Mid-Mountain Foods

National Labor Relations Board - Board Decisions

Sep 21, 2000

332 N.L.R.B. 229 (N.L.R.B. 2000)

MID-MOUNTAIN FOODS 229
Mid-Mountain Foods, Inc. and United Food and
Commercial Workers International Union Local
400, AFL–CIO. Cases 11–CA–17049–2, 11–CA–
17162, 11–CA–17261, 11–CA–17262, and 11–RC–
6147
September 21, 2000
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On December 22, 1997, Administrative Law Judge
Keltner W. Locke issued the attached decision. The Re-
spondent, the General Counsel, and the Charging Party
each filed exceptions and a supporting brief. The Gen-
eral Counsel and the Charging Party each filed an an-
swering brief to the Respondent’s exceptions. The Re-
spondent filed an answering brief to the General Coun-
sel’s and the Charging Party’s exceptions, and a reply to
their answering briefs.
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
except as modified below and to adopt the recommended
Order as modified.3

1 The Respondent, the General Counsel, and the Charging Party have
excepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s credi-
bility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The General Counsel excepts to the manner in which the judge ar-
ticulated the burden borne by the General Counsel in cases involving
alleged violations of Sec. 8(a)(3) of the Act. We believe that the
judge’s formulation does not depart substantively from Board doctrine.
In any event, we have reviewed these matters under the standard articu-
lated in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), and approved by the
Supreme Court in NLRB v. Transportation Management Corp., 462
U.S. 393, 399–403 (1983), and we reach the same results reached by
the judge.
2 In adopting the judge’s recommendation that the election be set
aside, we do not rely on the Respondent’s mid-May 1996 threats that, if
the Union won the election, plant rules would be enforced more strictly.
We note that these statements were made outside the critical period.
Member Hurtgen agrees with the judge that Medical Center of
Ocean County, 315 NLRB 1150 (1994) (employer promise to remedy
employee grievances), and Gordonsville Industries, 252 NLRB 563
(1980) (employer letter seeking to influence employee testimony before
the Board) are distinguishable from the instant case. He, therefore,
finds it unnecessary to pass on the validity of those decisions.
3 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996).
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act, or interfere with the election,4
when its supervisors removed prounion literature from
employees’ break areas. In one incident, in mid-June
1996, the judge found that Supervisor Tom Campbell,
selectively removed prounion leaflets while leaving anti-
union leaflets on the picnic tables in the employees’ out-
side break area. The judge concluded that this conduct
was lawful. He reasoned that although an employee has
the right to distribute prounion literature to other em-
ployees during breaks, an employer need not become the
custodian of prounion literature and continue offering it
after an employee has abandoned possession of it. Oth-
erwise, the judge found, one of the Respondent’s tables
would become, in effect, a distribution rack for prounion
pamphlets. He concluded that, although the Respondent
could not lawfully interfere with employees distributing
union literature to other employees in the break area dur-
ing breaks, it had no duty to assist such distribution.
In another incident, in mid-July 1996, the judge found
that although Supervisors Tom Campbell, Jeff Mahoney,
and Tony Richie had removed literature from employee
break areas, there was insufficient evidence that they had
selectively removed only prounion literature, as alleged
in the complaint. The judge found that even assuming
the removal was selective, it was not unlawful.
The General Counsel and the Charging Party have ex-
cepted to these findings. We find merit in these excep-
tions, and conclude that in both instances the Respondent
violated the Act. As an initial matter, we disagree with
the judge’s view that the discriminatory removal of
prounion literature from an employee break area is law-
ful. Jennie-O Foods, 301 NLRB 305, 337–338 (1991)
(supervisor unlawfully picked up and destroyed union
leaflet in nonwork area on nonworktime while leaving
other materials undisturbed). We agree with the General
Counsel’s contention that such selective removal of lit-
erature from break area tables is analogous to the re-
moval of prounion propaganda, but not of other postings,
from a bulletin board. See, e.g., Eaton Technologies,
322 NLRB 848, 853–854 (1997).
Further, even assuming that the removal was not dispa-
rate, it was still unlawful. BJ’s Wholesale Club, 319
NLRB 483, 489–490 (1995) (by removing prounion
pamphlets from employee breakroom for no obvious
neutral reason, a supervisor violated Section 8(a)(1) of
the Act). Simply put, employees have the right to dis-
tribute literature in nonworking areas. See, e.g., United
Aircraft Corp., 139 NLRB 39 (1962), enfd. 324 F.2d 128
4 This conduct was also alleged as objectionable and warranting a
new election.
332 NLRB No. 19
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
(2d Cir. 1963), cert. denied 376 U.S. 951 (1964). This
right would have been contravened in the instant case
even if the supervisors involved had removed both
prounion and antiunion literature. In the absence of a
showing (which has not been made here) that the litera-
ture was strewn about in an unsightly or hazardous man-
ner, its removal from employee break areas violates Sec-
tion 8(a)(1) of the Act.5
Our colleague would find that the Respondent also
violated Section 8(a)(1) by posting a banner in its ware-
house stating “Vote No, It’s Your Job.” According to
our colleague, the banner in effect told employees that
their jobs were at stake if they supported the Union. We
disagree.
The judge found that the Respondent displayed two
banners, one stating “No Lost Time, No Strikes, No Un-
ion, Vote No” and the other stating “Vote No, It’s Your
Job.” The judge found the first banner lawful. He noted
that although the banner spoke of “lost time,” it did so in
the context of strikes, and coupled the prospect of lost
wages with the advent of a strike. We agree with the
judge, as does our colleague.
As to the second banner (“Vote No, It’s Your Job”),
the judge found that it made no explicit statement about
possible job loss and that it did not require the reader to
assume such a threat. He also correctly noted that the
Respondent’s unfair labor practices were relatively iso-
lated and, thus, did not create a context in which the fa-
cially benign words “it’s your job” would reasonably be
understood as a threat of job loss.6
The most logical way to place the second banner in its
proper context is to consider it in relation to the first
banner. From this perspective, the language of the sec-
ond banner can most readily be understood as indicating
that the employees could vote against the Union and,
thereby, shield their jobs from the prospect of losing
worktime due to strikes. In sum, we agree with the judge
that, in these circumstances, the second banner, like the
first, did not imply a threat of retaliation and was there-
fore not unlawful.

5 We further find that this removal of union literature, when com-
bined with the June 1996 unlawful threat of discharge, the June 11
interrogation, and the June 19 written warning interfered with employee
free choice and warrants a new election.
6 We do not agree with our colleague that the Respondent has “en-
gaged in extensive unfair labor practices.” Rather, we agree with the
judge that the Respondent’s unfair labor practices were few in number,
relatively isolated, and not pervasive. In this regard we note, inter alia,
that many complaint allegations have been dismissed and that we have
unanimously adopted the judge’s finding that a Gissel bargaining order
is unwarranted in the instant case. Further, since we do not find the
banner unlawful, we also disagree with our colleague that the Respon-
dent’s use of the banner supports her conclusion that the Respondent
unlawfully solicited its employees to revoke authorization cards.
Our colleague would find that Respondent also vio-
lated the Act by not permitting employees to show a
prounion video on the Respondent’s equipment (TV set)
located in an employee breakroom. With respect to this
issue, our colleague concedes that no precedent stands
for the proposition that employees have the right to show
a prounion video where, as here, the video is to be shown
on the employer’s equipment and property. We also note
that the record does not show that the Respondent had
ever allowed employees to bring in videos of any sort to
show at work or that antiunion videos have been shown
by employees in employee breakrooms.
We agree with the judge’s observation that the em-
ployees’ request might have been more analogous to a
request to engage in protected activity if the employees
had sought to distribute videocassettes in the breakroom,
as opposed to seeking to bring the video into the facility
and show it there. Such distribution would not have in-
volved the use of Respondent’s electronic equipment.
We disagree with our colleague’s view that traditional
doctrines pertaining to workplace communications yield
the conclusion that the Respondent’s nondiscriminatory
refusal to allow the video to be shown was unlawful.
Indeed, the law is to the contrary. In this regard, we note
that there is no statutory right of an employee to use an
employer’s equipment or media. For example, there is
no right to use an employer’s bulletin board. Honeywell,
Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th
Cir. 1983); Container Corp., 244 NLRB 318 fn. 2
(1979), enfd. 649 F.2d 1213 (6th Cir. 1981) (per curiam).
Nor is there a statutory right of an employee to use an
employer’s telephone for personal or nonbusiness pur-
poses, such as union organizing matters. Union Carbide
Corp., 259 NLRB 974, 980 (1981), enfd. in relevant part
714 F.2d 657, 663–664 (6th Cir. 1983). Similarly, the
Board has held that employees are not entitled to use an
employer’s public address system to communicate their
union views. See, e.g., Heath Co., 196 NLRB 134
(1972). From these cases, it appears equally clear that
the Union’s employee supporters do not have a statutory
right to show the video, especially since it has not been
established that the Respondent permitted employees to
show other videos.
Our colleague seeks to analogize this case to cases in-
volving solicitation and distribution, although she does
not resolve which one it is. However, those cases in-
volve forms of solicitation and distribution that do not
involve use of an employer’s electronic equipment.7
7 Member Hurtgen deems it necessary to respond further to one of
the dissent’s arguments. More particularly the dissent asserts that em-
ployees are already subjected to the noise and messages that come from
the extant television sets. The dissent argues that a union video would
MID-MOUNTAIN FOODS 231
In Sprint/United Management Co., 326 NLRB 397
(1998), cited by our colleague, the respondent promul-
gated and enforced a rule prohibiting the distribution of
union materials in employee lockers. The Board con-
cluded that the rule was unlawful. In doing so, the Board
noted that the employer had “ceded the locker space to
the personal use of the employees to whom the locker
was assigned.” By contrast, in the instant case, Respon-
dent’s television set is not subject to the control and per-
sonal use of employees. The television set remains fixed
at the Cable News Network. There is no evidence that
employees can change channel selections at their whim.
Thus, Sprint is inapposite.8
Finally, our colleague asserts that the Respondent
acted in “response to union activity.” The fact is that
Respondent acted in response to an employee request to
show the video on Respondent’s equipment. There is no
showing that the Respondent has permitted other kinds of
videos to be shown on its equipment.
Accordingly, and particularly in the circumstances of
the instant case, we decline to extend Board precedent to
require an employer to allow the showing of prounion
videos on its equipment located on its property.
Finally, we disagree with our colleague’s view that the
Respondent unlawfully solicited the revocation of au-
thorization cards. We emphasize the judge’s findings
that supervisor, Alvin Olinger, merely told employees
that revocation forms were available in the break room,
without attempting to see whether any employee took or
used a form. The judge also found that employees did
not have to go to their supervisors to obtain the forms,
and thus, did not have to reveal their intentions.
Our colleague finds a violation in this respect, in part
because she believes that it occurred in the context of
pervasive unlawful conduct. As noted supra, we dis-
agree. Thus, in a unit of more than 200 employees, dur-
ing a period of time exceeding 4 months, the Respondent
engaged in three unlawful one-on-one interrogations,
made an unlawful threat via one handbill received by one
employee, and twice removed union literature from em-
ployee break areas. We certainly do not condone the

not be any more disruptive to employees. In Member Hurtgen’s view,
these contentions miss the point. Under the principles of Republic
Aviation Corp.v. NLRB, 324 U.S. 793 (1945), Respondent was required
to yield its breakroom to solicitation and distribution. It was not re-
quired to yield the use of its television set for the showing of a video-
tape. Thus, the issue is not the extent to which employees are exposed
to noise and messages. Rather, the issue is the extent to which an em-
ployer must yield its property rights. Based on the cases cited above,
Member Hurtgen finds that Respondent was not required to yield its
property rights in the manner sought here.
8 Member Hurtgen expresses no view as to whether Sprint was cor-
rectly decided.
Respondent’s unlawful conduct. Nevertheless, we agree
with the judge who, in dismissing the “solicitation”
allegation, concluded that the violations in the instant
case were relatively isolated. Thus, we disagree with our
colleague’s conclusion that Olinger’s actions were “in
the context of the Respondent’s pervasive and coercive
unlawful conduct.”
We also note that Hatteras Yachts, AMF, Inc., 207
NLRB 1043 (1973), Vestal Nursing Center, 328 NLRB
87 (1999), and Lockwoven Co., 245 NLRB 1362 (1979),
enfd. 662 F.2d 296 (8th Cir. 1980), cited by our col-
league, are distinguishable in that, here, the Respondent
neither tracked whether employees availed themselves of
their right to revoke their union authorizations nor as-
sisted them in the revocation process beyond simply tell-
ing them about the forms. Further, in L’eggs Products,
Inc., 236 NLRB 354 (1978), enfd. in part 619 F.2d 1337
(9th Cir. 1980), also relied on by our colleague, there
were numerous and substantial unfair labor practices,
including interrogation, surveillance, threats of dis-
charge, soliciting employees to revoke authorization
cards, unlawful discharges, and refusals to recognize and
bargain with the union. This conduct is far more exten-
sive than that in the instant case. Similarly, in Escada
(USA), Inc., 304 NLRB 845 (1991), enfd. 970 F.2d 898
(3d Cir. 1992), also cited by our colleague, the number
and severity of unfair labor practices far outweighed the
instant ones.9
For the above-stated reasons, we conclude that the
judge correctly found that the Respondent did not unlaw-
fully solicit the revocation of union authorization cards.
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. Insert the following as paragraph 1(d) and reletter
the subsequent paragraph.
“(d) Removing union literature from employees’ break
areas.”
2. Substitute the following for paragraph 2(a).
9 In Escada (USA), the respondent was found to have created an im-
pression of surveillance, solicited card revocation, solicited grievances,
and thereby, implicitly promised to remedy them in order to discourage
support for the union, told employees (also to discourage union sup-
port) that they might receive wage increases on a regularly scheduled
basis, threatened to permanently replace unfair labor practice strikers,
unlawfully reassigned a supervisor, and unlawfully discharged an em-
ployee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 232
“(a) Within 14 days from the date of this Order, re-
move from employee Tim Alderson’s personnel file, and
from any other records the Respondent maintains, the
June 19, 1996 written warning it issued to him, and all
references to it, and within 3 days thereafter notify him
in writing that this has been done and that the warning
will not be used against him in any way. If the Respon-
dent has taken any later disciplinary action against Al-
derson that was more severe or onerous because of the
June 19, 1996 written warning, the Respondent shall re-
scind that discipline and take only such action as it would
have taken if the June 19, 1996 written warning had
never existed.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
[Direction of Second Election omitted from publication]

MEMBER LIEBMAN, concurring in part and dissenting in
part.
I join my colleagues in finding that the Respondent
engaged in what are, in my view, extensive unfair labor
practices. I depart only in that I would find that the Re-
spondent committed three additional violations of the
Act. First, I would also find that the Respondent violated
Section 8(a)(1) of the Act by posting a banner in the
warehouse during the critical period that proclaimed
“Vote No, It’s Your Job.” In my view, the message of the
banner was plain, “your jobs are at stake if you support
the Union.” By sending that message, the Respondent
unlawfully threatened its employees for their union activ-
ity.1
Second, I would find that the Respondent violated Sec-
tion 8(a)(1) when it refused to permit employees to show
a prounion video in the employee breakroom on non-
worktime. By finding to the contrary, the majority con-
fuses the medium with the message and takes an unduly
narrow view of employees’ Section 7 right to communi-
cate with each other about unionization in the increas-
ingly electronic workplace. Third, I would find that the
Respondent violated the Act by soliciting employees to
revoke their authorization cards. My reasoning as to the
video and solicitation follows.

1 I recognize that a remedy based on a finding that the banner vio-
lates the Act would be cumulative. Thus, the Board’s Order already
requires the Respondent to cease and desist from threatening employees
with job loss and plant closure based on the Board’s conclusion that the
Respondent violated the Act through a supervisor’s threat of discharge
to an employee for supporting the Union (ALJD at § I) and through its
distribution of a threatening handbill (ALJD at § AA). This additional
unfair labor practice finding is significant, however, because it further
supports the “solicitation” violation that I discuss in Sec. B, infra.
A. The Refusal to Permit Employees to Show
a Prounion Videotape
On June 10, 1996, employees on the Union’s organiz-
ing committee wrote to Mid-Mountain’s president, Har-
old W. Harwood, requesting permission to show a proun-
ion video in the employee breakroom during nonwork-
time. In the letter, the employees offered to supply the
video cassette recorder (VCR) and reimburse the Re-
spondent for the cost of electricity to operate it. Four
days later, in a written response addressed to all employ-
ees, Harwood denied the request, citing three reasons:
(1) Your lunch and break time are the only free
time you have during the day. You are entitled to
use your free time the way you want.
(2) The place for viewing any video is the em-
ployee lunch/break area, and these areas are used by
many other people in the company. In addition, they
are used by vendors and other outside persons.
(3) If a video is shown in the lunch/break areas, it
will interfere with employee personal time. Those
not wanting to watch the video would have to leave.
You should not have to do that.
The employee breakroom contains two television sets
in adjacent corners, but no VCR. Respondent’s director
of operations and human resources, John Dollar, testified
that the TVs are connected to a satellite dish. Employee
Jason Alderson testified that the sets operate continu-
ously, and the judge found that they remain set on Cable
News Network.
The question posed here, whether the Respondent may
lawfully deny employees access to its electronic equip-
ment in a nonwork area to communicate prounion mes-
sages, is a novel one before the Board. Undoubtedly, we
will face this or similar issues with increasing frequency
given the expanding prevalence in the workplace of TVs,
VCRs, fax machines, email, the internet, and new com-
munication technologies. Clearly, both employers and
employees are increasingly using this kind of equipment
to disseminate and exchange views on a wide variety of
subjects, including the advantages and disadvantages of
unionization. The Board has not yet adopted any unique
doctrines governing employees’ right of access to the
employer’s electronic equipment to communicate with
each other about unionization. Accordingly, to analyze
this case I look to the Board’s traditional rules for con-
sidering employer restrictions on employee workplace
communications.
The basic principles are, of course, found in Republic
Aviation Corp., 51 NLRB 1186 (1943), enfd. 142 F.2d
193 (2d Cir. 1944), affd. 324 U.S. 793 (1945), where the
Board and the Supreme Court emphasized that under the
MID-MOUNTAIN FOODS 233
NLRA, an employer’s property rights, previously para-
mount under the common law, must be adjusted in order
to balance those rights with employees’ Section 7 rights.
“Inconvenience,” the Court stated, “or even some dislo-
cation of property rights, may be necessary in order to
safeguard the right to collective bargaining.” 324 U.S. at
802 fn. 8. Thus, the Board and the Court concluded that,
although an employer has a right to expect that employ-
ees’ working time is for work, a rule that prohibits oral
solicitation by employees on nonworktime, even in work
areas, is discriminatory “in the absence of evidence that
special circumstances make the rule necessary in order to
maintain production and discipline.” 324 U.S. at 803 fn.
10. Similarly, in Stoddard-Quirk Mfg. Co., 138 NLRB
615 (1962), the Board addressed the issue of employee
distribution of literature, which has traditionally been
regarded as posing special issues such as littering, and
held that distribution may lawfully be restricted both on
worktime and in work areas. Restrictions on literature
distribution in nonwork areas and on nonworktime, how-
ever, are presumptively invalid absent a showing that the
restriction is necessary to maintain plant discipline or
production. Id. 621–22; see also Sahara Tahoe Hotel,
292 NLRB 812 (1989).
I need not decide whether the showing of a prounion
videotape on an employee-supplied VCR and employer-
supplied TV in a break area is more akin to oral solicita-
tion, or to distribution.2 Regardless, the critical fact in
this case is that the Respondent’s employees attempted to
communicate about unionization in a nonwork area on
nonworktime. Under traditional rules, employer restric-
tions on either oral solicitation or distribution of written
messages taking place in a nonwork area on nonwork-
time are invalid, unless the employer demonstrates that
special circumstances support the necessity of those re-
strictions to maintain discipline or production.
To validate the Respondent’s refusal to permit em-
ployees to use the break room television to show a
prounion video, my colleagues rely on cases holding that
employees have no statutory right to use employer-
controlled bulletin boards, telephones, or public address

2 Different rules and presumptions apply to solicitation and distribu-
tion. The Board has said that unlike oral solicitation, distribution involves
a message of a permanent nature that “is designed to be retained by the
recipient for reading or rereading at his convenience. Hence, the pur-
pose is satisfied so long as it is received.” Stoddard-Quirk, supra at
620. Where communication elicits a spontaneous response or recipro-
cal conversation, it is solicitation. So, for example, the Board has held
that solicitation of authorization cards should be treated in the category
of oral solicitation. Rose Co., 154 NLRB 228, 229 fn. 1 (1965). New
forms of electronic communication involving TVs, VCRs, fax ma-
chines, computers, and the like, are not readily placed into these tradi-
tional categories.
system. To be certain, the Board has held that “it is not
unlawful for an employer to reserve to itself the exclusive
use of its bulletin boards, and to bar any postings by em-
ployees.” Sprint/United Management Co., 326 NLRB
397, 399 (1998) (emphasis added). In Sprint, however,
the Board drew a distinction between the bulletin board
and locker space which “the Respondent has already
ceded . . . to the personal use of the employees to whom
the lockers are assigned.” Id. In this case, as in Sprint,
the employer has ceded the break room to the employees
for their own personal use on nonworktime. Having pre-
viously relinquished the break room to employees solely
for their utilization and enjoyment, without any restric-
tions on the communications permitted therein, the Re-
spondent cannot now justify its conduct by asserting that
either the breakroom or the television set is an employer-
controlled communication medium, akin to a bulletin
board, that it may use and control exclusively.
In addition, the Board holds that it is not unlawful for
an employer to bar employee access to the employer’s
bulletin boards because “[a]n employer that uses a bulle-
tin board as a means of communication with its employ-
ees may have a legitimate interest in ensuring that its
postings can easily be seen and read and that they are not
obscured or diminished in prominence by other notices
posted by employees.” Id. The same “legitimate inter-
est” does not apply here, where the Respondent does not
use the television set in the employee breakroom “as a
means of communication with its employees,” but in-
stead provides it solely for its employees’ use and en-
joyment. Thus, my colleagues’ analogy to the bulletin
board cases simply does not work.
Moreover, the Respondent has made no showing of
special circumstances. Its reasons for not permitting the
employee videotape to be shown in the employee break-
room had nothing to do with maintaining discipline or
production. Rather, they dealt only with the inconven-
ience or annoyance that employees and others might feel
if they were subjected to a prounion message. The fact is,
however, that employees are already subjected to a con-
tinuous stream of noise and messages from the two TVs
when they lounge in the employee breakroom. The ongo-
ing broadcasts undoubtedly interfere with some employ-
ees’ personal time and present content that occasionally
engenders dialogue, debate, and even discord among
employees. But, the Respondent apparently does not
regulate this breakroom communication to maximize
employee relaxation or harmony. Rather, the only com-
munication that the Respondent sought to regulate was
that pronouncing the advantages of unionization. Indeed,
this restriction to protect “employee personal time” was
promulgated directly in response to union activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 234
As stated at the outset, in validating the video restric-
tion, my colleagues mistake the medium for the message.
They ignore the plain fact that the Respondent could not
lawfully prohibit employees from talking, debating, or
even arguing with each other in the breakroom about the
union. Nor could it restrict the distribution in the break-
room of union authorization cards or literature, even if it
engendered discord. The fact that a VCR was the medium
sought by union supporters here should hardly make a
difference, especially in our rapidly evolving e-world. As
Republic Aviation makes clear, “[i]nconvenience, or even
some dislocation of property rights, may be necessary in
order to safeguard the right to collective bargaining.” 324
U.S. at 802 fn. 8.
In short, whether a video broadcast is categorized as
oral solicitation, written distribution, or some novel form
of communication, the Board should not permit employer
restrictions on playing videotaped messages on nonwork-
time in a nonwork area, absent special circumstances, not
present here, related to production or discipline. Such a
restriction unduly limits employees’ rights to communi-
cate with each other about unionization and violates Sec-
tion 8(a)(1) of the Act.
B. The Solicitation to Revoke Authorization Cards
The Respondent drafted and placed in the employee
break room a notice dated May 10, 1996, over the signa-
ture of Harwood, the Respondent’s president, that in-
formed employees of their right to revoke their authoriza-
tion cards. The notice provided a sample revocation letter
to the Union and the Union’s address. Employee You-
vanne Rodriguez testified that Supervisor Alvin Olinger,
reminded him regularly that such forms were available in
the breakroom. Olinger acknowledged that he “told eve-
ryone” that the revocation forms were available in the
breakroom, that he would talk to Rodriguez and other em-
ployees after meetings about the Union, and that he told
Rodriguez that the Union was not good for the Company.
In my view, these were not merely benign communica-
tions, but rather amounted to coercive attempts to solicit
employees to abandon the Union.
The Board has held that an employer may lawfully in-
form employees of their right to revoke their union au-
thorization cards (R. L. White Co., 262 NLRB 575 (1982)).
But, if, considering surrounding circumstances, the em-
ployer goes beyond merely providing information and in
fact coercively solicits employees to revoke their cards,
then it interferes with their Section 7 rights in violation of
Section 8(a)(1). Thus, if an employer provides employees
with information about the right to revoke authorization
cards, while at the same time engaging in other coercive
and unlawful conduct, the Board will find that the em-
ployer is in fact coercively soliciting employees to revoke
their cards. L’Eggs Products Inc., 236 NLRB 354, 389
(1978) (respondent’s communications to employees re-
garding authorization cards “were made in an ‘inhibiting
setting’” because they were done “in the context of a cam-
paign of interrogations and threats”); Escada (USA), Inc.,
304 NLRB 845, 849 (1991) (respondent’s letter regarding
card revocation written in the context of other unlawful
conduct, including discharge, surveillance, interrogation,
threats, and implied promises to remedy grievances, vio-
late the Act).
Likewise, conduct that goes beyond simply informing
employees of their rights can show that an employer’s
actions were actually coercive solicitation and not merely
benign communications. For example, an employer vio-
lates the Act when it not only informs employees of their
right to seek revocation, but also tracks whether employ-
ees avail themselves of that right. Hatteras Yachts, AMF,
Inc., 207 NLRB 1043 fn. 3 (1973). Similarly, an employer
that actually provides assistance to employees in the revo-
cation process, beyond simply informing them of their
rights and giving them ministerial information as to how to
effectuate them, violates the Act. Vestal Nursing Center,
328 NLRB 87, 102 (1999) (in addition to information and
sample revocation forms, employer provided envelopes,
postage, and actually mailed the revocation letters for
some employees); Lockwoven Co., 245 NLRB 1362, 1371
(1979), enfd. 662 F.2d 296 (8th Cir. 1980) (respondent
provided paper, pens, envelopes, postage, and mailing).
In this case, the Respondent’s conduct suffered from
all of these infirmities. The Respondent notified employ-
ees of their right to revoke their cards at the same time
that it was engaging in extensive coercive and intimidat-
ing conduct that dampened support for the Union. Con-
trary to my colleagues, I have concluded that the Re-
spondent’s unlawful conduct was pervasive. It included
interrogation of employees concerning their union views,
threats to more strictly enforce plant rules if the Union
prevailed in the election, distribution of handbills that
threatened plant closure, threats that employees would
lose their jobs, wages, or benefits if the Union prevailed,
discriminatory imposition of discipline on union support-
ers, and removal of prounion literature from the break-
room. In this context, the Respondent’s notice to em-
ployees cannot be viewed as simply a benign statement
of employee rights made in an atmosphere free of coer-
cion. Instead, it was an unequivocal message that the
Respondent encouraged revocation, and that its favor
would fall on those who sought it.
Further, the way in which the Respondent “informed”
employees of their right to revoke their cards belies any
conclusion that it was merely providing them with in-
formation. Supervisor Olinger repeatedly told employee
MID-MOUNTAIN FOODS 235
Rodriguez that employees could seek revocation of their
cards. Olinger also stressed to Rodriguez that the Union
was not good for the company, conveying the clear mes-
sage that, for the Company’s good, and implicitly for
their own good, employees should revoke their cards.
Particularly in the context of the Respondent’s pervasive
and coercive unlawful conduct, it clearly did more than
simply provide employees with information. In fact, it
coercively and affirmatively solicited them to revoke
their cards, in violation of Section 8(a)(1) of the Act. I
therefore dissent from my colleagues’ failure to find this
additional violation of the Act.
APPENDIX A
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 interrogate employees with respect to
their union sympathies or desires.
WE WILL NOT threaten employees with plant clo-
sure, loss of jobs, loss of wages, loss of benefits, or
stricter enforcement of work rules if they select the Un-
ion as their collective-bargaining representative.
WE WILL NOT impose discipline, including written
warnings, on employees because they engaged in union
activities or other activities protected by the Act.
WE WILL NOT remove union literature from employ-
ees’ break areas.
WE WILL NOT, in any like or related manner inter-
fere with, restrain, or coerce our employees in the exer-
cise of rights guaranteed by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, remove and expunge from the personnel
file of employee Tim Alderson, and from all other files
we maintain, the June 19, 1996 written warning we is-
sued to him, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the
written warning will not be used against him in any way.
WE WILL undo any and all consequences that written
warning may have produced, and WE WILL treat Tim
Alderson in all respects as if the June 19, 1996 written
warning had never been issued.
MID-MOUNTAIN FOODS, INC.
Donald R. Gattalaro, Esq. and Lisa R. Shearin, Esq., for the Gen-
eral Counsel.
Ronald I. Tisch, Esq. and Bruce D. Burkley, Esq. (Littler, Mendel-
son, Fastiff, Tichy & Mathiason, P.C.), and Mark M. Lawson,
Esq, (Elliott, Lawson & Pomrenke), of Washington, D.C., for
the Respondent.
George Wiszynski, Esq. (Butsavage & Associates, P.C.), of Wash-
ington, D. C., for the Charging Party.

DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. This case
involves an attempt by United Food and Commercial Workers
International Union Local 400, AFL–CIO (the Charging Party or
the Union) to organize the workers at Mid-Mountain Foods, Inc.
(the Respondent or the Company). The General Counsel of the
National Labor Relations Board (the General Counsel or the
Government) alleges that the Company committed a number of
unfair labor practices in violation of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act (the Act).
The Government further alleges that at one point during the
union’s organizing campaign, a majority of bargaining employ-
ees supported the Union, but that the Company’s violations of
labor law created a coercive atmosphere which prevented the
August 1, 1996 election, which the Union lost, from being fair.1

1 The Union filed timely objections to the August 1, 1996 election. By
“Supplemental Decision, Direction, and Order Consolidating Cases,” the
Regional Director for Region 11 overruled one objection, approved the
Union’s withdrawal of three others, consolidated Case 11–RC–6147 with
the unfair labor practice cases now before me, and referred the remaining
eight objections for decision by the administrative law judge. (GC Exh.
1(n); see also Tr. 10–12, amending complaint orally at hearing to include
Case 11–RC–6147.) Except for Objection 11, these objections involve
the same acts which the complaint alleges as unfair labor practices. They
may be summarized as follows:
Objection 1: On or about July 19, 1996, the Respondent dis-
ciplined employee Tim Alderson because of his union activities.
Objection 2: The Respondent threatened employees with
plant closure if they selected the Union as their collective-
bargaining representative.
Objection 5: On or about June 5, 1996, the Respondent disci-
plined employee Steve Warner because of his union activities.
Objection 6: The Respondent sponsored, encouraged, solic-
ited, and assisted employees in seeking revocation of their au-
thorization cards.
Objection 8: On various dates within the critical period, Re-
spondent’s supervisors and managers interrogated employees
concerning their union activities and/or support for the Union.
Objection 9: The Respondent discriminatorily refused to al-
low employees on the union’s organizing committee to show a
prounion video during nonworking time and in a nonwork area,
while permitting the showing of antiunion videos.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 236
The General Counsel contends that the Respondent’s unfair labor
practices were so bad that employees still feel the coercive ef-
fects. Therefore, the Government argues, the Board should order
the Respondent to recognize and bargain with the Union, rather
than conducting another secret-ballot election.
I find that the Respondent made certain statements which vio-
lated Section 8(a)(1) of the Act and issued a written warning to
an employee in violation of Section 8(a)(1) and (3). I do not find
that the Respondent violated the Act, otherwise. I recommend
that the August 1, 1996 election be set aside, but do not recom-
mend that the Board issue a bargaining order.
I heard this case in Bristol, Virginia, on February 10 through
14, 1997, and in Abingdon, Virginia, from March 10 through 14,
1997.2 The parties submitted posthearing briefs, which I have
considered.
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICE
The Respondent has admitted that it is an employer engaged in
commerce and submit to the jurisdiction of the National Labor
Relations Act. It has also admitted that the Union is a labor or-
ganization within the meaning of the Act. I so find.
For clarity, I will discuss the allegations in chronological or-
der, rather than the order in which they are listed in the com-
plaint.3
A. March 1996—Alleged Interrogation
Complaint paragraph 8(b) alleges in part that in March 1996,
Respondent’s vice president, Jesse Lewis, interrogated employ-
ees about their union sympathies and desires. However, the re-
cord does not contain any evidence that Lewis engaged in any
such conduct at any time during March 1996. Therefore, I rec-
ommend that this allegation be dismissed.

Objection 11: On the day of the election, Respondent utilized
a substantially larger than normal force of armed security guards
throughout the plant, including near the polling area, as well as
locating local and state law enforcement personnel on and near its
premises, thereby creating an atmosphere of fear and coercion and
rendering a free and fair election impossible.
Objection 12: Respondent threatened employees with job
loss, discharge, loss of wages, loss of benefits, and more strict en-
forcement of plant rules, discriminatorily removed prounion lit-
erature from employees’ break areas, promised to remedy em-
ployee grievances, more closely monitored its employees, by-
passed its senior employees who supported the Union and se-
lected less qualified and less senior employees to fill temporary
trainer positions contrary to its past practices and in order to dis-
courage employee support for the Union, and refused to bargain
collectively with the Union as the exclusive collective-
bargaining representative of all employees in the de-
scribed unit.
2 On my own motion, I order the transcript corrected in accordance
with the changes set forth in Appendix B to this decision. [Omitted from
publication.]
3 By “complaint,” I refer to the “Second Order Consolidating Cases,
Consolidated Complaint and Notice of Hearing. (GC Exh. 1(q).)
B. March 1996—Alleged Solicitation of Employees
to Revoke Authorization Cards
Complaint paragraph 8(c) alleges, in part, that in March 1996,
Respondent’s vice president, Lewis, solicited employees to re-
voke their union authorization cards. However, the record does
not contain any evidence that Lewis engaged in such conduct at
any time during March 1996. Therefore, I recommend that this
allegation be dismissed.
C. March 1996—Implicitly Threatening Employees with Job
Loss for Having Supported the Union
Complaint paragraph 8(d) alleges, in part, that in March 1996,
Respondent’s vice president, Lewis, implicitly threatened its
employees with job loss for having supported the Union. The
record contains no evidence to support this allegation. Therefore,
I recommend that it be dismissed.
D. March 24, 1996—Interrogation of Employees about
Their Union Sympathies and Desires
Complaint paragraph 8(b) alleges, in part, that on March 24,
1996, Respondent’s supervisor, Tom Campbell,4 interrogated an
employee about his union sympathies or desires. According to
employee Eric Miller, on that date, in the Company’s ware-
house around aisle 57, Supervisor Campbell asked him what he
thought about the Union and what the Union could do for him.
Miller replied that he did not know much about the Union and
did not really want to get into it.
Although Miller testified that Campbell then talked “deroga-
tory toward the union,” Miller could not remember specifically
what Campbell said. (Tr. 234–235.) Campbell denied asking
Miller about the Union. (Tr. 1339.) I credit Miller.
Depending on the entire circumstances, “an employer’s
questioning open and active union supporters about their union
sentiments, in the absence of threats or promises” does not
necessarily violate the Act. Rossmore House, 269 NLRB 1176,
1177–1178 (1984). However, the evidence does not establish
that Miller was an open and active union supporter at the time
Campbell questioned him. Therefore, I find that this action
interfered with, restrained, and coerced an employee in the
exercise of Section 7 rights, in violation of Section 8(a)(1) of
the Act.
E. Daily From “Late March 1996 to Mid-July 1996 and Late-
June 1996”—Interrogation of Employees Concerning Their
Union Sympathies and Desires
Complaint paragraph 8(b) alleges, in part, that Supervisor,
Alvin Olinger interrogated employees concerning their union
sympathies and desires during the time period “early-July,
1996, mid-July, 1996, daily from late March 1996 to mid-July
1996 and late-June, 1996.” At the hearing, the General Counsel
withdrew the allegation that Olinger had interrogated employ-
ees in late June 1996. (Tr. 14.)
Employee Youvanne Rodriguiez testified that in the spring
of 1996, “Olinger would approach me and ask me if I was for
the Union and what I thought about it.” (Tr. 342.) The General
Counsel asked Rodriguiez to describe “these conversations.”
4 Campbell’s title is “team leader.” (Tr. 1338.) Respondent has ad-
mitted that Campbell is a supervisor. (GC Exh. 1(u).)
MID-MOUNTAIN FOODS 237
Without being specific as to when, Rodriguiez replied, “Alvin
[Olinger] would approach me and ask me if I was for the Union
and what I thought about it.” Olinger denied ever questioning
Rodriguiez about the Union. (Tr. 1239.)
I do not credit Rodriguiez because his testimony was not
specific enough to inspire confidence in it. Indeed, it does not
appear that Rodriguiez had much confidence in it. Thus, when
asked on direct examination if he had any conversations with
Olinger about the Union, Rodriguiez answered, “Possible.” (Tr.
341.)
The uncertainty conveyed by the word “possible” might have
been dispelled if Rodriguiez had then provided enough detail to
show that the alleged interrogations were concrete events oc-
curring at particular points in time, even if the dates could not
be determined with precision. Instead, his testimony had an
abstract quality and lacked the sort of solidity on which a find-
ing of illegal conduct needs to be grounded.
Because this testimony is not convincing, I do not credit it.
Crediting Olinger’s denial, I recommend that this allegation be
dismissed.5
F. April 1, 1996—Interrogation of Employees Concerning
Their Union Sympathies and Desires
Complaint paragraph 8(b) alleges that Supervisor Tom
Campbell interrogated an employee concerning his union sym-
pathies and desires on April 1, 1996. Employee James Gian-
forte testified that on this date, in the Respondent’s warehouse
around aisles 52 and 53, when no one else was present, Super-
visor Campbell asked him how he felt about the Union. I credit
Gianforte, rather than Campbell’s denial.
At this point, Gianforte had not worn any insignia identify-
ing himself as a union supporter. I find that Campbell’s ques-
tion restrained and coerced Ginaforte in violation of Section
8(a)(1) of the Act.
G. Late-April 1996 Until August 2, 1996—Monitoring Em-
ployees More Closely to Discourage Union Activities
Complaint paragraph 8(l) alleges that during the period “late-
April until August 2, 1996,” eight of Respondent’s supervisors
“more closely monitored its employees to discourage their un-
ion activities.” (GC Exh. 1(q).) The Respondent denied these
allegations. (See, e.g., Tr. 994–995.)
To support the allegations, the General Counsel relies on the
testimony of employee Steven Warner about an incident which
may have occurred in April 1996, although Warner was not
sure. On this occasion, according to Warner, Manager Honaker
watched him at work in the warehouse and said, “Steven, you
need to be more careful stacking off product.” Warner testified

5 Complaint par. 8(b) alleges that Supervisor Olinger interrogated
employees in early July 1996, in mid-July 1996, and “daily from late
March 1996 to mid-July, 1996 and late-June, 1996.” It would appear
that if Olinger interrogated an employee in early July 1996 and in mid-
July 1996, these incidents would fall within the broader category of
“daily from late March 1996 to mid-July 1996.” I find that the record
does not establish that Olinger engaged in unlawful interrogation of
employees at any time.
that Honaker then said, “[Y]ou need to shut up because you
don’t represent anyone in this Company.” (Tr. 511.)6
Honaker did not specifically deny making these comments.
However, I find that they fall far short of establishing that the
Respondent monitored employees more closely at any time, let
alone throughout the period late-April until August 2, 1996.
Quite literally, a supervisor’s job entails overseeing work,
which the law recognizes as a legitimate management function.
The Act defines “supervisor” to include persons, acting in the
interest of an employer, with authority to assign employees to
work or with responsibility to direct them. 29 U.S.C. § 152(11).
The Government does not suggest that a supervisor could direct
employees without “monitoring” what they did.
Of course, selecting a particular employee for closer scrutiny
because of his union activities, rather than problems with his
work, would go beyond the legitimate supervisory function, as
would monitoring employees’ activities during breaks to discour-
age their discussion of the Union. See, e.g., International Paper
Co., 313 NLRB 280 (1993). However, the evidence does not
establish that the Respondent engaged in such conduct here.
Even assuming that Honaker’s “you need to shut up” com-
ment evidenced animus, and the comment is so vague I do not
draw that conclusion, it does not taint the manager’s instruction
that Warner needed to be more careful stacking off product.
The evidence simply does not establish that Respondent sub-
jected either Warner or other employees to more rigorous su-
pervision during this period.
The General Counsel’s brief alluded to the fact that the Re-
spondent has security cameras in its warehouse, but the com-
plaint contains no allegation regarding the use of security cam-
eras. Moreover, there is no evidence to establish that Respon-
dent installed these cameras in response to the Union’s organiz-
ing drive or used them to engage in surveillance of employees’
union activities.
It is not unlawful for the Company to monitor its warehouse
to protect the goods stored in it, and it would be unusual to find
any commercial warehouse without a security system. Thus,
the situation is very different from that presented in National
Steel & Shipbuilding Co., 324 NLRB 499 (1997), where an
employer installed a new camera, with microphone, in a posi-
tion to record union rallies.
In sum, the evidence does not establish that the Respondent
monitored its employees more closely. Therefore, I recom-
mend that these allegations be dismissed.
H. Mid-May 1996—Threatened Employees with More
Strict Enforcement of Plant Rules
Complaint paragraph 8(i) alleges that in mid-May 1996, Re-
spondent’s director of operations and human resources, John
Dollar, threatened its employees with stricter enforcement of
plant rules. Employee Steven Warner testified that in mid-May
1996, he attended a meeting called by the Company, at which
Dollar spoke.
According to Warner, Dollar told the employees that if the
employees voted for the Union, “[H]e would enforce the work
6 The General Counsel did not allege this statement to violate the
Act, but offered it as evidence of animus towards the Union. (Tr. 512.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 238
rules because the Company would make the work rules and
they would be very strict and followed to the letter.” Warner
further testified that Respondent’s vice president, Jesse Lewis,
told employees at this meeting that “when you clock in at 6:30
you will be on your jack ready to work at 6:30 and there will be
no more lax time like there is now.” (Tr. 526.)
Rodriguiez corroborated Warner, testifying that both Lewis
and Dollar “said that if the Union will come into the plant that
the employees will have to follow and do things in a strict
timely manner. As in going to the bathroom, coming back from
break, stuff like that.” (Tr. 344.)
Dollar denied telling employees that working conditions
would be stricter if the Union represented them. (Tr. 1102.)
However, he testified that during meetings with employees, the
Company showed to employees copies of a collective-
bargaining agreement covering employees at Kroger and an-
other collective-bargaining agreement covering employees at
Valleydale Meat Company.
According to Dollar, the Kroger contract contained a work
rule which “got a lot of attention,” because it stated, in essence,
“that on working time you cannot even leave your area for per-
sonal relief unless you are approved to by your supervisor.”
(Tr. 1101.) Dollar testified that this subject “just came up” in a
meeting, and he believed that an employee raised it. However,
he then testified, “We used [these rules] merely as examples of
what was happening in these contracts. We never, ever said
that that would be the rule of our Company, we never even
implied that.” (Tr. 1102.)
Lewis testified that the Company used these collective-
bargaining agreements in the meetings with employees and that
“we shared those work rules” in the contracts with the employ-
ees. (Tr. 870.) I find that the Respondent did intend to inform
its employees that unionized employees at the Kroger plant did
work under stricter work rules than they did.
Lewis specifically denied telling employees that if they
chose the Union, work rules at the Company would be stricter.
(Tr. 873.)
In resolving the conflict in testimony, I credit Warner, based
on my observations of his demeanor while testifying. There-
fore, I find that Respondent did threaten employees with stricter
enforcement of plant rules if they selected the Union. I find
that this threat violates Section 8(a)(1) of the Act.
I. Early June 1996—Threatened Employees With Discharge
if They Selected the Union as Their Collective-
Bargaining Representative
Complaint paragraph 8(e) alleges that in early June 1996,
supervisor Teddy Hinchey7 threatened employees with dis-
charge if they selected the Union as their collective-bargaining
representative. However, the record contains no evidence that
Hinchey made such a threat in early June 1996.
The record does include evidence of such a threat a month
later. Employee Larry Nunley testified that in early July 1996,
when he and Supervisor Hinchey were alone in the cigarette
room of the warehouse, Hinchey referred to a written request

7 The supervisor’s name is spelled “Hinchley” in the complaint, but
it is clear that the complaint is referring to Teddy Hinchey. Respondent
has admitted that Hinchey is its supervisor. See GC Exh. 1(u) at par. 2.
that the Respondent allow the union organizing committee to
show a prounion video.8
According to Nunley, Hinchey said that if the Union did
come in, within 60 days “all those guys would be hunting an-
other job.” (Tr. 125–126.) Hinchey denied making this state-
ment. (Tr. 1059.) I credit Nunley.
The complaint’s error in date does not prejudice Respondent.
Nunley testified on February 10, 1997, and, because of an ad-
journment of the hearing, Hinchey did not testify until March
12, 1997. Thus, Respondent had adequate opportunity to ad-
dress this allegation, and the issue was fully litigated. I find
that Respondent violated Section 8(a)(1) of the Act by making
this threat.
J. Early June 1996—Bypassed Senior Employees who Sup-
ported the Union and Selected Less Qualified and Less Senior
Employees to Fill Temporary Trainer Positions
Complaint paragraph 8(m) alleges that in early June 1996,
through its supervisor, Tom Campbell, Respondent bypassed
“its same senior employees who supported the Union and se-
lected less qualified and less senior employees to fill temporary
trainer positions in violation of its past practice in order to dis-
courage support for the Union.” Although complaint paragraph
8(m) does not identify any employee so bypassed, complaint
paragraph 10 alleges that in early June 1996, the Company
bypassed employee Jason Alderson,9 an order selector, for this
temporary duty. The complaint alleges that this conduct vio-
lated both Section 8(a)(1) and (3) of the Act.
The record does not prove that the Respondent had an estab-
lished practice of assigning trainer duty on the basis of senior-
ity. It also contains no evidence to link the Company’s selec-
tion of trainers with the union activities or sympathies of any
employee. To the contrary, each time Alderson asked for an
explanation of why he was not selected for trainer duty, Camp-
bell gave a nondiscriminatory reason which did not refer to the
Union.
On one occasion, according to Alderson, Campbell told him
that the person selected for trainer duty had been there longer
than Alderson. Alderson testified that on another occasion, the
person selected had a higher average (that is, had been more
productive than Alderson), and on a third occasion, Campbell
said the person chosen had been in the right place at the right
time. (Tr. 256.)
Since the Company never told Alderson, or anyone, that he
had been bypassed for selection as a temporary trainer, I do not
find an independent violation of Section 8(a)(1) of the Act.
However, if the government establishes that the Respondent
unlawfully discriminated against Alderson by bypassing him
for duty as a temporary trainer, this violation of Section 8(a)(3)
would also constitute a violation of Section 8(a)(1).
Because the complaint alleges that the Respondent’s selec-
tion of trainers discriminated against Alderson, in violation of
Section 8(a)(3), it should be analyzed under the framework of
8 It appears clear that Hinchey was referring to GC Exh. 3, a letter to
Respondent’s president, which was signed by seven employees. Nunley’s
signature does not appear on this letter.
9 The complaint identifies this person as Jason Alderman. From the
record, it is clear that the employee’s name is Alderson.
MID-MOUNTAIN FOODS 239
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright
Line, the General Counsel must first make a prima facie show-
ing “sufficient to support the inference that protected conduct
was a ‘motivating factor’ in the employer’s decision” to take
the action which allegedly violated Section 8(a)(3).
Once the General Counsel has made such a showing, the
burden then shifts to the employer “to demonstrate that the
same action would have taken place even in the absence of the
protected conduct.” Wright Line, supra at 1089. If the General
Counsel does not present evidence establishing such a prima
facie case, the respondent does not have to demonstrate that it
would have taken the adverse employment action anyway.
The General Counsel may establish the prima facie case by
proving the following four elements: (1) The alleged discrimi-
natee engaged in union or protected, concerted activities. (2)
The respondent knew about such activities. (3) The respondent
took an adverse employment action against the alleged dis-
criminatee. (4) There is a link, or nexus, between the protected
activities and the adverse employment action.
Alderson clearly engaged in protected activities. He testified
that he became involved in the union’s organizing campaign
around the first of April 1996. (Tr. 252.) Thus, the General
Counsel has satisfied the first Wright Line requirement.
The record also establishes that, at least by June 10, 1996,
the Respondent knew that Alderson supported the Union.10 On
that date, the union organizing committee delivered to the Re-
spondent a letter requesting permission to show a prounion
video. Alderson was in this group, and signed the letter. (Tr.
252; GC Exh. 3.) Since June 10 falls within the period of
“early June” alleged in the complaint, I find that the General
Counsel has satisfied the second Wright Line requirement.
The Government must also prove that the Respondent took
an adverse employment action against Alderson. Such harm
might consist of a reduction in current pay or benefits but the
evidence does not establish that Alderson suffered any such
reduction. To the contrary, Alderson admitted that he had re-
ceived two pay raises since his name appeared on letters, in
June and July 1996, identifying him as a union supporter. (Tr.
262.) Additionally, the record does not establish that Alder-
son’s working conditions, as an order selector, became any
worse.
Such harm might also consist of being denied an improvement
in wages, hours, or working conditions to which Alderson would
be entitled because of his position as an order selector. However,
the record does not show that temporary duty as a trainer would
have been an improvement. On cross-examination, Alderson
admitted that neither his pay nor benefits would have risen just
because he became a trainer.
Alderson’s testimony on direct examination had suggested
that if he had been selected for temporary trainer duty and had
worked “really hard” for about an hour each day before the
person he was assigned to train reported for work, he could

10 Alderson testified that he first spoke with Supervisor Campbell
about selection for trainer around the first of June. (Tr. 255–256.) The
evidence does not establish that the Respondent knew about Alderson’s
union activities on June 1, 1996.
have increased his “average,” and, therefore, received more
incentive pay. (Tr. 256–257.) However, on cross-examination,
Alderson admitted that the “average” used to compute incentive
pay was based on more than just an hour’s work on a given
day. (Tr. 263.) The evidence does not establish that temporary
duty as a trainer conferred any appreciable benefit in earning
more incentive pay.
The opportunity to serve as a temporary trainer from time-to-
time might also be regarded as a perquisite of the order selector
position, and, therefore, as a condition of employment. If that
were true, denying an order selector this opportunity could
amount to a worsening of his conditions of employment, and
therefore, be an adverse employment action.
However, the record does not establish such a condition of
employment. To the contrary, Alderson testified on cross-
examination that most order selectors had not served as train-
ers. (Tr. 263.) I cannot find that temporary duty as a trainer
had become a condition of employment for order selectors.
Additionally, the record does not establish that the Company
had, in the past, relied exclusively or predominantly on senior-
ity in choosing order selectors for temporary trainer duty. If
anything, the evidence suggests the opposite. Thus, the Re-
spondent’s employee handbook states that in selecting employ-
ees for promotion, management would consider “an employee’s
performance, education, and length of service.” (See R. Exh.
1(a) at p. 5.)
Since temporary duty as a trainer does not constitute a pro-
motion, it is possible that the Company let seniority rule in this
limited case. Alderson did testify that the persons selected to
be trainers were “As far as I know . . . usually top senior
men. . . . They were the people that had been order selecting
the longest.” (Tr. 255.) However, the qualification “as far as I
know” indicates less than certainty, and his use of the word
“usually” suggests that even Alderson did not believe the Com-
pany had an ironclad practice of selecting trainers by seniority.
I find that the opportunity to serve as a temporary trainer, de-
pending on seniority, was not a term or condition of an order
selector’s employment.
Even assuming that the Respondent bypassed Alderson for
selection as a temporary trainer, that action did not adversely
affect his employment in any way. Therefore, I find that the
government has failed to prove the third requirement of the
Wright Line test.
Since the General Counsel has not proven the third Wright
Line requirement, he has not established a prima facie case of
discrimination against Alderson, and it is not necessary to go
further with the Wright Line analysis. However, even if the
government had demonstrated an adverse employment action, I
would still conclude that the evidence failed to establish a
nexus between this action and Alderson’s union activities.
Therefore, I recommend that these allegations be dismissed.
K. June 5, 1996—Issued a Written Warning to Employee
Steve Warner and Thereafter Failed and Refused to Rescind It
Complaint paragraph 9 alleges that on June 5, 1996, the Re-
spondent issued a written warning to employee Steve Warner,
and thereafter failed and refused to rescind it. The complaint
further alleges that this action violated both Section 8(a)(3) and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 240
(1) of the Act. The Company admits that it issued this warning,
but denies it did so to discriminate on the basis of union activi-
ties, or otherwise violated the law.
Warner’s job involves retrieving goods from various parts of
the warehouse and taking them to a location for shipment to the
customer. He drives a forklift-type vehicle called an “SGX”
and receives incentive pay based on the time it takes him to fill
such orders.
In the latter part of May 1996, Warner was driving the SGX
down an aisle in the warehouse and found his way blocked by
two sanitation employees, Michael Roark and Shane Dye, who
were taking empty boxes and putting them on another SGX for
removal. Warner testified that when he asked them to move
out of his way, they did not, but instead moved down the aisle
and continued their work.
After Warner sounded his horn, it appeared to him that
Roark was going to move his machine out of the way, and
Warner started to go around with his SGX. However, Warner
testified, his SGX “grazed” the other machine but did not hurt
it. According to Warner, such bumping was not uncommon.
On May 25, 1996, Warner complained to Supervisor Camp-
bell that he had learned from another person that Roark had
visited Warner’s house with the intention of whipping him in a
fight. Management began an investigation which did not sub-
stantiate the information Warner had received about Roark, but
which did disclose the incident with the SGX.11
During the investigation, management interviewed both
Roark and Dye, and their account of the SGX incident, as re-
ported in an internal company memorandum, differed from
Warner’s version. As they described it, Warner had been impa-
tient and pushed the sanitation employees’ SGX under a storage
rack.
According to the internal memorandum, management also
interviewed another employee, Mac Phipps, who had been
present during this incident. The memo reported that Phipps
corroborated Roark and Dye, and added that Warner had been
in such a hurry that Phipps had to move out of the way to avoid
being hit by Warner’s SGX. (GC Exh. 9.)12
Management decided that Warner used his SGX to push an-
other SGX out of the way, and that this action could have put
someone in danger or caused property damage. (GC Exh. 9.)
On June 6, 1996, in a conference room at the warehouse, Man-
ager Honaker and Supervisor Campbell notified Warner that he
would be receiving a written warning.
Warner testified that he told Honaker, “I feel the only reason
you’re doing this is because I’m a Union organizer.” Honaker
responded by showing Warner the provision in the employee
handbook concerning damage or misuse of company property.
(Tr. 527–528.)

11 According to a June 3, 1996 memo, signed by Campbell and Dry
Warehouse Manager Honaker, Roark provided an innocent explanation
for being in the vicinity of Warner’s house. Moreover, management
concluded that the Company was not responsible for what employees
did away from work on their own time. (GC Exh. 9.)
12 The information in this memorandum constitutes hearsay, and I do
not rely on it to determine what actually happened during this incident
in the warehouse aisle. I do rely on it in deciding what motivated man-
agement to issue Warner a written warning concerning this incident.
Honaker read the warning to him at that time, but did not
give a copy to Warner until about a week later. At that time,
Honaker asked Warner if he could have driven his SGX down
another aisle and avoided bumping the sanitation employees’
SGX. Warner acknowledged that he could have done so, al-
though it would have added 2 minutes to the total time it took
him to complete filling the order.
According to Warner, he mentioned to Honaker that al-
though he was “on average,” that is, receiving incentive pay
based on the average time it took to fill an order, the sanitation
people were not, and asked, “Why couldn’t he move for me?”
Honaker replied, “I think you could have avoided it” and “this
incident did not have to happen.” (Tr. 532.)
I will apply the four-step Wright Line analysis to determine
whether the General Counsel has established a prima facie case
that the Company unlawfully discriminated against Warner by
issuing the written warning to him. The record establishes that
Warner engaged in protected activities, and therefore, the Gen-
eral Counsel has satisfied the first requirement.
The Union filed its representation petition on May 28, 1996,
so it is clear that the Company knew that at least some employ-
ees were engaging in union activity. Warner wore union insig-
nia. Therefore, I find that the Government has established the
second requirement, that the Company knew about Warner’s
affiliation with the Union.
The Government has also established the third requirement.
Issuance of a written warning is an adverse employment action.
However, I find that the Government has not established the
fourth requirement, that there be a link or nexus between the
employee’s union activities and the adverse employment ac-
tion. Warner did testify that in about April 1996, Honaker was
watching him at work and told him to be more careful stacking
product. According to Warner, on this occasion Honaker also
said “[Y]ou need to shut up because you don’t represent anyone
in this Company.” (Tr. 511.)
It is not even clear that Honaker’s comment referred to the
Union, and I do not find that it establishes a link between the
Warner’s protected activities and the written warning he re-
ceived in June. In other respects, the record does not establish
such a nexus. Therefore, the General Counsel has failed to es-
tablish a prima facie case that the written warning issued to
Warner discriminated against him in violation of the Act. I
recommend that this allegation be dismissed.
L. June 6, 1996—Unlawfully Promised to Remedy
Employees’ Grievances
Complaint paragraph 8(k) alleges that on June 6, 1996, Jesse
Lewis, who was then the Respondent’s vice president, unlaw-
fully promised to remedy employees’ grievances. On about
that date, Lewis and employee Larry Nunley had a discussion
about Nunley’s son-in-law, Steven Warner.13 According to
13 The record is not entirely clear as to when this conversation took
place. The General Counsel directed Nunley’s attention to a conversa-
tion he had with the vice president “on or about June 6, 1996.” (Tr.
122.) However, after stating what paragraphs of the complaint would
be addressed, the General Counsel then asked Nunley, “[W]hen did this
conversation take place?” Nunley replied, “[S]ometime in March or
MID-MOUNTAIN FOODS 241
Nunley, he told Lewis that he believed Manager Honaker was
harassing Warner, and asked Lewis to get Honaker off War-
ner’s back.
Nunley testified that he told Lewis he believed that Honaker
was harassing his son-in-law as a way of retaliating because
Nunley had supported the Teamsters Union when it had tried to
organize the employees in 1994. According to Nunley, Lewis
responded by saying that “men have fought and died in Amer-
ica to have the free right to be able to support what they want
to. The Union or not a Union. He said there would be no har-
assment because of that.” (Tr. 125–126.)
Nunley also testified that Lewis said he “knew what the
problems were at Mid-Mountain and if he were given time that
he would take care of it.” (Tr. 125.)14 The General Counsel
contends that this latter statement constitutes an unlawful prom-
ise to remedy employees’ grievances, and cites Medical Center
of Ocean County, 315 NLRB 1150, 1151–1152 (1994), in sup-
port of this theory.
I find that Lewis did tell Nunley that he knew what the prob-
lems were and if given time would take care of them. How-
ever, I do not conclude that this statement, in context, violated
Section 7 of the Act.
The case relied on by the General Counsel is based on facts
which distinguish it from the situation here. In Medical Center
of Ocean County, supervisors told two employees, “Why don’t
[you] give management 6 months to straighten up all [em-
ployee] problems. If after the 6 months anything isn’t fixed up,
you guys can go ahead and start with the Union again and
you’ll have no problem getting the vote in. You’ll have 100
percent of the vote.” The Board adopted the judge’s finding
that this statement constituted an unlawful promise to remedy
grievances if employees postponed their support of the Union.
The supervisors in Medical Center of Ocean County made
this statement after a meeting which apparently had been called
to diminish employee support for the Union. Additionally, the
supervisors’ statement specifically linked a promise to remedy
grievances with employees foregoing their support of the Union
for 6 months.
In contrast, the record here shows that Lewis did not bring
up the subject of union representation of employees. Nunley
raised this subject. Moreover, Nunley’s own testimony shows
that Lewis emphasized that employees had the right to support
the Union if they wished. Only after making that statement did
Lewis add that he knew what the problems were at Mid-
Mountain and, if given time, would correct them. Lewis did
not make this statement in the context of trying to get Nunley to
abandon or postpone his support of the Union.
Rather, it appears Lewis made this statement as an awkward
response to an awkward situation.
Lewis, as a higher management official, would not feel com-
fortable criticizing his subordinate, Honaker, in a conversation
with one of Honaker’s employees. Moreover, Lewis had not

April. I’m not specific. I’m not sure about the date.” (Tr. 123.)
Notwithstanding this uncertainty as to the date, I credit Nunley.
14 Lewis recalled telling Nunley that there would be no harassment,
but he did not recall the statement that he knew what the problems were
and would take care of them. (Tr. 868–869.)
yet had the opportunity to discuss the matter with Honaker and
satisfy himself as to the facts.
At the same time, Lewis would not wish to leave Nunley
with the impression that a complaint of harassment would go
uninvestigated or uncorrected. The “knew what the problems
were” statement most likely constituted a veiled way of assur-
ing Nunley that any harassment for whatever reason would be
ended, without admitting that any harassment actually had
taken place.
Lewis’ statement must be judged by an objective standard,
that is, by how it reasonably would be understood by an em-
ployee who heard it, and not by what Lewis may have intended
to convey. Applying such an objective standard, I do not find
that the statement would reasonably convey to the listener any
promise to remedy grievances in return for the employee forgo-
ing his support of the Union. I do not find that the statement
violated the Act, and recommend that this allegation be dis-
missed.
M. June 11, 1996—Interrogated Employees Concerning
Their Union Sympathies and Desires
Complaint paragraph 8(b) alleges, in part, that on June 11,
1996, Supervisor Campbell interrogated employees concerning
their union sympathies and desires. Employee Brian Blevins
testified that on this date, around aisle 60 in the Company’s dry
warehouse supervisor, Tom Campbell, approached him and
asked him what he thought about the Union.
According to Blevins, Campbell went on to tell him that he
thought the Union was not good. Blevins responded that he did
not really know anything about the Union, and that Campbell
then said he appreciated Blevins’ time, and left. (Tr. 382.)
Campbell denied asking Blevins what he thought about the
Union, or about Blevins’ union activities. (Tr. 1339.) I credit
Blevins.
Blevins testified that he was among a group of prounion em-
ployees who went to the company president’s office on June
14, 1996, and that he began wearing a union T-shirt around the
first of July 1996. (Tr. 384.) I conclude that he had not made
his union support known to management on June 11, 1996,
when Campbell asked him what he thought about the Union.
I find that Campbell’s questioning of Blevins on June 11,
1996, violated Section 8(a)(1) of the Act.
N. June 14, 1996—Unlawfully Denied Employees an
Opportunity to Show a Prounion Video
Complaint paragraph 8(n) alleges that on June 14, 1996, the
Respondent unlawfully denied its employees an opportunity to
show a prounion video in the same manner as Respondent had
shown antiunion videos.
It is undisputed that on June 14, 1996, the employees on the
union’s organizing committee presented to top management a
letter asking permission “to show a union video in the same
manner as the company did recently.” (GC Exh. 3.) It is also
undisputed that the Respondent denied this request. In a memo
to “all team members,” Company President Harwood gave the
following reasons for the denial:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242
1. Your lunch and break time are the only free time
you have during the day. You are entitled to use your free
time the way you want.
2. The place for viewing any video is the employee
lunch/break area, and these areas are used by many other
employees in the company. In addition, they are used by
vendors and other outside persons.
3. If a video is shown in the lunch/break areas, it will
interfere with employee personal time. Those not wanting
to watch the video would have to leave. You should not
have to do that. [R. Exh. 4(d).]

The Government has cited no authority establishing the right
of a union, or of employees supporting a union, to show a
prounion video on company property. The General Counsel’s
brief did cite cases which recognized the right of employees to
distribute union literature in the breakroom during breaks, but
that is not the same as the right to show a video.15
I find that the Respondent’s denial of the organizing commit-
tee’s request to show a video did not violate the Act.16 There-
fore, I recommend that this allegation be dismissed.
O. Mid-June 1996—Interrogated Employees
Complaint paragraph 8(b) alleges, in part, that in mid-June
1996, Leadman Barry Blevins interrogated employees concern-
ing their union sympathies and desires. The Respondent has
denied this allegation.
Barr testified that in mid-June 1996, he and Blevins were rid-
ing on an SGX machine in the warehouse when Blevins asked
him if he were for or against the Union. According to Barr, he
replied that he did not want to get into it, that he “wasn’t going
either way,” and Blevins replied that the Union would not be
good for the Company, that the environment would get rougher
and that rounds (the retrieval of goods for shipping to a cus-
tomer) would get harder. (Tr. 191.)
Blevins denied making the statements Barr attributed to him.
(Tr. 977.) Because of differences between Barr’s testimony and
his pretrial affidavit, I am not convinced that his recollection

15 The General Counsel and Charging Party assert that videotapes are
the “1990’s equivalent of handbills.” Without having to reach this
issue here, I will assume that an employee enjoys the same right to give
another employee a video cassette as he has to give that person a pam-
phlet. However, the Government does not allege that the Company
imposed any no-distribution rule on videotapes.
Rather, the General Counsel alleges that the Respondent violated the
Act by refusing a union request to bring video equipment into the facil-
ity and show a video there, which is different from handing out copies
of it. Neither the General Counsel nor the Charging Party has cited any
precedent for the principle that an employer has to make its facility a
forum for a union in the circumstances present here.
16 The Charging Party also contends that when Respondent denied
the organizing committee’s request to show the prounion video, the
Respondent was imposing a new restriction on employee conduct.
However, the record does not establish that Respondent ever had al-
lowed employees to bring in videos of any sort to show at work. To the
contrary, the Respondent kept the television sets in the breakroom
tuned to the CNN channel. I reject the argument that denying the re-
quest to show the video was equivalent to imposing a new or more
stringent no-solicitation rule in response to an organizing campaign.
was reliable, and I credit Blevins. Therefore, I recommend that
this allegation be dismissed.
P. Mid-June 1996—Discriminatorily Removed Prounion
Literature From Employees’ Break Areas
Complaint paragraph 8(j) alleges, in part, that Supervisor,
Tom Campbell discriminatorily removed prounion literature
from employees’ break areas in mid-June 1996. Employee
Jason Alderson testified that in mid-June 1996, he saw Supervi-
sor Campbell picking up prounion leaflets left on picnic tables
in the employees’ outside break area. According to Alderson,
there were also antiunion leaflets on the table, which Campbell
did not remove. (Tr. 254.)
Employee Howard Osborne Jr. gave testimony similar to Al-
derson’s. (Tr. 1343.) Campbell admitted that on one occasion
after a break, he removed campaign literature, which he de-
scribed as “everywhere” in the break area. He did not admit
selectively removing prounion leaflets while leaving procom-
pany leaflets.
I credit the testimony of Alderson, as corroborated by Os-
borne, and find that Campbell did selectively remove prounion
leaflets while leaving antiunion leaflets on the tables. How-
ever, this conduct did not violate the Act.
This situation does not involve an employee’s right to dis-
tribute prounion literature to other employees during breaks.
That right is well established and not at issue here.
However, no right has been established which would require
an employer to become the custodian of prounion literature and
to continue offering it after an employee has abandoned posses-
sion of the leaflets. That would be tantamount to converting
one of the Company’s tables into a distribution rack for proun-
ion pamphlets. Although the Company cannot lawfully inter-
fere with employees distributing union literature to other em-
ployees in the break area during breaks, it has no duty to assist.
I recommend that this allegation be dismissed.
Q. Mid-Latter June 1996—Threatened Employees with
Discharge if They Selected the Union
Complaint paragraph 8(e) alleges, in part, that in mid-latter
June 1996, Supervisor Tom Campbell, threatened employees
with discharge if they selected the Union as their collective-
bargaining representative. The record contains no evidence to
support this allegation, and I recommend that it be dismissed.
R. Mid or Latter June 1996—Threatened Employees with More
Strict Enforcement of Plant Rules
Complaint paragraph 8(i) alleges that in “mid-or latter-June,
1996,” Supervisor Campbell threatened employees with more
strict enforcement of plant rules. Charles Barr testified that one
night in an aisle in the warehouse, Campbell told him that if the
Union “was to come in here . . . the environment would get a
lot rougher.” Barr was not more specific as to date. (Tr. 192.)
Campbell denied making such statement. (Tr. 1343.)
MID-MOUNTAIN FOODS 243
Barr gave a pretrial statement which did not refer to such a
statement. (Tr. 200.) I do not credit Barr’s testimony, and
recommend that this allegation be dismissed.17
S. June 19, 1996—Issued an Oral Warning to its Employees
Because of Their Activities on Behalf of the Union
Complaint paragraph 8(a) alleges that on June 19, 1996, Su-
pervisor Campbell issued an oral warning to employees be-
cause of their activities on behalf of the Union. Complaint
paragraph 9 alleges that on June 19, 1996, Respondent issued a
written warning to employee Tim Alderson and thereafter
failed and refused to rescind it. The complaint alleges that this
conduct violates Section 8(a)(1) and (3) of the Act.18
Employee Timothy Alderson was on the union’s organizing
committee and was among the employees who delivered a letter
to Company President Harwood on June 14, 1996. This letter,
discussed above, requested permission to show a prounion
video.
On June 18, 1996, Alderson attended an NLRB representa-
tion hearing. The Union had subpoenaed him, and Alderson
showed the subpoena to Supervisor Tom Campbell before at-
tending the hearing. Alderson recalled that Campbell told him
“no problem” but also indicated that the absence would proba-
bly be unexcused. (Tr. 206–207.)
On June 19, 1996, in a meeting with Supervisors Campbell
and Olinger, Alderson received a written warning for having
three “casual absences” in a 12-month period. (R. Exh. 6(b).)
Alderson told them he had been summoned to court twice in the
previous 6 months, but nothing was said about it. According to
Alderson, they did not reply. (Tr. 208.)
I will analyze these allegations under the framework estab-
lished by Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The
record clearly establishes that Alderson engaged in protected
activities and that the Respondent knew about those activities.
Alderson’s presence in the group which visited Company
President Harwood on June 14, 1996, clearly signified to man-
agement that Alderson was active on the Union’s behalf. His
presence at the NLRB hearing, as a union witness, also con-
veyed his union affiliation unmistakably.
The warning issued to Alderson constituted an adverse em-
ployment action. Thus, the employee handbook states that an
employee who is absent three times in a 1-year period without
proper notification or acceptable excuse is subject to discharge.
(R. Exh. 1(a) at p. 27.)
The record also establishes a link between Alderson’s pro-
tected activity and issuance of the warning. The timing itself
raises a suspicion. On June 14, Alderson went with other
members of the organizing committee to see the Company’s
president. On June 18 he attended an NLRB hearing as a union
witness, and on June 19, he received the warning notice.
Moreover, the Company treated Alderson’s attendance at the
NLRB hearing differently than it treated his earlier court ap-

17 Barr also testified that Campbell made a similar statement at an
unspecified time in July 1996. (Tr. 191.) This instance was not alleged
in the complaint but in any event, I do not credit Barr.
18 The Respondent’s answer admitted that it disciplined Alderson,
but denied that this action violated the Act.
pearances. Alderson credibly testified that nothing was ever
said about those earlier court appearances, yet Alderson’s ab-
sence to attend the NLRB hearing was unexcused.
I find that by issuing the written warning to Alderson on
June 19, 1996, it unlawfully discriminated against him because
of his union activity. Further, I find that this action violated
Section 8(a)(3) and (1) of the Act.
T. June 25, 1996—Solicited Employees to Revoke Union
Authorization Cards
Complaint paragraph 8(c) alleges that on June 25, 1996, Su-
pervisor Tom Campbell solicited employees to revoke their
union authorization cards. The evidence does not establish that
Campbell made such statements on or about June 25, 1996.19
However, the General Counsel adduced testimony from
Youvanne Rodriguiez that sometime in the “spring of 1996”
another supervisor, Alvin Olinger, told Rodriguiez that there
were forms in the breakroom which Rodriguiez could fill out to
get his card back. (Tr. 341–342.) Rodriguiez also testified that
Olinger made those statements before Rodriguiez told Olinger
that Rodriguiez was for the Union. (Tr. 343.) Olinger admitted
that he told everyone, including Rodriguiez, that the forms were
available if they wanted that “option.” (Tr. 1243.)20
I find that Olinger did tell Rodriguiez that such forms were
available in the breakroom. Additionally, I find that when
Olinger made this statement, Rodriguiez had not asked about
rescinding or retrieving his authorization card, and had not
expressed any desire to do so.
The Respondent had full opportunity to meet this allegation
with evidence and argument. I do not find it fatal to this allega-
tion that the complaint named Campbell, rather than Olinger, as
the supervisor who engaged in this activity.
However, I do not find Olinger’s conduct to be violative.
LIR-USA Mfg. Co., 306 NLRB, 298, 304 (1992), relied on by
the General Counsel, is distinguishable. In that case, a manager
not merely told employees that such forms were available, but
asked them to sign, without reading them, in his presence. In
this case, Olinger merely told employees that such forms were
available in the breakroom, but made no attempt to see whether
or not any employee actually took or used such a form.21
19 The General Counsel’s brief refers to another incident, which did
involve Supervisor Campbell, but which allegedly occurred in July
1996 rather than on June 25, 1996. I will discuss this incident under
heading “U,” below.
20 To the extent that Olinger’s testimony conflicts with that of Rod-
riguiez, I credit Olinger’s. I do not find that Olinger interrogated Rod-
riguiez about his union sympathies or affiliation.
21 In Adair Standish Corp., 290 NLRB 317 (1988), the Board noted
that it was lawful for an employer to inform employees of their Sec. 7
rights in an atmosphere free of coercion, intimidation. However, in
Adair Standish, the respondent had solicited employees to revoke their
authorization cards “in the context of contemporaneous violations of
Section 8(a)(1), (3), and (5)” and required employees to go to supervi-
sors to obtain the revocation forms. Those facts made the solicitation
unlawful.
Although the record establishes certain violations in this case, they
were relatively isolated. Unlike Adair Standish, the record here shows
no pattern of violations contemporaneous with solicitations of employ-
ees to revoke the union authorizations they previously had signed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 244
I recommend that this allegation be dismissed.
U. June 25, 1996, and “Mid-July, 1996”—Interrogation
of Employees
Complaint paragraph 8(b) alleges, in part, that Supervisor,
Tom Campbell interrogated employees on June 28, 1996, and
in mid-July 1996. At the hearing, the General Counsel orally
moved to amend paragraph 8(b) to allege that Campbell en-
gaged in this interrogation on June 25, 1996, rather than June
28, 1996. I granted that motion. (Tr. 13-14.)
At the same time, the General Counsel withdrew the allega-
tion in paragraph 8(b) that Campbell interrogated an employee
in mid-July 1996. (Tr. 14.) It is not clear why the General
Counsel withdrew the allegation pertaining to mid-July 1996
rather than the allegation pertaining to June 25, 1996. The
record does not establish that Campbell interrogated any em-
ployee on June 25, 1996. However, there is evidence that he
did so in July.
Employee Charles Barr testified that in July 1996, Campbell
asked him if he had signed a union card, and Barr replied no.
According to Barr, Campbell then said, “[I]f you had signed a
union card you can get it back just by asking for it.” Barr testi-
fied that Campbell went on to say that “the union wouldn’t be
good for the company” and that “the environment would
change and it would get rougher in there . . . a lot rougher,
harder on us if the union did come in.” (Tr. 191.) Campbell
denied making these statements. (Tr. 1340.)
I do not credit Barr. However, since the allegation has been
withdrawn, I need make no findings about it. I recommend that
the allegation that Campbell interrogated an employee on June
25, 1996, be dismissed.
V. Mid-July 1996—Solicited Employees to Revoke Their
Union Authorization Cards
At the hearing, the General Counsel orally amended com-
plaint paragraph 8(c) to add the allegation that in mid-July
1996, Supervisor Alvin Olinger solicited employees to revoke
their union authorization cards. (Tr. 15–16.) However, the
record does not establish that Olinger engaged in such conduct,
and I recommend the allegation be dismissed.
W. 3–4 Weeks in July 1996—Implicitly Threatened
Employees with Job Loss for Having Supported the
Union; Threatened Employees with Loss of Wages if
They Selected the Union; and Threatened Employees With
Loss of Benefits if They Selected the Union
Complaint paragraph 8(d) alleges that through banners it
displayed, the Respondent implicitly threatened its employees
with job loss for having supported the Union. Complaint para-
graph 8(g) alleges that through banners, the Respondent threat-
ened employees with a loss of wages if they selected the Union
as their collective-bargaining representative. Complaint para-
graph 8(h) alleges that through banners, the Respondent threat-

Moreover, employees here did not have to go to their supervisors to
obtain revocation forms and thus, did not have to reveal to management
their intentions about union representation. Therefore, I conclude that
Adair Standish should be distinguished.
ened its employees with loss of benefits if they selected the
Union as their representative.
The Company did hang banners in its warehouse before the
election, but there is some conflict as to exactly what the ban-
ners said. Jason Alderson testified that in July 1996, the Re-
spondent displayed banners stating, “Vote No, It’s Your Job”
and “No Union, No Strikes, No Lost Benefits, No Lost Wages,
It’s Your Job.” (Tr. 245.)22 Youvanne Rodriguiez testified that
the Company displayed banners stating, “Vote No, No Lost
Wages, No Lost Benefits.” (Tr. 345.) According to Brian
Blevins, the banners stated “No Union, It’s Your Job” and “No
Union, No Lost Wages, No Lost Benefits.” (Tr. 385.)
Employee James Gianforte testified that one banner stated,
“No Union, No Lost Jobs, No Strikes,” and the other stated,
“No Union, It’s Your Job.” (Tr. 408.) Howard Osborne Jr.
testified that one banner stated, “No Union, No Lost Wages, No
Lost Benefits,” and that the other said, “No Lost Time, No
Strikes, No Union, Vote No.” (Tr. 476.)23
Employee Eric Miller testified that he saw three banners.
One of them said, “Vote No, It’s Your Job.” Another said, “No
Lost Wages” and something else which Miller could not re-
member. He could not remember what was on the third banner
at all. (Tr. 236.) Employee Brian Rasnake recalled a banner
stating, “Vote No, Your Family Matters, something like that.”
(Tr 1371.)
I find that the Respondent displayed two banners, one stating
“No Lost Time, No Strikes, No Union, Vote No” and the other
stating “Vote No, It’s Your Job.” I do not find that the Re-
spondent displayed banners with the other phrasings described
by some witnesses.
In arguing that Respondent’s banners violated Section
8(a)(1) of the Act, the General Counsel cites Laser Tool, Inc.,
320 NLRB 105, 111 (1995), and BI-LO, 303 NLRB 749
(1991). However, I conclude that the facts in those cases make
them inapposite here.
In Laser Tool, the employer displayed a poster showing
pickets with “on-strike” signs in front of a building marked
“closed.” The poster asked the viewer, “Do You Want This to
Happen To You? VOTE NO.” The posters contained no ob-
jective basis for a conclusion that unionization would lead to
plant closure or job loss.
In BI-LO, the employer sent copies of newspaper articles to
employees. These articles concerned plants which had closed,
but not all of the articles indicated that some action by the un-
ion involved, such as calling a strike, had caused the closings.
The Board found that the articles failed “to provide the neces-
sary objective basis for the Respondent’s implicit claim that
22 I credit Alderson’s testimony on cross-examination, rather than his
testimony on direct examination, regarding what the banner said. On
cross-examination, his memory had been refreshed by reading a pretrial
statement.
23 On cross-examination, Osborne disagreed with a question, by Re-
spondent’s attorney, suggesting that a banner stated, “No Union, No
Strikes, No Lost Wages” and recalled the wording as being “No Lost
Time, No Strikes, No Union, Vote No.” (Tr. 490) This recollection
was similar to Osborne’s testimony on direct examination, except that
the order of the phrases was slightly different, as might be expected in
trying to remember precise wording 1½ years.
MID-MOUNTAIN FOODS 245
unionization would imperil employee job security for reasons
beyond its control. Absent such a basis, the . . . mass mailing
and the followup usage of it reasonably tended to threaten em-
ployees with the Respondent’s willingness to close the . . . store
if employees voted for the Union.” BI-LO, supra at 750.
Neither of the banners displayed by the Respondent men-
tioned plant closing. The first banner did speak of “lost time,”
but in the context of strikes. The parallel structure of the
phrases “No Lost Time” and “No Strikes” clearly couples the
prospect of lost wages with the advent of a strike. It therefore
did not constitute a threat of retaliatory action by the Respon-
dent, but rather provided the kind of objective basis which was
lacking in BI-LO.
The second banner, stating, “Vote No, It’s Your Job” did not
make any explicit statement about possible job loss. The Re-
spondent contends that this language is equivalent to the lan-
guage, “Protect Your Jobs: Vote No,” found not to be violative
in Gupta Permold Corp., 289 NLRB 1234 (1988). The General
Counsel argues that Gupta Permold Corp. is inapposite be-
cause, unlike the banner here, the “Protect Your Jobs” banner
in that case included other language linking the possibility of
job loss to an objective factor, competitive conditions outside
the employer’s control.
I find that the phrase “Vote No: It’s Your Job” does not con-
stitute a threat, but do not rely on Gupta Permold Corp. in
reaching that conclusion. Rather, I simply do not find that
these words clearly articulate a threat of job loss.
In Gupta Permold Corp., the word “protect” unavoidably
implied a threat or risk against which protection would be
needed. The inference of danger is chained just as firmly to the
word “protect” as the attache case is handcuffed to a diplomatic
courier. It is necessary baggage.
Because the message “protect your job” can be understood
only in the context of some threat or risk to the job, the Gupta
Permold banner had to include a reference to objective factors,
not controlled by the employer, to banish any implication that
jobs needed to be protected from the possibility of employer
retaliation.
In comparison, the phrase “It’s Your Job” does not require
the reader to assume such a threat. Although the phrase is am-
biguous and can be interpreted in that way, it is not chained to
the possibility of such risk and can travel innocently without it.
It therefore requires no kind of disclaimer.24

24 Thus, if the Union had said, “Vote Yes, Protect Your Job,” the
words suggest a risk to job security which the words “Vote Yes, It’s
Your Job” do not. Of course, it must also be kept in mind that the
words at issue here came from the Company, not the Union. An em-
ployer’s statements about job security carry added weight because the
employer has the power to hire and fire, that is, the power to make a
threat of job loss come true.
If an employer has committed unfair labor practices which give em-
ployees reason to be anxious about their jobs, a statement which even
hints at the possibility of job loss will convey that meaning to employ-
ees. Such unfair labor practices chain the threat to words which other-
wise would appear innocent.
Although the record establishes that the Respondent committed cer-
tain unfair labor practices, they are relatively isolated, rather than per-
vasive. I do not find that they created a context in which the facially
One witness testified that he considered this language to be a
threat. (Tr. 238.) However, the Board applies an objective
standard in determining whether a statement interferes with,
restrains, or coerces employees in the exercise of protected
rights. I must decide what the language in question reasonably
will be understood to mean, rather than how someone, who
may be a partisan, subjectively interpreted it.
I find that when the words “Vote No: It’s Your Job” are con-
sidered objectively, they do not constitute a threat of job loss.
Therefore, I do not find that display of this banner violated
Section 8(a)(1).25
The other banner did allude to the possibility of lost wages.
However, I find that this statement did not constitute a threat be-
cause it associated the possibility of wage loss with an event not
within Respondent’s control, a strike by the Union.
In these circumstances, the statements on the banners did not
violate the Act. Therefore, I recommend that these allegations be
dismissed.
X. Mid-July 1997—Discriminatory Removal of Prounion
Literature From Employees’ Break Areas
Complaint paragraph 8(j) alleges that in mid-July 1996, Super-
visors Campbell, Mahoney, and Richie discriminatorily removed
prounion literature from employees’ break areas. I have found
above, that Campbell engaged in such action in June 1996, but that
it did not violate the Act.
Howard Osborne Jr. testified that on at least one occasion after a
break was over, he saw Supervisor Campbell gather prounion
pamphlets from tables in the breakroom and put them in the trash.
Osborne’s testimony also indicates that on this occasion, he saw
Mahoney and Richie gathering up the prounion leaflets and throw
them in the trash. (Tr. 471–473.)
Richie admitted that on one occasion, after a break was over, he
removed some literature because the breakroom was messy. (Tr.
990.) Mahoney also admitted that on occasion, he would clean up
tables in the break area. (Tr. 1256–1257.)
Neither Mahoney nor Richie admitted removing only prounion
literature while leaving antiunion leaflets, and I find that the evi-

benign words “It’s Your Job” would reasonably be understood as a
threat of job loss.
25 The Supreme Court stated in NLRB v. Gissel Packing Co., 395
U.S. 575, 618 (1969), that an employer “even [may] make a prediction
as to the precise effect he believes unionization will have on his com-
pany. In such a case, however, the prediction must be carefully phrased
on the basis of objective fact to convey an employer’s belief as to de-
monstrably probable consequences beyond his control or to convey a
management decision already arrived at to close the plant in case of
unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S.
263, 274, fn. 20 (1965). If there is any implication that an employer
may or may not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to him, the statement
is no longer a reasonable prediction based on available facts but a threat
of retaliation based on misrepresentation and coercion, and as such
without the protection of the First Amendment.” 395 U.S. at 618.
I do not find that the words “Vote No: It’s Your Job,” imply em-
ployer retaliation. They do suggest that the outcome of the election
would have an effect on the work environment, but that suggestion does
not imply that the employer might or might not “take action solely on
his own initiative for reasons unrelated to economic necessities and
known only to him.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 246
dence is insufficient to conclude that they did select in this fashion.
Since Osborne testified about an incident which took place after the
break was over, I have some doubt that he could stay long enough
to watch the supervisors complete their cleanup of the break area.
However, even assuming for analysis that the supervisors did
throw away only prounion pamphlets which were lying around the
break area, such action did not violate the law. Therefore, I rec-
ommend that this allegation be dismissed.
Y. July 24, 1996—Threatening Employees with
Discharge if They Selected the Union as Their
Collective-Bargaining Representative
Complaint paragraph 8(e) alleges that on July 24, 1996, Super-
visor Jeff Mahoney threatened employees with discharge if they
selected the Union as their collective-bargaining representative.
On this date, employee Calvin Saltz testified, he wore a union T-
shirt to work for the first time, and Supervisor Mahoney “hollered
at me and said, Have you found you another job?” (Tr. 366.)
Saltz testified that Mahoney asked this question in the presence
of Rodney Moretz, William Garber, and Bernie Gobble. Of those
three, only Moretz testified, and he denied hearing Mahoney make
such a statement. (Tr. 947.) Mahoney denied saying it. (Tr.
1256.)
In sum, one witness testified that Mahoney made the statement
in question, Mahoney denied it, another witness did not recall Ma-
honey making it, and two other witnesses were not called even
though the General Counsel knew their names. In these circum-
stances, I do not have a lot of confidence in Saltz’ uncorroborated
testimony and do not credit it. Therefore, I recommend that this
allegation be dismissed.
Z. July 24, 1996—Interrogation of Employees
Complaint paragraph 8(b) alleges, in part, that on July 24, 1996,
Supervisor Jeff Mahoney interrogated employees concerning their
union sympathies and desires. The record does not establish the
basis for such an allegation, and I recommend that it be dismissed.
AA. Critical Period Before Election—Implicitly Threatening Em-
ployees with Job Loss for Having Supported the Union
Complaint paragraph 8(d) alleges, in part, that during the critical
period before the election,26 the Respondent published and distrib-
uted a handbill which implicitly threatened employees with job loss
for having supported the Union. Complaint paragraph 8(f) alleges
that the handbill threatens employees with plant closure if they
selected the Union. Complaint paragraph 8(g) alleges that the
handbill threatens employees with job loss, and complaint para-
graph 8(h) alleges that the handbill threatens employees with loss
of benefits if they selected the Union as their collective-bargaining
representative.
The record establishes that at some point, employee, Steven
Warner, received an undated handbill with his paycheck. This
handbill was captioned “NO JOB! NO PAY! NO BENEFITS!”
and stated, “The UFCW petitioned these companies and they are
now OUT OF BUSINESS!” The handbill then listed a number of

26 By “critical period,” the complaint refers to the period between the
date when the representation petition was filed, May 28, 1996, and the
election on August 1, 1996. See, e.g., Vemco, Inc., 315 NLRB 200
(1994) (violations committed during the “critical period between the
date the petition was filed and the date of the election”).
companies, and concluded with the words “Vote No,” showing a
check mark in a box. (GC Exh. 2.)
However, the record does not establish when the Respondent
distributed this handbill. Employee Warner testified, “I received it
with my paycheck one morning.” (Tr. 560.) That testimony does
not indicate whether Warner received it before or after the Union
filed its representation petition.
The record as a whole would not contradict an assumption that
the Respondent distributed this handbill in July 1996, at the time it
displayed the banners discussed above. However, a finding should
be based on more than a reasonable assumption; it should be based
on evidence. The record does not contain such evidence.
The Respondent became aware of the union organizing cam-
paign well before the Union actually filled its representation peti-
tion. The General Counsel has proven that three violations (two
instances of interrogation and one threat of stricter rule enforce-
ment) took place in May 1996, before the filing of the Union’s
representation petition.
The date when Warner received the handbill cannot be deduced
from its content or by how long it would take the Respondent to
prepare it. Unions affiliated with the United Food and Commercial
Workers Union have tried to organize the Respondent’s employ-
ees a number of times in recent years. The handbill in question
does not refer specifically to Local 400, the Charging Party
here, so it is not certain whether the Respondent prepared the
handbill particularly in response to the most recent organizing
drive, or whether it had been prepared at some earlier time.
Moreover, although the General Counsel called 20 witnesses
(21, counting the custodian of the documents subpoenaed from
the Respondent), only Warner testified that he received such a
handbill. The fact that other witnesses did not testify about the
handbill, and the fact that Warner only pinpointed the date as
“one morning,” make me wary of assuming that Respondent
issued it within the critical period, or that Respondent distrib-
uted it to employees other than Warner.
I will make neither assumption. Instead, I find only that the
Respondent distributed this handbill to Warner, and did so at
some time after the union organizing drive began in March
1996.27
The General Counsel contends that this handbill constitutes a
coercive threat of job loss which is unlawful because it does not
link this prospect with economic factors such as the give and
take of the bargaining process. I agree. See BI-LO, 303 NLRB
749 (1991); Quamco, Inc., 325 NLRB 222 (1997). I find that
the handbill violates Section 8(a)(1) of the Act.
BB. November 5, 1996—Encouraging Employees to Fail and
Refuse to Cooperate in a Board Investigation, and Attempting
to Influence its Employees’ Testimony in a Board Proceeding
Complaint paragraph 8(o) alleges that by a November 5,
1996 letter, the Respondent encouraged its employees to fail
and refuse to cooperate in a Board proceeding. Complaint
paragraph 8(p) alleges that this letter attempted to influence its
27 Although the record indicates that company leaflets had been pre-
sent in the breakroom, the evidence does not establish that this litera-
ture included the handbill received by Warner.
MID-MOUNTAIN FOODS 247
employees’ testimony in a Board proceeding. The complaint
alleges that these actions violated Section 8(a)(1) of the Act.
It is undisputed that the Respondent issued a November 5,
1996 letter, to its employees. The entire text of this letter was
capitalized, and stated as follows:

DEAR FELLOW MID-MOUNTAIN EMPLOYEE:

RECENTLY THE NATIONAL LABOR RELATIONS
BOARD SENT OUT “AFFIDAVITS” TO CERTAIN
EMPLOYEES WHO SIGNED UFCW AUTHORIZATION
CARDS PRIOR TO OUR AUGUST ELECTION. THE
“AFFIDAVIT” SEEKS INFORMATION—BY ASKING VERY
PERSONAL QUESTIONS THAT WILL BE PUT INTO A
GOVERNMENT FILE! YOU NEED TO KNOW WHY THE
GOVERNMENT IS ASKING FOR VERY PERSONAL
INFORMATION AND WHAT THE GOVERNMENT PLANS
TO DO WITH YOUR INFORMATION.
NO DOUBT, WHEN THE UFCW UNION ASKED MANY
OF YOU TO SIGN MEMBERSHIP/AUTHORIZATION
CARDS, THEY ASSURED YOU THAT SIGNING A UNION
CARD MEANT NOTHING EXCEPT TO “GET MORE
INFORMATION” OR POSSIBLY TO “GET AN ELECTION”—
THAT IT WOULD BE CONFIDENTIAL, AND “NOBODY
WOULD EVER KNOW WHO SIGNED A CARD”. IF YOU
WERE TOLD THAT, YOU HAD BETTER READ THE COVER
LETTER AND THE “AFFIDAVIT” FROM THE NATIONAL
LABOR RELATIONS BOARD. . .
—“YOUR COOPERATION . . . MAY ELIMINATE THE
NECESSITY OF OUR CAUSING A SUBPOENA TO BE
ISSUED COMPELLING YOUR ATENDANCE [sic] AT A
PUBLIC HEARING.”
—“THIS STATEMENT WILL BE KEPT CONFIDENTIAL
BY THE UNITED STATES GOVERNMENT UNLESS AND
UNTIL IT BECOMES NECESSARY FOR THE
GOVERNMENT TO PRODUCE IT IN A FORMAL
PROCEEDING.”
DOES THIS SOUND CONFIDENTIAL TO YOU???
THE TRUE REASON WHY THE NLRB IS SO
INTERESTED IN ALL THE DETAILS SURROUNDING WHO
SIGNED CARDS IS THAT ON AUGUST 1, 1996, THE UFCW
UNION LOST THE ELECTION AT MID-MOUNTAIN FAIR
AND SQUARE BY A SCORE OF 135-77. WHAT THIS
MEANS IS YOU REJECTED REPRESENTATION BY LOCAL
400 OF THE UFCW BY A RATIO OF ABOUT 2 TO 1!
NEVERTHELESS, THE UFCW REFUSES TO ACCEPT
YOUR DECISION! THEIR ATTITUDE IS THAT THEY WILL
ACCOMPLISH THROUGH POLITICS WHAT THEY COULD
NOT ACCOMPLISH AT THE BALLOT BOX. THE UFCW
UNION HAS OFFICIALLY DEMANDED THAT THE NLRB
ISSUE A BARGAINING ORDER AGAINST MID-MOUNTAIN
FOODS! THIS MEANS THAT THE UFCW IS TELLING THE
NLRB TO ORDER YOU TO BE REPRESENTED BY THE
UFCW WHETHER YOU WANT THEM OR NOT! SO MUCH
FOR DEMOCRACY!
UNDER ITS OWN RULES, THE NLRB CANNOT ISSUE
A BARGAINING ORDER UNTIL IT HAS VERIFIED THE
SIGNATURES ON THE UNION MEMBERSHIP/
AUTHORIZATION CARDS. THIS IS WHY THEY HAVE
SENT OUT “AFFIDAVITS” AND WHY THE NLRB HAS
ORDERED MID-MOUNTAIN TO SEND THEM COPIES OF
YOUR W-4 FORMS THAT CONTAIN YOUR NAME, YOUR
SIGNATURE, YOUR HOME ADDRESS, YOUR NUMBER OF
DEPENDENTS AND YOUR SOCIAL SECURITY NUMBER.
THIS ACTION MAKES US QUESTION OUR RIGHTS
AND FREEDOMS WHEN THE UNION DEMANDS THE
NLRB TO IGNORE YOUR WISHES SO THAT THE UNION
WILL REPRESENT YOU—WHETHER YOU WANT THEM
TO OR NOT. IT MAKES US VERY UNCOMFORTABLE
WHEN, IN RESPONSE TO THIS UNION DEMAND, THE
NLRB BEGINS DEMANDING AND ASSEMBLING
CONFIDENTIAL DATA ON EACH ONE OF YOU AND
PLACING IT INTO THEIR FILES.
IN ORDER FOR ALL THIS TO WORK OUT THE WAY
THE UFCW WANTS, THEY HAVE TO CONVINCE THE
NLRB THAT MID-MOUNTAIN FOODS HAS COMMITTED
MANY SERIOUS UNFAIR LABOR PRACTICES. ALL OF
THE CHARGES THAT THE UFCW HAS MADE AGAINST
MID-MOUNTAIN ARE FALSE AND MOST ARE
ABSOLUTELY LAUGHABLE. ONE OF THE PROBLEMS
WE HAVE IS NOT KNOWING WHETHER OR NOT THE
NLRB WILL BE FOOLED BY THE UFCW LIES. DURING
THE COMING WEEKS, WE WILL BE SHARING WITH YOU
THE EXACT NATURE OF THESE TRUMPED UP UNION
LIES. IN THE MEANTIME, YOU NEED TO KNOW WHAT
THE UFCW IS UP TO. HOW THEY PLAN TO OVERRULE
YOUR AUGUST VOTE . . . AND . . . SNEAK INTO MID-
MOUNTAIN FOODS THROUGH THE BACK DOOR.

THE MANAGEMENT TEAM.
[GC Exh. 6.]28

In effect, the General Counsel contends that this letter consti-
tuted a kind of quasi-subliminal persuasion, putting the idea in
a reader’s mind that whoever asked him to sign a union au-
thorization card had assured the reader it was only to “get more
information” or to “get an election.” The General Counsel’s
brief cites Gordonsville Industries, 252 NLRB 563 (1980), in
support of that theory. In that case, the Board adopted a
judge’s finding that somewhat similar language in a letter to
employees could only be intended to “plant a seed in the minds
of employee-witnesses as to the character of the testimony
which they were expected to give under Respondent’s watchful
eye at the hearing.” 252 NLRB at 581.
However, the letter to employees in Gordonsville Industries,
unlike the letter to employees in this case, told the employees
“we know you will respond honestly and responsibly,” and the
judge viewed the word “responsibly” with suspicion, as possi-
bly suggesting that the employees should tailor their testimony
to keep out the Union and thereby retain their jobs.
The language at issue here does not suggest to employees
how they should testify. It also does not suggest to employees
that they should respond to the Board’s request for affidavits in
any particular way. Thus, Gordonsville Industries, should be
distinguished.
Moreover, Section 8(c) of the Act prevents me from consid-
ering this letter as evidence of an unfair labor practice. That
provision states as follows:

28 Certain of the material in this letter was underlined. However, the
document in evidence is a photocopy of a facsimile. Although the
words are legible, it is not entirely clear which words are underlined
and which are not. Therefore, the underlines have been omitted here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248

The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic,
or visual form, shall not constitute or be evidence of an
unfair labor practice under any of the provisions of this
Act, if such expression contains no threat of reprisal or
force or promise of benefits. [29 U.S.C. § 158(c).]

I find that the Respondent’s November 5, 1996 letter, does
not contain any threat of reprisal or force or promise of bene-
fits. Therefore, under Section 8(c), it does not constitute an
unfair labor practice or evidence of an unfair labor practice.
I recommend that this allegation be dismissed.
CC. November 6, 1996—Discharge of and Refusal to
Reinstate Employee James Gianforte
Complaint paragraph 11 alleges that on November 6, 1996,
the Respondent discharged James Gianforte and thereafter re-
fused to reinstate him. The complaint alleges that this action
discriminated against Gianforte in violation of Section 8(a)(3)
and (1) of the Act. The Respondent denied this allegation.29
Gianforte was an order selector. His job involved driving an
SGX machine to various locations in the warehouse, and re-
trieving the goods listed on an order for shipment to a cus-
tomer.
On November 1, 1996, he saw another employee Bryant Sal-
yers, go up to the shipping office, and came to the conclusion
that Salyers had complained that Gianforte had been “laying
back,” that is, not working with the speed expected. (Tr. 410.)
According to Salyers, whom I credit, over the next 2 days,
Gianforte told Salyers he would get even, and engaged in har-
assing conduct.
Specifically, on November 2, 1996, Gianforte confronted
Salyers in the warehouse and said, “You ratted on me yester-
day.” When Salyers denied it, Gianforte responded, “I should
bring a gun and shoot at ten at you all yellow backs—” (Tr.
1291.)
Later that same day, Salyers saw Gianforte at work in the
warehouse and said, “[L]et’s just blow it off and work together
and forget about it.” According to Salyers, Gianforte said no,
that he would carry a grudge for years. (Tr. 1293.)
The next day, according to Salyers, when he saw Gianforte
at the warehouse, Gianforte “would stomp and blow kisses”
and call Salyers a back stabber and a rat. When Salyers asked
him, “Can’t we just blow this off?,” Gianforte replied, “No. I
will get even even if I have to go to jail.” (Tr. 1294.)
Gianforte also used his SGX to tailgate Salyers. After letting
Gianforte pass by, Salyers called management on the intercom.
His complaint started an investigation which led to Gianforte’s
suspension, followed by discharge on November 6, 1996.
I will evaluate this discharge in accordance with Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). The Government has

29 Respondent’s answer also raised, as an affirmative defense, that
“based on evidence acquired after his discharge, Jim Gianforte engaged
in unprotected conduct for which the Employer would have discharged
any employee, and therefore he is not entitled to reinstatement or to
back pay.” (GC Exh. 1(u).) In view of my findings here, I need not
reach the issues presented by this affirmative defense.
established the first requirement of a prima facie case, that
Gianforte engaged in union activity. Gianforte was an open
supporter of the Union, and was a member of the Union’s orga-
nizing committee in the plant.
The General Counsel also has established the second re-
quirement, that the Respondent knew about Gianforte’s union
activities. Most obviously, Gianforte’s name appears on the
June 14, 1996 letter, from the union organizing committee to
the Company’s president. Gianforte also wore union T-shirts.
The Government also has proven the third Wright Line ele-
ment. Gianforte’s discharge is an adverse employment action.
However, I find that the General Counsel has not demon-
strated a link or nexus between Gianforte’s protected activity
and his discharge. There is no evidence that any manager or
supervisor made any statement which would associate the dis-
charge with Gianforte’s union activity. Moreover, the dis-
charge took place 3 months after the election.
In sum, I conclude that the General Counsel has failed to
prove the fourth Wright Line requirement, and, therefore, has
failed to make a prima facie case. However, even assuming for
analysis that the Government had established such a prima facie
case, I find that the Respondent would have discharged Gian-
forte in any event, and regardless of his protected activities.
Employers increasingly have been held liable for violence
committed by one employee against another in the workplace.30
Failure to take action, after becoming aware that an employee
might become violent, could expose the Respondent to consid-
erable liability.
Here, according to Salyers’ credited testimony, Gianforte
had threatened to bring a gun to work and shoot not just Salyers
but “about ten” employees. Gianforte also said that even if it
meant going to jail, he would get even.
Additionally, Gianforte demonstrated a troubling persistence.
Two days after he perceived that Salyers had complained about
his “laying back,” Gianforte was still harassing Salyers by
threatening to get even and tailgating Salyers’ SGX. His ap-
parent fixation on a seemingly minor incident also raised a
legitimate cause for concern.
Moreover, the Respondent did not discharge Gianforte pre-
cipitously, but first conducted a thorough investigation. In
these circumstances, and considering the increasing legal expo-
sure of companies for incidents of violence in the workplace, I
find that the Respondent would have discharged Gianforte in
any event, regardless of whether he had engaged in protected
activities. Therefore, I recommend that this allegation be dis-
missed.
II. OBJECTIONS TO THE ELECTION
As stated above, the Board conducted an election at the Re-
spondent’s facility on August 1, 1996.31 The Charging Party
30 See, e.g., Levin, “Workplace Violence: Navigating Through the
Minefield of Legal Liability,” 11 Labor Lawyer 171 (1995).
31 Employees in the following unit were eligible to vote: All ware-
house department employees, including plant clerical employees em-
ployed by the Employer at its Abingdon, Virginia warehouse, exclud-
ing all office clerical employees, transportation department employees,
temporary employees, guards, and supervisors as defined in the Act.
(GC Exh. 1(n).)
MID-MOUNTAIN FOODS 249
did not receive a majority, and filed timely objections. (GC
Exh. 1(m).)32 The Regional Director disposed of certain of
these objections and consolidated the remaining objections with
the unfair labor practice cases. (GC Exh. 1(n).) All of these
objections except one arise from the same actions which the
complaint alleges to be unfair labor practices.33
I have found that the Respondent committed certain unfair
labor practices during the critical period between the filing of
the representation petition and the date of the election. Specifi-
cally, in mid-May 1996, the Respondent threatened employees
with stricter enforcement of work rules if the Union were se-
lected; in early June 1996, it threatened an employee with dis-
charge; on June 11, 1996, it interrogated an employee concern-
ing his union sympathies; and on June 19, 1996, it issued a
written warning to an employee because of his union activities.
These violations interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed by Section 7 of the
Act. I recommend that the election be set aside.
III. REQUEST FOR BARGAINING ORDER
The General Counsel seeks a bargaining order pursuant to
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Gov-
ernment may demonstrate the appropriateness of such a bar-
gaining order by showing that at some point, the Union enjoyed
support among a majority of employees in the bargaining unit,
and that the Respondent committed “hallmark” violations of the
Act.
Such “hallmark” violations are serious unfair labor practices
which dissipate a union’s majority. The coercive effect of
hallmark violations persists, thus, interfering with the freedom
of employees to make an uncoerced choice in a rerun election.
The handbill which employee Warner received with a pay-
check contained an implicit threat of plant closure. The Board
has held that threats of plant closure are “one of the most coer-
cive actions which a company can take in seeking to influence
an election.” Long-Airdox Co., 277 NLRB 1157, 1160 (1985).
However, the evidence does not demonstrate that any other
employee besides Warner received such a handbill. Therefore,

32 The tally of ballots showed the following results:
Approximate number of eligible voters. 225
Number of void ballots. 0
Number of votes case for United Food and
Commercial Workers Union, Local 400.

77
Number of votes cast against participating
labor organization(s).

126
Number of valid votes counted. 203
Number of challenged ballots. 9
Number of valid votes counted plus chal-
lenged ballots.

212
The challenged ballots are not determinative of the results of the
election. (GC Exh. 1(n).)
33 The single objection not alleged to involve an unfair labor practice
concerns whether or not the Respondent increased the number of secu-
rity personnel at its facility on the date of the election, and if so,
whether the presence of additional security personnel interfered with
the laboratory conditions necessary to assure employees uncoerced
freedom of choice in casting their ballots. Because I find that other
objections warrant setting aside the election, I need not reach these
issues.
even though the handbill contained an implicit threat of plant
closure, I do not find that the threat was communicated to any-
one but Warner. In these unusual circumstances, I cannot con-
clude that this violation produced a persistent coercive effect
making a bargaining order necessary.
Additionally, the other violations established by the record
are relatively isolated in nature and most involved few of the
employees in the bargaining unit. I do not find a pervasive
pattern of unfair labor practices which typify cases in which the
Board deems a bargaining order appropriate. Therefore, I do
not recommend that the Board issue a bargaining order in this
case.
IV. CONCLUSIONS OF LAW
1. Mid-Mountain Foods, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Food and Commercial Workers Union, Local 400,
AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by the
following acts. On an unascertained date in the month of
March, April, May, June, or July 1996, giving an employee a
handbill which implicitly threatened plant closing, loss of em-
ployment, and loss of benefits if employees selected the Union
to represent them; on March 24, 1996, interrogating an em-
ployee about that employee’s union sympathies and desires; on
April 1, 1996, interrogating an employee about that employee’s
union sympathies and desires; some time in mid-May 1996,
threatening employees with stricter enforcement of work rules
if they selected the Union to represent them; on June 11, 1996,
interrogating an employee about that employee’s union sympa-
thies and desires; and on June 19, 1996, giving a written warn-
ing to employee Tim Alderson because he engaged in union or
other activities protected by the Act.
4. The Respondent violated Section 8(a)(3) of the Act on
June 19, 1996, by giving a written warning to employee Tim
Alderson because he engaged in union or other activities pro-
tected by the Act.
5. The Respondent did not violate the Act in any other man-
ner alleged in the complaint.
REMEDY
To remedy the unfair labor practices found here, I recommend
that Respondent be ordered to rescind the warning it issued to em-
ployee Tim Alderson on June 19, 1996. If that warning formed the
basis, in whole or in part, for any later discipline of Alderson under
a system of progressive discipline, the Respondent should also be
ordered to rescind such subsequent disciplinary actions and to treat
Alderson in all respects as if the June 19, 1996 written warning,
had never been issued to him.
I further recommend that Respondent be ordered to post at its
Abingdon, Virginia facility, the notice to employees set forth in
Appendix A of this decision.
I further recommend that the election conducted on August 1,
1996, be set aside, and that the Board order that a new election be
conducted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250
On these findings of fact and conclusions of law and on the en-
tire record in this case, I issue the following recommended34
ORDER
The Respondent, Mid-Mountain Foods, Inc., Abingdon, Vir-
ginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees with respect to their union sym-
pathies and desires.
(b) Threatening employees with plant closure, loss of jobs, loss
of wages, loss of benefits, and stricter enforcement of work rules if
they select the Union as their collective-bargaining representative.
(c) Imposing discipline, including written warnings, to employ-
ees because they engaged in union activities or other activities
protected by the Act.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization, to bar-
gain collectively through representatives of their own choosing, or
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and
all such activities.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Remove from employee Tim Alderson’s personnel file, and
from any other records the Respondent maintains, the June 19,

34 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.
1996 written warning it issued to him, and all references to it. If
the Respondent has taken any later disciplinary action against Al-
derson, which later disciplinary action was more severe or onerous
because of the June 19, 1996, Respondent shall rescind that disci-
pline and take only such action as it would have taken if the June
19, 1996 written warning had never existed.
(b) Within 14 days after service by the Region, post at its facili-
ties in Abingdon, Virginia, copies of the attached notice marked
“Appendix A.”35 Copies of the notice, on forms provided by the
Regional Director for Region 11, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent immediately on receipt and maintained for 60 consecu-
tive days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since June 21, 1996.
(c) Within 21 days after service by the Region, file with the Re-
gional Director a sworn certification of a responsible official on a
form provided by the Regional Director attesting to the steps that
the Respondent has taken to comply.
35 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-
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.”