McLane Western, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1396 (N.L.R.B. 1980)

1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLane Western, Inc. and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No. 435.
Cases 27-CA-6288 and 27-RC-5848
August 27, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On May 7, 1980, Administrative Law Judge Wil-
liam J. Pannier III issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in opposition to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' recommendations, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, McLane/West-
ern, Inc., Denver, Colorado, its officers, agents,
successors, and assigns, shall take the action set
forth in said recommended Order.
IT IS FURTHER ORDERED that the election held
on June 28 through 30, 1979, in Case 27-RC-5848,
be, and it hereby is, set aside, and that said case is
hereby remanded to the Regional Director for
Region 27 to conduct a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Denver, Colorado, on
251 NLRB No. 185
December 6 and 7, 1979.1 On August 8 the Acting Re-
gional Director for Region 27 of the National Labor Re-
lations Board issued a complaint and notice of hearing,
based upon an unfair labor practice charge filed on July
17 and an amended charge filed on August 7, alleging
violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, 29 U.S.C. §151, e seq.,
herein called the Act. On August 13, the said Acting Re-
gional Director issued a "Supplemental Decision, Order
Directing Hearing, and Order of Consolidation and
Notice of Hearing," finding that certain objections to
conduct affecting the results of the election conducted in
Case 27-RC-5848 could best be resolved through a hear-
ing and, as these objections concerned matters already
included as allegations in the complaint issued in Case
27-CA-6288, consolidating the two cases for hearing and
decision. All parties have been afforded full opportunity
to appear, to introduce evidence, to examine and cross-
examine witnesses, and to file briefs.
Based upon the entire record,2 the briefs filed on
behalf of the parties, and my observation of the demea-
nor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material McLane/Western, Inc., herein
called Respondent, has been a corporation duly orga-
nized under and existing by virtue of the laws of the
State of Colorado, and has been engaged in the whole-
sale sale and distribution of food and related grocery
products with its principal office and place of business
located in Denver, Colorado. In the course and conduct
of its business operations, Respondent annually sells and
ships goods and material valued in excess of $50,000 di-
rectly to points and places outside the State of Colorado.
Therefore, I find, as admitted by the answer to the com-
plaint, that at all times material Respondent has been an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOI VED
At all times material International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 435, herein called the Union,
has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Unless otherwise stated, all dates occurred in 1979.
2 Respondent's unopposed motion to correct the transcript is hereby
granted. Moreover, Respondent's post-hearing motion for leave to
adduce additional evidence based upon its offer of the January IS, 1980,
findings of fact and order of the Industrial Commission of the State of
Colorado-pertaining to the discharge of Keith Sterling McFarland.
which is alleged in this proceeding to have been unlawfully motivated-
is hereby, granted and the Commission's findings of fact and order is
hereby received "into evidence for whatever probative value it may
have. However, such a decision is not controlling." Glass Containers Cor-
poration, 243 NLRB No. 108 (1979). With respect to the latter point, it
should be noted that there is no evidence that the question of whether
McFarland's discharge had been motivated by considerations unlawfu-
lunder the Act was litigated during the state proceeding, and, in any
event, the state decision makes no mention of the consideration of such a
possibility in the formulation of the result reached in that proceeding.
MCLANE/WESTERN, INC. 1397
III. THE A.l EGED UNFAIR LABOR PRACTICES
A. Introduction
On June 28 through 30, an election was conducted
among Respondent's employees in a unit of all employ-
ees employed by Respondent at its Denver, Colorado,
location, but excluding all office clerical employees,
salesmen, guards, professional employees, and supervi-
sors as defined in the Act, pursuant to a Decision and
Direction of Election issued on June 4. The complaint al-
leges that prior to the election various oficials of Re-
spondent made remarks to employees which constituted
violations of Section 8(a)(1) of the Act. In addition,
many of these remarks are the subject of objections to
the election. On July 11 forklift operator Keith Sterling
McFarland was notified that he had been terminated.
The complaint alleges that McFarland's discharge had
been motivated by his support of the Union. Respondent
contends that it had been occasioned by McFarland's
violation of a rule prohibiting stealing. For the reasons
set forth below, I find that Respondent's officials did
make the most of the unlawful remarks attributed to
them, that the election should be set aside and a new
election directed, and that a preponderance of the evi-
dence supports the allegation that McFarland had been
terminated for unlawful considerations.
B. The Conversations
During March, an organizing drive commenced at Re-
spondent's Denver facility, leading to the filing of the pe-
tition in Case 27-RC-5848, on May 1. Keith Sterling
McFarland, a forklift operator for Respondent until his
termination on July I 11, testified that, shortly after he had
received an authorization card for the Union; Warehouse
Manager Steve Jacobson3 had approached him and had
asked if McFarland had received a union authorization
card. McFarland testified that he had simply replied "no
comment" and that Jacobson had then walked away. Ja-
cobson denied that he had ever participated in a conver-
sation with McFarland regarding an authorization card
and further denied that he had ever asked if McFarland
had received a card.4
Cigarette department employee Daniel Robert Shields
testified that in May, shortly after the petition had been
filed, Jacobson had called him aside to a location in the
warehouse where Division President Neil McCarty5 had
been waiting. There, testified Shields, McCarty had pro-
duced the petition and had asked if Shields had known
that it had been filed. Shields testified that he had re-
sponded affirmatively and that McCarty had then in-
a it is admitted that at all times material Jacobson had been a supervi-
sor within the meaning of Sec. 2(1 I) of the Act and an agent of Respond-
ent.
4 McFarland testified that before the conversation he had observed
employee Ed Noll drive by with an authorization card on his forklift and
turn into an aisle into which Jacobson had also walked about 15 minutes
later. According to McFarland, it had been later that same day that the
above-described conversation had occurred. Jacobson acknowledged that
there had been a day (he did not recall the date) on which Noll had re-
ported having found an authorization card on his forklift.
5 It is admitted that at all times material McCarty had been a supervi-
sor within the meaning of Sec. 2(11) of the Act and an agent of Respond-
ent.
quired "why?" According to Shields, he had explained
his reasons for having become instrumental in initiating
the organizing campaign, one of which had pertained to
a February incident involving a 3-day suspension letter
that he had received. Shields testified that McCarty had
said that he was sorry about that incident, adding that
Respondent had an open-door policy.
McCarty agreed that a conversation with Shields had
occurred regarding the latter's role in the organizing
campaign. However, he testified that it had taken place
on May 31 in connection with the distribution of one of
Respondent's campaign handbills. 6 In an effort, testified
McCarty, to perfect the instructions given to all supervi-
sors as to what they could do during the campaign, he
had wanted to participate in the actual distribution of a
handbill "so I had specifically told Steve Jacobson that I
had wanted to pass that out to Dan Shields.
" ?7 McCarty
testified that after Shields had looked over the handbill
handed to him by McCarty, he had begun a rambling
conversation, during the course of which he had volun-
teered an apology for having initiated the Union's orga-
nizing campaign and had explained his reasons for
having done so, one of which had pertained to the Feb-
ruary incident. Jacobson, who also testified about this
conversation and who agreed that it had occurred in late
May, supported McCarty's account that Shields had vol-
unteered that he had initiated the campaign.8 McCarty
agreed that he had mentioned Respondent's open-door
policy, but asserted that it had been in connection with
that February incident, of which McCarty claimed to
have lacked knowledge prior to this conversation."
McCarty denied having participated in any earlier con-
versations with Shields regarding the Union and further
denied having discussed with Shields the petition that the
Union had filed.
On May 1, Respondent issued the first of 18 handbills
that it was to distribute to employees prior to the elec-
tion. Several employees described conversations with
Respondent's officials over the course of the period of
these distributions. Thus, cigarette department leadman
Rod Townley testified that on Friday, within a week of
the distribution of the May I handbill, as Townley had
been turning in his paperwork in Jacobson's office at the
end of the shift, the latter had invited Townley to sit
down and talk. According to Townley, Jacobson had
asked how Townley thought the Union was going, who
was in favor of it, and if the majority of the employees
were for or against the Union. Townley testified that,
when he had pleaded ignorance of the employees' atti-
tudes toward the Union, Jacobson had pursued the
matter, saying, "Come on, you don't think I'm a fool do
you," and asserting that he knew that Townley worked
"with the ringleader," who Jacobson identified as being
Shields. The conversation had concluded, testified
e Discussed more fully infra.
' McCarty never explained why he had singled out Shields for this
purpose.
$ Shields agreed that there had been a late May conversation during
which he had acknowledged and had apologized to McCarty and Jacob-
son for having started the organizing drive.
9 Yet, McCarty did not dispute Shields' testimony that the suspension
letter had previously been "torn up" when he had appealed to McCarty.
MCLANE/WESTERN. INC.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Townley, when he had mentioned a prior company
where he had worked which had closed due to unioniza-
tion, and, Townley testified, Jacobson had pointed out
that he had seen similar closures. Jacobson denied gener-
ally having asked employees any questions at all regard-
ing the Union and denied specifically having said that
Townley should not think that he (Jacobson) was a fool
because Townley worked with the ringleader. He further
denied having asked Townley at any time if more em-
ployees were for or against the Union, how the Union
was looking, how the Union was going, and how many
employees supported the Union.
Three of the employees-McFarland, Shields, and
Townley-related conversations that had occurred not
merely during the time period of the distribution of the
handbills, but that had related to the handbills them-
selves. Thus, while there was some dispute regarding
which particular handbills had been involved, it is undis-
puted that Jacobson personally had given McFarland
some of the handbills, and that on each occasion he had
directed McFarland to read the handbill and then had
asked if McFarland had any comments or questions con-
cerning what he had read.' ° McFarland testified that
some of his remarks had been critical of some of Re-
spondent's arguments in the handbills which opposed the
Union,'' but that Jacobson had not attempted to engage
in arguments about these matters. Instead, testified
McFarland, Jacobson had simply walked away after
saying that he was urging McFarland to vote no, but
that if McFarland felt that he wanted to vote for the
Union "then by all means do so."
Like McFarland, Shields also testified that handbills
had been given to him by someone other than his imme-
diate supervisor. However, he testified that on several
occasions either Jacobson or first-shift Supervisor Patrick
Johnson 2 had told him to report to McCarty's office
where, upon reporting, McCarty had given him hand-
bills. As McFarland had testified, Shields testified that on
each of these occasions McCarty had asked him to read
the handbill and then had invited Shields to make com-
ments regarding the handbill's message. However, ac-
cording to Shields, McCarty had gone further in his re-
marks than McFarland had described Jacobson as having
gone. For example, in connection with a handbill dated
June 6, to which had been attached a series of newspaper
clippings describing relations between the Teamsters and
"the mob" as well as criminal convictions of various
Teamster officials, Shields testified that McCarty had
said, "[y]ou are going to tell me that you will have these
kinds of people, the mob represent you." In connection
with a handbill dated June 13, pertaining to profit shar-
ing, McCarty had said, testified Shields, that, should the
employees become unionized, they would lose Respond-
Lo McFarland testified that it had always been Jacobson who had
given him the handbills and never his immediate supervisor, Patrick
Johnson.
il Jacobson disputed some of the remarks described by McFarland as
having been made during these conversations, but not others. The signifi-
cant point, however, is that Jacobson conceded that he had thought that
McFarland was prounion.
12 It is admitted that at all times material Johnson had been a supervi-
sor within the meaning of Sec. 2(11) of the Act and an agent of Respond-
ent.
ent's existing profit-sharing plan, although "you may
have a Teamsters thing," that Respondent would fight
the Union to "the bitter end," that he was "morally op-
posed" to a union in the shop and could make things dif-
ficult, and that he would close the Company before let-
ting it become unionized. During later, similar conversa-
tions, testified Shields, McCarty had renewed his threats
of loss of benefits and closure should the employees
become unionized. For example, he testified that approxi-
mately 3 days before the first day of the election, in con-
nection with a handbill bearing the date June 25,
McCarty had said that:
. . . everything goes from scratch including profit-
sharing, et cetera, et cetera, that the company had
to offer and he said we would take all of this away
and you would have to renegotiate. You may get
lower wages even, and basically he said we don't
even have to deal with the union if we don't want
to. We could tie it up in the courts for years to
come and basically they would never accept the
union.
Shields also testified that, during one of these conversa-
tions in conjunction with the distribution of a handbill,
McCarty had asked if Shields was the only employee or-
ganizer on behalf of the Union or if others were active as
well.
McCarty denied having discussed the Union with
Shields during meetings in his office, having asked
Shields if other employees were campaigning for the
Union, and having distributed the June 25 leaflet to
Shields or having discussed it with him. Indeed, Shields'
timecards for June show that he had been absent from
work on June 25. Both McCarty and Johnson denied
that the latter had ever been sent to summon Shields to
the office. 3 McCarty testified that the only three times
during the preelection period that he had met in his
office with Shields, there had been no discussion about
the Union at all. Rather, testified McCarty, two of the
meetings had pertained exclusively to providing Shields
with his annual profit-sharing plan and the third one had
involved Shields' complaints that he had not been receiv-
ing telephone messages from his ill mother. According to
McCarty, each of these three discussions had been initiat-
ed by Shields and the Union had not been mentioned in
any of them. However, McCarty agreed that, on two oc-
casions during mid-June when Jacobson had been on va-
cation, he had assisted Johnson in distributing handbills
to the employees. 4
Townley was the third employee to describe com-
ments made by management officials in connection with
the distribution of handbills. He described two such con-
versations with Johnson. In the first, testified Townley,
Johnson had given him a handbill dated June 13, entitled
13 However, warehouse employee John Thomas, who had worked
with Shields, testified that there had been two occasions when he had
observed Jacobson summon Shields from the department and that, on a
third occasion when Shields had been missing, Thomas had been told
that Jacobson had told Shields to report to the office.
"' Jacobson had been on vacation from June 10 through 16.
MCLANE/WE'STERN, INC. 1399
"Fines, Suspensions, and Expulsions,"' s had suggested
that Townley read it, and then had asked if Townley had
any further questions about that subject. Townley testi-
fied that Johnson then had asked, "[H]ow do you think
the Union is going." The second conversation involving
Johnson, testified Townley, had occurred in connection
with the distribution of a later handbill (Townley did not
recall which one) when Johnson again had asked how
things were going with the Union. In addition to these
conversations, Townley testified that in a late May or
early June conversation with Jacobson, during which the
latter had distributed a handbill, Jacobson had asked if
more employees were for or against the Union.
Johnson agreed that he had given the June 13 handbill
to Townley, but he denied that he had asked, on that
specific occasion or on any other occasion, how Town-
ley thought it was going with the Union or if the Union
would win the election. However, Johnson conceded
that "I don't totally remember the whole conversation."
As noted above, Jacobson denied ever having asked
Townley if more employees were for or against the
Union.
There were also four conversations described that did
not arise during the course of handbill distributions. Faye
Binkley, an employee in the general merchandise and
nonfoodstuff department, testified that approximately a
week or two before the election Jacobson had asked her
how she felt the employees in the back were going to
vote. When, testified Binkley, she had responded that she
felt that the employees would support the Union, he had
commented that they were stupid if they felt that they
were going to gain anything and that they could lose a
lot of things by choosing to be represented. Binkley fur-
ther testified that approximately I week later, during the
course of a conversation regarding the merchandise in
the back, Jacobson had asked if she still thought that all
of the employees were going to vote for the Union. Ac-
cording to Binkley, she had replied that she felt that a
couple of them would not do so because their husbands
did not favor unions. Binkley testified that Jacobson had
asked to which employees she was referring, but that she
had declined to identify them. Jacobson denied having
participated in any conversations with Binkley concern-
ing how the election would go, denied having asked her
if the "vote would carry," denied having told her that
her department had a lot to lose if the Union was voted
in, denied that she had said that her department would
be going Union, and denied having participated in a con-
versation with her 2 or 3 days before the election in
which he had asked how the people would vote.
The third conversation occurred the day before the
election, in the cigarette department, when Drayton
McLane, Jr, Respondent's president,' 6 was at the
Denver warehouse. Prior to this particular conversation,
McLane had offered to pay warehouse employee John
Thomas' expenses if the latter would ride his bicycle to
Temple, Texas, where Respondent's headquarters is lo-
cated, as a promotional device. On the day before the
election, McLane renewed the offer. As he and Thomas
J Townley had previously questioned Jacobson regarding this subject
It is admitted that at all times material McLane had been a super\ l-
sor and agent of Respondent
were discussing it, with some jocular remarks having
been exchanged, Shields volunteered that he was willing
to serve as Thomas' agent in connection with the offer.
According to Shields, McLane had looked at him and
had said, "I am already mad enough to punch you in the
nose." 7
Given the opportunity on cross-examination, McLane
denied that he had said that he was mad or angry at
Shields, although he conceded that he had said "[i]n
humor," that he was going to punch Shields in the nose
in response to the latter's remark about serving as
Thomas' agent. However, cigarette department employee
Tom Barker, who was called as Respondent's witness,
confirmed Shields' testimony that McLane had said, "1
am already mad at you," as did Townley, who had been
standing approximately 25 feet away. Moreover, while
there had been a history of Shields and McLane ex-
changing jocular remarks, the latter agreed that he had
never before said that he would punch Shields. Although
asked for an explanation as to how such a remark could
be made as a joke, McLane never did explain how the
remark could be made or taken in a humorous fashion.
While he claimed that he had made the same remark to
other persons, he never identified any other person to
whom he had made a similar comment, nor did he ex-
plain the circumstances of those purported statements.
Further, while McLane also testified that Shields,
Thomas, and Barker had laughed after his remark to
Shields, both Shields and Thomas denied that anyone
had laughed. Barker equivocated on this point, initially
testifying that it had become quiet after McLane's state-
ment, then that "I smiled" and nobody had "laughed out
loud," and, as Respondent's counsel continued to pursue
the point, that "I believe Mr. McLane and myself both
laughed a little bit.""
The final conversation occurred on the first day of the
election, June 28, when McCarty came to advise Shields
that the Union wanted him to act as its observer. Ac-
cording to Shields, when McCarty had notified him of
that fact he had asked if McCarty was certain and if he
was obliged to serve as the Union's observer, asscrting
that he did not want to act in that capacity. ' Shields
testified that McCarty had responded that he did not
think that Shields had to serve as the Union's observer if
he did not want to do so, but that he would "talk to the
company lawyer," who was then in the voting area with
the Board agent assigned to conduct the election. When,
testified Shields, he had said that he did not "want to ob-
serve because I felt my presence might influence
people," McCarty had replied, "I would rather you don't
17 Shields is approximately 5 feet 10-1/2 inches tall and eighs ap-
proximately 165-170 pounds, while McLane is 6 feet 4 inches tall and
weighs 193 pounds, contrary to the measurements set forth in the record
(8 On cross-examination. Barker testified specifically that neither
Thomas nor Shields had laughed at McLane's comment Samuel )asid
Tackelt, another employee witness called by Respondent, testified that he
had heard "chuckling" after Mclane's remark. but that he had been
standing 10 or 15 feel away and had not been paying attenlnon Io ho
had been "chuckling" Tou nle) denied that he had seen or heard a3yi of
the employees in the group laughing
19 Shields conceded that earlier he had told the Ulnion's repreentatlie
that he did not want to serve as an observer since he did not swant to,
influence people and did not want to be "labeled"
MCLANE/WLSIERN, INC. I 
14(X) I)lCISIONS OF NATIONAL LABOR RELATIONS BOARD
observe because you will influence a lot of votes."
McCarty agreed that, when he had notified Shields that
he had been selected as the Union's observer, Shields
had stated that he did not want to serve, saying, "I sure
don't think it's right, particularly after I have talked to
people about not voting for the union, and I think I
could sway votes and I don't think it would be right." '2
According to McCarty, he had replied only that the
matter could be discussed with Respondent's attorney
when they arrived at the polling place. He denied having
told Shields that he did not want him to act as an ob-
server and denied having said that he thought that
Shields could sway voters.
C. The Discharge of McFarland
The June 28 through 30 election resulted in 42 votes
being cast for the Union and 68 votes being cast against
representation. On July 9, the Union filed objections to
conduct affecting the results of election. On the follow-
ing day McFarland was caught eating a cracker which
he had obtained from a damaged carton of crackers. He
was suspended pending a determination as to whether his
conduct warranted termination pursuant to Respondent's
rule that "Any employee found guilty of any act of dis-
honesty will be subject to immediate discharge without
prior notification (punching any other employees' time-
card will be considered as an act of dishonesty)." Later
that day, McCarty made the final decision to terminate
McFarland, who was notified of that decision on July 1.
The General Counsel argues-based primarily on the
"inconsequential nature" of McFarland's offense, Re-
spondent's allegedly unlawful remarks to employees, and
the purported failure to uniformly apply the rule in the
past-that Respondent terminated McFarland because of
his union sympathies and activities. Conversely, Re-
spondent argues-based primarily on the insignificance
of McFarland's union activities, Respondent's lack of
knowledge that he had supported the Union, McFar-
land's admitted consumption of the cracker, the evidence
of prior terminations for stealing, and the lack of any re-
liable evidence that Respondent had excused such con-
duct in the past-that the General Counsel has failed to
show by a preponderaice of the evidence that McFar-
land had been terminated for unlawful considerations.
McFarland had begun working for Respondent as a
forklift operator in April, 1978, continuing to work in
that capacity until his discharge on July 11. On only one
occasion had he ever been reprimanded, having received
a written warning for carelessness in the operation of his
forklift. Aside from having signed a card authorizing the
Union to represent him, McFarland's union activity had
been minimal, being confined to hosting approximately
16 impromptu meetings of employees after work at his
apartment where the Union had been one of the topics
discussed. However, there is no evidence that McFar-
land had acted as an advocate for the Union at these
meetings. More significantly, there is no evidence that
Respondent had been aware that such meetings had been
20 McCarty described comments by Shields prior to the election, in
which Shields had said that he was withdrawing his support from the
Union. This was not effectively denied by Shields.
taking place at McFarland's apartment, nor, for that
matter, that McFarland had signed an authorization card.
On the other hand, as set forth in footnote 11, supra, Ja-
cobson conceded that he had thought that McFarland
was prounion.
With respect to the issue of notification to the employ-
ees about no stealing or pilfering merchandise, though he
equivocated on the point, McFarland admitted that he
had been aware that such conduct was prohibited,
having been given a copy of the personnel information
handout in which the above-quoted rule appears, and
having been told that Respondent wanted employees to
"try to control [pilferage], keep it down." Indeed, it is
undisputed that the minutes of the April 20 "Impact
Committee" 21 meeting had been posted on the bulletin
boards. Included in those minutes is the following admo-
nition: "Pilferage: This is a difficult issue to pinpoint/con-
trol. However, employees are reminded that conse-
quences are severe and we are only hurting ourselves as
it diminishes overall company profit." However, it is not
disputed that the employees never had been told specifi-
cally that nibbling products from damaged containers
constituted stealing within the meaning of Respondent's
rule and would result in termination. In this regard, I felt
that McFarland was sincere in his obvious bewilderment
about the eating of a single cracker being characterized
as stealing.
McFarland testified that on July 10 he had noticed a
case of smashed crackers. It was one of the crackers
from that case which he had been eating when Jacobson
had arrived at the scene. McFarland acknowledged
having consumed a cracker from that carton, which he
described as having been "a foot, maybe a foot and a
half, and the only thing remaining of the box was one
corner was upright and between it, from that top corner
straight down where it had been run over or hit by a
forklift." McCarty testified that damaged merchandise
which cannot simply be resealed and returned to stock is
placed in the trash recoup area and that later one of Re-
spondent's employees goes through that merchandise to
ascertain what can be either returned to stock or sold to
a salvage dealer. Specifically, with respect to crackers
McCarty testified that a "case of crackers comes with in-
dividual wrappings, tubes of saltines per case. It is con-
ceivable, if one, two or three tubes were in good shape
and can be recouped" that the entire contents of the
carton would not be thrown away. He conceded, how-
ever, that if all four tubes were in bad shape, they would
simply be thrown away. McFarland testified that cartons
in the condition of the one that he had discovered on
July 10 normally had been thrown in the trash dumpster.
Jacobson conceded that he did not know whether any
portion of that carton could have been or was salvaged.
Apparently, neither did Respondent's other witnesses,
for, despite the investigation that had been conducted be-
tween McFarland's suspension and termination, no evi-
dence was presented concerning what had happened to
that carton and its contents.
I A committee consisting of members of management and employees
which meet periodically to discuss matters of common concern.
- - -
MCLANE/NESTERN, INC. 1401
In reality, there was no evidence that McCarty had
ever discharged an employee on any previous occasion
for consuming damaged merchandise from a carton in
the condition of the carton from which had come the
cracker that McFarland had consumed. Respondent did
point to terminations, before and after that of McFar-
land, of both employees and supervisors for having
stolen merchandise. However, in each case, the value of
the merchandise being taken had been greater than that
of a lone cracker and, as the General Counsel points out
in his brief, the merchandise had been taken from the
premises, not consumed there. On the other hand, the
effect on Respondent is the same whether the merchan-
dise is consumed on the premises or taken from the
premises: Respondent is deprived of the merchandise
and, thus, of the ability to generate revenue through its
sale. Moreover, as McCarty pointed out, when ques-
tioned concerning the insignificance of the value of the
cracker consumed by McFarland:
You put a dollar limit on something, I think you are
opening the door. We carry 12,000 items, and an in-
ventory of several million dollars. You can't draw a
line on stealing. Stealing is stealing, whether a
penny or a dollar, you just can't open those kinds of
doors and make that kind of distinction.
Although the General Counsel did produce evidence
of other personnel having consumed merchandise or
products on the premises, in most of these instances the
evidence was not sufficient to show that the persons in-
volved had not purchased or taken the items from one of
the fishbowls of sample merchandise maintained in
breakrooms. Two incidents were singled out which, if
credited, might tend to support an argument that McFar-
land's July 10 conduct had no: been unprecedented.
First, McFarland testified that on one occasion Jacobson
had broken open a newly received carton of frozen
cookies and had given one to McFarland's 4-year-old
son. Assuming that this could be characterized as steal-
ing, Jacobson denied flatly having done so, and, though
McFarland testified that his wife had been present at the
time, she was never called to corroborate his description
of the incident and the failure to do so was never ex-
plained.
The second instance involved a purported conversa-
tion between Ed Noll and Ron Miller, friends who had
attended school together, which Shields testified that he
had overheard approximately a year and a half prior to
the hearing in this matter, while Shields was still work-
ing on the night shift. According to Shields, Miller had
been third-shift supervisor at the time. He testified that
he had overheard Miller say to Noll that he (Miller) was
being promoted and that Noll was "going to have to quit
eating products because it will look bad on me because
you are my best friend." Miller denied having made
these remerks to Noll and denied ever having seen Noll
consume or take merchandise. Moreover, he testified
that, while he had been third-shift supervisor at one time,
he had been transportation manager, a job that did not
require him to be in the warehouse, working on the day
shift approximately 1-1/2 years prior to the hearing, and
not becoming operations manager until September 1978.
IV. ANAYSIS
The first primary area of inquiry in this case is wheth-
er Respondent's officials-McCarty, Jacobson, and John-
son-made the remarks attributed to them by McFar-
land, Shields, Townley, and Binkley. While there were
points when they testified that McFarland and Shields
appeared evasive and not fully candid, I find that a pre-
ponderance of the evidence does support their accounts
of what had been said by Respondent's officials.
First, while specific dates and particular comments
were not agreed upon, Jacobson agreed that he had
given handbills to McFarland and that on each of these
occasions he had asked McFarland to read and, in es-
sence, comment, if he felt so disposed, on the message
contained therein. This same procedure of asking the em-
ployee to read and then comment on the handbills was
described as having been followed by Repsondent's offi-
cials in connection with the distribution of handbills to
other employees. Thus, Shields testified that McCarty
had asked him to read and to comment on the handbills
which Shields testified had been distributed to him by
McCarty. A similar approach by Johnson was described
by Townley in connection with the distribution of the
handbill entitled "Fines. Suspensions, and Expulsions."
The fact that Jacobson conceded having followed this
procedure when he had distributed handbills to McFar-
land and the fact that this procedure had been similar to
the description of Townley with regard to what had
heen said to him when he had been given handbills by
Johnson tend to corroborate Shields' description of what
had been said to him when he was given handbills by
McCarty.
Second, while McCarty denied having given handbills
other than one on May 31 to Shields, it is undisputed
that Shields had received the handbills distributed by Re-
spondent between May 1 and June 18. Yet, Respondent
produced no evidence that any of its officials other than
McCarty had distributed the handbills to Shields that the
latter claimed to have received from McCarty. That is,
no official claimed that he, rather than McCarty, had
given the particular handbills to Shields that Shields
claimed to have received from McCarty.
Third, Faye Binkley appeared to be a particularly
candid and forthright witness. I credit her fully. The
comments that she attributed to Jacobson were similar to
remarks attributed to him by other employees and also
similar to comments attributed to McCarty and to John-
son. Thus, Binkley testified that Jacobson had twice
asked her about the extent of the support for the Union
by other employees and on one occasion which two em-
ployees were going to vote against the Union. Townley
described similar questions as having been asked by both
Jacobson and Johnson. Shields testified that he had been
asked by McCarty whether he was the only employee
organizing on behalf of the Union. Binkley also testified
that Jacobson had warned that the employees could lose
a lot of things by choosing to be represented. Similar
warnings were attributed to McCarty by Shields, who
MCLANE/WESTERN, INC. I
14()02 DI)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that the former had threatened loss of existing
benefits, having to bargain from scratch, and possible
closure should the employees select the Union as their
bargaining representative.
Fourth, while McCarty generally denied having dis-
cussed the Union with Shields and specifically denied
having given the handbill dated June 25 to Shields, he
did not specifically deny having threatened loss of bene-
fits, having to bargain from scratch, and possible closure
should the employees choose to be represented. Instead,
when asked if he had said anything about closing the
warehouse and moving the plant during a particular con-
versation, McCarty responded generally that "I would
not have discussed the Union with Dan Shields period. I
did not." However, neither at that time nor later did he
specifically answer that question put to him by counsel.
Fifth, Jacobson denied having asked McFarland in
March if the latter had received an authorization card, as
McFarland claimed that Jacobson had done. Yet, Jacob-
son conceded that there had been a day when Noll had
reported having found an authorization card on his fork-
lift. McFarland testified that, shortly before Jacobson
had posed his question, he (McFarland) had observed
Noll drive by with an authorization card on his forklift.
Moreover, Jacobson admitted having believed that
McFarland was prounion. Thus, the admitted circum-
stances surrounding the question described by McFar-
land tend to support his account of what had occurred.
So too does the fact that in later conversations both with
McFarland and with other employees Respondent's offi-
cials had asked other questions pertaining to the extent
and source of the Union's support, thereby showing that
these officials were disposed to being curious about the
Union's campaign, and had not been reluctant to ques-
tion employees in an effort to slake that curiosity.
Sixth, that McCarty was disposed to single out Shields
for special treatment was shown by Jacobson's remark to
Townley that Shields was "the ringleader" and by
McCarty's own account of how he came to distribute
handbills to Shields on May 31. For McCarty testified
that "I had specifically told Steve Jacobson that I had
wanted to pass that out to Dan Shields." McCarty ad-
vanced no explanation or reason for having "specifical-
ly" desired to choose Shields as the object of this atten-
tion. Accordingly, his own comment and Jacobson's
characterization tend to support the conclusion that
Shields would have been the likely candidate for
McCarty to focus upon in making distributions and in
making remarks concerning the consequences of union-
izat ion.
Seventh, Shields had been absent on June 25, the day
for which the handbill that he testified that he had re-
ceived from McCarty in conjunction with the latter's
threats of loss of benefits, bargaining from scratch, and
closure is dated. Nevertheless, it is not disputed that
Shields had received one of these handbills. Respondent
produced no official who laid claim to having been the
one to give it to Shields. Consequently, the fact that
Shields had not been available for receipt of that handbill
on June 25 would not have precluded McCarty from
having given it to him upon his return to work, accom-
panying that distribution with the undisputed warning
about the adverse consequences of unionization.
For the foregoing reasons, and based also upon the
record as a whole, I conclude that Respondent did inter-
rogate employees in a coercive manner in that many of
the questions asked were inherently coercive, there was
no valid purpose for having asked such questions, no
purpose was advanced to the employees for questioning
them regarding these topics, no assurances against repris-
al were advanced to the employees, other unlawful coer-
cive comments were made during some of the same con-
versations in which the questioning occurred, and several
of the conversations were conducted in the offices of Re-
spondent's officials. See, e.g., World Wide Press, Inc., 242
NLRB 346 (1979), and cases cited therein.
Among the other unlawful coercive comments made
to the employees, in conjunction with the questioning
were threats of closure should the employees select the
Union as their representative. Since there is no evidence
of any objective basis for such comments, and in light of
their inherently coercive nature, I find that these remarks
constituted threats which violated the Act. See DR W
Corporation d/b/a Brothers l'hree Cabinets, 248 NLRB
828, 839 (1980), and L'Eggs products Incorporated, 236
NLRB 354, 388 (1978). Similarly, Respondent's state-
ments about loss of benefits and having to bargain from
scratch also were unlawful. For, when these remarks
were uttered, there had been no effort made to attribute
any loss of benefits to the normal give-and-take of the
collective-bargaining process. Nor was any effort made
to dispel any possible impression that the losses would
occur as a result of the selection of the Union as the em-
ployees' bargaining representative. To the contrary, the
loss of benefits was attributed to that very choice on the
part of the employees: Select the Union and these conse-
quences would follow. See EDM of Texas, Div. of Chro-
malloy American Corp., 245 NLRB No. 119. (1979).
Therefore, I find that during these conversations Re-
spondent violated Section 8(a)(l) of the Act by coercive-
ly interrogating employees and by threatening them with
closure, loss of benefits, and having to bargain from
scratch to recover lost benefits should they choose to be
represented by the Union. This leaves for consideration
two other conversations: The one the morning of June
28 between Shields and McCarty, and the earlier one in
which McLane had threatened to punch Shields in the
nose.
Although Shields claimed that McCarty had agreed
that he would rather that Shields not serve as the
Union's observer because Shields "will influence a lot of
votes," I find that the evidence does not support a find-
ing that McCarty had made that remark. As noted
above, Shields did not appear to be a fully candid wit-
ness. With regard to his conversations with McCarty in
conjunction with the distribution of handbills, other evi-
dence tends to support his accounts of McCarty's words.
Here, however, the evidence does not suppport the like-
lihood of McCarty's having said that he would prefer
that Shields not serve as an observer for the Union. It is
undisputed that, as the election had neared, Shields. who
had been the object of McCarty's unlawful questioning
MCLANE/WESTERN. INC. 14()0
and threats, had told Respondent's officials that he had
withdrawn his support from the Union. So far as the
record discloses, that had been the impression of Re-
spondent's officials, particularly McCarty, on the morn-
ing of the first day of the election. Consequently, from
McCarty's view, if Shields were to have any influence
during the election, that influence would most likely
favor Respondent. Indeed, it would appear that Re-
spondent's cause, vis-a-vis the employees would have
been furthered by the service of an anti-union employee
as the Union's observer. Further, the description of how
Shields came to initiate the Union's campaign leaves
some doubt that he would have been viewed as occupy-
ing a position of respect among the employees sufficient
to warrant McCarty's in believing that Shields could in-
fluence the other employees. To the contrary, it appears
to have been Shields' pique at the low esteem in which
he was held that had led him to prove, as he testified,
that he could accomplish something and to use the
Union as the vehicle for that objective. Finally, Re-
spondent's officials had been briefed extensively on the
legality of comments which they could and could not
make to employees. True, as found above, these guide-
lines had not been observed earlier. However, McCarty
impressed me as being shrewd enough to perceive that
the day of the election, with representatives of the Union
and the Board present and nearby, was hardly an appro-
priate occasion to continue such excesses. Therefore, I
do not credit Shields' testimony regarding McCarty's
comments on the morning of June 28.
With respect to McLane's words to Shields, there is
no dispute that he had stated that he wanted to punch
Shields in the nose. The issue is whether that remark re-
lated to Shields' earlier admitted initiation of and affili-
ation with the Union's campaign or whether it had been
a jocular comment, unrelated to Shields' earlier, from
Respondent's viewpoint, union support. Though McLane
claimed that he had been joking, he failed to explain the
manner in which his comment to Shields could have
been construed as being humorous. He agreed that, while
he and Shields had joked in the past, he had never made
comments of a similar nature, either implying or warning
of a physical attack. McLane claimed that he had uttered
similar jocular remarks to others. Yet, he did not specify
any instances of such statements. Moreover, his assertion
that everyone had laughed in response to his comment to
Shields was not corroborated, in the final analysis, even
by Barker, who, as the matter was pressed, appeared to
be attempting to avoid incurring Respondent's wrath by
testifying in a manner inconsistent with its position. In
short, I find that the evidence does not support
McLane's contention that his comment had been uttered
in jest, and that this was obvious to all who had been
present.
But, if not, then was it related to Shields' prior support
of the Union. Though McLane denied it, three wit-
nesses-Shields, Barker, and Townley-agreed that
McLane had said that he was "already mad" at Shields.
So far as the record discloses, there had been nothing in
Shields' work or personal relations with McLane that
would logically have given the latter cause to be "al-
ready mad" at Shields. By contrast, as found above, Re-
spondent had displayed its animus toward the Union's
organizational campaign by engaging in significant un-
lawful conduct throughout the course of the preelection
period. Shields, by Respondent's officials' own admis-
sions, had acknowledged to Respondent the fact that he
had been the initiator of that campaign. Even though he
had changed his position concerning the desirability of
representation and had made that change in position
known to Respondent, the fact still remained that Re-
spondent found itself faced with an election and with, in
its view, the undesirable prospect of having to bargain
with the Union as a consequence of Shields' conduct
prior to his change of heart. In these circumstances, and
in the absence of any other explanation, not related to
the Union's campaign for McLane to have been "already
mad" at Shields, I find that McLane's remarks, even if
intended as a form of "kidding on the square,"2 2 would
reasonably have been construed by the employee listen-
ers, particularly Shields, as a threat to hit the latter be-
cause of Respondent's displeasure with his initiation of
the Union's campaign. Therefore, I find that this remark
violated Section 8(a)(1) of the Act.
Although Shields testified that he had not repeated
what McCarty had said during the meetings in the lat-
ter's office, the fact remains that, as found above, Shields
had been the object of unlawful remarks and had with-
drawn his support of the Union. Moreover, McLane's
threat to punch Shields in the nose had been made in the
presence of other employees, and, further, Shields had
not been the only employee who had been the target of
unlawful statements made by Respondent's officials.
"Conduct violative of Section 8(a)(1) is, a fortriori, con-
duct which interferes with the exercise of a free end un-
trammeled choice in an election." Dal-Tex Optical Com-
pany, Inc., 137 NLRB 1782, 1786 (1962). Therefore, I
shall recommend that the election conducted in Case 27-
RC-5848 be set aside and that a new election be direct-
ed.
This leaves for consideration Respondent's motivation
for terminating McFarland. Final determination of that
issue presents a very close question. On the one hand,
McFarland had engaged in relatively minimal activity on
behalf of the Union and there is no evidence that Re-
spondent had been aware of the activity in which he had
engaged. Respondent had a rule against stealing and pil-
ferage of which, at the very least, McFarland had been
accorded every opportunity to learn. Certainly, Re-
spondent had made every effort to inform its employees
of the existence of that rule and of the consequences of
violating it. On July 10, McFarland had admitted to Re-
spondent's officials that he had eaten the cracker. While
no employee in the past had ever been terminated for
having stolen merchandise so small in value, the employ-
ees had been warned not to jeopardize their jobs by
petty pilferage, and there is no evidence that any situa-
tions had been brought to McCarty's attention where an
employee had taken or eaten merchandise insignificant in
22 McLane's inlten is not. of course. a relevant consideration in ap-
praising whether or not hi, remark constituted a violation of Sec 8(aHI)
of the Act .4merican Lumber Sales. Inc. 229 NLRB 414, 416 (1977). and