Mid-South Warehouse Co.

National Labor Relations Board - Board Decisions

Feb 26, 1984

268 N.L.R.B. 1229 (N.L.R.B. 1984)

MID-SOUTH WAREHOUSE CO.
Mid-South Refrigerated Warehouse Company, Inc.
and Highway and Local Motor Freight Employ-
ees, Local 667 of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 26-CA-8075-1, 26-
CA-8423, 26-CA-8571, 1 and 26-RC-6076
26 February 1984
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 11 June 1981 Administrative Law Judge Ste-
phen J. Gross issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, 2 and the Respondent filed cross-exceptions
and an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,3 and
conclusions4 and to adopt the recommended
Order.
The judge inadvertently omitted this case number from the caption
of his decision.
2 On the first day of the reopened hearing, 9 September 1980, the
judge denied the General Counsel's motion to amend the complaint to
allege that the Respondent violated Sec. 8(aX3) and (1) of the Act by im-
plementing a progressive disciplinary system on I September 1979. The
General Counsel excepted to the judge's ruling. On 16 December 1982
the Board, by unpublished Order, granted the General Counsel's motion
to amend the complaint and remanded the proceeding to the judge for
further hearing and preparation of a Supplemental Decision. (Member
Hunter dissented from the remand.) Thereafter, the General Counsel
moved to withdraw the amendment to the complaint and close the
record. By order dated 12 April 1983 the judge granted the General
Counsel's motion, ordered the record closed, and transferred the case to
the Board.
s The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
In sec. I of his decision, the judge states that on 10 July 1980 he issued
an order denying the General Counsel's motion to amend the complaint
insofar as it related to a progressive disciplinary system, whereas, on 10
July, he deferred ruling on this portion of the motion and denied it on 9
September, the first day of the reopened hearing. In sec. II, he states that
the election was held 10 October 1979, rather than 3 October. In sec. IX,
he refers to employee Mason as Munson. These inadvertent errors are in-
sufficient to affect our decision.
I The General Counsel excepts to the judge's failure to find that Vice
President Gardner's statement, "Jimmy, your guess is as good as mine,"
in response to employee Lackland's question, "will this affect my year-
end bonus?" violated Sec. 8(aXl) of the Act or at least constituted objec-
tionable conduct. We find the General Counsel's exception is without
merit. In so doing, we note that the General Counsel has not adduced
any evidence with respect to the nature of the year-end bonus, and we
find that the General Counsel has not established that Gardner's re-
sponse, in context, was either unlawful or objectionable.
268 NLRB No. 188
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
IT IS FURTHER ORDERED that the objections to
the election conducted in Case 26-RC-6076 on 3
October 1979 are overruled.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS HEREBY CERTIFIED that a majority of the
valid ballots have not been cast for Highway and
Local Motor Freight Employees, Local 667 of the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, and
that it is not the exclusive representative of these
bargaining unit employees.
DECISION
I. INTRODUCTION
STEPHEN J. GROSS, Administrative Law Judge: On
August 22, 1979, Teamsters Local 667 (Local 667 or the
Union) filed a petition with the Board seeking a repre-
sentation election at Mid-South Refrigerated Warehouse
Company (Mid-South).' The election at Mid-South was
held on Ocotber 3, 1979, pursuant to a Stipulation for
Certification Upon Consent Election approved by the
Regional Director for Region 26. Thirty-six unchal-
lenged ballots were cast against Local 667, 23 were cast
for it. There were not enough challenged ballots to
affect the result of the election. Thereafter the Union
filed timely objections to the election.
One day prior to the election, October 2, Local 667
filed a charge claiming that Mid-South had issued warn-
ings to eight named employees because of the employees'
membership in and activities on behalf of the Union.
Local 667 also charged Mid-South with various other
acts of coercion.
The Union's charge (which was subsequently amended
on November 16) became the basis for a complaint
issued by the Regional Director for Region 26 on No-
vember 19, 1979. According to the complaint, one of
Mid-South's supervisors, Phil Gardner: (a) created an im-
pression among its employees that their union activities
were under surveillance and (b) threatened employees
with loss of jobs and benefits if employees voted for
Local 667. The complaint also alleged that, beginning in
early September, Mid-South enforced its work rules in a
more stringent manner against eight named employees.
According to the complaint, Mid-South thereby violated
Section 8(a)(1) and (3) of the Act.
The Union had claimed that the following conduct by
Mid-South affected the result of the election: (I) alleged
promises by Mid-South's president, Jack Edwards, that
l All parties agree that Local 667 is a "labor organization" within the
meaning of the Act and that Mid-South is an "employer" engaged in
"commerce."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mid-South would give raises to employees if the Union
were defeated; (2) interrogation, harassment, coercion,
and threats directed against employees prior to the elec-
tion; (3) suspension of an employee because of the em-
ployee's action at a meeting called by the Company; (4)
issuance of warnings to eight named "prospective
voters"; and (5) increasing the workload of known union
adherents immediately preceding the election.
On November 11, 1979, the Regional Director issued a
report recommending that Objections I and 3 be over-
ruled; that Objections 2, 4, and 5 be considered at a hear-
ing; and that that hearing be consolidated with Case 26-
CA-8075. No objections were filed to the Regional Di-
rector's report.
On December 11, the Board adopted the Regional Di-
rector's recommendations. And on January 14, 1980, the
Regional Director consolidated the hearing ordered by
the Board's December 11 order with the hearing in Case
26-CA-8075. The case subsequently went to hearing in
Memphis, Tennessee, on March 6 and 7, 1980.
On May 5, 1980, the Union filed a further charge
against Mid-South claiming that since March 3, 1980,
Mid-South had in various ways interfered with the Sec-
tion 7 rights of its employees, and that Mid-South had
suspended an employee on or about March 14, 1980, be-
cause of the employee's membership in and activities on
behalf of Local 667.
On June 13, 1980, the General Counsel moved that the
hearing be reopened and that the complaint be amended.
The amendments proposed were allegations that Mid-
South: (1) adopted a "progressive disciplinary system"
on September 1, 1979, for discriminatory reasons; (2) en-
forced its work rules in a more stringent manner by issu-
ing warnings to various named employees on six speci-
fied dates between March 14 and May 12, 1980; and (3)
suspended an employee pursuant to the progressive disci-
plinary system.
On July 10, 1980, I issued an order: (1) granting the
General Counsel's motion to reopen the hearing; (2) de-
nying the General Counsel's motion insofar as it related
to a progressive disciplinary system;2 and (3) granting
the General Counsel's motion to amend in all other as-
pects.
On August 28, 1980, the General Counsel again moved
to amend the complaint. The proposed amendments al-
leged that: (1) in July 1980 a Mid-South supervisor in-
a At the March hearing there was testimony to the effect that in Sep-
tember 1979 Mid-South decided to institute a more formal disciplinary
system involving the use of written forms and a specific hierarchy of dis-
ciplinary measures. There was further evidence to the effect that that de-
cision was not implemented until some time after the election. The com-
plaint under consideration at the March hearing did not refer to the new
disciplinary system, no party sought to amend the complaint in that
regard at the hearing, and the General Counsel's brief of April 10, 1980,
while referring to the new company policy, failed to suggest that any
amendment be made to the complaint in that respect. Then, on June 13,
in his motion to reopen, the General Counsel sought to amend the com-
plaint to include various allegations pertaining to Mid-South's progressive
disciplinary system. The motion papers failed to provide any explanation
for the tardiness of the request and, although given the opportunity to
explain that failure at the hearing in September, the General Counsel
again could give no reason why I should consider evidence of the pro-
gressive disciplinary system to be either newlyw.d 'covered or unavailable
at the March hearing (see, e.g., Heat Research -.Pp., 243 NLRB 206 fn. I
(1979)).
ferred that a wage increase was associated with adoption
of an antiunion stance by the recipients of the wage in-
crease and (2) Mid-South first demoted (in July) and
then discharged (in August) an employee for reasons vio-
lative of Section 8(a)(3) and (4) of the Act. I granted the
motion to amend.
The General Counsel has filed two briefs, one after the
March hearing and the second after the September hear-
ing. Mid-South and Local 667 each filed one brief (after
the September hearing). The case stands ready for deci-
sion.
II. BACKGROUND
Mid-South operates three refrigerated warehouses in
Memphis. Employees refer to the three facilities as
"Main" (where Mid-South's corporate offices are locat-
ed), "the Annex," and "Chelsea." All of the alleged vio-
lations occurred at the Annex, and all of the alleged dis-
criminatees are (or were) employed at the Annex.
The Annex facility handles only frozen foods. All stor-
age space in the Annex accordingly is kept at subzero
temperatures. Frozen foods arrive at the Annex by either
rail or truck, and, either way, laborers unload the mer-
chandise onto unrefrigerated dock areas in the ware-
house where the goods are tallied by "checkers."
A "puller," after recording the type and quantity of
the goods, moves them into one of the storage areas,
using a large forklift to do so. (Each puller works in a
designated storage area and is responsible for the orderli-
ness of that area. As that indicates, the pullers' job re-
quire them to spend most of their working day in sub-
zero temperatures. They wear heavy clothing, including
special boots and "freezer suits." Nonetheless the work is
bone-chilling, and the Company provides a "warmup
room" for the pullers.)
Goods are moved in the other direction pursuant to a
delivery ticket that spells out the type of merchandise to
be delivered, the quantity (generally in cases), and the
address of the consignee. A puller, again using a large
forklift, withdraws the merchandise designated by the
delivery ticket from the storage area and deposits it on
the dock. There a checker insures that the merchandise
is correct in number and type. And finally laborers load
the merchandise into the appropriate vehicle.
In early August 1979, one of the pullers in the Annex,
Sylvester Maxwell, met with officials of Local 667 to
discuss organizing Mid-South's employees. As touched
on above, that led to the filing by Local 667 of a repre-
sentation petition on August 22 and an election among
Mid-South's employees (at all three facilities) on October
10.
Ill. THE PREELECTION PERIOD; ALLEGATIONS
INVOLVING SUPERVISOR BILL TUCKER
A. Supervisory Changes in September 1979
For a considerable period up until early September
1979 there was only one supervisor on the day shift at
the Annex, Joe Berretta. Berretta's primary interest lay
in the administrative side of warehouse operations, and
he appeared not to concern himself particularly with em-
1230
MID-SOUTH WAREHOUSE CO.
ployee work habits. From the employees' point of view,
therefore, things in the warehouse were relatively re-
laxed.
On September 2 Mid-South assigned a second supervi-
sor to the warehouse, Billy Tucker. Tucker's interests
were diametrically opposite to Berretta's. He was very
much interested in employee work habits, and things did
not tend to be relaxed within eyeshot of Tucker. There is
no doubt that the employees knew forthwith that Tuck-
er's arrival at the Annex meant change since they knew
Tucker was a disciplinarian. Tucker had been the sole
supervisor at Mid-South's Chelsea facility, and the
Annex employees had heard that Tucker had been
"firing them over [at] Chelsea."3
B. The Alleged Violations of the Act Attributed to
Billy Tucker's Actions
Tucker quickly started demanding that the Annex em-
ployees spend more time at work and less at rest than
was the employees' custom. That occurred in various sit-
uations. But the employees' major complaint about
Tucker had to do with Tucker's reaction to the amount
of time the pullers spent in the warmup room. Tucker
was insistant that the pullers adhere to the Mid-South
rule permitting a maximum of 10 minutes out of every
hour in the warmup room. A number of the employees
were incensed about Tucker's demand. They claimed (to
Tucker in September and then again in their testimony at
the hearing) that there was no such rule, and that they
were doing nothing wrong by remaining in the warmup
room for periods considerably in excess of 10 minutes.
The employees' complaints did not slow Tucker up at
all, and while he did not formally discipline any employ-
ee during the preelection period, he made it very clear
that any puller who wanted to remain employed by Mid-
South had better limit his stays in the warmup room to
10 minutes or less, absent unusual circumstances specifi-
cally authorized by a supervisor. At the hearing both
Tucker and Gardner credibly testified that the 10-
minute-per-hour rule had been in affect at Mid-South for
at least 10 years and perhaps longer. 4 And Tucker said
that his actions regarding the warmup room limitation at
the Annex were no different than his behavior prior to
his arrival at the Annex. Tucker did agree, however, that
the 10-minute rule was not a written one, and that Mid-
South did not make any efforts to advise employees of
that rule or any other rule regarding conduct at work.
Nonetheless, said Tucker, the rule was known by all em-
ployees, and when he originally began work at Mid-
South as an employee, he quickly learned of that rule
(among many others) from his fellow employees.
C. Tucker's Actions in the Preelection Period-
Conclusion
Tucker arrived at the Annex about I month before the
election. And there is no doubt that the pullers at the
Annex had to work harder after Tucker arrived. Tucker
saw to that. But it is also clear that Tucker's crackdown
' Tr. 127 (Witness Lackland).
4 See also testimony of employee Tobey Munson at Tr. 274-275.
on the work habits of the Annex employees had nothing
to do with the Section 7 activities of the employees.
For one thing, there was no showing that Tucker's be-
havior (in the Annex) after the employees began their
unionization efforts was any different than it was (at
Chelsea) before that time. In fact the evidence cuts the
other way. He was known as a tough disciplinarian at his
prior assignment at the Chelsea facility, which was prior
to any unionization efforts, and he continued that pat-
tern, at the Annex, after those efforts got underway.
Secondly, even had the record shown that Tucker was
tougher with the employees at the Annex than he had
been at Chelsea, that would have proven little. The
Annex assignment was a promotion for Tucker, and it
would have been understandable if that had led Tucker
to become more demanding, if only to show that "[he
was] more efficient more than [his] predecessors." Mid-
Island Textile Industries, 214 NLRB 484, 493 (1974). In
any case, as noted above, there was no such showing.
Third, while the General Counsel urges otherwise,
there is no showing that Tucker created a new set of
rules for the employees to follow. The Company had
long had a 10-minute-per-hour warmup room rule, and it
was clear from the testimony and demeanor of the pull-
ers that they knew full well they were supposed to spend
50 minutes out of every hour at work. As for Tucker's
insistence that the men keep working (when they were
not on their 10-minute breaks in the warmup room),
Tucker's criticisms of that nature were appropriate. The
rule that worktime is for work is a standard one. And
the record does not suggest that that was not the case at
Mid-South prior to Local 667's organizing efforts.
In sum, there has been no showing that Tucker's de-
mands that the employees increase the proportion of the
time they spent working was in any way affected by
Tucker's knowledge of the employees' organizing efforts.
There remains the question of whether management's
decision to assign Tucker to the Annex was based on an-
tiunion considerations. While I do not think that it was,
the question merits discussion and is considered below.
IV. THE COMPANY'S DECISION TO SWITCH TUCKER
TO THE ANNEX
As discussed above, the supervisory situation at Mid-
South in August 1979, when the Union filed its represen-
tation petition, included the facts that: (I) Berretta, the
sole supervisor at the Annex, was easygoing in his atti-
tude toward employees; and (2) Tucker, who was then
foreman of the Chelsea operation, was quite the opposite,
a disciplinarian. Mid-South must have known of the dif-
ference in the supervisory styles of the two foremen.
Given the additional facts that one of the employees at
the Annex was responsible for first contacting the Union,
that a number of Annex employees advertised their
prounion attitudes, and that the day shift at the Annex
was the largest shift at any of Mid-South's facilities, the
timing of Mid-South's switch of Tucker from Chelsea to
the Annex could suggest antiunion motivation on Mid-
South's part. Certainly some of the employees at the
Annex seemed to feel that there was a connection be-
tween their unionization efforts and the Company's deci-
1231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion to move Tucker to the Annex. As Annex employee
Lackland testified, "the general atmosphere" among the
Annex employees was that Tucker "was brought from
Chelsea to have someone fired before the election." 5
But the record fails to substantiate Lackland's suspi-
cions.
To begin with, there was no showing that the Compa-
ny knew which employees had sought out the Union.
Secondly, there is no indication in the record that
Annex employees more heavily supported the Union
than employees at the Chelsea or Main facilities. Similar-
ly, the record does not indicate that Mid-South's man-
agement held any views about which of its facilities were
most prounion.
Thirdly, the reasons the Company gave for its decision
to shift Tucker to the Annex and the timing of that shift
make sense and were unrebutted. Prior to April 1978
Mid-South had one supervisor at Chelsea and two at
Main. There was only one foreman at that time at the
Annex, but Mid-South's head of warehouse operations,
Phil Gardner, spent most of his time at the Annex and
helped supervise employees there. In April 1978 one of
the supervisors at Main left Mid-South. Gardner there-
upon moved to Main, leaving only one supervisor, Ber-
retta, at the Annex. About that same time Gardner start-
ed grooming employee Bill Tyra to become a foreman so
that the Company could eventually get back to its earlier
supervisory level.
The busy season at the Annex starts in September.
Gardner credibly testified that under all these circum-
stances the Company decided to make Tyra supervisor
of its smallest operation (Chelsea) in September 1979 and
at the same time to move Tucker, who had once worked
as a employee at the Annex and who was an experienced
supervisor, to the Annex. And what all that adds up to is
that the Company had a sound reason having nothing to
do with the employees' unionization efforts to move
Tucker to the Annex in September 1979.
V. GARDNER'S PREELECTION ACTIONS
Annex employee Lackland testified that sometime
early in September 1979 Gardner told Lackland that
"every time something comes up concerning this Union
.. .your name is mentioned." s Lackland testified that
Gardner went on to say that:
.. a vote for the Union, that means that you will
lose all of your benefits and probably. . . your job.
But a vote for the Company, you'll restore all of
your benefits and keep your job as long as you
want to work here.7
Gardner denied ever saying any such thing. Gardner
agreed that he had a conversation with Lackland early in
September. But Gardner testified that Lackland originat-
ed it by asking, "what was happening?" Gardner said
that he responded, "you know as well as I do."8 Lack-
5 Tr. 122; see also Tr. 127.
6 Tr. 82. In quoting from the transcript I will sometimes change pro-
nouns and tenses to fit the context in which the quote is used.
7 Id.
8 Tr. 350.
land went on to ask, Gardner testified, "will this affect
my year-end bonus?" According to Gardner he said,
"Jimmy, your guess is as good as mine."9
I believe Gardner, not Lackland. Throughout much of
Lackland's testimony, both at the March hearing and the
reopened hearing in September, I got the impression that
Lackland either deliberately shaded his testimony in his
own favor or had the kind of memory that led him to
recall events as he wished they were or felt they should
have been. Gardner's recollections, on the other hand,
seemed to more closely track what apparently had hap-
pened. ' o
Two other allegations regarding Mid-South's preelec-
tion conduct also involved Gardner. One involved an ad-
mitted mistake by both a puller and a checker that even-
tuated in an incorrect shipment going out to a customer.
Gardner criticized the personnel involved. In the course
of criticizing the checker Gardner said, according to the
checker (Lewellen) "I know that you're in on this
deal."" I Gardner denied making any such statement, and
I credit that denial. 1 2
The checker also testified that Gardner said: "You
people think you've got it bad around here. A lot of
places, if you made this kind of mistake, you'd be
gone." 1 3
There is no dispute that Gardner made that statement.
And while Gardner's "you people" phraseology could be
deemed to be a reference to union supporters, the state-
ment was far too unspecific and ambiguous to constitute
any form of violation of the Act.
As a final matter relating to Gardner, in early Septem-
ber Gardner came across two Annex employees standing
together on the dock. He told them to stop talking and
to keep moving. It is unremarkable for a supervisor in
Gardner's position to tell employees to get back to work
when he sees them socializing during worktime. The in-
cident signifies nothing.' 4
9 Tr. 350-351.
'o In Gold Standard Enterprises, 234 NLRB 618, 619 (1978), the Board
referred to testimony by two employees that was "in direct contradiction
of certain statements of their present supervisors." Neither employee was
a charging party and neither was alleged to be a discriminatee. "The tes-
timony of a witness in such circumstances," said the Board, "is apt to be
particularly reliable, inasmuch as the witness is testifying adversely to his
or her pecuniary interest, a risk not lightly undertaken." At the time
Lackland testified on this matter he was still employed by Mid-South,
and the General Counsel argues (at p. 5 of his October 20 brief) that Gold
Standard applies to Lackland's testimony. I did follow the reasoning of
Gold Standard in evaluating some of the testimony in this proceeding.
But at both hearings in this proceeding, Lackland and several other Gen-
eral Counsel witnesses clearly saw their interests as allied with the
Charging Party's and made no effort to hide the hostility to Mid-South's
supervisors. Application of the Gold Standard approach to the testimony
of those employees would not help in the search for the truth.
" Tr. 131-132.
1" Lewellen seemed to be burning with hostility and rage to the extent
that his recollections could too easily have been distorted. His discharge
by Mid-South (which is not claimed to be discriminatory) added to that
likelihood. Moreover a statement like "I know you're in on this deal" did
not sound like the sort of thing Gardner would say.
is Tr. 131.
" There was some testimony of various other incidents of alleged har-
assment by supervisors, including a claimed antiunion speech by Mid-
South president, Edwards. But I subsequently ruled that matters pertain-
Continued
1232
MID-SOUTH WAREHOUSE CO.
VI. POSTELECTION INCIDENTS
While the complaint is not entirely clear, it appears
that the General Counsel alleges that all criticism of and
disciplinary measures against the eight named employ-
ees1s up until the time of the first hearing (March 6,
1980) constituted violations of Section 8(aX3) of the
Act.16 This part of the decision will cover the period
October 3 (the date of the election) until early March
1980.
A. November 15, 1979, Written Warning of Lackland
Tucker wrote Lackland up for "improper warehous-
ing" on the ground that Lackland miscounted merchan-
dise (apparently in the process of storing it in the freez-
er). 7 No one claims that the warning misstated any facts
and it was not unusual for the Company to discipline em-
ployees for miscounts. There is no evidence that the inci-
dent represented discriminatory treatment by the Compa-
ny.
B. The December 6, 1979, Written Reprimand of
Lackland and Willie Deener
On December 6, 1979, Tucker issued written repri-
mands to Lackland, Willie Denner, and Rufus Dansby
for staying in the warmup room too long.' 8 As I view
the record, those reprimands represented only what they
purported to be: Discipline of employees for violating
Tucker's explicit instructions about the time limit for re-
maining in the warmup room. For one thing, there is no
indication that antiunion employees would have been
treated in a dissimilar way. Rather, the reverse is true.
Dansby, one of the three employees disciplined on De-
cember 6, was the Company's observer at the election on
October 3. For another, Tucker had made it very clear
during the preceding couple of months what he expected
of employees in regard to sojourns in the warmup room
(as discussed above). When Dansby, Deener, and Lack-
land ignored those repeated instructions by Tucker, they
deservedly were disciplined.
C. The December 28 Written Reprimand of Lackland
On December 28 Lackland received a writtem repri-
mand on the ground that he had made four errors in
pulling an order."' It is undisputed that he did make
those errors, and the Company routinely does discipline
employees for miscounts. There is no evidence that the
reprimand constituted discriminatory treatment.
ing to that alleged speech were outside the scope of this proceeding. See
in this connection G.C. Exhs. I(h) and (g) (letter dated November 7,
1979).
t" James Lackland, Doug Miller, Sylvester Maxwell, Willie H.
Deener, Forrest Deener, Charles Lewellen, Oscar L. Jones, and Adam
Hill, Jr.
"i The original complaint (in Case 26-CA-8075) referred generally to
Mid-South enforcement "on or about September 3, 1979, and at all times
thereafter" of work rules "in a more stringent manner" by Mid-South "is-
suing . . . verbal and written warnings, to the eight employees listed
above. The amendments to the complaint, on the other hand, refer to
eight specific events, the earliest of which occurred on March 14, 1980.
17 G.C. Exh. 4(e).
18 G.C. Exhs. 3(a), (b), and (c).
'9 G.C. Exh. 4(f).
D. February 12, 1980, Warning of Lackland
When a forklift is carrying any substantial quantity of
goods and the forks on which the goods are resting are
not close to the floor, it is difficult for the driver to see
where he is going. For that reason, among others, Mid-
South's forklifts have printed on them an instruction that
the forks must be kept close to the ground when the
forklift is moving (OSHA rules are comparable). On
February 12, 1980, Lackland drove his forklift out of the
freezer while carrying a rack of goods with the forks in
a high position. Lackland failed to see Gardner and
Tucker standing nearby and came within inches of hit-
ting Tucker. Gardner stopped Lackland, criticizing him
for driving improperly, and put a note regarding the in-
cident in Lackland's personnel file.20
Several of the General Counsel's witnesses claimed
that starting about the time of the election Tucker and
Gardner deliberately began walking in front of the fork-
lifts. I credit Tucker's denial. I further credit the discrip-
tion of the incident as portrayed in Tucker's testimony
and in Gardner's note. There is nothing about the inci-
dent or the criticism of Lackland that followed that rep-
resents discriminatory behavior by Mid-South.
E. February 13, 1980, Warning of Lackland
According to a note dated February 13, 1980, on that
date Gardner saw Lackland driving his forklift "in a fast
and dangerous manner."2 1 The note goes on to indicate
that Gardner told Lackland that unless Lackland drove
safely "disciplinary action would be taken." (Lackland
did not contend that he was driving normally. Rather he
told Gardner that he was trying to get goods from the
dock into the freezer as fast as possible.)
It is not unusual for Mid-South to criticize and disci-
pline employees for unsafe forklift driving. Here one day
after Lackland had been criticized for driving with the
forks up and consequently nearly colliding with his fore-
man he was again seen driving too fast. The resulting
warning was to be expected. Nothing about the incident
suggests discriminatory motivation by Mid-South.
vii. MID-SOUTH'S DISCIPLINARY ACTIONS AGAINST
LACKLAND, MARCH 14 THROUGH AUGUST 1, 1980
Lackland was a prounion employee from the start; he
testified on behalf of the General Counsel at the March
1980 hearing in this proceeding; and then, that same
month, began wearing a "Teamsters" windbreaker to and
from work. (He was the only Mid-South employee to
wear such a garment.) The General Counsel and Local
667 claim that Lackland's well-advertised prounion
stance and his testimony on behalf of the General Coun-
sel in March led the Company to focus its attention on
him and ultimately to fire him. The incidents in question
are the following: Mid-South's 2-day suspension of Lack-
land on March 14, 1980; criticism of Lackland and sever-
al other employees sometime in the neighborhood of
mid-April 1980 for remaining in the warmup room too
20 G.C. Exh. 4(i).
2' G.C. Exh.
4
(j).
1233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long; further criticism of Lackland and another employee
sometime in mid-April; the July 18, 1980 demotion of
Lackland; and the August 1, 1980 discharge of Lackland.
These various incidents are discussed below.2 2
A. The March 14 Suspension of Lackland
Sometime early in the week of March 10, 1980, Lack-
land made a high speed U-turn. Lackland's clipboard
skidded off the forklift onto the floor and the turn made
tire marks on the floor. Tucker happened to be nearby.
He told Lackland to slow down, pointed to the tire
marks on the floor, and discussed with Lackland the cost
of replacing forklift tires.2 3
Later that same week, on March 14, Lackland, on his
forklift, collided with an electric "scooter." Tucker again
was nearby. As Tucker witnessed the event, Lackland
backed out of the freezer, continued straight down the
warehouse aisle for another 30 feet or so, and then
smashed into the scooter. The impact was considerable
and the scooter was moved about 18 inches across the
floor. Tucker testified that Lackland then began to drive
away from the site of the accident. Lackland claimed
that the scooter was parked out of his line of sight
behind a larger vehicle and that he hit the scooter after
swerving around the other vehicle. Tucker disagreed.
The record indicates that there was no substantial
damage to either Lackland's forklift or the scooter. But
it is clear that: (1) there was a sharp impact between the
two vehicles; (2) Lackland drove off without stopping
and in a manner that indicated that he intended to ignore
the fact of the accident; (3) whether or not Lackland had
to swerve to avoid another vehicle, the collision with the
scooter was a product of carelessness on his part.
The General Counsel and Local 667 claim that there
was nothing unusual about forklift accidents at Mid-
South. To some extent that appears to be the case. On
the other hand it is not uncommon for Mid-South to dis-
cipline employees for unsafe forklift driving, particularly
when the improper driving has resulted in an accident of
some type. And here there was substantial impact be-
tween the two vehicles; it was witnessed by a supervisor;
the driver (Lackland) had been criticized three different
times within the past month or so for unsafe forklift driv-
ing; and the driver appeared to have no intention of re-
porting the accident. Under all these circumstances it is
not surprising that Tucker determined to take discipli-
nary action against Lackland. The nature of that action
was a 2-day suspension.
There is nothing about the incident that suggests dis-
criminatory motivation on the part of Mid-South.
B. The Warmup Room Incident
Sometime in the spring of 1980, and probably about
mid-April, Lackland, Oscar Jones, Forrest Deener,
Willie Deener, and, perhaps, Sylvester Maxwell re-
mained in the warmup room several minutes in excess of
the 10-minute maximum that Tucker had been insisting
22 Evidence concerning these incidents was heard at the reopened
hearing (in September 1980).
13 Lackland denied leaving skid marks on the floor or any discussion
by Tucker of tire marks. I credit Tucker.
upon. Gardner noticed that and criticized the employees
for that behavior. No formal disciplinary action was
taken and nothing was entered into any of the employ-
ees' personnel files about the matter.
This seems to have been the first time in a long while
that Gardner had said anything to employees about re-
maining in the warmup room too long. While in some
circumstances that could be suspicious, Gardner knew
that Tucker had been insisting that employees adhere to
the 10-minute limit, the employees were not formally dis-
ciplined, and nothing that Gardner said related to any-
thing but the fact of the employees overstaying their
time in the warmup room. Under all these circumstances
I cannot find that the record supports the claim of the
General Counsel and Local 667 that Gardner's action
was discriminatorily motivated.2 4
C. The April "No Talking" Incident
Sometime in mid-April, Foreman Joe Berretta noticed
Lackland and Forrest Deener chatting in one of the
Annex's freezer areas. Berretta separately called Lack-
land and Deener to the side and told each of them that
their time in the freezer was for working, not talking,
and that they should save conversation for the warmup
room. No formal disciplinary action was taken against
either Lackland or Deener. Berretta's criticism was very
mild, Berretta in no way suggested that his employee,
and all-in-all the incident was a trivial one. I have con-
sidered the fact that Berretta was known as a lenient su-
pervisor (as discussed earlier). Nonetheless the record
fails to support any suggestion that Berretta's action was
motivated by any protected activity of any employee.
D. Lackland's Demotion on July 15, 1980
Three incidents relevant to Lackland's relationship
with Mid-South's management occurred between April
and July 15, 1980. The first, in mid-May, stemmed from
a miscount by Lackland of some merchandise he stored
in the freezer. Lackland received a written reprimand for
making the error.25 (The General Counsel does not
claim that the reprimand was discriminatorily motivat-
ed.) The second related to a collision between a forklift
driven by Lackland and a rack of merchandise. Tucker
told Lackland that he was not going to be disciplined be-
cause the accident was caused at least in part by the im-
proper placement of the merchandise by the night crew.
The third incident involved a compliment of Lackland
by Tucker-in early July Tucker told Lackland that he
was doing good work.
Then, on July 15, Lackland failed to lower the forks
of his forklift far enough while picking up some cases of
2" The employees testified that Tucker had told them that they could
remain in the warmup room up to 15 mimutes, and that they said this to
Gardner. That testimony is largely irrelevant in regard to Gardner's mo-
tivation in criticizing the employees. In any case the record in this pro-
ceeding makes it clear that Tucker was strict about the 10-minute rule
and that he at no time indicated that employees could freely remain in
the warmup room for as long as 15 minutes. Tucker had told employees
that they could remain in the warmup room in excess of 10 minutes upon
specific approval by a supervisor. But none of the employees criticized
by Gardner claimed to have received any such specific approval.
2s G.C. Exh. 9.
1234
MID-SOUTH WAREHOUSE CO.
potatoes at a dock area of the warehouse. Two of the
cases were punctured. Lackland backed up, lowered the
forks, picked up the rack of cases, and started to move
off toward the freezer. Tucker was nearby and had seen
the incident. He stopped Lackland and told him to
remove the damaged cases from the rack. Not long
thereafter Tucker removed Lackland from his forklift
driving job and assigned him to a job that entailed
manual labor-unloading railroad cars. The job change
clearly was a demotion, resulting railroad cars. The job
change clearly was a demotion, resulting in a pay cut of
from $4.70 per hour to $4.15 per hour.
The General Counsel and the Union claim that the de-
motion was obviously discriminatorily motivated. They
cited testimony to the effect that damage of goods by
forklift drivers is a nearly daily occurrence at Mid-South;
in this instance Lackland did not even know that he had
damaged anything; the damaged goods had a very low
value; and in many instances of employee damage to
goods that came to the attention of Mid-South supervi-
sors, the employees were not disciplined in any way,
much less demoted. Finally, the General Counsel and the
Union point out that there is no record of Mid-South
ever having demoted any employee except for Lackland.
The Company argues that by this time Lackland had
been warned numerous times about his forklift driving;
that the instances cited by the General Counsel and the
Union regarding employees not being disciplined for
damaging goods were always accompanied by extenuat-
ing circumstances; that Lackland must have known that
he had damaged the cases of potatoes; and, most impor-
tantly, Lackland's failure to immediately separate the
damaged cases from the good ones was a serious breach
of his responsibilities.
The record supports Mid-South. First, the events lead-
ing up to the July 15 incident fail to reflect any intent on
Mid-South's part to attack Lackland for his prounion be-
havior. As for the July 15 incident itself, the record is
clear that Lackland knew that he had damaged the pota-
toes and that he planned to place the entire rack of pota-
toes, including the damaged cases, in the freezer without
doing anything about the damage the record is also clear
that Mid-South supervisors find particularly objection-
able any failure by employees to report and deal with
damage they have caused. As for the relatively low cost
of the damage done, under the circumstances that was of
much less significance than Lackland's record of careless
forklift driving and his apparent attempt to cover up the
accident.
While Mid-South had never before demoted anyone,
that says little. Mid-South has fired employees for vari-
ous kinds of unsatisfactory performance. And demotion
is obviously less severe than discharge. As Tucker put it,
"I would consider that [Lackland's demotion] trying to
keep a man on his job."2 6 In sum, the record fails to sub-
stantiate any claim that Mid-South's demotion of Lack-
land was discriminatorily motivated.
26 Tr. 915.
E. Lackland's Discharge
The job of unloading railroad cars at Mid-South is
tough physically-it involves the day-in-day-out manhan-
dling of cases weighing 10 to 40 pounds. And while the
temperature in the cars does not get hot, it can get
warm. Lackland had spent about 2 years unloading rail-
road cars for Mid-South, from about 1974 to 1976. But
the job from which he was demoted was poor prepara-
tion for the railroad car work. Lackland's job as a puller
involved little if any heavy manual labor, and the tem-
peratures in which Lackland spent his working day were
in the subzero range.
Tucker was aware of that and testified credibly that he
determined to give Lackland a week to get in shape and
did not attempt to evaluate Lackland's performance
during that first week.
Mid-South uses a crew of three employees to unload
each railroad car. Soon after Lackland began his new as-
signment, one of Lackland's coemployees complained to
Tucker about Lackland. According to that employee,
Lackland spent his time complaining about the job,
"slowed everything down," and "put too much on the
other employees." And it is clear that much of the time,
and perhaps all of it, Lackland worked at a slower pace
than the other two members of the unloading team.
By Tuesday, July 29, Lackland had been on his new
job for nearly 2 weeks. Nonetheless, he continued to
work slower than his fellow employees. In at least one
instance, moreover, he refused to help them dismantle
some unloading equipment at the end of the day. That
led one of the other members of the railroad car unload-
ing team to complain to Tucker again. Tucker observed
the team's work, saw that Lackland was not keeping up,
and told Lackland that. Later that same day, he saw
more evidence of Lackland falling behind the other em-
ployees in his unloading efforts. Tucker again spoke to
Lackland about it.
Finally, about July 31, when it again was obvious that
Lackland was failing to keep up with his coemployees,
Tucker told Lackland, according to Lackland's testimo-
ny: "The Company has worked with you, I have worked
with you, and it just ain't working out.... I'm just
going to have to let you go." 27
Tucker spoke to Gardner about his decision, Gardner
concurred with it, and on August I Lackland was dis-
charged.
Lackland agreed that his work unloading railroad cars
was subpar. As he put it: "I was trying the best I could.
I just couldn't do it."28 Thus, the only question is
whether it was unreasonable of the Company to neither
give Lackland more time to get accustomed to the un-
loading job nor take some action less severe than dis-
charge. But I cannot find that Tucker's view that a week
should have been enough for Lackland to get in shape,
or the Company's decision to fire Lackland rather than
take some less drastic action, is any indication of dis-
criminatory motive. Tucker's testimony about his belief
that a week should be enough for any employee to get
27 Tr. 529.
'. Tr. 531.
1235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into shape for the railroad car unloading job was credi-
ble, and nothing in the record either directly indicates
that Tucker's testimony on this point was not truthful or
shows that an average employee in Lackland's shoes
would have been unable to do the railroad car unloading
job satisfactorily after a week's acclimatization. As for
the discharge, Lackland had failed to properly carry out
his duties as a forklift driver and then failed to perform
properly in the railroad car unloading job. Given that
double failure, there is nothing suspicious about the
Company's decision to discharge Lackland rather than
find another kind of job for him.
VIII. MAXWELL'S REPRIMANDS
A. The April 30 Reprimand
In middle or late April 1980, Maxwell pulled too many
cases on a particular order. The checker caught the
error, so the error did not result in any cost to the Com-
pany. Tucker spoke to Maxwell about the matter and
told Maxwell to be especially careful since many of the
items in Maxwell's area of the warehouse were relatively
costly (such as frozen shrimp and crab legs). Then, on
April 30, Maxwell pulled cases in lot number 66936
rather than the 66935 lot number called for by the deliv-
ery ticket. Moreover Maxwell pulled two more cases
than the delivery ticket called for. Maxwell claimed that
the lot numbers on the cases were difficult to read. From
Tucker's point of view it was obvious that Maxwell had
been careless since (1) all of the cases that Maxwell
pulled bore the wrong lot number and (2) faded lot num-
bers failed to explain the improper quantity that Maxwell
pulled. That led Tucker to give Maxwell a written repri-
mand. 2 9
There is simply no evidence that Maxwell's support
for the Union or his testimony at the March 1980 hear-
ing in this proceeding had anything to do with the repri-
mand. Maxwell pulled an order improperly not long
after being criticized by a supervisor for a similar mis-
take, criticism or discipline of employees by Mid-South
supervisors for miscounts of various kinds are common;
and there is no dispute that the facts stated on the repri-
mand were accurate.
B. Maxwell's May 12 Reprimand
In view of the subzero temperature of the Annex's
storage areas, all of the Annex's pullers wear "freezer
suits" in order to do their jobs. Maxwell is no exception.
At lunchtime on May 12, 1980, Maxwell, while still
wearing his freezer suit, decided to go to a restaurant
across the street from the warehouse. It was raining, but
only lightly, when Maxwell left the warehouse. When
the time came for him to return, however, it was raining
hard. Whether or not Maxwell could have done some-
thing to keep himself and/or his freezer suit dry, he did
not. He crossed the street wearing the freezer suit, get-
ting the freezer suit very wet. That was a problem since
working in the freezer with a wet freezer suit would
have almost guaranteed serious sickness or injury. Max-
'" O.C. Exh. 11.
well's response was to take off the freezer suit and hang
it in the warmup room to dry out. While the suit was
drying Maxwell helped out on the warehouse dock. He
did not discuss any of this with any Mid-South supervi-
sor.
Tucker came across Maxwell while Maxwell was
working on the dock. Tucker let it be known that he
wanted Maxwell in the freezer, to which Maxwell re-
sponded something on the order of "I'm not going into
the freezer," and then, when he noticed Tucker's look of
incredulousness, explained that his freezer suit was wet.
Tucker's response was to tell Maxwell to come into the
office.
In the office, Tucker told Maxwell that Maxwell
should have reported the problem, and that if he had,
Tucker could have made available to Maxwell an extra
freezer suit that the Company kept on hand. Tucker then
determined to give Maxwell a reprimand. Tucker testi-
fied credibly that his decision was based on the facts that
(I) Maxwell had refused his order to go into the freezer;
(2) Maxwell had not told Tucker about the problem; and
(3) Maxwell should not have worn the freezer suit in the
rain. The reprimand itself states that Maxwell was
"Warned for refusing to obey work order. Based upon
your failure to maintain proper care of work clothes."3 0
Tucker's reprimand of Maxwell was a reasonable re-
sponse to Maxwell's behavior. And nothing that Tucker
did or said in any way suggested that his actions were
motivated by Maxwell's testimony on behalf of the Gen-
eral Counsel back in March, or by Maxwell's prounion
stance, or by any other protected activity. In sum, there
is no indication that the disciplinary incident was discri-
minatorily motivated.
IX. ALLEGATIONS THAT TUCKER CONNECTED PAY
RAISES WITH SUPPORT FOR THE COMPANY AGAINST
THE UNION
In early July 1980, Mid-South gave pay increases to all
its employees. Tucker handled that by calling each of the
Annex employees into his office individually, and advis-
ing each employee of the raise he was to get. Practically
all of the employees got raises of 25 cents per hour. John
Henry Jones, Jr. and C. M. Mason were two of the em-
ployees Tucker spoke to.
As Jones related it, Tucker told Jones that he "was
doing a darn good job," and that his raise would be 25
cents per hour. Tucker then told Jones that he thought
that he could get Jones "a little bit more," 31 and tele-
phoned Gardner about the matter. After a short tele-
phone conversation, Tucker told Jones that he would be
getting a 30-cent-per-hour raise and then went on to say,
according to Jones' testimony: "I hope that you will be
for the Company. I don't know which way you are
going to go, but I hope you will go that way."3 2
The .conversation apparently went on a little while
longer with Tucker saying something about blood being
"thicker than water," an apparent reference to John
30 G.C. Exh. 12.
al Tr. 739.
12 Tr. 740.
1236
MID-SOUTH WAREHOUSE CO.
Henry's brother, Oscar Jones, a Mid-South employee
who was strongly prounion. Jones agreed that Tucker
did not ask Jones about his views on the Union, did not
say that the raise had anything to do with Jones' position
regarding the Union, and did not say that any future
raise would be connected with Jones' position regarding
the Union.
Tucker's testimony was generally in accord with
Jones' on matters pertaining to the wage increase. But
Tucker denied saying anything to Jones about being for
the Company or against the Union.
Mason's testimony was much the same as Jones'.
Tucker told Mason about a 25-cent-per-hour wage in-
crease Mason was to get and then said, according to
Mason:
They're fixing to start the Union back up .... I
wish you'd stay away from it. .... You're a grown
man. You're going to do what you want . . . But
. . I wish you would stay away from it." 3 S
Mason responded, he said, with an "I will," to which
Tucker said: "so, you go on like that.... I hope you
will stay away from it."3 4
As in Jones' case Mason agreed that Tucker did not
ask Mason about Mason's position on unionization, did
not say that the raise had anything to do with Mason's
union views, and did not say that future raises would be
connected with Mason's position regarding the Union.
Tucker denied saying anything to Mason regarding
staying away from the Union or being for the Company
or the like.
I credit Jones and Mason. The language Jones and
Mason testified that Tucker used sounds like the kind of
language he would have used. Moreover, statements of
that kind would have been squarely in keeping with the
belief Tucker obviously held that the best way for an
employee to benefit himself was to support the Company
in all ways, even if that meant opposing representation
by a union.
The question that then follows is whether those state-
ments by Tucker amount to a violation of the Act. My
conclusion is that they do not.
The first issue is whether Tucker's comments to Jones
and Mason amount to violations of Section 8(aX1), put-
ting aside for the moment the fact that they were made
in the course of the same conversation that the employ-
ees were notified that each was getting a wage increase.
Tucker's language made it very clear, after all, what po-
sition he preferred Jones and Mason would adopt regard-
ing the Union; the conversation took place in the ware-
house office--"the locus of managerial authority"; 35 the
conversation could not be said to be friendly banter;
each employee was alone in the office with Tucker and
thus without the support of his co-employees, and
Mason's response ("I will") suggests that he may have
felt coerced.
But Tucker's words were precatory ("I wish" and 'I
hope,") and Tucker used other phraseology that made
a3 Tr. 746-747.
s4 Tr. 747.
a1 E.g., Durango Boor, 247 NLRB 361 (1980).
even clearer that his statements were mere expressions of
his personal views, ("I don't know which way you're
going to go," "you're a grown man," "you're going to
do what you want"). Moreover, it was obvious that
Tucker did not call either Jones or Mason into the office
for the express purpose of discussing union questions;3 6
Tucker was the only supervisor present and, as foreman,
he was at the lowest level of Mid-South's managerial hi-
erarchy;3 7 no union organizing effort was underway at
the time, and there is no indication that Tucker's tone of
voice was hostile or threatening.
Under all these circumstances it does not appear to me
that Tucker's statements were violative of employee
rights-putting aside the close chrcnological link of
those statements to Tucker's reference to Jones' and
Mason's wage increases. Indeed, the complaint does not
allege otherwise. 38 Rather, what the complaint does
allege is that the timing of Tucker's expression of views
carried with it the necessary inference that Jones' and
Mason's wage increases were associated with the two
employees' "support of Respondent against the Union's
organizing effort." But the evidence does not sustain that
allegation.
That is most obvious in Manson's case. Munson got
the same 25-cent-per-hour increase that most of Mid-
South's employees got, including visibly prounion em-
ployees. Manson had to have been aware of that in view
of the nature of the Annex employees' interrelationships.
Given that, and given the fact that Tucker said nothing
to connect that wage increase, or any future one, to
Munson's position regarding the union, the circumstances
of Tucker's talk with Munson could not be said to rea-
sonably tend to lead employees to believe there was a
link between a wage increase and an employee's views
on unionization.
The issue is closer regarding Jones, since he received a
30-cent-per-hour increase, 5 cents more than most em-
ployees.39 And consideration of the matter must of
course:
. . . take into account the economic dependence of
the employees on their employers, and the neces-
sary tendency of the former, because of that rela-
tionship, to pick up intended implications of the
latter that might be more readily dismissed by a
more disinterested ear.40
But again, Jones must have been aware that all other
employees were also receiving wage increases, albeit
slightly smaller ones. And in view of the noncoercive
language Tucker used and the absence of any words
linking wage level with union position, my recommenda-
tion is that the Board conclude that Tucker's meeting
36 Compare Durango Boot, supra.
37 See fn. 36, supra.
3' See par. 7(c) of the amended complaint (G.C. Exh. 6(k).
3' According to Tucker's undisputed testimony, all of the Annex em-
ployees got 25-cent-per-hour increases except for one employee who got
a 40-cent increase, one who got a 35-cent increase, and Jones, who got a
30-cent increase: Tr. 840.
4' NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Jones did not runafoul of Section 8(a)(l) in any re-
spect.
X. OVERVIEW
Sections III-IX of this decision analyze, one incident
at a time, numerous interactions between Mid-South su-
pervisors and various Mid-South employees. Viewed in
that manner none of those incidents indicate discrimina-
tory motivation on the part of Mid-South's management.
Yet the apparent reasonableness of a company's behav-
ior viewed on an incident-by-incident basis can mask dis-
criminatory behavior that becomes obvious when one
steps back to look for patterns in the company's actions.
And clearly the evidence in this proceeding aligns itself
into two noteworthy patterns.
The most obvious is the general crackdown on Annex
employees that began in September 1979 and continued
throughout the 11 months at issue in this proceeding.
The other relates to Lackland: He had little trouble with
his supervisors until September 1979, which was when
his union activity began. Then, however, he became the
recipient of a steady stream of criticism and disciplinary
action.
But the crackdown experienced by the Annex employ-
ees was clearly a function of Tucker's arrival on the
scene, as already discussed in Sections II and IV, and did
not stem from any antiunion motivation by Mid-South.
As for Lackland's problems, the pattern noted above
calls for a close look at Mid-South's actions. That is par-
ticularly so in view of testimony which suggested that
Lackland's work habits, while less than wholly desirable,
had been much the same for years. But considerable evi-
dence of record rebuts the inferences raised by the
timing of the Company's actions against Lackland. Thus
the record shows that the source of practically all of
Lackland's difficulties was the presence of a more asser-
tive foreman-Tucker, again. And as for Lackland's rela-
tively minor run-ins with Gardner and Berretta, those in-
cidents simply do not reflect discriminatory motivation,
however carefully one looks for it.
In sum, while Lackland and some other Annex em-
ployees plainly felt that it was their activities on behalf
of Local 667 that was the cause of the more vigorous su-
pervision that began at the Annex in September 1979, the
record fails to show that that was in fact the case.
CONCLUSIONS OF LAW
1. Respondent Mid-South Refrigerated Warehouse
Company, Inc. did not engage in any of the unfair labor
practices alleged in the complaint.
2. Mid-South did not engage in any of the conduct de-
scribed in Objections 2, 4, and 5 of Local 667's Objec-
tions to Conduct Affecting the Result of the Election.
Pursuant to Section 10(c) of the Act, I issue the fol-
lowing recommended
ORDER4 1
The complaint is dismissed in its entirety.
41 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1238