Mid-Mountain Foods, (2007)

Extract

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Mid-Mountain Foods, (2007)

Mid-Mountain Foods, Inc. and United Food and Commercial Workers Union, Local 400.1 Case 11–CA–17684

August 13, 2007

DECISION AND ORDER

By Chairman Battista and Members Schaumber and Kirsanow

On May 22, 2001, Administrative Law Judge Keltner W. Locke issued the attached decision. The Respondent filed exceptions, a supporting brief, an answering brief, and a reply brief. The General Counsel filed exceptions, a supporting brief, and an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions only to the extent consistent with this Decision.

i. introduction

The General Counsel alleged that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by interrogating employee Brian Blevins,3 and that it violated Section 8(a)(3) and (4) of the Act by discharging Blevins on August 22, 1997. The judge concluded that the alleged interrogation never occurred, and he dismissed that allegation. Nevertheless, he found that the Respondent unlawfully discharged Blevins in violation of Section 8(a)(3) and (4). For the reasons stated below, we reverse and dismiss the complaint in its entirety.

ii. facts

In the Union’s 1996 organizing campaign, Blevins distributed authorization cards to employees and wore a union tee shirt to work. In February 1997, he testified on behalf of the General Counsel at the hearing in Mid-Mountain Foods, 332 NLRB 229 (2000), enfd. 219 F.3d 1075 (D.C. Cir. 2001) (Mid-Mountain I). In that case, the Board found, inter alia, that the Respondent made a number of unlawful preelection statements, and discriminatorily disciplined a member of the Union’s organizing committee because of his union activity. The Board also found that the Respondent had unlawfully interrogated Blevins in June 1996. The Board relied on these violations, also alleged as objections, to set aside the election in Mid-Mountain I. Ultimately, however, the Board found that the unfair labor practices were “few in number, relatively isolated, and not pervasive” and did not justify imposing a remedial bargaining order.

In March 1997, the Respondent issued a new employee handbook changing its progressive discipline procedure from a three-step to a two-step procedure. Under the new policy, discharge is warranted following a second written warning.4

On July 18, 1997, Blevins received a first written warning. The warning documented two infractions. First, the warning faulted Blevins for co-opting “pick labels”—which are used to designate product to be shipped to customers—to spell out a prounion message on a shipment slated for delivery.5 The warning also cited Blevins for sending out a customer order that was seven cases short. The July 18 warning was designated as a final warning, and stated as follows:

Due to the fact that you committed the second violation [shorting a customer] before we could address your first violation [misuse of pick labels], this letter will serve as your FINAL WRITTEN WARNING. Any violations within the next twelve months will result in your termination of employment with Mid-Mountain Foods. Had you been forewarned about the first violation, this second violation would have resulted in termination of employment at this time.

Significantly, the judge concluded that the Respondent’s July 18 final warning to Blevins was lawful, and we agree.

On July 29, and again on August 1, Blevins improperly stacked and wrapped products sent to a store. In both instances, customers were required to restack the pallet before they could unload and sort damaged product. As a result of these incidents, Blevins’ supervisor, Mark Hartzog, conducted a counseling session with Blevins, but delayed issuing a warning until he had a chance ...

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