Southland Corp.

National Labor Relations Board - Board Decisions

Jan 25, 1974

208 N.L.R.B. 715 (N.L.R.B. 1974)

SOUTHLAND CORP.
Southland Corporation and Dallas General Drivers,
Warehousemen and Helpers, Local 745, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
16-CA-5133
January 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PFNELLO
On September 21, 1973, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tion and a supporting brief and Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified herein.
The General Counsel excepts to the Administrative
Law Judge's failure to find that a warning notice
given to employee Hart was discriminatorily motivat-
ed and a violation of Section 8(a)(3). The Adminis-
trative Law Judge found that Woodruff told Hart
that the purpose of the Employer's warning notice
was for "when we get ready to fire troublemakers
around here we will issue these and they will be
evidence enough in Court." Furthermore, the as-
signed reason for the warning, viz, for smoking, was
the same as that for the discharge, which we, in
agreement with the Administrative Law Judge, find
to be pretextual and discriminatorily motivated. We
thus find the warning notice to be equally pretextual,
and that the giving of the notice was designed to
discourage Hart's union activities.2 Therefore, we
find merit in the General Counsel' s exception and
shall modify the Conclusions of Law, the Remedy,
and the recommended Order of the Administrative
Law Judge as follows:
REMEDY
Having found that Respondent issued a warning
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544. enfd. 188 F 2d 362 (C A 3, 1951). We have carefully
715
notice to Lowell P. Hart for an unlawful purpose, we
shall order that the Respondent rescind that notice
and expunge any reference to it from Hart's and its
personnel files. iii addition to taking the other
required action recommended by the Administrative
Law Judge to remedy the unfair labor practices
found herein.
CONCLUSIONS OF LAW
Substitute the following paragraph for paragraph 4
contained in the Conclusions of Law in the Adminis-
trative Law Judge's Decision:
4. By discharging Lowell P. Hart, John M.
Culpepper, and Mickey Hubbard, and issuing an
unfounded warning notice to Hart, thereby
discriminating in regard to their hire and tenure
of employment, in order to discourage member-
ship in the Union, the Respondent has engaged in
and is engaging in conduct banned by Section
8(a)(3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Southland Corporation, Owentown, Texas, its offi-
cers, agents. successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge for
assisting or joining the Union.
(b) Issuing unfounded warning notices to employ-
ees in order to discourage union membership.
(c) Discharging employees, thereby discriminating
in regard to their hire or tenure of employment, in
order to discourage membership in Dallas General
Drivers, Warehousemen and Helpers, Local 745,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Lowell P. Hart, John M. Culpepper,
and Mickey Hubbard immediate and full reinstate-
ment to their former jobs or, if these jobs no longer
exist , to substantially equivalent positions, without
prejudice to their seniority or other privileges
previously enjoyed; make them whole for any loss of
examined the record and find no basis for reversing his findings.
In adopting the Administrative Law Judge 's 8(a)(3) finding as to the
discharge of employee Hart. we rely on Plant Manager Hightshoe 's speech
only to show Respondent's knowledge of Hart's union activity.
2 Murphy Body Works. Inc, 174 NLRB 824. 827.
208 NLRB No. 108
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay which they may have suffered as a result of the
discrimination practiced against them , in the manner
set forth in the section of the Administrative Law
Judge's Decision entitled "The Remedy"; and
rescind the warning notice issued to Lowell P. Hart
and expunge any reference to it from Respondent's
personnel files.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) . Post at its warehouse in Owentown, Texas,
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the
Regional Director for .Region 16, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by anyother material.
(d) Notify the Regional Director for Region 16, in
wri ting;. within 20 days from the date of this Order;
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed. as to those allegations not specifically
found herein.
3 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the law
when we discharged Lowell P. Hart, John M.
Culpepper, and Mickey Hubbard because of their
activities on behalf of the Union.
WE WILL NOT discharge our employees from
work, thereby discriminating in regard to their
hire and tenure of employment, in order to
discourage their membership in Dallas General
Drivers, Warehousemen and Helpers , Local 745,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and, Helpers of America, or
any other labor organization.
WE WILL NOT give out unfounded warning
notices so as to discourage union membership.
WE WILL rescind the warning notice issued to
Lowell P. Hart.
WE WILL NOT threaten our employees with
discharge for assisting or joining the above-
named Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the National Labor Relations Act, as amended.
WE WILL make Lowell P. Hart, John M.
Culpepper, and Mickey Hubbard whole for any
loss of pay they may have suffered as a result of
our discrimination practiced against them due to
their union activities, and WE WILL reinstate them
.to their former positions or, if those jobs no
longer exist, to substantially - equivalent jobs,
without prejudice to their seniority or previous
privileges.
All our employees are free to become, remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization.
SOUTHL.AND
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room
8-A-24, 819 Taylor Street; Fort Worth, Texas 76102,
Telephone 817-334-2921.
DECISION
STATEMENT OF THE CASE
,MAx ROSENBERG , Administrative Law Judge : With all
parties represented, this case was tried before me in Tyler,
Texas, on July 10 and 11, 1973, on an amended complaint
filed by the General Counsel of the National Labor
SOUTHLAND CORP.
Relations Board and an answer filed thereto by Southland
Corporation, herein called the Respondent.) The issues
raised by the pleadings relate to whether Respondent
violated Section 8(a)(3) of the National Labor Relations
Act, as amended, by discharging employees Lowell P.
Hart, John M. Culpepper, and Mickey Hubbard, and
whether Respondent independently violated Section
8(aXI) by other conduct to be detailed hereinafter. Briefs
have been received from the General Counsel and the
Respondent which have been duly considered.
Upon the entire record made in this proceeding,
including my observation of the witnesses who testified, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Delaware corporation, maintains a place
of business in Owentown, Texas, where it is engaged in the
wholesale distribution of food. During the annual period
material to this proceeding, Respondent sold and distribut-
ed products from that facility valued in excess of $50,000,
of which products valued in excess of $50,000 were shipped
from its Owentown, 'Texas, facility, to points located
outside the State of Texas. The complaint alleges, the
answer admits, and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that Dallas General Drivers,
Warehousemen and Helpers, Local 745, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(3) of the Act by discharging Lowell P. Hart on April
19, 1973,2 and John M. Culpepper and Mickey Hubbard
on April 20, because. they joined and assisted the Union in
its organizational drive at Respondent's Owentown instal-
lation. The complaint . further alleges that Respondent
offended the provisions of Section 8(axl) by threatening
employees that they would be discharged if, they joined or
aided the Union, and by warning employees that their
rendition of assistance or support to the Union would
inevitably cause work stoppages with the result that they
would lose their jobs. Respondent denies the commission
of any labor practices proscribed by the statute.
Sometime in 1972, Respondent embarked upon the
construction of the Owentown facility, which. is known as
the Southland Distribution Center. To erect the structure,
Respondent retained a contractor whose employees en-
I The complaint , which issued on May 31, 1973, is based upon charges
and amended charges filed and served on April 17, 23, and 26, 1973. On
July 2, 1973, a third amended charge was filed and served on the various
parties, ostensibly to delete the name of Johnny Potter as an alleged
discriminatee in this proceeding.
2 Unless otherwise indicated ,, all dates herein fall in 1973.
717
gaged in construction activities during the times material
herein . Upon completion of the project, Respondent was
programmed to computerize the warehousing of packaged
foods and other products, and to distribute these items to
customer store locations. On January 1, Respondent began
staffing its work complement and, around March 15, it
received,its first shipment of merchandise in the warehouse
area. On April 30, Respondent opened its doors for
business.
Lowell P. Hart testified and I find that he was hired at
the Center in the latter part of February as a general
trainee and" was employed in maintenance work under the
supervision of Maintenance Supervisor Willard Woodruff.
About a week following his employment, Hart became
interested in collective representation and telephoned a Joe
Dixon, an official of the Union located in Dallas, to seek
information regarding the subject. On April 10, a union
meeting was conducted in Hart 's,home which was attended
by employees John Potter and alleged discriminatee John
Culpepper. With Hart's consent, E. L. Jennings, Jr., the
Union's assistant business representative, dispatched a
letter on April II to Jack Seeley, Respondent's personnel
manager, which recited:
This is to advise you Southland Distribution Center
employee Lowell Patrick Hart will be actively working
as a Union Organizer; in an attempt to organize your
plant.
Mr. Hart's activities will remain strictly within his
lawful individual rights to self organize.
It is undisputed and I find that Respondent received this
letter on April 12.
On April 13 , Woodruff instructed Hart to attend a
meeting in the lunchroom. In the presence of approximate-
ly 50 assembled employees, Plant Superintendent M. W.
Hightshoe read the following printed speech:
Today, I am going to talk with you briefly concerning
unions-,a matter which I believe is of mutual concern.
First, the position of your Company is that we do not
want to do business with the Teamsters Union or any
other union.
We know unions. will not help us to operate this
business efficiently or profitably.
We do not believe a union will do anything for you
other than to cause you to _pay union dues and possibly
involve you in strikes which could result in the loss of
your job.3
Before any of you were employed, we surveyed this
area to find out what wages and benefits were being
paid. It is my belief that your wage scales compare very
3 In his testimony, Hart initially asserted that Hightshoe remarked in his
speech that "Unions would not cause anything but strikes and problems
and would probably cause you being fired from this plant." When shown
the text of Hightshoe's speech, Hart readily agreed that the former's
reference to "strikes" was as reported in the written address, and I so find.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favorably with those of other employees in the area
doing comparable work. I know our benefit program is
an outstanding one.
You did not have to pay a union to get these. We're
going to continue to do the very best we can for you.
Yesterday I received a letter from [E. L. Jennings,
Jr.-a reference to the letter concerning Hart.]
Now, Mr . Hart has the right to try to get you to join the
union on his own time . We will insist that during the
time he is being paid to work that he does his job.
I think you folks are too intelligent to be taken in by
Mr. Hart.
Texas has a right-to-work law , and no one can be
forced to join any labor organization to get or keep his
job here.
I urge you not to sign a union authorization card
unless, after serious thought, you're certain you want a
union, because should you sign one, you won't be able
to get it back should you realize later you've made a
mistake.
Thank you for your attention.
A few days following the speech, Hart engaged in a
conversation with Hightshoe in the latter's office. It is
Hart's uncontradicted testimony, upon which I find that,
while he was placing coat hangers in the office, Hart asked
his superior, "Mr. Hightshoe, I sure wish you could try to
work something out with us." Hightshoe retorted, "I don't
have to try to work anything out with you. It is too bad
that a nice young man like, you would have to get messed
up in an organization like you are messed up with because
you would have had a great future at this plant "4
Hart further . testified that, when he first reported for
work in February, a meeting was held among the
employees during which plant rules were discussed. One of
these rules prohibited smoking in the warehouse. Sometime
after his entrance upon duty, Woodruff informed Hart that
"until otherwise notified that I could smoke in the
warehouse until they changed the rule." Thereafter, Hart
smoked in the warehouse and, specifically, in the baling
and shredding room.5 About a week prior to his discharge
on April 19, Hart was instructed by Woodruff to post "no
smoking" signs in the air-conditioned area and the
warehouse. When Hart inquired whether he should affix a
sign to the wall in the Baling and Shredding Room,
Woodruff replied, "No, I just said the warehouse and AC
room." According to Hart, the Baling and Shredding
Room was not functional at that time, nor was it put into
productive operation prior to his discharge, although the
shredding machine had been placed in the room. In
conformity with Woodruff's instructions, Hart did not post
a "no smoking" sign in the baling and shredding room and
no such sign was there displayed prior to his discharge.
* Hightshoe was not called to testify in this proceeding.
S In this room , Respondent contemplated depositing cardboard from
unpacked merchandise cartons where it was to be placed on a conveyor and
From that date until April 18 , Hart averred thathe, as well
as Woodruff and the construction employees, freely
smoked in that area.
On April 18, Woodruff dispatched Hart to the baling
and shredding room to learn from the shredding machine's
supplier how to feed baling wire into the mechanism. It is
Hart's testimony that the sole material in the room
consisted of baling wire which was positioned on pallets.
While Hart observed"the wiring procedures, he and a
construction employee commenced to smoke, and another
construction employee ignited an oxygen -acetylene torch
to cut a brace which caused sparks to .spew throughout the
room. At this juncture, Norman Long, the warehouse
manager, appeared and stated, "Mr. Hart, you know this is
a no-smoking area. There are written and verbal rules that
you shouldn't be smoking in here . Put out your cigarette."
Hart dutifully complied . A few minutes later, Woodruff
directed Hart to the lunchroom for a talk with Long. When
Long arrived, he commented that "I have a warning letter
that I want you to sign." Long placed the letter on a table
and Hart read its contents . In substance, the document
noted that "You have been smoking in the warehouse. You
are not supposed to." Long then asked, "Are you going to
sign the warning letters?" Hart declined , stating that "All
this is is an act of trickery between you and Mr.
Woodruff." Long replied, "If that is what you believe."
Hart remonstrated that "I had permission from Mr.
Woodruff to smoke in the Shredder Room," and Long
retorted , "We'll see about that ." Thereupon Long left the
area.
A short time later, Long returned to the cafeteria and
sought out Hart. Hart inquired, "How can I do my job
when you will come tell me to do something one minute
and Mr. Woodruff will come tell me to do something the
next minute ; then when I leave one job to go do the other
the other foreman will come back and get all over me,
holler at me and tell me I am not doing my job , not doing it
right. I told him that I was having trouble pleasing both
sides. I said `You know, I would appreciate it if we could
get something worked out. ' " Hart then told Long that
"Mr. Woodruff had smoked in there before," to which
Long responded, "It is none of your business ." During this
conversation, Woodruff appeared on the scene and Long
asked the former whether he had given Hart permission to
smoke in the Shredding Room ." Woodruff answered, "No,
I didn't." Long turned to Hart and inquired "Are you
going to sign this warning letter?" Hart reiterated, "No, I
still feel it is an act of trickery." With this, Long told
Woodruff "You heard him, Woody . You heard him. He
said he wasn't going to sign this warning letter, didn't he?
You heard him."
The following day, April 19, Woodruff directed Hart to
the lunchroom for another confrontation with Long. Hart
noticed that Mickey Hubbard , another alleged discrimina-
tee, had finished his work shift and Hart invited Hubbard
to accompany him and serve as a witness to his colloquy
with Long. When the employees arrived in the cafeteria,
they were greeted by Long and Jack Seeley, the personnel
transmitted to a crusher or shredder. After the cardboard was pulverized, ' it
was to be baled , tied up , and then sent to another plant for recycling.
SOUTHLAND CORP. 719
manager. These officials directed Hubbard to leave, which
drew the response from Hart that, "You mean you are
denying me the right to have a witness here?" Hart, Seeley,
and Long proceeded to the personnel office, where Hart
was informed that he was being terminated that day for
insubordination, although neither Seeley nor Long indicat-
ed the manner in which Hart had been insubordinate. Hart
stated, "Do you mean to tell me it is not because of my
union activities that you are firing me?" Seeley replied in
the negative.
Rounding out Hart's testimony, he denied that he had
used any profanity in his conversation with Seeley and
Long. Hart also denied that he had ever told Woodruff
that the warning notices "were not worth a damn."
According to Hart, the only discussion which he had with
Woodruff concerning the notices centered' around an
inquiry which Hart made in which he asked Woodruff
"What are those [notices] for?" This question was posed to
Woodruff after Respondent had received the Union's letter
apprising the company that Hart had been selected as
union organizer. It is Hart's uncontroverted testimony and
I find that Woodruff responded, "These statements are for
when we get ready to fire troublemakers around here we
will issue these and they will be evidence enough in court
to keep you fired." Following the conversation with Seeley
and Long on April 19, Hart drew his pay and left the plant.
Woodruff was hired by Respondent in December 1972
and became Hart's foreman from the date of the Tatter's
hire in February. By his own admission, Woodruff learned
of Hart's active role in attempting to organize Respon-
dent's employees on April 13 when, in his speech on that
day, Plant Superintendent Hightshoe identified Hart as the
leading union proponent. Following the address, Hart
approached Woodruff and commented, "You know how I
feel." Woodruff responded, "Fine, I feel opposite."
Woodruff testified that, when Respondent began to receive
merchandise at the Center in mid-March, it promulgated a
rule banning smoking at the installation, and, thereafter, he
smoked in neither the warehouse nor the baling and
shredding room. According to Woodruff, Respondent's
employees, including Hart, as well as the construction
cc,ntractor's employees, were notified of Respondent's
proscription against smoking on March 15. However,
Woodruff acknowledged that, despite Respondent's rule,
the construction workers continued to smoke throughout
the building subsequent to that date. When asked whether,
on April 18, an oxygen-acetylene torch was in operation in
the baling and shredding room, Woodruff replied, "There
very well could have been. I do not know." Woodruff
further testified that the baling and shredding machine was
not operable until April 18. However, even on that date,
Woodruff admitted that the machine was being operated
on a "run-in" basis; i.e., tested and adjusted for future
production work.
Woodruff testimonially conceded that he was not
present when Warehouse Manager Long warned Hart on
April 18 to refrain from smoking in the baling and
shredding room, was not present during Hart's terminal
interview on April 19 which was conducted by Long and
Personnel Manager `Seeley, and played no part in Hart's
discharge. Long was not summoned as a witness by
Respondent, and Seeley, in his testimony, simply related
the conclusionary reasons which he had appended to his
personnel reports regarding Hart's separation . According-
ly, the sole evidentiary basis for the discharge of Hart came
from the lips of Woodruff as allegedly reported to him by
Long.6 Woodruff testified that, during the discussion
between Hart and Long on the day of Hart's discharge,
Long told Woodruff that Hart stated that Respondent's
warning notices "wasn't worth a damn" and Hart refused
to sign his warning notice relating to his smoking.
Following Hart's termination , Long informed Woodruff
that this personnel action had been taken because "he
[Hart ] was smoking in the warehouse area in violation of a
published rule" and because Hart "had been smart with
[Long], which was insubordination."
In an opening statement given at the inception of the
hearing herein, counsel for the Respondent asserted that
"Hart was fired plain and simply for smoking in an area
where he had posted signs a few days prior to this that said,
'No smoking.' He did, in fact, help a supervisor to post 'No
smoking' signs all over the warehouse . He was then caught
there smoking. At the warning of Mr. Hart, then, he
displayed profanity and a belligerent attitude. So, he was
fired." In the "Separation Log" maintained by Personnel
Manager Seeley, Seeley noted that Hart had been
discharged on April 19 for "smoking in warehouse." When
called as a witness, Seeley claimed that Hart had also been
terminated for "insubordination." Asked why this reason
did not find its way into his log, Seeley replied, "There was
no reason to submit it on this official report. It is not really
needed. It's just for my information." Despite the fact that
Seeley was privy to the discussion between Long and Hart
on April 19 when the latter was discharged, Seeley failed to
illuminate the record with a single instance of any reported
act of insubordination by Hart.
I credit Hart's testimony and find that, in spite of
Woodruff's denials , Hart was told that he could smoke in
the baling and shredding room after March 15 and was
instructed by his superior not to post a "No smoking" sign
in that room because the shredding machine was not
operational and consequently no fire hazard could exist. I
find that, on April 18, Hart was in the baling and
shredding room receiving instructions regarding the opera-
tion of the baling machine, and that the only material in
that area at the time consisted of baling wire located on
pallets. As Hart and a construction employee were
smoking, and while sparks from an oxygen-acetylene torch
were flying about. Long appeared and upbraided only Hart
for smoking although the flames generated by the
construction employee's cigarette and the torch would
have equally endangered Respondent's premises if, indeed,
the baling and shredding room contained flammable
material.7 Although Respondent contends that Hart was
6 The General Counsel interposed no objection to the obvious hearsay
testimony of Woodruff regarding Long's statements to him. Despite this
oversight, I accept Woodruff's utterances only to the extent that he reported
the contents of Long's statements , and not for their truthfulness.
7 Woodruff admitted on the stand that he had noticed construction
workers smoke in the plant after March 15. While Woodruff disclaimed that
(Continued)
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged for smoking on April 18, this assertion is belied
by.the fact that Hart was simply issued a warning notice on
this occasion . Moreover, Respondent adduced no proba-
tive evidence to establish in what manner, if any, Hart was
insubordinates
In sum, I find that, within a week following his
employment with Respondent, Hart contacted the Union
in quest of collective representation at the Center. By letter
dated April 11, which was received by Personnel Manager
Seeley on April 12, the Union advised Respondent that
Hart had been designated to organize its employees. This
intelligence prompted , Plant Superintendent Hightshoe to
advert to Hart's union activities when the former addressed
his employees on April 13. On that day , Hart's supervisor,
Woodruff, learned of this employee's union role . On April
15 or 16, Higlltshoe manifested his hostility toward Hart's
support of the Union by his statement that "It is too bad
that a nice young man like you would have to get messed
up in an organization like you are messed up with because
you would have had a great future at this plant." That
Hart's days of employment with Respondent were num-
bered after its officials learned of his union endeavors is
amply demonstrated by Woodruff's comment to Hart that
warning notices "are for when we get ready to fire
troublemakers around here we will issue these and they will
be evidence enough . in court to keep you fired."
Against the foregoing , summarized, backdrop of Res-
pondent's hostility toward the unionization of its Center,
its knowledge that Hart was one of the most prominent
leaders in the move to install the Union at Respondent's
facility, and its patent display of displeasure leveled against
Hart because of his union proclivities, as evidenced by
,Hightshoe's threat to Hart, I am convinced and find that
Respondent's assigned reasons for terminating Hart were
advanced as a pretext to cloak its illegal motivation in
removing .a champion of the Union's cause from its
employment rolls. I therefore conclude that, by discharging
Hart_ on April 19, Respondent violated Section 8(aX3) of
the statute.
John Culpepper was hired by Respondent on March 27
as a- warehouseman. He was discharged on April 20.
Culpepper testified that, at the inception of his employ-
ment, he was assigned to the duties of sweeping and
installing and adjusting merchandise racks in the ware-
house under the supervision of Warehouse Manager Long.
Shortly thereafter, William (Bill) Jacque became his
supervisor . On April 10, due to the absence of the regular
receiving clerk , Jacque transferred Culpepper to the
receiving dock where he worked under Jerry McDuffie, a
leadman . Deliveries were slow during the early part of the
day, with the result that Culpepper busied himself
sweeping the dock. After lunch, a delivery truck arrived
and, following instructions from McDuffie , Culpepper
assisted the leadman in unloading the vehicle. While
he' had any authority to discharge employees of another employer,
Respondent certainly had the right to and could have enforced rules to
protect its property.
9 Despite Respondent's counsel's argumentative assertion that another
ingredient in the mix of Hart's separation was his display of profanity in his
encounter with Long, there is absolutely nothing in this record to
substantiate this claim. Moreover, while there is a hint in Woodruffs
testimony that Hart's refusal to sign a warning notice was instrumental in
engaged in this chore, McDuffie commented, "John, you're
going to have to slow down a little bit. You've got all the
time in the world. These truck-drivers can wait..You need
to slow down . I think you are just a little too fast or a little
too nervous ." That evening, Culpepper visited the home of
Lowell P. Hart where he was introduced to Union
Representative Joe Dixon and signed a union authoriza-
tion card.9
Culpepper encountered another lax workday on April 11.
One partially filled delivery truck entered the dock area
and Culpepper received the shipment following the
instructions he had obtained from McDuffie the preceding
day. At lunchtime, Culpepper was summoned to Jacque's
office. In the presence of Jacque, McDuffie stated, "John,
we. feel that you are just too nervous for this job. We are
not satisfied with your results . You make too many
mistakes. You just get in too big a hurry." Following. this
meeting, Culpepper was returned to the duties of rack
adjusting in the air-conditioned department. In . all,
Culpepper worked on the receiving dock for 2 days.
On the morning of April 12, Culpepper was called to
Jacque's office . Upon his arrival , Jacque opened the
conversation by stating, "John, you know you've got to
take the good with the bad. You didn't do too good on that
receiving the other day, you know, and we have to give
warning notices ." Culpepper replied, "Yes, I understand
that.- Jacque then presented , Culpepper with a written
warning notice dated April 12 which recited:
Were provided detailed instruction in receiving opera-
tions on April 10, 1973. On April 11, you were provided
the opportunity to put your theory to practice.
Mistakes were recurring and showed a lack of concen-
tration on your part, carelessness in work habits and a
negative attitude is unsatisfactory.
Culpepper testified and I find that he read the notice and
protested that, "Bill, I don 't think I have a negative
attitude . To me a person with a negative attitude would
probably get in the truck with the carrier and probably
work slow, and I was working fast. I was probably in too
big of a hurry . . . . I don't think this is a negative attitude,
you know, and anybody that had one, why, I think I would
fire them and get rid of them on the spot." Turning to the
phrase "lack of concentration," Culpepper observed, "I
don't think you could call it carelessness . I was doing the
best I could. Now, I made mistakes, sure, but I didn't think
that you could, you know, just really call it carelessness. I
thought it was more due to nervousness." At this juncture,
Jacque stated, "Well, I'll buy the negative attitude part and
the lack of concentration," whereupon Jacque deleted and
initialed the phrases "showed a lack of concentration on
your part" and "a negative attitude" from the warning, and
noted that "we might have to. have the secretary to make
Respondent's decision to get rid of Hart, the record fails to establish that
Respondent maintained any rule or practice for discharging employees
who declined to sign such notices.
9 Culpepper testified without contradiction and I find that, following the
meeting with Hart and Dixon, he solicited the union membership of an
employee named Herb Choice, and obtained signed authorization cards
from three or four other employees. So far as this record stands . Culpepper's
enchantment with the Union did not stem from McDuffie's remarks.
SOUTHLAND CORP. 721
up another one because we've got so many cross-outs
on this one."
Culpepper further testified that , on April 16 or 17, he was
summoned to Jacque's office on three occasions. On his
first visit, Jacque announced that the meeting had been
scheduled to discuss Culpepper's tardiness for work.
Culpepper protested that , "Sir, I wasn 't late this morning. I
come in with Billy Grimes and another person and I was
not late . If this is any kind of a reprimand or dismissal,
well, I would like to have Pat Hart present ." Jacque then
inquired , "Where did you get that idea?" and Culpepper
replied, "From a member of the Teamsters Union ." Jacque
terminated the discussion with the statement, "Well, I
wasn't saying that you were late . I was just askingif you
were late ." On the second visit to Jacque 's office, he
informed Culpepper that "we have three supervisors that
saw you in a part of the warehouse that you weren't
supposed to be in today." Culpepper replied that he had
been instructed to attend a training session with an
individual named Robert Pullin to learn the operation of
the forklift and, as he proceeded to the training area, he
greeted a few supervisors . When he met Pullin, the latter
apprised Culpepper that the session had been canceled
because Pullin was otherwise occupied, and Culpepper
returned to his regular duties of adjusting racks. Upon
receiving this intelligence, Jacque scanned his assignment
sheet and noted that Culpepper had in fact been scheduled
for forklift training that day. Jacque apologized for his
accusation with the comment, "Yes , that is correct. You
were supposed to be there . That is our fault ; Just think
nothing of it . We do make mistakes." At the third meeting
that day, Jacque again broached the subject of "negative
attitude" regarding Culpepper 's work habits and stated
that he had drafted a new warning notice covering this
topic . When Culpepper observed that it did not vary in
substance from the one which he had originally received on
April 12, Culpepper refused to sign it and the discussion
ended.
The parties stipulated and I find that , on April 17, E. L.
Jennings , Jr., the Union 's assistant business representative,
mailed a letter to Jack Seeley, Respondent's personnel
manager, which recited that:
This is to advise you Southland Distribution Center
employee John M. Culpepper will be actively working
as a Union Organizer , in an attempt to organize your
plant. -
Mr. Culpepper's activities will remain strictly within
his lawful individual rights to self organize.
It was stipulated and I find that this document was
received by Respondent on April 19.
Culpepper testified that , approximately 15 minutes
before the close of his shift at 5 p.m. on April 19, Leadman
McDuffie approached him in the rack adjusting area to
report that Jacque wished to see Culpepper. When
Culpepper inquired into the reason for the meeting,
McDuffie replied , `Bill [Jacque ) is going to give you
another chance on this receiving. Do you want to get a
little overtime today?" Culpepper responded, "Not particu-
larly," after which McDuffie laughed and led the employee
to the receiving dock. Upon their arrival , Culpepper
noticed that a delivery truck had arrived containing some
600 cases of various types of candies , and several
employees were gathered around approximately six pallets.
McDuffie directed Culpepper to execute the purchase
orders in -the manner in which he had been schooled on
April 10 and 11. In company with Jacque and McDuffie,
Culpepper proceeded to unload the truck ' until 8 pm.1e It
is Culpepper's undenied testimony and I findethat he did
not request a reassignment to receiving duties on April 19.
On April 20, Culpepper returned to his duties in the rack
area . Toward the end of the shift , he was called to Jacque's
office. Jacque was not there at the time , and Culpepper
then proceeded to the office of Norman Long, Respon-
dent's warehouse manager. Long stated that Culpepper
had proved to be too careless and. had made too many
mistakes to justify his retention -on the employment rolls.
Long thereupon announced that Culpepper was dis-
charged.
I deem it not only implausible, but, indeed, incredible,
that Respondent would have assigned Culpepper to the
duties of receiving merchandise on the afternoon of April
19 unless it had an ulterior motive for doing so. Both
Supervisor Jacque and Leadman McDuffie testified that
Culpepper began his employment stint as a rack assembler
and, on April 10 and 11, McDuffie exposed him to the job
of receiving merchandise. Culpepper proved woefully
inadequate in the performance of this task , a fact which
was documented by -McDuffie and Jacque with an II-
count indictment of his work when Culpepper was
transferred back to his rack job on April 12. 11 While
McDuffie insisted that Culpepper nevertheless continued
to receive merchandise until the date of his discharge, in an
apparent effort to show that Culpepper's continuing
inadequacies in his receiving role triggered his termination,
Jacque openly acknowledged that there "was no receiving
work done between that period of time [April I 1 and April
19J." Jacque contended that Culpepper's errors in accom-
plishing his receiving tasks were intentionally committed.12
This contention is belied by McDuffie's testimony that he
never informed Culpepper that the latter's mistakes were
deliberate . Moreover, despite the fact that at least 12 other
employees who had previously received merchandise on .a
satisfactory basis were available to handle this work on
April 19, Culpepper was selected in spite of his demonstrat-
ed inability to execute these duties . McDuffie claimed that
Culpepper's selection was predicated on Respondent's
desire to have him work overtime. Jacque asserted that the
matter of overtime did not play a role in Culpepper's
assignment on the afternoon of April 19, although he could
not explain why Culpepper had been selected.
As witnesses, both Jacque and McDuffie denied that
they had ever spoken with Culpepper about the Union and
10 Culpepper testified and I find that , although several other receiving it On the stand, Jacque intimated that Culpepper had performed
employees were on the dock at quitting time , he was the only employee to nonreceiving chores at an acceptable level of performance.
be tipped for overtime work that evening . Leadman Jerry McDuffie placed 12 When pressed on this matter. Jacque was unable to assign any reason
this figure at between 12 and,15 employees . for this assertion.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied that they had any knowledge of Culpepper 's union
activities prior to his discharge. I do not credit their
testimony. Jacque testified that , during his terminal
interview with Culpepper, the latter shook hands with
Jacque and commented, "There is nothing personal in this
Bill." " When asked whether this statement had reference to
Culpepper's union sympathies, Jacque testified "At the
time when he told me that I thought that , well, this possibly
could be."
I find that, after satisfactorily performing the duties of
assembling racks for approximately 2 weeks following his
hire, Culpepper was transferred to the receiving dock
where he was schooled by McDuffie in the intricacies of
handling incoming freight . Culpepper proved, to be
incapable and was transferred back to his former job. On
April 16 or 17, I find that Culpepper was summoned to
Jacque's office where the latter accused Culpepper of
reporting late for work . Culpepper denied the charge and,
believing that he might be wrongly reprimanded or
discharged, he demanded the presence of Lowell P. Hart,
an employee known to Jacque as the most ardent, active
proponent of the Union at Respondent's warehouse. When
Jacque inquired, "Where did you get that idea?" Culpepper
replied, "From a member of the Teamsters Union."
I find that, on April 19, prior to the end of Culpepper's
regular work shift , Respondent received a letter from the
Union advising that this employee had been selected to
organize the employees at the warehouse. Armed with the
knowledge that Culpepper had thrown his lot in with the
Union, I find that Respondent searched for a pretext to rid
itself of this dolorous thorn -in-side . Knowing that Culpep-
per had demonstrated that he could not cut the mustard as
a receiving clerk , I find that Respondent deliberately
assigned him to receiving duties which they knew he would
fail and , when Culpepper fell down on the job , as Jacque
and McDuffie had anticipated, it seized upon this
circumstance to sever from its rolls on April 20 an
employee whose interests in the Union had become
manifest . By doing so , I conclude that Respondent thereby
violated Section 8 (a)(3) of the statute.
Mickey Hubbard was employed by Respondent on
March 27 and was assigned to work in the shipping and
receiving room . He was terminated on April 20. Howard
Stroud was Hubbard 's supervisor , and Bill Avant was the
working foreman. Hubbard testimonially admitted and I
find that, prior to April 16 and while he performed
shipping and receiving duties, he had been admonished by
his superiors on five occasions and had received two
written warning notices relating to his "bad attitude." For
example, on one occasion he uttered obscenities to a
leadman named Pullins, and Stroud called Hubbard to
task for doing so. According to Hubbard, he utilized a
"bad attitude" as a ploy in order to obtain a transfer from
the shipping and receiving room where he did not enjoy
working.
On April 16, Hubbard executed a union authorization
card. On the same day, Hubbard was summoned by
Supervisor Stroud to the receiving room. Also present was
Avant. Stroud opened the conversation by stating that he
had twice counseled Hubbard about his attitude and
proffered the latter a• warning notice which noted that the
employee had displayed "a poor attitude and being
belligerent with the fellow workers ...... Stroud asked
Hubbard to sign the notice . Hubbard inquired whether he
might be permitted to have a witness to this incident, and
Stroud answered in the affirmative . Hubbard stated that he
desired to have Lowell Hart present and Stroud ac-
quiesced . Hubbard sought out Hart unsuccessfully and,
when he returned to the receiving office, Stroud suggested
that Avant be the witness and Hubbard agreed . There-
upon , Hubbard signed the document . After its execution, I
find that Hubbard queried Avant as to whether the
former's attitude had changed in the past and Avant
replied that it had. Hubbard turned to Stroud and
remarked, "Right there, you know, should be sufficient
enough . Why don't you give me another chance and let me
stay in this department?" Stroud demurred, stating "No, I
can't do that because it would hurt my work force ." Stroud
then indicated that he planned to transfer Hubbard to
Warehouse Manager Long's bailiwick , at which point
Hubbard requested that he be moved into Bill Jacque's
Freeze and Chill department . Stroud thereupon telephoned
Jacque and inquired whether the latter desired Hubbard, as
an employee under his command . After a few moments
hesitation, Jacque replied, "Yes, send him over." Upon
reporting ` for duty, Jacque and Hubbard entered into a
discussion regarding Hubbard 's "attitude," with Jacque
relating that he "feels like a person's attitude can change."
Hubbard stated that the only reason for his poor attitude
while working in the shipping and receiving room was
because "I just wanted out of the receiving department
because I didn 't feel I could handle the job . I wasn't
handling it. I never made mistakes intentionally, though, or
anything like that." Following further discussion , Hubbard
informed Jacque that he had signed a union designation
card and was a union organizer. Jacque then announced
that Hubbard would be assigned to work under Jerry
Campbell and Harold McInnis.
On April 17, Hubbard commenced to work in Jacque's
department . During the day, Hubbard was called to
Jacque's office where he was given another warning notice
for signature. Hubbard protested that this notice was
identical to the one which he had signed the previous day,
and complained that "I don't deserve this warning letter
because this is covered under the first warning letter."
Jacque insisted that Hubbard append his signature to the
document and, when the latter inquired as to what would
happen if he refused to do so , Jacque said that he would be
compelled to place the matter before Warehouse Manager
Long. Hubbard retorted, "Let's go see Ed Long," and the
two men proceeded to Long's office. Long instructed
Hubbard to sign the notice , warning that unless he did so
he would be terminated . After complying with Long's
instruction, Hubbard asked , "How do I stand with this
company in the future?" Long responded , "We won't
discuss that."
Events abided until April 19. During his lunch break,
Hubbard entered the lunchroom in search of his thermos
bottle . Lowell Hart was seated in the room and Hubbard
sat down and a conversation ensued. Hart notified
Hubbard that "I [Hart ] think I am fixing to get fired. They
want a meeting with me. I want you to be here to be a
SOUTHLAND CORP. 723
witness." Hubbard agreed to do so. At this juncture, Long
and Personnel Manager Seeley came into the lunchroom
and took a seat. Hart inquired whether Long and Seeley
would permit the former to have Hubbard present as a
witness to their discussion and Long replied , "No. This is
just between you and the company." Long and Seeley then
escorted Hart to Long's office.
Shortly before `the end of his shift on April 20, Hubbard
was summoned by Long and Jacque. Long told Hubbard
that he had been counseled twice about his attitude and
that "We have two warning letters on you for having a
poor attitude. Due to these circumstances we are going to
have to discharge you, from the company." Before
receiving his final paycheck, Hubbard told Long that
"Harold McInnis had told me my attitude was real good;
that he said he never had any complaints. He said he didn't
know why my attitude was bad in the receiving depart-
ment, or anything like that, but that my attitude since had
been real good in this other department." 13
Bill Jacque testified that he acquired the services of
Hubbard on April 16 because he was short of personnel in
the freeze and chill department. Hubbard was assigned to
work under leadman Jerry Campbell. Thereafter, Camp-
bell reported to Jacque that Hubbard was causing
problems due to his attitude. After warning Hubbard
regarding this conduct on two or three occasions , Jacque
recommended that Hubbard be discharged.14 According to
Jacque, Hubbard never discussed his union activities,
never stated that he had joined the Union and was an
organizer in the warehouse, and never mentioned the
Union.
I credit Hubbard's testimony, which is largely unde-
nied,15 and find that, prior to April 16, he created
difficulties due to his "poor attitude" in order to obtain a
transfer from the shipping and receiving room to another
work area . I find that, prior to that date, he had been
upbraided on five occasions regarding his conduct and, on
April 16, received a written warning notice. On April 16, he
was moved to the Freeze and Chill department under the
supervision of Bill Jacque who believed that Hubbard
could change his attitude. In the course of a discussion
with Jacque on that day, I find that Hubbard informed
Jacque that the former had executed a union authorization
card and had been designated an organizer by the Union.16
I further find that, on April 17, McInnis complimented
Hubbard on his change of attitude which had become "real
good." I find that, on April 19, Hart, the Union's chief
proponent, told Warehouse Manager Long and Personnel
Manager Seeley that he desired the presence of Hubbard
as a witness during Hart's terminal interview, thereby
further identifying Hubbard with the union movement
which Respondent admittedly opposed. I am convinced
that, armed with the knowledge that Hubbard had joined
the Union and become an organizer, Respondent singled
13 Hubbard testified that, on April 17, McInnis made these statements to
him. McInnis was not called as a witness in this proceeding . I therefore
credit and accept Hubbard's testimony in this regard.
14 The only example of Hubbard's "poor attitude" to which Jacque
adverted involved an employee named Herbert Choice. Choice testified, in
response to a question as to whether he encountered any problems with
Hubbard, that "we had a few run-ins . I mean, you know, it wasn't nothing
really serious . We just had some disagreements ." Choice added that, in
him out for discharge, not because of any misconduct, but
because it sought to punish him for embracing the Union's
cause . I therefore find that , by discharging Hubbard on
April 20, Respondent offended the•provisions of Section
8(aX3) of the Act.
The complaint alleges that Respondent violated Section
8(axl) of the Act on April 13 when Plant Superintendent
Hightshoc addressecis assembled employees and warned
them "that if they became or remained members of the
Union or gave assistance or support to it that strikes would
inevitably result and that they would lose their jobs as a
consequence." I have heretofore found that, on this
occasion , Hightshoe read from a written address and told
the employees that "We do not believe a union will do
anything for you other than to cause you to pay union dues
and possibly involve you in strikes which could result in
the loss of your job ." Contrary to the General Counsel's
assertion, I do not construe this statement as coercive
because , in my opinion, it does not convey Respondent's
unalterable belief that unionization would inevitably cause
strikes and thereby cause the employees ' loss of employ-
ment.'7 I shall therefore dismiss this allegation from the
complaint.
The complaint also alleges that Hightshoe violated
Section 8(a)(l) by warning employees that they would
suffer discharge at Respondent's hands in the event they
embraced the Union in its organizational efforts. I have
heretofore found , based upon Hart's uncontradicted
testimony, that, on or about April 15 or 16, Hightshoe
informed Hart that "It is too bad that a nice young man
like you would have to get messed up in an organization
like you are messed up with [the Union] because you
would have had a great future at this plant." Under all the
circumstances herein, including the facts that Hightshoe
learned on April 12 that Hart was a leader in the Union's
campaign and Hightshoe's reference to Hart's activities in
his speech of April 13, I find and conclude that Hightshoe's
warning offended the provisions of Section 8(a)(l) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with Respondent's opera-
tions described in section 1, above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States , and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
reporting the matter to Jerry Campbell. he pointed out that the differences
were not serious.
15 Neither Stroud. Avant, Campbell. McInnis. nor Long were called as
witnesses.
18 As a witness . Jacque did not impress me with his candor and I do not
credit his averments that he lacked total knowledge of Hubbard 's union
endeavors prior to his discharge on April 20.
IT See AAA Lapco. Inc., 197 NLRB 274.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mend that it cease and desist therefrom and take certain
affirmative action .-designed to effectuate the policies of the
Act.
I have found that Respondent discharged Lowell P. Hart
on April 19, 1973, and John M . Culpepper and Mickey
Hubbard on April 20 , 1973, because of their activities on
behalf of the Union. I shall therefore recommend that
Respondent make them whole for any loss of pay which
they may have suffered as a result of the discrimination
practiced against them. The backpay provided for herein
shall be computed in accordance with the Board 's formula
set forth in F. W. Woolworth Company, 90 NLRB 289, with
interest thereon at the rate of 6 percent per annum
computed in the manner prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
conclusions , and upon the entire record in this case, I
hereby make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with , restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, Respondentihas engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
4. By discharging Lowell P. Hart , John M. Culpepper,
and Mickey Hubbard, thereby discriminating in regard to
their hire and tenure , of employment, in order to discourage
membership in the Union, the Respondent has engaged in
and is engaging in conduct banned by Section 8(a)(3) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]