7-Up Bottling Company

National Labor Relations Board - Board DecisionsMay 14, 1982

261 N.L.R.B. 894 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7 Up Bottling Company and Steven Pankey. Case 27-CA-6764 May 14, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On July 31, 1981, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended 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, 7 Up Bottling Company, Greeley, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 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 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 RICHARD J. BOYCE, Administrative Law Judge: This matter was heard before me in Denver, Colorado, on December 11-12, 1980. The charge was filed on June 17, 1980, and later twice amended, by Steven Pankey, acting on his own behalf. The complaint, which was issued on August 19 and which was amended on November 21 and during the hearing, alleges that 7 Up Bottling Company Respondent dealt with Pankey in a manner sometimes violating Section 8(a)(1), sometimes violating Section 8(a)(1) and (3), and sometimes violating Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended (the Act). I The complaint actually alleges that Respondent violated Sec. 8(a)(4) in each instance that it violated Sec 8(aX3). Insofar as the event on which the 8(aH4) allegations seemingly are predicated-the filing of the 261 NLRB No. 128 FINDINGS OF FAC'I I. JURISDICTION Respondent is engaged in the production and sale of a soft drink known as 7 Up, which it distributes from var- ious locations in the United States, including Greeley, Colorado. It annually causes products of a value exceed- ing $50,000 to be shipped across state lines, and thus is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1l. I.ABOR ORGANIZATION Delivery Drivers, Warehousemen and Helpers Local Union No. 435 (the Union) is a labor organization within the meaning of Section 2(5) of the Act. III. BACKGROUND FACIS Respondent delivers products from its Greeley ware- house in bottled, canned, premix, and postmix forms. The bottles and cans are of the sort sold in grocery stores and from vending machines. Premix and postmix are used by bars and restaurants. Pankey, the Charging Party, was hired in December 1978 to deliver premix and postmix, to load the several delivery trucks for their next day's runs, and to repair fountain equipment for customers as needed. Initially, each of his 5 days per week was divided between deli- vering and loading. After about a year, his Tuesday through Thursday deliveries were absorbed by one or the other of the four bottle/can routes; and, in August 1980, his Monday and Friday deliveries likewise were absorbed. He received $4.75 per hour on hire, being raised to $5.10 in January 1979 and to $5.75 in January 1980. Those on the bottle/can routes delivered exclusive- ly and were paid a base salary plus a commission. Pankey remains on the payroll. In charge at Greeley when the events in issue began to unfold in the fall of 1979 was Terry Sillasen, sales man- ager. Effective February 1, 1980, he exchanged positions with Russell Ross, who had been an area manager in Re- spondent's Denver operation. Ross actually began full- time work in Greeley on January 7, with Sillasen staying until February I to assist in his orientation. Under Silla- sen and then Ross in the Greeley supervisory hierarchy were Randy Illingsworth, route supervisor, and Bill Weber, warehouse manager. Greeley being a branch of the Denver operation, the Greeley sales manager report- ed to Carl Ten Pas, Denver sales manager. Ten Pas in turn reported to John Howell, overall Denver Manager. It is undisputed that all of those named in this paragraph were supervisors for purposes of the Act. present charge on June 17, 1980-postdated several of the alleged in- stances of 8(aX 3 ) conduct, such allegations presumably are the product of an oversight in the drafting process and manifestly without merit. Those allegations that Respondent violated Sec. 8(aX4) by conduct predating the filing of the charge therefore are dismissed at this point, and will not be later addressed. 894 7 UP BOTTLING COMPANY IV. THE ORGANIZATIONAl ONSET AND RESPONDFNT'S IMMEDIATI: RFAC TION In early November 1979, Pankey initiated a telephone conversation with Bella Brockhaus, a business agent for the Union and a former employee of Respondent in Denver, expressing his interest in representation. The two then met in Greeley on November 13, at which time Pankey signed a union authorization card. A week or so later, Pankey and two of the four bottle/can routemen, William Holloway and Reuben Ve- lasquez, met at Velasquez' apartment to discuss represen- tation. Pankey brought authorization cards with him, and both Holloway and Velasquez signed. A second organi- zational meeting was held the evening of November 28 at a drive-in restaurant in Greeley. Pankey, although unable to attend because of his work schedule, helped ar- range it. Sillasen learned of the union activity soon after its onset, being told, probably by Illingsworth, that several routemen had joined the Union. 2 Overcoming his first reaction that this was "impossible," and wanting "to find out as much as [he] could about the union organizing ac- tivities," Sillasen raised the subject with Holloway. Holloway confirmed that he, Pankey, and Velasquez had met and signed cards. 3 Perhaps to shield Velasquez, Holloway said that the meeting had been at a restaurant. Sillasen "immediately" conveyed this information to Ten Pas. Ten Pas promptly discussed the matter with Howell. They decided to provide Sillasen with a copy of the con- tract between Respondent and the Union covering the Denver routemen, and to have him meet with the Gree- ley routemen and compare for them the conditions under the Denver contract with theirs without a union. When Pankey arrived at work on November 29, Silla- sen called him to the office, whereupon a conversation of perhaps 2-1/2 hours ensued. Sillasen began by remark- ing that Illingsworth had said that Pankey was "push- ing" for a union. Ignoring Pankey's denial, Sillasen stated that he knew about the previous night's meeting at the drive-in restaurant and about the union cards, and that one of Respondent's options would be to fire the three who had signed. Sillasen continued that the Greeley rou- temen would get the Denver contract, unless they should go on strike; and, in that event, Respondent would con- duct "business as usual," using salesmen and supervisors. He made the further observation that the closure of a Greeley packing plant, Monfort, Inc., was only tempo- rary, to eliminate a union. 2 Sillasen apparently foresaw this possibility upon Brockhaus' becom- ing a business agent in September 1979. Pankey credibly testified that Sil- lasen mentioned Brockhaus to him at that time, and, labeling her "a bitch" and "a troublemaker," counseled Pankey to have nothing to do with her and to hang up should she call. Then, a few days later, again according to Pankey's credible testimony, Sillasen asked Pankey. Holloway, and Velasquez if "that bitch" had contacted them. Sillasen, while testifying that he could not recall conversing with Pankey in this fashion, did not register a convincing denial, conceding that "something may have been said in passing." Sillasen knew Brockhaus from having worked with her in Denver. 3 Sillasen, after professing not to remember having asked Holloway who had attended the meeting and signed cards, relented by degree, first admitting to the possibility that he asked, then that it was "maybe likely" Sillasen then purported to compare the conditions of the Greeley routemen with those under the Denver con- tract, noting that, if the Union were to get in, the "honor system" concerning illness would be supplanted by a re- quirement that the employees bring a doctor's excuse upon their return to duty; and that the routemen would have to reimburse the Company for stock shortages on their trucks. Sillasen added that the Union does not afford job protection, naming some Denver routemen who had been discharged.4 After work that evening of November 29, Sillasen and Illingsworth met with Pankey, Holloway, and Velasquez. For reasons not revealed on the record, the other two routemen, Mike Ballart and Danny Vetter, did not attend. Apparently neither had signed a union card. Sillasen, explaining that Respondent would not pay at- torneys to negotiate a separate instrument, stated that Greeley would get the Denver contract if the Union were to get in. He then went over the Denver contract "step by step," pointing out the areas in which it differed from prevailing conditions in Greeley. He stated, among other things, that the Greeley routemen received larger commissions per quantity of product sold than did those in Denver; that deductions were taken from the pay of the Denver routemen to cover shortages; and that, whereas the Greeley employees had received raises each January for at least the last 15 years and "probably" would get another in January 1980, that would be lost if the employees went union because the Denver contract did not provide for a January raise. Velasquez asked how large the next January raise would be. Sillasen re- plied that he could not say, but that the Greeley route- men would lose money under the Denver contract. Sillasen raised the subject of the union cards, asking what signing meant. Velasquez answered that the three had signed, and that their purpose was to get an election. Velasquez then said that he had fallen for Brockhaus' "sales pitch," and that it had been "a mistake" to sign. Sillasen, gesturing toward a telephone, said that the sign- ers could call Brockhaus if they had "second thoughts." He added that Ten Pas had said such disavowals would not prevent an election should the Union wish to pro- ceed, but probably would induce the Union to withdraw. With that, Pankey asked if he could speak with Velas- quez and Holloway in private. Sillasen and Illingsworth left, and Pankey and Holloway both admonished Velas- quez to keep his mouth shut. Sillasen returned shortly, asking if they had called Brockhaus. Pankey replied that 4 Pankey is credited that he had an exchange with Sillasen on Novem- ber 29, and that it took this form. Sillasen testified that he "may have" spoken with Pankey about the union situation on the 29th, asserting that, if he did, the conversation lasted about 10 minutes, not 2-1/2 hours, and that he did not say that an option would be to fire those who had signed cards. Seeking to give credence to this latter assertion, Sillasen avowedly told the employees that "nobody's going to be fired over" the union matter. Pankey was the more credible of the two generally His recital was responsive, convincingly detailed, and rendered with obvious sincer- ity. Sillasen, as exemplified by the footnote immediately preceding, weak- ened his credibility by a recurrent inclination to evade and self-contra- dict, and by a penchant for vagueness. 895 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they would "think about it" and Velasquez that he would call her that night.5 The next Monday, December 3, Sillasen asked Pankey if he had called Brockhaus. Pankey said that he had not, but that he understood that Velasquez was going to. Sil- lasen stated that Velasquez had told him he had, and that he had told Brockhaus that the Greeley routemen did not want a union. Ross, first denying that Sillasen ever told him about the November meeting with the three signers, later ad- mitted the contrary. Sillasen likewise testified that he dis- cussed the meeting with Ross. Sillasen further testified that he "volunteered" to Ross the names of the the sign- ers, and disclosed that two of the three-Holloway and Velasquez-had said they were no longer interested. During a December visit to Greeley, Ross mentioned to Pankey that he and Sillasen had discussed Pankey's organizing efforts. Assuring Pankey that there would be "a lot of changes," Ross urged that he work with him and give him a chance as Greeley sales manager before "pushing" further for representation. V. THE Al LEGED UNFAIR LABOR PRACTICES A. The Reduction of Pankey's Deliveries Allegation: The complaint alleges that, on or about Jan- uary 1, 1980, Respondent "reduced the work opportuni- ties of . . . Pankey by reduction of his route," and in so doing violated Section 8(a)(1) and (3). Evidence: Effective January 7, 1980, Pankey's Tuesday, Wednesday, and Thursday premix and postmix deliveries were taken from him, being absorbed by bottle/can routes. 7 Ross told Pankey at the time that Pankey's "relation- ship" with Brockhaus had had a bad effect on his "atti- tude"; and that he did not want Pankey "around" the other routemen more than necessary because "it was ef- fecting their attitudes" as well. Ross said that he conse- quently wanted Pankey to be coming in later on those days he did not drive. Pankey complained that the loss of hours and thus income would impair his standard of living. Ross, adverting to Harry Truman, cracked, "If it gets too hot in the kitchen, get out." Pankey had made his Tuesday through Thursday deliveries from about I That the November 29 evening meeting assumed this form is derived from the testimony of Pankey and Sillasen. Sillasen did not deny saying there probably would be January raises if there were no union, denying only that he promised "better than normal" raises. 6 Pankey is credited that Ross made this appeal to him, in December, in Greeley. As previously noted, he was a most believable witness Ross testified that he did not learn about the union campaign until mid-Janu- ary, when Sillasen told him about it, and that he never said "anything about the Union" to Pankey. Ross also testified, as did Sillasen, that he was never at the Greeley facility before January, although being in- formed of his coming transfer in October. Ross, as suggested by his nip- flop whether Sillasen told him about the November 29 employee meet- ing, suffered much the same self-impeaching testimonial disorders as Silla- sen. ' Pankey testified that the change was effective January 7; Sillasen that Pankey's Tuesday deliveries were taken from him as of December 4, 1979, with the Wednesday and Thursday changes going into effect Janu- ary 7. Pankey testified with greater conviction on the point, and is cred- ited. Sillasen's presumed purpose in giving the December date was to take the event outside the 6-month limitation period of Sec. 10(b), the charge having been filed on June 17, 1980. noon to between 4 and 6 p.m. each day, after which he spent 5 or 6 hours loading. The bottle/can routemen began about 5 a.m. and finished between 2 and 4 p.m. Ten Pas testified that this change was a "joint deci- sion" by him and Sillasen, and that it was the culmina- tion of a process begun the preceding September or Oc- tober when he spoke to Sillasen about finding "some manner of reducing the amount of trucks on the street, fuel consumption, cutting expenses." Ten Pas reputedly "suggested" that Sillasen "take a look at . . . the possi- bility" of meshing premix and postmix deliveries with the bottle/can routes. Ten Pas was prompted to broach this, so he testified, because the Department of Energy had reduced Respondent's fuel allocation as of August 1, 1979, and because Respondent's budget did not allow for new trucks. Ten Pas added that, because of the same considerations, Denver had ceased Saturday deliveries in September, and had reduced its trucks in use from 22 to 20. Denver, however, did not consolidate premix and postmix deliveries with those of bottles and cans, Ten Pas explaining that Denver had two premix and postmix routemen who made deliveries full time, and that to have done so may have entailed union negotiations. Ten Pas' recital continued that, after first raising the subject with Sillasen, the two spoke "regularly" concern- ing Sillasen's "progress"; and that, in late November, Sil- lasen told him that "the study was feasible" and he "au- thorized" Sillasen "to go ahead with it." Sillasen, more or less echoing Ten Pas, testified that Ten Pas called him in September or October, asking that he "study" ways of reducing fuel consumption and of "possibly" eliminating a truck. "Within days," according to Sillasen, he decided that the elimination of separate premix and postmix routes "would be the best way to eliminate a truck and save gas." Despite his quickness in arriving at this position, Sillasen supposedly discussed the matter with Ten Pas "15 or 20 times," leading to a joint decision in late November. He conceded that the decision was reached about the time-"in that time span"-he heard about the union activity. Further concerning the deliberations resulting in the change, Sillasen testified at one point that elimination of separate premix and postmix deliveries was the only option he discussed with Ten Pas. Yet, he testified else- where that they discussed the consolidation of bottle/can routes, concluding that it would be "unfeasible." Sillasen testified that Illingsworth "may have been involved in some of" the discussions. Sillasen also testified that, "probably the same day" that Ten Pas first spoke to him about the matter, he men- tioned to Pankey "the possibility" of putting some of the premix and postmix accounts "on the regular route trucks"; and that Pankey thought it was "a great idea" because "he did not like dealing with people and he did not like handling company money." Then, according to Sillasen, when he told Pankey about the decision in late November, Pankey exclaimed, "Great." Pankey, contradicting Sillasen, testified that Sillasen first spoke to him of the possibility of a change in late December, stating that Denver was thinking of reorga- nizing the routes generally and that one of the options 896 7 UP BOTTLING COMPANY was to put premix and postmix on the bottle/can routes. Pankey denied ever evincing a dislike for route work or handling money. The only thing he could recount re- motely resembling the contrary occurred when Holloway once commented to Sillasen that he "would prefer when handling large sums of money to maybe stop at a bank or get a money order instead of carrying such large sums"; and Pankey concurred that it "would be a good idea [rather than] coming out of a bar at 5:00 or 6:00 in the evening, going to the alley where the truck was, with several hundred dollars cash on me." Pankey is credited that Sillasen did not mention the possibility of route changes to him until late December; that he never indicated a dislike for route work; and that his only stated concern about handling money was in the narrow context just described. As earlier stated, Pankey was the more credible of the two generally. The loss of the Tuesday through Thursday deliveries, while not causing a reduction in Pankey's regular hours, apparently effected a substantial lowering of his overtime hours. In the first four 2-week pay periods after the change, Pankey worked a total of 25.4 overtime hours, as compared with 70.4 in the same period in 1979 and 86.5 in the last four pay periods in 1979. Conclusion: It is concluded that the taking from Pankey of the Tuesday through Thursday deliveries was in reaction to his union activities, and that the action therefore violated Section 8(a)(1) and (3) as alleged. This conclusion derives from this aggregate of consid- erations: (a) Pankey was the initiator and foremost champion of the organizational effort. (b) Pankey's primacy in the union drive was known to Respondent. Sillasen told Pankey on November 29, 1979, that he had heard that he was "pushing" for a union; and Ross asked Pankey in December to give him a chance as the Greeley sales manager before "pushing" further for representation. (c) By Sillasen's admission, Respondent's decision to take this action was reached about the time-"in that time span"-that Sillasen first heard about the union ac- tivity. (d) Ross virtually admitted the antiunion purpose un- derlying the action, telling Pankey while informing him of the change that Brockhaus, the union business agent, had had a bad effect on his "attitude," and that he did not want Pankey "around" the other routemen more than necessary because "it was affecting their attitudes" as well. A result of the change, and the concomitant al- teration of Pankey's schedule, was to reduce his contacts with the other routemen. (e) The testimony of Respondent's witnesses concern- ing the circumstances and deliberations leading to the change was unconvincing for several reasons. First, it was telltale vague. Although Ten Pas and Sillasen sup- posedly discussed the matter "regularly" (Ten Pas) or "15 or 20 times" (Sillasen) before reaching a decision, neither furnished the content of such discussions in other than the most cursory of terms. Vagueness, and thus fab- rication, also was indicated by Sillasen's testimony that Illingsworth "may have been involved in some of" the deliberations. Second, although Ten Pas testified that the circum- stances underlying the change were that Respondent's fuel allocation had been governmentally reduced and that its budget did not allow for new trucks, Respond- ent's failure to supply corroborating documentation sug- gests that these circumstances did not in fact exist. Third, Sillasen's testimony that he had decided on the action eventually taken "within days" of his first conver- sation with Ten Pas in September or October, in combi- nation with his added testimony that the decision was reached about the time he learned of the union activity, renders implausible his and Ten Pas' assertions that they discussed the matter numerous times over two or so months before deciding, and that the decision was based on legitimate business considerations. (f) Finally, Sillasen's fabrication of conversations with Pankey regarding such a change, and in particular of Pankey's reaction to the possibility because of a supposed antipathy to route work and handling money, betrayed the falseness of Respondent's stated motivation for the change, warranting the inference that its true motivation was improper. B. The Alleged Threats To Reduce Pankey to Part- time Status Allegation: The complaint alleges that, from about Feb- ruary I regularly through May 22, 1980, Respondent "threatened . . . Pankey with being placed on part-time status," and in so doing violated Section 8(a)(l). Evidence: Pankey testified that, between about Febru- ary 1, 1980, and sometime in May, Ross complained to him "approximately a dozen" times that he was working too many hours; and that he, in justification, explained variously that his hours were prolonged because the lights over the loading bay, all being on a single circuit breaker, "kept going out"; because the two forklifts "keep breaking down"; and because roof leakage "ruins the cardboard boxes," complicating the bottle-sorting process. Ross, in agreement with Pankey, testified that he took exception "on a number of occasions" during this period to the overtime hours amassed by Pankey. Sillasen testified that, feeling Pankey's accumulation of overtime hours to be "unjustified," he spoke with Pankey about it "almost constantly" in 1979; and that, from September 1979 to January 1980, he required Pankey to explain "on a daily basis" why he had worked over 8 hours "on any given day," Pankey testified, on the other hand, that Sillasen spoke to him only once in this vein, in late 1979; and that he explained that he was being delayed because one of the salesmen frequently was late bringing the next day's load sheets to him. For the reasons stated earlier, Pankey once more is credited. Conclusion: Viewing this case in total perspective, it is evident that Respondent was engaged in an orchestrated effort to make life unpleasant for Pankey because of his union and other protected activities. It is concluded, even so, that the General Counsel has failed to establish that Ross' questioning of Pankey an average of three or four times a month about his overtime accumulation was improperly motivated; and that this allegation therefore is without merit. 897 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That Pankey saw need to explain the prolongation of his shifts in terms of assorted mishaps indicates that his hours did appear to be excessive, pending explanation, and that Ross had legitimate reason to question him in this regard. C. The Failure To Assign Pankey a Bottle/Can Route Allegation: The complaint alleges that, on or about March 1, 1980, Respondent "refused to award an open route to" Pankey, and in so doing violated Section 8(a)(1) and (3). Evidence: Respondent has four year-round bottle/can routes. They are designated l(a), serving Loveland and the south side of Fort Collins; I(b), serving the rest of Fort Collins; 2(a), serving the north side of Greeley and the area beyond; and 2(b), serving the rest of Greeley and points south. Routes I(a) and (b), being in more pop- ulous areas, are the most lucrative of the four. There also is a summer route to Estes Park. In March 1980, I(b) became open when Mike Ballart quit. He was succeeded by Velasquez, who had been on 2(a) since August 1979 and on the Estes Park route im- mediately before that. Pankey testified that, upon learn- ing of the opening, he told Ross he was interested in it; that Ross said he already had decided to give it to Velas- quez; and that, when Pankey asked why not him, Ross explained that he was doing "a good job" where he was and that he did not want him "in contact with" the other routemen, "affecting their attitudes." Ross added, ac- cording to Pankey, "I'm sure you know what I mean." It will be recalled that Ross had told Pankey in January, when Pankey's deliveries were reduced, that he did not want Pankey "around" the other drivers more than nec- essary because "it was affecting their attitudes." Ross testified that Sillasen, although no longer at Greeley, and he participated in the decision to award l(b) to Velasquez. The reasons, according to Ross, were that Sillasen had said that Velasquez had done "a good job" on his prior routes, that Ross "hadn't seen anything to the contrary," and that Sillasen also had said that Pankey had turned down routes "because he didn't like to handle money." Ross added, without clearly indicat- ing it to be a factor, that Velasquez had requested l(b) and Pankey had not. Pankey, it will be remembered, cre- dibly denied ever evincing a dislike for route work or handling money. Pankey is credited, moreover, that he indeed did tell Ross of his interest in l(b), and that Ross responded as described in the preceding paragraph.8 Pankey was more senior than Velasquez. Respondent's employee handbook provides that "qualified employees with the greatest seniority . . . shall be given prefer- ence" in the filling of openings "insofar as the Employer deems it practical to do so." This means, in Sillasen's view, that seniority is a "tie-breaker," all other things being equal. Whether Ross shares that interpretation is left to surmise on the record. Velasquez began with Respondent on the Estes Park route in the summer of 1979. Sillasen testified that he 8 Pankey, as mentioned several times before, was a convincing witness, whereas Ross, as noted earlier, "suffered much the same self-impeaching testimonial disorders as Sillasen." was given 2(a) that August because he had "proven him- self on the Estes route to be a very good, qualified em- ployee, a very good routeman" and because Respondent otherwise would have had no place for him upon con- clusion of the Estes Park season. Sillasen asserted that it did not occur to him to put Pankey on 2(a), giving Ve- lasquez Pankey's former duties as a means of retaining him. He added that Pankey "wasn't considered for" 2(a)-"I don't know why." Pankey credibly testified that he asked Weber about 2(a), but did not seek it in light of Weber's counsel that he would be "better off money-wise and position-wise" to wait for l(a) or (b) to open. Weber also stated, as Pankey credibly recounted, that Velasquez would be get- ting 2(a) because he was a minority person, but would not be advanced to l(a) or (b) because he was hard on equipment. Sillasen denied that Velasquez' minority status was a factor.9 Sillasen conceded that Velasquez had a reputation "as being rough on trucks," that he "was getting close" to being "a careless driver," and that Sillasen consequently "was watching Reuben carefully" during Sillasen's time at Greeley. He recalled that Velasquez had been in four minor accidents ("backing into a dock, this type of thing"), and had torn out a transmission while on the Estes Park route; and that he, Sillasen, had spoken with Velasquez about these matters. Sillasen nevertheless pro- fessed to rate Velasquez as an "8" on a scale of I to 10, explaining that he "received [customer] compliments over the phone which were unheard of." Sillasen testi- fied that the only reason he would not give Velasquez a "10" is that "nobody's perfect." Sillasen depicted Pankey as "a good employee," who, unlike Velasquez, is "good with the equipment," yet would rate him only a "4" otn the 1-to-10 scale. Sillasen asserted that Respondent had received "several" com- plaints about Pankey from customers and from "third in- terested parties," prompting him to discuss customer re- lations with Pankey "many times." Pankey's customer re- lations problems "may have been . . . a slight factor" in his being bypassed for bottle/can routes, according to Sillasen. Sillasen cited three complaints about Pankey. One al- legedly came from "a lady" employed by an establish- ment known as the Red Steer, who is reputed to have said she wanted Pankey removed from that account be- cause of his "arrogant attitude" when making collections. Another complaint allegedly emanated from a Mr. Gates, a former owner of the Greeley 7 Up distributorship, who is said to have reported Pankey's bumping into him and then into a wall, leaving a mark, while hand-carrying a premix tank through a crowded hallway in a restaurant being patronized by Gates. Gates was the "third interest- ed party" to whom Sillasen referred. The third com- plaint allegedly derived from a "traffic incident"--but not an accident-involving Pankey's truck and the vehi- 9 As it turned out, Pankey was not "better off money-wise" staying where he was. From the time Velasquez took over 2(a) in August until the end of 1979, his gross earnings exceeded Pankey's by about S33. From July through December 1979, however, Pankey's gross exceeded the combined gross of the 2(a) routemen by about $170. 898 7 UP BOTTLING COMPANY cle of a stranger. Sillasen characterized the stranger as "a customer or a potential customer," elaborating, "He would potentially drink 7-Up; I view everybody as a po- tential customer." Sillasen's recital continued that he had one conversa- tion with Pankey about the Red Steer complaint, but did not remove him from the account; that he adverted to the Gates matter in the same conversation, although not making "any big deal about" it; and that he restored peace in connection with the traffic incident by prevail- ing upon Pankey to apologize to the other party. Pankey denied that Sillasen ever spoke to him about a complaint from the Red Steer, further testifying that it could not have come up in the context described by Sillasen for the reason that the Red Steer, as a credit customer, paid by mail rather than by tender to Pankey. Pankey is cred- ited that Sillasen never mentioned a Red Steer complaint to him. Beyond that, Sillasen is not believed that such a complaint ever occurred. Pankey acknowledged the Gates matter, and an ensuing conversation with Sillasen about it; and, inasmuch as he did not address the matter of the traffic incident one way or the other, it is conclud- ed that it happened and was resolved substantially as set forth by Sillasen. In November 1979, Holloway was shifted from 2(b) to l(a), Sillasen testifying that he was chosen because of his seniority "and the job he was doing." Pankey credibly testified that he expressed an interest in l(a) to Weber at the time, but not in 2(b). He was less senior than Holloway. Sillasen averred that he offered 2(b) to Pankey, and that Pankey declined on the grounds that he "did not like dealing with people" and "did not like han- dling the money." Pankey denied that the offer was made, let along that he turned it down, and again is credited. Danny Vetter was hired to replace Holloway on 2(b). In February 1980, 2(b) again opened, being filled by Mark Ditter, hired for the purpose. Pankey neither was offered nor expressed an interest in it. With Velasquez' shift to l(b) in March 1980, the route he vacated, 2(a), went to Blaine Richard, apparently a new hire. Pankey first testified that he never indicated an interest in 2(a) at that time, then that he did. The record provides no additional information. When 2(b) opened once more in August 1980, with Ditter's quitting, Ross asked Pankey if he would be inter- ested. Ross told him it would mean a loss of pay for Pankey and that, should he take it, he would be on 90 days' probation as if he were a new employee and thus could be discharged "at any time without reason." Pankey said he was not interested. The employee hand- book states that the "first 90 days of employment . . . are considered a probationary period," and that "the Company retains the right to terminate any employee during this period without specific cause." James Thompson was hired to replace Ditter.' ° '0 But for the specter of summary discharge raised by Ross, it appar- ently would have been to Pankey's advantage to transfer to 2(b) Ditter grossed $5,159 on the route between March 8 and June 20, 1980. Pankey grossed S4,064 in the same period. Conclusion: It is concluded that the assignment of l(b) to Velasquez rather than Pankey in March 1980 was in further retribution for Pankey's union activities, and that Respondent therefore violated Section 8(a)(1) and (3) as alleged. The bases for this conclusion, in addition to Pankey's known prominence in the espousal of the union cause, are: (a) Explaining to Pankey the failure to give him the route, Ross echoed the explanation given in January in connection with the unlawful reduction in Pankey's de- liveries-that he did not want Pankey "in contact with" the other routemen, "affecting their attitudes." (b) Pankey was more senior than Velasquez. While se- niority is not dispositive of such assignments, it was a factor the last previous time one of the more lucrative routes was filled, when Holloway was given I(a) in No- vember 1979. (c) In contrast with Pankey's overt and steadfast sup- port of the Union, Velasquez had openly disavowed it. (d) The reasons of which Ross testified for choosing Velasquez over Pankey-that Sillasen had said that Ve- lasquez had done "a good job," that Ross "hadn't seen anything to the contrary," and that Sillasen also had said that Pankey had turned down routes "because he didn't like to handle money"-are belied by the weight of the evidence. Sillasen testified that Velasquez, with a history of sev- eral accidents and a ruined transmission, was "close" to being "a careless driver," whereas he viewed Pankey as "a good employee" who is "good with equipment." Nor is there credible evidence that Pankey previously had turned down any routes. True, Weber convinced him in August 1979 to wait for one of the more lucrative routes, l(a) or (b), rather than pursue 2(a), but that hardly helps Respondent's contention that he had shown a disinterest in route work generally. And, while Sillasen has been discredited that Pankey declined 2(b) in November, it would have meant nothing as concerns his interest in l(a) or (b) even if he had. Regarding Pankey's supposed distaste for handling money, he did not couch it in terms of a wish to avoid route work, but instead agreed with Holloway about the desirability of an alternative to carrying large amounts of cash on the routes. Significantly, this did not prevent Holloway's being awarded l(a) in November 1979. Ross's added assertion-that Velasquez had expressed an interest in l(b) and Pankey had not-also has been discredited. (e) Sillasen's rating of Velasquez as an "8" and Pankey only a "4" reflects a double standard adverse to Pankey unless improper considerations-Pankey's prounionism and Velasquez's antiunionism-are factored in. While giving no negative weight to Velasquez's record of acci- dents and carelessness in rating him an "8," Sillasen strained mightily to downgrade Pankey over a single, no-contact traffic "incident," puffing the import of that incident outrageously by referring to the other party as "a customer or a potential customer" because he "would potentially drink 7-Up." 899 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The bad faith underlying Sillasen's assessment of Pankey was further revealed by his testimony that Pankey had experienced customer relations problems, and that he had spoken to Pankey "many times" about this. Invited to elaborate, Sillasen manufactured the story about the complaint from the Red Steer, otherwise fail- ing to isolate a single instance of Pankey's having a prob- lem with a true customer or of his speaking to Pankey about any such problem. D. The Alleged Interrogation and Threat Concerning OSHA and the Requirement That Pankey Wear a Hardhat Allegations: The complaint alleges that, on or about May 15, 1980, Respondent "interrogated ... Pankey about the filing of a complaint with the Occupational Safety and Health Administration" (OSHA) and "threat- ened . .. [him] with strict enforcement of disciplinary rules based on its belief that [he] had made a safety com- plaint to OSHA," and in so doing violated Section 8(a)(1) in each instance. The complaint also alleges that, since about May 15, Respondent "has required . . . Pankey to wear a hard hat," and in so doing violated Section 8(a)(1) and (3). Evidence: As earlier set forth, one of Pankey's explana- tions when challenged by Ross about his hours was that the lights over the loading bay, all being on a single cir- cuit breaker, "kept going out." In May 1980, Pankey mentioned this to Ross once again, stating in addition that he had talked to several people "about the constant problem of the lights going out," and that they had rec- ommended that he bring the situation to the attention of OSHA. A few days later, Ross pointed out to Pankey that some rewiring had been done to deal with the problem, and remarked that he hoped Pankey was "happy." To Pankey's asking what he was talking about, Ross replied, "Whatever it was that got [OSHA] here." Pankey coun- tered that he had not contacted OSHA. Ignoring that, Ross announced that, if Pankey wanted OSHA regula- tions enforced, he would give him "a good one" by in- sisting that he wear a hardhat whenever he was in the warehouse. In fact, Pankey had not communicated with OSHA, nor had any OSHA representative visited the fa- cility. Soon after, in a "disciplinary report" issued to Pankey on or about May 22, discussed more fully later, Ross in- serted this: Also let it be known that instructions have now been given to Mr. Pankey that he is to wear the hard hat at all times when in the 7-Up warehouse. Pankey thereafter wore a hardhat in compliance with Ross' directive. He had not worn one previously. Ross also began wearing one when operating a forklift. The record does not disclose if the bottle/can routemen wore hardhats while in the warehouse. Pankey testified that he had no way of knowing, inasmuch as his hours no longer overlapped theirs. Pankey credibly testified that, when he was hired, Sil- lasen showed him the hardhats and told him that, while OSHA had decreed that they be worn, no one complied. Sillasen then advised him, should he get his head "smashed," to "be sure" to say that he had been wearing a hardhat. There is no proof that OSHA regulations in fact required the wearing of hardhats in Respondent's warehouse. Conclusion: An employee complaint to OSHA over working conditions is an activity protected by the Act. Ross' insistence that Pankey wear a hardhat, in stated re- action to Pankey's having raised the idea of going to OSHA about the lights, doubtless was intended and would have been likely to deter such activity. It is con- cluded, therefore, that Respondent violated Section 8(a)(l) as alleged by this insistence. It is concluded, in addition, that this same conduct vio- lated Section 8(a)(3), it being inferable in the circum- stances that an unspoken contributing influence was Ross' manifest hostility toward Pankey because of his union activities. It is concluded, finally, that the alleged unlawful inter- rogation did not occur; that the alleged unlawful threat was an inseparable part of the conduct just found to have been unlawful, not warranting a separate finding; and that these allegations therefore should be dismissed. E. Pankey's May 22 Disciplinary Report Allegation: The complaint alleges that, on or about May 22, 1980, Respondent "issued a written warning to" Pankey, and in so doing violated Section 8(a)(l) and (3). Evidence: As noted above, Pankey received a so-called disciplinary report on or about May 22, 1980. In addition to the hardhat reference previously quoted, it stated: Due to the unauthorized use of the 7-Up truck #4809 and the use of company time for personal business on Monday, May 19, 1980, this disciplinary action is being taken. This report stands as a warning and if this situation occurs again Mr. Steven D. Pankey will lose the time involved for personal business and will be given one (1) day off without pay. (The day will be determined by management.) On May 19, while making deliveries, Pankey had stopped at his dentist's office to pay a bill, parking his truck near a construction site. Emerging from the office, he saw a construction worker moving a door on his truck as if preparing to take some 7 Up. Pankey prompt- ly telephoned the police from the dental office, then waited in his truck for a policeman. On the officer's ar- rival, Pankey described to him what he had seen and asked that he ascertain the identity of the construction worker to enable recourse should Pankey turn out to have an inventory shortage. Pankey estimated that his delay in going to the den- tist's office and then summoning and waiting for a po- liceman was about 23 minutes. It occurred about lunch- time, and did not involve a departure from his route. Pankey did not take his accustomed 30-minute lunch break that day. 900 7 UP BOTTLING COMPANY Returning to the warehouse about 4:30 that afternoon, Pankey was confronted by Ross, who reported that the construction company had called in protest of Pankey's notifying the police. Ross said he was waiting to hear from John Howell, the Denver manager, regarding the matter, and that Pankey might be discharged. To Pan- key's asking why, Ross answered, "Trouble on the route." On the afternoon of May 22, having been directed to do so, Pankey went to Ross's office. Ross told him at the outset that he was expecting a call from Howell, and the telephone presently rang, being answered in an adjoining room by Ross's secretary, Sylvia Scheel. Ross went into the room with Scheel and began conversing with whom- ever had called. Pankey, within earshot, heard Ross refer to the caller as John, presumably Howell, and state that, as far as he was concerned, there were "immediate grounds" to fire Pankey; that Pankey had been "the source of the union problems"; and that, if Pankey were to go, "we won't have union problems."" Following the telephone conversation, Ross told Pankey that Scheel was preparing a disciplinary report for Pankey's signature, and that he would be receiving a day off without pay sometime in the next week. Pankey asked why, and Ross said he had used a company truck in an unauthorized manner. Pankey, stating that he had overheard Ross' telephone remarks and that things were "getting kind of out of hand," declared that he would need to talk to his lawyer before signing anything. Ross asked who he worked for, Respondent or his lawyer; Pankey iterated that things were "getting out of hand"; and Scheel asked who signed Pankey's paycheck. Pankey nevertheless telephoned his lawyer, Donald Janklow, who promptly went to the plant. Janklow asked to see the disciplinary report. Ross said that it was in the safe and that Scheel, who knew the combination, had left for the day. Janklow asked about the report's contents. Ross, although admitting he had composed it that afternoon, said he could not remember. This en- counter was followed by a letter, dated May 29, from Janklow to Respondent, the contents of which are not disclosed by the record. Pankey never did sign the report, nor did he receive a day's suspension in its immediate aftermath as Ross had said he would. It was placed in his personnel file, how- ever. This was Pankey's only warning for unauthorized equipment use from his time of hire until the hearing. In December 1978, while giving route training to Pankey, Weber deviated from the route to check on a trailer he was having repaired for his personal use; and, in mid-1979, Sillasen told Pankey he could depart from his route to leave a traffic ticket with his lawyer. That did not entail a significant detour from the route. Ross conceded that the routemen leave their routes for lunch and other purposes as "nearly a daily occurrence." Other than the one in question, no disciplinary reports issued to any Greeley employees, citing "unauthorized 1' Ross admitted having a telephone conversation with Howell con- cerning the disciplining of Pankey, but denied saying anything to Howell about Pankey's union activity. Pankey's recital on the point was more convincing than Ross's denial, and is credited. Howell did not testify. use of company equipment," between January 1, 1978, and November 20, 1980. Conclusion: It is concluded that the issuance of this dis- ciplinary report was motivated by the combination of Pankey's union activities and his recently having spoken of going to OSHA about the lights, and that the report therefore violated Section 8(a)(1) and (3) as alleged. The reasons for this conclusion are: (a) Ross remarked over the telephone, apparently to Howell, immediately before the preparation of the report that Pankey had been "the source of the union prob- lems" and that, if Pankey were to go, "we won't have union problems." (b) The report included a reference to the newly im- posed hardhat requirement, which, as earlier concluded, was in unlawful reaction to Pankey's mention of OSHA. This indicates that the OSHA mention also was a factor in the issuance of the report. (c) By any fair assessment, Pankey did nothing wrong on May 19. The visit to the dental office did not take him from his route, and the time spent on that and the ensuing call to the police did not exceed that normally spent for lunch. Beyond that, Pankey's handling of the problem with the construction worker, objectively viewed, was an exemplary exercise of judgment on behalf of Respondent, deserving commendation rather then censure. (d) Although others frequently leave their routes for lunch and other purposes, there is no record that Re- spondent ever before had issued a disciplinary report for that or kindred reasons. (e) Respondent's definition of Pankey's so-called of- fense shifted, indicating pretext. On the afternoon of May 19, Ross said Pankey might be fired because of "trouble on the route." The disciplinary report made no mention of that, instead citing "unauthorized use of' a company truck and "the use of company time for personal busi- ness." (f) This, together with Respondent's earlier unlawful conduct toward Pankey-taking the Tuesday through Thursday deliveries from him, withholding Route l(b) from him, and imposing the hardhat requirement against him-reveals an unmistakable pattern of badgering, plain- ly in reaction to Pankey's union and other protected ac- tivities, and plainly calculated to induce him either to quit or to abandon those activities. F. The Alleged Threats Concerning Pankey's Hours and His Use of the Board's Processes and the Alleged Restriction of His Hours Allegations: The complaint alleges that, on or about July 11, 1980, Respondent "threatened . . . Pankey with reduction of hours and work-schedule changes," and "expressed to .. . [him] the futility of filing charges with the Board," and in so doing violated Section 8(a)(1) in each instance. The complaint also alleges that, on or about July 11, Respondent "changed the terms of . . . Pankey's em- ployment by instructing him to work a strict forty-hour week," and in so doing violated Section 8(a)(l), (3), and (4). 901 DECISIONS OF NATIONAL LABOR RELATIONS HOARD Evidence: As noted in the beginning, the charge under- lying this proceeding was filed by Pankey on June 17, 1980. On July 11, alluding to the NLRB agent investigating the charge, Ross told Pankey that he had met his "buddy" in Denver the day before, that it had cost Re- spondent $1,000, and that he hoped this made Pankey "happy." Pankey asked how he figured the $1,000, and Ross explained that the Board agent had taken an hour's time of three of Respondent's executives. Ross contin- ued, "[M]ake all the allegations you want, nothing is going to change, you have to work a strick 40-hour week, it's out of my hands now." To Pankey's asking what he meant by that, Ross replied that, unless Pankey worked "a strict 40 hours a week," he would be dis- charged and replaced by two part-time employees. 1 2 As previously mentioned, Ross had complained to Pankey a number of times in the early months of 1980 about the amount of overtime being worked by Pankey. Pankey testified that he does not know of any week in which he worked less than 40 hours, and that he works overtime some weeks and not others. The record fails to disclose whether his overtime hours in fact dropped fol- lowing Ross' July 11 declaration. Conclusion: Ross, by stating that he had met Pankey's "buddy" at the NLRB; and it had cost Respondent $1,000; that he hoped this made Pankey "happy"; and that Pankey could "make all the allegations" he wanted, "nothing is going to change," conveyed the notion that Respondent would persist in its pattern of unlawful con- duct toward Pankey and that his efforts to obtain redress through the NLRB would be fruitless. Ross therefore violated Section 8(a)(l) substantially as alleged. Given that context, Ross' ensuing directive that Pankey work "a strict 40 hours a week, it's out of my hands now," plainly was in answer to Pankey's having filed the charge, no doubt being influenced as well by his earlier union activities and mention of OSHA. This change in Pankey's working conditions consequently vio- lated Section 8(a)(l), (3), and (4) as alleged. G. Pankey's August 4 Absentee Slip Allegation: The complaint alleges that, on or about August 1, 1980, Respondent "discriminatorily issued . . . Pankey a written reprimand," and in so doing violated Section 8(a)(1), (3), and (4). Evidence: Pankey missed work on Friday, August 1, 1980, because of illness. His wife notified Respondent that morning that he would not be in. When Pankey returned to work the following Monday, August 4, Weber asked if he had a doctor's excuse. Pankey replied that he did not, but that his wife had called in. Weber countered that, this having been Pankey's third absence in 12 months, a doctor's excuse was needed. Weber and Ross accordingly caused an "absentee slip" to be given to Pankey and placed in his personnel file. The slip, in addition to noting that Pankey had been 12 This is Pankey's credited version of the conversation. Ross' denial that he discussed with Pankey the July 10 meeting with an agent of the Board was unconvincing. absent August I and that his wife had called in, stated that the absence was "unexcused." It said nothing about the need for or lack of a doctor's excuse. When Weber said to Pankey that this had been the third absence in 12 months and that a doctor's excuse consequently was required, Pankey challenged him. They checked company records, which indeed verified that Pankey had been absent the three times. They fur- ther disclosed, however, that he previously had been absent three times within 12 months without need for a doctor's excuse. Pankey asked why he had not been re- quired to produce an excuse then. Weber answered, "You weren't union then." As earlier mentioned, Sillasen told Pankey on Novem- ber 29, 1980, shortly after the onset of the union cam- paign, that, if the Union got in, the employees would need medical excuses upon returning to work after ill- ness. Conclusion: It is concluded that the issuance of the ab- sentee slip, with its characterization of Pankey's August 1 absence as "unexcused," was another instance of retri- bution for Pankey's union activities. Thus, Weber re- marked, explaining the departure from past practice, "You weren't union then." It is concluded that Respond- ent also was influenced in this behavior, at least to some extent, by Pankey's mention of OSHA and his filing of the present charge. This conduct therefore violated Sec- tion 8(a)(1), (3), and (4) as alleged. H. Pankey's August 5 Disciplinary Report Allegation: The complaint alleges that, on or about August 5, 1980, Respondent "discriminatorily issued . . . Pankey a written reprimand and a one-day suspension," and in so doing violated Section 8(a)(l), (3), and (4). Evidence: On August 5, 1980, Pankey received a disci- plinary report asserting that he had failed to "obey orders" and had performed "defective and improper work," and that this was his second offense. The report elaborated under "remarks": Mr. Pankey was warned May 22, 1980, not to use company time for personal business and any viola- tion would result in a one (1) day suspension. Monday, July 28, 1980, at approximately 1:30 p.m., Mr. Steven Pankey violated that warning and was taking care of personal business on company time. Because of this violation, Mr. Pankey will not work Wednesday the 6th of August 1980 and will forfeit one (1) day's pay for 8 hours, as set forth in the warning of May 22, 1980. When Ross tendered the document to Pankey, he ex- plained that its purpose was "to discipline" him for his "previous warning"-i.e., the disciplinary report of May 22, discussed above. Ross remarked that Respondent had learned from Plunkett Sales, a mobile home dealer, that Pankey had been "doing personal business on company time," that he therefore "had violated" the earlier warn- ing, and that "this was the discipline that was taken on the action of that warning." Pankey refused Ross' request that he sign the report, stating that its allegations were untrue. Weber then ex- 902 7 UP BOTTLING COMPANY claimed, "I saw you there." Pankey asked where. Weber stated, "You know where"; and Sylvia Scheel interject- ed, "You moved your trailer, didn't you?" Pankey ad- mitted that he had. Using a firm known as Ace Mobile Home Service, affiliated with Plunkett Sales, Pankey had moved his mobile home on or about July 28 and had told Weber beforehand of his plans. The record does not dis- close if this was done during Pankey's worktime and, if so, to what extent. The night of August 5, Pankey telephoned John Howell at Howell's home in Denver. First reading this latest disciplinary report to Howell, Pankey asked if he knew what it was about. Howell answered that he did, and that Pankey should tell his "buddy" at the Labor Board that Respondent would "punish" Pankey if he did something wrong. Howell then concluded the conversa- tion by saying that he was home and did not care to dis- cuss the matter further. In accordance with this disciplinary report, Pankey did not work August 6. Pankey testified that he was unclear concerning the July 28 reference in the report until a week or so later, when an employee of Plunkett Sales told him that "a woman from 7-Up" had called, saying that Pankey's truck had been there and asking if he was inside. Pankey testified credibly and without refutation that he had never stopped at Plunkett Sales in a company truck. 13 Conclusion: As previously concluded, the May 22 dis- ciplinary report violated Section 8(a)(1) and (3). It fol- lows that this report, and the attendant I-day suspension of Pankey, admittedly being premised on the earlier un- lawful report ("this was the discipline that was taken on the action of that warning"), also violated Section 8(a)(l) and (3). Howell's response when Pankey called him about this latter report-that Pankey should tell his "buddy" at the Labor Board that Respondent would "punish" Pankey if he did something wrong-indicates that hostility over the present charge was an added factor in its issuance and the suspension, placing Respondent in violation of Section 8(a)(4) as well. I. The Elimination of Pankey's Deliveries Allegation: The complaint alleges that, on or about September 8, 1980, Respondent "changed . . . Pankey's work schedule and job duties by elimination of his duties related to pre-mix accounts and by assignment of [him] to night work and different job duties," and in so doing violated Section 8(a)(1), (3), and (4). Evidence: On September 5, 1980, Ross informed Pankey that, as of September 8, he no longer would have his remaining premix and postmix routes, and would have a number of new duties instead. The new duties, itemized on a sheet of paper given Pankey, were to sweep the warehouse floor, clean up the scrap pile, and stack pallets every night; to clean the restrooms every Tuesday and Friday; to clean out the mousetraps every Wednesday; to spray for bugs and dump the trash every Friday; and to sweep and mop the office once a week. Pankey's loading duties were to continue unaffected. 13 Neither Weber nor Scheel testified. The deliveries taken from Pankey were absorbed, as the ones before had been, by bottle/can routes. Since this change in his duties, Pankey has reported for work be- tween 6 and 8:30 p.m., ccntinuing until between midnight and 5 a.m. This means that, whereas he had some on-the- job contact with the other routemen because of overlap- ping hours on the 2 days that he made deliveries, he has had no contact since. It will be recalled that, when Pan- key's Tuesday through Thursday deliveries were taken from him in January, Ross had stated that he did not want Pankey "arcund" the other routemen more than necessary because "it was affecting their attitudes." Conclusion: It is concluded that the taking from Pankey of his remaining deliveries and the concomitant assignment to him of an assortment of demeaning chores, without explanation of note either to him or on the record, and his resulting total isolation from the others, was another of the series of affronts because of his union activities, his mention of OSHA, and his having filed the present charge. Respondent therefore violated Section 8(a)(1), (3), and (4) as alleged. CONCILUSIONS OF LAW Respondent violated Section 8(a)(l), as found herein, by telling Pankey in substance, on July 11, 1980, that Re- spondent would persist in its pattern of unlawful conduct toward him, and that his efforts to obtain redress through the NLRB would be fruitless. Respondent violated Section 8(a)(1) and (3), as found herein, by: (a) Taking Pankey's Tuesday through Thursday deliv- eries from him as of January 7, 1980. (b) Awarding route l(b) to Velasquez instead of Pankey in March 1980. (c) Requiring that Pankey wear a hardhat beginning in May 1980. (d) Issuing a disciplinary report to Pankey on or about May 22, 1980. Respondent violated Section 8(a)( ), (3), and (4), as found herein, by: (a) Informing Pankey on July 11, 1980, that his hours thenceforth were to be "a strict 40" per week. (b) Issuing an absentee slip to Pankey on August 4, 1980, characterizing his August I absence as "unex- cused." (c) Issuing a disciplinary report to Pankey on August 5, 1980, and suspending him for I day on August 6. (d) Taking Pankey's Monday and Friday deliveries from him as of September 8, 1980, assigning him an as- sortment of menial tasks in their place, and thereby alter- ing his schedule. Respondent did not otherwise violate the Act as al- leged. ORDER 14 The Respondent, 7 Up Bottling Company, Greeley, Colorado, its officers, agents, successors, and assigns, shall: 14 All outstanding motions inconsistent with this recommended Order hereby are denied In the event no exceptions are filed as provided by Continued 903 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Threatening employees, in substance, that it will persist in its unlawful conduct toward them, and that their efforts to obtain redress through the NLRB will be fruitless. (b) Awarding delivery routes to employees because of their antiunion sentiments, or withholding routes from employees because of their prounion sentiments and ac- tivities. (c) Requiring its employees to wear hardhats to deter them from complaining to OSHA about conditions of employment and/or because of their union activities. (d) Taking delivery routes from its employees, assign- ing menial chores to them, altering their work schedules, or restricting their overtime hours because of their union activities, to deter them from complaining to OSHA about conditions of employment, and/or because they have filed charges with the NLRB. (e) Issuing disciplinary reports or absentee slips to its employees, labeling absences as "unexcused," or suspend- ing employees because of the employees' union activities, to deter them from complaining to OSHA about condi- tions of employment, and/or because they have filed charges with the NLRB. (f) In any like or related manner interfering with, re- straining, or coercing employees in their exercise of rights under the Act. 2. Take this affirmative action: (a) Expunge from its records the disciplinary report issued to Steven Pankey on about May 22, 1980, the ab- sentee slip issued to him on August 4, 1980, and the dis- ciplinary report issued to him on August 5, 1980, and inform him in writing that this has been done. (b) Inform Pankey in writing that he need no longer wear a hardhat; or, if governmental regulation requires the wearing of a hardhat, inform him in writing of that fact, quoting the relevant portions of such regulation and citing where such regulation appears in official form. (c) Offer to Pankey these choices: Route l(b), expel- ling the present occupant of that position if necessary to make room for him; immediate and full restoration to his job as it was constituted before any delivery routes were taken from him in January 1980; or immediate and full restoration to his job as it was constituted before the re- maining delivery routes were taken from him in Septem- ber 1980, in any case without prejudice to his seniority or other rights and privileges. (d) Make Pankey whole for any loss of earnings or benefits suffered by reason of Respondent's unlawful taking of delivery routes from him, its unlawful failure to award him route l(b), and its unlawful curtailment of his overtime hours, with interest on lost earnings.15 Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 'i Backpay is to be computed in accordance with F W. Woolworth Company, 90 NLRB 289 (1950), with interest to be computed as set forth in Florida Steel Corporation, 231 NLRB 651 (1977) (see, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962)) (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records nec- essary to analyze the amounts of backpay and benefits owing under the terms of this Order. (f) Post at the Greeley, Colorado, facility of 7 Up Bot- tling Company copies of the notice which is attached and marked "Appendix.""' 6 Copies of the notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees customarily are posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Those allegations found herein to be without merit are dismissed. 16 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 Pursu- ant 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 01 THE NA I ONAI. LABOR REL ATIONS BOARD An Agency of the United States Government The hearing held in Denver, Colorado, on December 11-12, 1980, in which we participated and had a chance to give evidence, resulted in a decision that we had com- mitted unfair labor practices in violation of Section 8(a)(l), (3), and (4) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that de- cision. Section 7 of the National Labor Relations Act gives all employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from any or all such activities, except to the extent the employees' bargaining representative and employer have a collective- bargaining agreement which imposes a lawful re- quirement that employees become union mem- bers. WE WII.L NOT threaten employees, in substance, that we will persist in our unlawful conduct toward 904 7 UP BOTTLING COMPANY them, and that their efforts to obtain redress through the NLRB will be fruitless. WE WILL NOT award delivery routes to employ- ees because of their antiunion sentiments, nor will we withhold routes from employees because of their prounion sentiments and activities. WE WIL L NOT require our employees to wear hardhats to deter them from complaining to OSHA about conditions of employment and/or because of their union activities. WE WlIIL NOT take delivery routes from our em- ployees, assign menial chores to them, alter their work schedules, or restrict their overtime hours be- cause of their union activities, to deter them from complaining to OSHA about conditions of employ- ment, and/or because they have filed charges with the NLRB. WE WILl NOT issue disciplinary reports or absen- tee slips to our employees, label absences as "unex- cused," or suspend employees because of the em- ployees' union activities, to deter them from com- plaining to OSHA about conditions of employment, and/or because they have filed charges with the NLRB. WE WIL.L NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of their rights under the Act. WE Wlll expunge from our records the disciplin- ary report issued to Steven Pankey on about May 22, 1980, the absentee slip issued to him on August 4, 1980, and the disciplinary report issued to him on August 5, 1980, and inform him in writing that this has been done. WE wit 1 inform Pankey in writing that he need no longer wear a hardhat; or, if governmental regu- lation requires the wearing of a hardhat, inform him in writing of that fact, quoting the relevant portions of such regulation and citing where such regulation appears in official form. WE WII.L offer to Pankey these choices: Route l(b), expelling the present occupant of that position if necessary to make room for him; immediate and full restoration to his job as it was constituted before any delivery routes were taken from him in January 1980; or immediate and full restoration to his job as it was constituted before the remaining delivery routes were taken from him in September 1980, in any case without prejudice to his seniority or other rights and privileges. WE Wll.I. make Pankey whole for any loss of earnings or benefits suffered by reason of our un- lawful taking of delivery routes from him, our un- lawful failure to award him route 1(b), and our un- lawful curtailment of his overtime hours, with inter- est on lost earnings. 7 UP BOTTLING COMPANY 905