22 when he came to work on Monday February 24, 1997. He
and Jeff Mahoney investigated the matter and awarded Wolfe a
warning (R. Exh. 20). Lewis denied telling Wolfe that Wolfe
was doing what he was supposed to every time Lewis had seen
him.
Assistant Warehouse Manager for Systems Paul Widener
was a team leader in the shipping department in the dry ware-
house in February 1997. He and Robbie Moretz were walking
through the repack area before the 9 a.m. break on Saturday
morning. Order selector Tommy Owens expressed some com-
plaints about the slots. Widener and Moretz checked and dis-
covered that a great number of the selection locations were
either empty or at a very low level. He testified there were sev-
eral dozen empty slots. Widener was told to document what he
had observed. It required the largest part of that Saturday for a
motor man (forklift operator) to replenish that repack area.
Widener testified that it is the responsibility of the lift operator
to monitor the selector locations and to replenish them in a
timely manner.
Dry Warehouse Manager Buddy Honaker came in one Sat-
urday morning and was told by Bernie Gobble of a problem
with outs. Honaker asked Robbie Moretz to determine what
was going on. Honaker walked through aisles 6, 7, 8, and 9 and
found slots that were empty. According to Honaker Wolfe
should have filled the slots to carry over through that weekend.
Forklift operator Bernie Gobble testified that whenever he
restocks a particular aisle he notices whether involved selection
slots are out. He does not go through the aisles and check to see
if other slots are out. He asked the supervisors for help on a
Saturday in February 1997, because there seemed to be a large
number of outs. It had been around 6 months before that time
since Gobble had last seen as many outs as existed on that Sat-
urday. Gobble testified that an order selector is not required to
notify a forklift operator of a slot problem unless there is an
actual out.
Forklift operator Gary Singleton told Buddy Honaker that he
did not have a large number of outs on February 22, 1997. Sin-
gleton had an unusually large order on that day. The order in-
volved filling 878 case orders and Singleton had less than 10
outs. Singleton testified that was not a large number of outs
considering the size of the order.
Findings
Credibility
It was undisputed that Wolfe was a UFCW supporter; that he
gave a statement in support of Daniel Hounshell; that statement
was turned over to Respondent on February 13; and that Wolfe
was written up for poor work on February 24. There was a dis-
pute as to whether Tony Lewis told Wolfe that every time he
had seen Wolfe, Wolfe was doing his job. I have considered
that testimony in light of their demeanor and the full record and
I am convinced that Wolfe was truthful. I credit his testimony
as shown herein. I also credit Gary Singleton. Singleton is cur-
rently employed by Respondent and has worked there for over
9 years.16
Conclusions
I shall consider whether the record showed that the Respon-
dent acted out of antiunion animus. Manno Electric,, supra;
Wright Line, supra; NLRB v. Transportation Management
Corp., supra.
As shown here, I have found that Respondent demonstrated
animus on numerous occasions. In view of those findings and
the full record I am convinced that Respondent was motivated
to warn Wolfe because of his submission of a statement in sup-
port of Daniel Hounshell’s unfair labor practice allegations. I
base those findings in part on the timing of the action against
Wolfe, coming just 11 days after his statement was given to
Respondent and on comments by Supervisor Tony Lewis dur-
ing the disciplinary interview. Lewis told Wolfe that he should
not take the warning personally and that he had not seen Wolfe
at any time when Wolfe was not working. It is also revealing
that Wolfe consulted with Lewis regarding outs during the
week of February 22 because he was receiving an unusual
amount of receiving. Wolfe complained that the night shift
should assist in handling the heavy workload. During the disci-
plinary interview Wolfe pointed out that Lewis could explain
the problems that week and Lewis admitted difficulty with the
night shift properly placing McCormick products. Additionally,
the action against Wolfe occurred during the period of time
when Respondent was very active in unfair labor practice activ-
ity.
Respondent offered evidence showing a large number of outs
were discovered on Saturday, February 22 and that Coy Wolfe
had worked as repack motor man during the week before that
date. However, Respondent failed to show why it had not taken
similar action when a similar problem existed 6 months earlier.
Its own witness, Bernie Gobble testified there had not been a
similar problem in 6 months. Respondent also failed to show
why no one else was disciplined for the February 22 problem.
After Coy Wolfe finished work on Friday the night shift came
on and was followed by Bernie Gobble on Saturday morning.
None of those people were disciplined.
Moreover, I have credited evidence showing that Coy Wolfe
was involved with an extensive amount of inbound stock
throughout the week before February 22. Respondent failed to
show that it considered or investigated that matter in determin-
ing to warn Wolfe.
Therefore, I am convinced that Respondent failed to show
that it would have disciplined Wolfe in the absence of his activ-
ity on behalf of Daniel Hounshell. Even if I credit that there
was a large number of outs of Saturday, February 22, there is
no showing in the record that Wolfe failed to perform well
during that prior week. The evidence showed that Coy Wolfe
was reassigned to the repack area only at the beginning of the
week before February 22. Respondent failed to credibly rebut
Wolfe’s testimony that he was busy with an unusual large
amount of receiving that week.

16 Singleton was led to testify regarding February 27, 1996. After re-
viewing his prehearing affidavit he corrected the date to be February
22, 1997.
MID-MOUNTAIN FOODS 273
In view of the full record I am convinced that Respondent
engaged in a pretext in order to justify its disciplinary action
against Wolfe. Wright Line, supra; Waste Steam Management,
315 NLRB 1088 (1994); Harmony Corp., 301 NLRB 578
(1991). Although Respondent contended there were a large
number of outs on February 22, that was credibly disputed by
Forklift operator Gary Singleton. Singleton testified that he had
10 outs and that was not a large number considering the size of
the order. Moreover, the full record showed that Respondent
failed to investigate whether Wolfe had actually failed to per-
form his work during the week before February 22. I find that
Respondent failed to show that it would have warned Coy
Wolfe in the absence of his activity on behalf of the unfair la-
bor practice charges involving Daniel Hounshell. Respondent
engaged in a violation of Section 8(a)(1), (3), and (4) of the Act
by warning Wolfe.
CONCLUSIONS OF LAW
1. Mid-Mountain Foods, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. United Food and Commercial Workers International Un-
ion, Local 400, AFL–CIO, CLC and International Brotherhood
of Teamsters, AFL–CIO are labor organizations within the
meaning of Section 2(5) of the Act.
3. Respondent by threatening its employees with termination
and that others will be terminated because of the Union; and by
threatening employees with the futility of selecting the Union;
in an effort to discourage union activity, engaged in conduct in
violation of Section 8(a)(1) of the Act.
4. Respondent by suspending and terminating John
Widener; terminating Randall Perdue; by issuing a written
warning, suspending and discharging Tony Orfield; by termi-
nating Ronnie Brooks; and by issuing written warnings to
Daniel Hounshell and Larry Nunley because of their union
activities, engaged in conduct in violation of Section 8(a)(1)
and (3) of the Act.
5. Respondent by verbally awarding an unexcused absence
to Steve Warner; and by issuing a written warning to Coy
Wolfe Jr. because of their participation in concerted, union, and
NLRB proceedings, engaged in conduct in violation of Section
8(a)(1), (3), and/or (4) of the Act.
6. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that Respondent has illegally suspended and
discharged John Widener, illegally discharged Randall Perdue,
illegally warned, suspended, and discharged Tony Orfield and
illegally discharged Ronnie Brooks in violation of sections of
the Act, I shall order Respondent to offer those employees im-
mediate and full employment to their former positions or, if
those positions no longer. exist, to substantially equivalent
positions. I further order Respondent to make those employees
whole for any loss of earnings suffered as a result of the dis-
crimination against them. Backpay shall be computed as de-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as described in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The Respondent, Mid-Mountain Foods, Inc., Abingdon, Vir-
ginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge and the dis-
charge of others because of their union activities.
(b) Threatening its employees with the futility of selecting
the union.
(c) Issuing unexcused absences, verbal and written warnings,
suspending and discharging its employees in order to discour-
age its employees from engaging in union activities or because
its employees participate in NLRB proceedings.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of this Order, offer immediate and full
employment to John Widener, Randall Perdue, Tony Orfield,
and Ronnie Brooks to their former positions or if those posi-
tions no longer exist, to substantially equivalent positions with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against them plus interest, in the manner set forth in the remedy
section of the decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful unexcused absence, ver-
bal and written warnings, suspensions, and discharges of John
Widener, Randall Perdue, Tony Orfield, Ronnie Brooks, Daniel
Hounshell, Larry Nunley, Steve Warner, and Coy Wolfe Jr.,
and within 3 days thereafter notify those employees in writing
that this has been done and that the warnings and discharges
will not be used against any of them in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, and timecards,
personnel records, reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its fa-
cility in Abingdon, Virginia, copies of the attached notice.18

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended 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 purposes.
18 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 Na-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 274
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 11, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Within 21 days after service by the Region, file with the
Regional Director, Region 11, a sworn certification of a respon-
sible official on a from provided by the Region attesting to the
steps that the Respondent has taken to comply.