Bluegrass Coca-Cola Bottling Co.

National Labor Relations Board - Board DecisionsOct 25, 1989

297 N.L.R.B. 158 (N.L.R.B. 1989)

158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bluegrass Coca-Cola Bottling Company and Local Union No. 651, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO and Ralph Beckman. Cases 9-CA-25095 and 9-CA-25113 October 25, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On October 14, 1988, Administrative Law Judge Bernard Ries issued the attached decision The Re- spondent filed exceptions and a supporting brief, the General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- ing brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions, and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Bluegrass Coca-Cola Bottling Company, Somerset, Ken- tucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order 1 The Respondent and the General Counsel have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Patricia Rossner Fry, Esq , for the General Counsel Ronald G Ingham, Esq (Miller & Martin), of Chattanoo- ga, Tennessee, for the Respondent Carl E Simpson, of Lexington, Kentucky, for the Charg- ing Party DECISION BERNARD RIES, Administrative Law Judge This matter was tried in Richmond, Kentucky, on May 17-19, 1988 Briefs were filed on or about July 21, 1988 Princi- pally placed in issue by the complaint and answer are (1) whether Respondent unlawfully discharged employees Ralph Beckman and Gregory Fitzgerald on February 9, 1988, and thereby violated Section 8(a)(3) and (1) of the Act, and (2) whether, during the week of February 1, 1988, Respondent's agent "coercively interrogated an employee regarding the union membership, activities and sympathies of Respondent's employees and orally threat- ened to discharge employees who were actively involved in the organizing campaign," thereby violating Section 8(a)(1) Having studied the transcript of proceedings,' having reviewed the briefs, and having taken into account my recollection of the demeanor of the witnesses, I make the following FINDINGS AND CONCLUSIONS I THE ORGANIZATIONAL STRUCTURE In the spring of 1987, Respondent Bluegrass Coca- Cola Bottling Company was acquired by the Minneapolis firm of Johnston Coca-Cola Bottling Group, Inc , said by Respondent's counsel to be the largest operator of Coca- Cola Company facilities next to the Coca-Cola Company itself Of the several Bluegrass facilities in Kentucky thus acquired, the principal office (and presumably a bottling plant) is located in Louisville, there also are headquar- tered Robert Shannon, a vice president of Johnston and the general manager for Bluegrass, and Robert Hart, the personnel manager for the Bluegrass operations There is a branch office in Lexington (where there ap- parently also is a bottling plant) managed by Larry Stull Under Stull, there appear to be three Kentucky locations which are solely engaged in warehousing and locally dis- tributing the 150 varieties of products sold by Respond- ent one location serves the Danville/Mt Sterling area, another is at Campton, and a third is at Somerset, each supervised by a different manager We are interested here in the warehouse/distribution facility at Somerset, which was managed by Charles R (Rick) McCrystal, who assumed that position on June 1, 1987, the other titled officials at Somerset were Arnold Duncan, the dis- tribution manager, and Bill Estep, the sales manager All told, there were about 20-25 nonsupervisory employees at Somerset Permanent personnel records for the Somer- set operation are kept at the Lexington office, under the control of Carolyn Thompson, the personnel officer there II THE CHANGE OF BUSINESS METHODS The conventional method of selling products from a facility like Somerset had been to have driver-salesmen set out with loaded trucks each morning and visit (de- pending upon probable need) the supermarkets, grocery stores, gas stations, schools, banks, etc, on their estab- lished routes In the course of their daily routine, these driver-salesmen would attempt to sell products to their customers, clean and straighten up the area of the store in which their goods were located, fill in supplies needed from any in storage, erect promotional displays, and per- form associated duties Prior to the change in the modus operandi which occurred on December 1, 1987, to be discussed hereafter, the 13 driver-salesmen 2 at Somerset 1 Transcript errors have been noted and corrected 2 On brief (pp 7, 16), Respondent asserts that there were 17 driver salesmen The unanimous testimony is, however, that the number was 13, and R-8, a summary prepared by Respondent covering work performed Continued 297 NLRB No 20 BLUEGRASS COCA-COLA BOTTLING CO 159 were paid on a commission basis and received no over- time pay The testimony of General Manager Shannon is that as the Johnston Company has acquired ,various Coca-Cola franchises, it has been converting them to a "pre-sale" system Under that system, "account managers" take over the sales function of the driver-salesmen, the "man- agers" go out each day to visit customers and to "write the orders, to arrange for displays and promotions, ac- tively work to increase our sales volumes in those ac- counts" Once Johnston took over Bluegrass, it began to convert all operations which were not already "pre-sale" to that system (in fact, the new system had been installed by the previous owner of Bluegrass at the Louisville fa- cility for several years, as well as in two-thirds of the Lexington area) Campton was changed over to "pre- sale" by Respondent as of the first part of November 1987, and Somerset was converted effective December 1 The conversion entailed the selection of four "account managers"â€”or "pre-salesmen"â€”from the 13 Somerset driver-salesmen The new Somerset account managers send the orders taken by them daily to Lexington via their portable microcomputers, and the Lexington com- puters devise, and notify Somerset of, appropriate truck- loading schemes for distribution of product the following day, "striving to hit geographic configurations that make sense for efficiency" After the account managers were chosen, several meetings were held at the Somerset loca- tion prior to December 1 to acquaint them and the former driver-salesmen (now basically drivers) with the new system With the advent of the conversion, the drivers were switched to an hourly pay basis, receiving $8 50 per hour plus overtime Branch Distribution Manager Arnold Duncan became the supervisor most directly concerned with their work III THE UNION ACTIVITY The complaint alleges that when Respondent released drivers Ralph Beckman and Gregory Fitzgerald on Feb- ruary 9, 1988, it did so because of their attempt to form a union Fitzgerald testified that "in January," he ex- pressed to Beckman his belief that the drivers "needed a union to try to get things under control, like working conditions and the hours that we were having to work" Beckman undertook to contact Teamsters Local 651 iii Lexington, and on Monday, February 1, Teamsters Or- ganizer Carl Simpson met with the two alleged discri- mmatees and a few other employees In the following days, Fitzgerald spoke to perhaps five other employees about the Union, some by telephone during the evening and others in the vicinity of the plant One person he by the drivers after December 1, shows only 9 names (thereby excluding the 4 newly promoted account managers,' all of whom were former driver-salesmen) G C Exh 22, a seniority list cited by Respondent as the source of the figure '17, shows that as of February 9, 1988, there were 11 drivers (under the new system), but 2 of them are designated as swmgmen" (I e, substitutes) Assuming that the two "swingmen served in that capacity prior to the conversion of the system, there were, prior to December 1, 1987, a total of only 13 driver-salesmen and 2 swmgmen, but even if the swingmen had been driver-salesmen at that time, which I doubt, the pre-December 1 total would have been 15, not 17 spoke to, in a Winn-Dixie store on his route, was Jeff Hutchison, one of the new account managers Hutchison told him that "considering [his] position with the compa- ny, [he'd] have to be against" the Union 3 Pnor to the February 1 meeting, according to Beck- man, he spoke to about six or seven employees regarding the meeting, and subsequently he passed out perhaps a dozen authorization cards (including several to Fitzger- ald), some at the plant and some at stores where he en- countered fellow drivers 4 Fitzgerald testified that he called swmgman Joe Duncan (for the second time) on Sunday evening, Febru- ary 7, to discuss unions, since Duncan had previously worked in an organized firm Duncan told him, inter aim, that Manager McCrystal had informed Duncan that he was aware of the activities of Beckman and Fitzgerald on behalf of the Union This led Fitzgerald to conclude, as he apparently had been contemplating, that he should stop "pushing" unionization The next evening, after finishing the day's labors, Fitz- gerald made a point of speaking to McCrystal because he "feared for [his] job" He told the manager that he guessed McCrystal had heard that Fitzgerald had been soliciting for the Union, and told McCrystal that he wanted to get it out in the open "before anybody come up and had to lose their job" He also asked McCrystal "what was the big deal" which caused Respondent to be so firmly opposed to unionism, and McCrystal replied, rather obscurely, "What is a big deal?" Otherwise, McCrystal did not respond to Fitzgerald's suggestion that he was aware of Fitzgerald's organizing efforts Instead, McCrystal showed him a flip chart displaying statistics on the work efforts of the nine (unidentified) drivers for the preceding day, pointing out how one driver (not Fitzgerald) had taken "quite a bit of time to set off not that great a number of cases" Fitzgerald agreed, and he also took the opportunity to apologize for what might have looked like a "bad time" by him on Friday, but McCrystal assertedly did not think his time looked bad "for the number of cases that you hauled out" McCrystal did not mention at that meeting that, as we shall see, a decision had already been made to termi- nate Fitzgerald and Beckman on the following day On Tuesday, February 9, a morning meeting of the drivers was held, as happened every week or two, at which McCrystal, using the same chart he had shown to Fitzgerald the night before, said, as far as . Fitzgerald 3 There is an Issue here regarding the supervisory or agency status of 'account managers' 4 Beckman was not a good witness, as the transcript clearly shows An immediately pertinent, although less than momentous, example of his un- reliability may be found in his testimony that he passed out cards for probably three or four weeks," he otherwise testified, however, that he received the cards on February 1, only 8 days before he was terminated on February 9 Fitzgerald, on the other hand, made a better impression on me, there was, however, at least one problem in his testimony which I found trou- blesome But given all of the circumstances present here, including the testimony of Respondent's witnesses, I am generally disposed to credit Fitzgerald's testimony Although my reaction to Beckman was less posi- tive, I find no reason to disbelieve such of his testimony as is related above, although I have some question about certain of his testimony de scribed hereafter 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD could recall, that "there was too much time being took to set off the cases" Following the meeting, separate ter- mination interviews were held with Beckman and Fitz- gerald The following members of management were present at each meeting McCrystal, Arnold Duncan, Bill Estep, Louisville Personnel Manager Robert Hart (who had driven the 129-mile trip from Louisville in order to arrive at 7 a m) and Lexington Branch Manager Larry Stull (who had come some 76 miles from Lexington) At these meetings, the two employees were told that they were being let go, and could leave immediately Without further elaboration on these termination meet- ings at this point, it seems appropriate to discuss the other evidence presented by General Counsel to establish that the separations were unlawful, and also to describe Respondent's testimony concerning the process which led to them Swmgman Joe Duncan, called as a witness by General Counsel, testified that before, the termination occurred, Manager McCrystal asked him who started the union campaign (he said he did not know) and if Beck- man and Fitzgerald had "started the union" (Duncan failed to respond) Duncan also testimonially conceded that, in telephone conversations with the two men, he had told them that McCrystal had asked him whether "if the people that started the union got going, would the issue die down " 5 But Duncan further denied at the hear- ing that McCrystal had actively posed such a question about the effect of employee discharges to him, he testi- fied, rather, that he had fabricated the inquiry in order to frighten the alleged discnmmatees, and that his motive for doing so was his personal antipathy toward unioniza- tion 6 As noted at the outset of this decision, the complaint combines two separable 8(a)(1) violationsâ€”"coercive mterrogattionr of an employee and an "oral 0 threat to discharge employees who were actively involved in the union campaign"â€”in a single allegation I assume that these claims were based upon the anticipated testimony of Joe Duncan But, as discussed, while Duncan con- firmed at the hearing the first part of the allegation, he denounced as falsifications his admitted earlier statements to the two men which would undergird the latter por- tion On brief, counsel for General Counsel argues that, by virtue of the underued interrogations, 7 McCrystal violat- 5 Duncan said the term "got going' was used in the sense of "if they Just weren't there anymore" 6 It came as a surprise to learn at the hearing that Duncan had never given a sworn statement to the Board Normally, such affidavits are taken as a matter of course from prospective witnesses One might specu- late that Duncan was reluctant to actually sign such a statement 7 When McCrystal testified on behalf of Respondent, counsel inquired if he had, as charged, asked Duncan whether a layoff would cure the union problems, McCrystal denied having ever done so Counsel failed, however, to also elicit a denial by McCrystal regarding his alleged ques- tioning of Duncan as to the role of Beckman and Fitzgerald in the union effort Such occasional omissions are not uncommon in these administra- tive proceedings, counsel often fall to cover all the bases I have no doubt that had he been asked whether he had engaged in such question- ing, McCrystal, good soldier that he showed himself to be, would have replied in the negative The fact is, however, that counsel simply Inad- vertently failed to have McCrystal deny this portion of Duncan's testimo- ny, but, Instead of now conceding his very human error, counsel revises reality by stating on bnef (p 15), â€¢McCrystal denied these events' (1 e, the questions about the union activity and, specifically, that of Fitzgerald ed Section 8(a)(1), and also thereby revealed his interest in and knowledge of the union activities of Beckman and Fitzgerald, but counsel completely omits to rely upon the portion of the Duncan-McCrystal conversation which Duncan now says did not actually occur She does not rely on it either as a separate 8(a)(1) violation, as a contributing coercive element of an 8(a)(1) conver- sation, or as evidence tending to prove the 8(a)(3) allega- tion She specifically asks only for an 8(a)(1) finding based upon the "interrogation" of employees "concern- ing the union activities of other employees" My own inclination would be to disbelieve Duncan's present assertion that he was lying when he told the two employees that McCrystal had asked about the possibili- ty of the Union "going away" if its organizers did How- ever, General Counsel's very careful avoidance of this issue convinces me that she has deliberately chosen to eschew reliance upon this portion of Duncan's testimony, whether or not I discredit Duncan's present explanation of why he uttered it I assume that, in choosing this course, General Counsel has felt constrained by Rule 801(d)(1)(A) of the Federal Rules of Evidence I need not discuss whether such a constraint (not, as indicated above, articulated by General Counsel) is necessary or justified, because I consider it manifest from her brief that General Counsel does not advance this testimony as probative evidence upon which I should depend in either finding a violation of Section 8(a)(1) or considering whether Section 8(a)(3) was violated by the termination of Beckman and Fitzgerald 8 General Counsel further seeks to establish discrimina- tory motivation by relying on certain testimony suggest- ing that Account Manager Jeff Hutchison had stated that the two alleged discnminatees were released because of their union activities This would be useful only if the evidence demonstrated that the account managers are sufficiently allied with management so as to render au- thoritative any such statements by them, the usual litiga- tional approach to such questions, followed here by Gen- eral Counsel, is an effort to demonstrate that the person to whom the statement is attributed occupies the status of a "supervisor" within the definition supplied by Sec- tion 2(11) of the Act and Beckman) That this error was not Inadvertent is highlighted by the fact that no transcript citation appears next to the statement, although every other factual assertion on the page is accompanied by a citation, including the page at which McCrystal expressly denied having said any- thing suggesting the possibility of discharge of the organizers 6 At the hearing, Respondent fought to prohibit the use of such words as "terminate" or "discharge" in describing the personnel actions under consideration here, claiming that the release of the two employees was a "layoff" In support, Respondent points to the fact that in Aprilâ€”after the charge was filedâ€”Fitzgerald was reinstated to fill a vacancy created by the departure of another driver Respondent witnesses repeatedly tes- tified, however that the action was designed to "eliminate the positions,' and that is also what Lexington Personnel Administrator Carolyn Thompson wrote on Fitzgerald's claim for unemployment benefits, adding, 'The Company is reducing route merchandisers from 10 to 8 [sic] because of the lack of our volume of work" (R Eh 10, p 9) On Respondent's own "Personnel Action Nonce" for Fitzgerald, McCrystal marked a box designated Permanent Layoff" It seems clear that as of the date of separation, Respondent had no conscious intention of recall- ing either of the two men BLUEGRASS COCA-COLA BOTTLING CO 161 I see no need to resolve that issue, however The testi- mony in question was given by Andy Roberts, a driver for Rainbow Baking Company Roberts said that shortly after the terminations, he ran Into Account Manager Hutchison in a store and, having heard of the termina- tions, asked Hutchison "how come they fired a routeman as good as Greg9" 9 Roberts' initial recounting of Hutchi- son's reply was "He said he felt Ralph and Greg had talked about the union or something similar to that" Roberts went on to testify that Hutchison "said they felt they were going to lay off two drivers, but he wasn't tooâ€”didn't think that Ralph and Greg were the two to begin with" When he was asked once more to repeat at the entire conversation (which he twice said, as is nor- mally the case, he could not "remember word for word") his account differed "[Hutchison] said they were fired for talking about the union He went on to say that they were going to lay off two dnvers or swing men, but they weren't Ralph or Greg" Roberts added that he again saw Hutchison some time later and mentioned that he had heard that the two ex- employees were "bringing a case" which Roberts had been told was a "good" one Hutchison assertedly re- plied that he "felt they had a good case too, that he had heard the company had got in a hurry He told me that he felt that Coke had got in a hurry when they fired them and had fired them unprepared, that they had done it just on the spur of the moment" Finally, in response to General Counsel's questioning, Roberts added that in the second conversation, Hutchison "told me that the management had found out that Jeff andâ€”or that Ralph and Greg were talking about the union" and iskems like Jeff did tell me that the company had heard that they were going to haveâ€”about had enough signatures to pass, for whatever they needed to do" The immediately foregoing additions to Roberts' basic description of the second conversation with Hutchison would seem to have been more appropriately a part of the first conversation Passing that, however, in my ques- tioning of Roberts, I pointed out that his testimony had vaned in his two descriptions of Hutchison's language in the first conversation, as set out above When I asked Roberts if he could be definitive as to whether Hutchi- son either had said that he "thought"" the discharges were based on union activity or had "flatly said" so, he offered a new version "I believe he said that he had been told" Counsel for Respondent, picking up on this, got Roberts to affirmatively agree that "Hutchison told [him] that he had not been in any of the meetings" (pre- sumably meetings having to do with the separations) and that Hutchison "did not identify to [him] where he had gotten this information," it "could have been" from some other employee Roberts struck me as an honest person, but the unrelia- bility of his testimony is patent Precision of language counts heavily in this area Moreover, even if one were to assume that Hutchison was a statutory supervisor, he would be just barely one, and there is no reason at all on this record to believe that he would have been privy to 9 Roberts did not ask about Beckman 1 Â° Actually, as the transcnpt shows, Roberts had used the word felt confidential management information as to why the two employees had been released Master Housekeepers, 287 NLRB 908 (1987) (Board majority refused to infer moti- vation for refusal to hire from statement made by new "first-line supervisor," even though she played a "rather limited role in the hiring process ") For Hutchison to say, as Roberts first had him saying, that he "felt" that the two had been let go because they had talked up the union would completely negate the inference that some- one in a position to know had given him any such infor- mation Accordingly, I would not rely on the uncertain testimony of Roberts, whether or not Hutchison may technically qualify as a supervisor " The record shows that none of the Bluegrass employ- ees are represented by a union Fitzgerald testified, with- out contradiction, that prior to a Board election among the drivers an June 3 (by which time, as noted, he had been rehired), Respondent expressed its strong concern about a change in the status quo Manager McCrystal read a speech in which he stated that the Company "was going to look at this very seriously" and that the em- ployees "should be concerned about our families' futures and our own futures" The Somerset employees also re- ceived a letter from Lexington Manager Larry Stull, saying, among other things (and as McCrystal also had said), that the Union could do nothing to help the em- ployees Respondent's explanation of' how it came to "terminate the positions" of Beckman and Fitzgerald on February 9 brings to mind an old and distressed automobile it is lop- sided, ramshackle, and leaking, and it makes unpleasant clanking noises While all of its deficiencies make a won- derful circumstantial case for General Counsel, however, I am of the opinion that certain other evidence in the record should nonetheless be deemed to carry the day for Respondent We begin with General Manager Shannon in Louis- ville He told us that conversion to the presale system "without fail would cause a reduction in the number of drivers driving the trucks" His explanation of thisâ€”es- sentially that the transfer of the dnver-salesmens' selling duties to the new account managers reduces the amount of work the drivers have to do and makes that work easier (Tr 429)â€”seems indisputable However, whatever system is employed, there is a basic amount of territory to cover While the new system results in the assignment of fewer duties to the drivers, it also results in additional territoryâ€”that previously covered by the new "account managers"â€”to which the drivers must make deliveries Respondent introduced a document, entitled "Delivery Employee Reductions Resulting From Pre-Sell System," showing "Before" and "After" figures at five Kentucky and Indiana locations of the Johnston Bottling Group In each location, the "Before" figure is higher than the ' I without rehearsing all of the evidence, my impression is that the ac- count managers are basically leadmen, who, together with "straw bosses, set-up men, and other minor supervisory employees," are to be dis- tinguished from 'supervisors with genuine management prerogatives" Ross Porto-Plant Inc v NLRB, 404 F 2d 1180, 1182 (5th Or 1968) If, however, they might qualify as supervisors under Sec 2(11) for other statutory purposes, that does not necessarily indicate that they are inti- mate with all company business, knowledge, and motivations 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "After" figure But, as counsel for General Counsel points out, and the record confirms, this compilation re- ports nothing more than the initial consequence of switching to the presale system just as, at Somerset, the December 1, 1987 changeover reduced the number of drivers from 13 to 9 (and increased the number of ac- count managers from 0 to 4) Respondent offered no similar summaries showing a second-wave reduction of drivers at other locations resulting from the efficiencies of the new system The closest we came to that subject was when I ques- tioned Larry Stull about the operations with which he was associated He said there were no layoffs at Camp- ton "as a result of the change of system" because they "shifted some territory from Lexington up there, Estill County, to provide more volume to that operation "12 As to the Mt Sterling/Danville area of the Lexington operation, where 14 drivers were working before the conversion (see R Exh 3), Stull said "two or three" drivers quit dunng "a couple of months" after the changeover, thus obviating the need for layoffs Other than this, there is no evidence that layoffs follow as a natural consequence of conversion It is, however, some evidence of that fact, not contradicted by the General Counsel General Counsel made no effort to establish that, at other converted facilities, Respondent did not further reduce its work force after the conversion had been in effect for a while It further seems logical to me that Johnston Bottling would not be uniformly changing from the conventional system for the sheer fun of trying something new, expenence must indicate that the changeover brings economies Shannon testified that transitional problems always ac- company conversion to the presale system "everyone in the total operation experiencing a new system of distri- bution they're not familiar with [T]here is always a problem caused by it It's an expected situation that, you know, these people are going to have to learn a lot of things through expenence and by, very frankly, making mistakes" In answer to a question by Respondent's counsel as to a typical period of time for reaching a point at which economies are realized that allow a con- traction in the work force, Shannon replied that it was his "experience" that a "30 to 90 day period of time for adjustment is reasonable to give all people involved in the new system a chance to get a feel for their responsi- bilities" In this instance, the period which resulted in the termination of Beckman and Fitzgerald ended after about 69 days The ultimate reason given for the terminations was that Somerset was not meeting its operating budget Ex- hibit R-4 consists of five pages the first page is an oper- ating budget for fiscal year November 1987 through Oc- tober 1988, and the other pages are printouts of actual monthly operating expense reports for the periods ending December 31, 1987, and January, February, March, and April 1988 (Shannon testified that he receives the month- 12 An Increase in territory could militate against a layoff While Gener- al Counsel states on brief (p 3) that the conversion in Campton "did not result in any layoffs," she falls to mention this material (and uncontro- veiled) factor ly operating expense figures about 4 to 7 days after the end of the month) According to the yearly budget page in R-4, the "delivery" per case expense for November was projected at 64 cents, for December (the first month of the new system, but also a fairly good sales month due to the holidays) 59 cents, for January, 74 cents, for February, 71 cents, for March, 64 cents, and then in the middle or upper 50s for the remaining months of the fiscal year The monthly reports disclose a gap between these projected delivery figures and the actual ones The exhibit (without explanation) contains no report for No- vember, the December report shows a delivery-per-case figure of $1 05 (as against the projected 59 cents), the January actual figure is $1 03, as against the projected 74, the February report also show delivery expense of $1 03 (compared to a projected 71), and the March and April reports show steep actual delivery cost-per-case declines, to 76 and 68 13 Curiously, the projected yearly budget document in evidence displays a printout date of "02/12/88," 3 days after the terminations Shannon explained that because of "significant growth" of the Johnston Company recently, the computer systems were "playing catch-up," and the projected yearly budget beginning in November was "very, very late coming out this year" Subsequently, however, Shannon was unsure whether the February 12 date "reflects the date of the actual budget coming in" Moreover, Shannon was uncertain whether the figures on the document reflected preliminary figures or not, at first, he testified that the figures seemingly projected for November, December, and January, to the best of his recollection, "reflect actual" experience, then he correct- ed himself and said that these numbers essentially repre- sented the preliminary estimates McCrystal testified that he did not receive a copy of the annual operating budget until the February 12 print- out (R-4) He said, however, that both Shannon and Stull had given him the projected budget figures, not in writ- ing, but "over the phone" and "in conversations" He also said that Shannon had on occasion showed him a copy of the budget data pertaining to McCrystal's facili- ty, but then put it "back in his file" and did not give McCrystal a copy of it The mind resists If one took seriously the claim that Shannon had in his possession a projected budget for Somerset for the year, which not only showed five sepa- rate operating expense categories for each month, but also, according to McCrystal, a "whole book" of subpart breakdowns for each category, and yet only allowed the information to be orally "fed to" (McCrystal's words) the Somerset manager, one might justifiably fear for the future of American business (or at least the Bluegrass Di- vision of the Johnston Bottling Group) The operating reports for December and January, which came into Shannon's hands within several days of their issuance, display actual "current cost per case" in the five separate expense categories of "advertising," selling, "delivery," "warehousing," and "administrative", in order to derive " The record makes clear that cost-per-case figures decrease as volume of sales Increases BLUEGRASS COCA -COLA BOTTLING CO 163 these figures, data entry and a computer program are presumably required The printouts also contain headings for "budget per case," both monthly and year-to-date, but neither of these columns show any data until the report for February, printed out on March 9 If project- ed figures had been available, their entry, involving no calculations, would have been simple enough Given these facts, one could reasonably believe that in fact no projected budget was in existence until February 12, and that the figures contained on the first page of R- 4, at least as they pertain to anticipated delivery ex- penses, may be a contrived effort to understate the an- ticipated costs in order to make the actual costs incurred appear more dramatic General Counsel makes no such argument, however, and I cannot conclude that the evi- dence clearly establishes any such fraud Shannon testified, as did McCrystal, that the former spoke to the latter prior to February to discuss the possi- bility of a layoff In a subsequent conversation, which he thought probably occurred Friday, February 5, Shannon testified, he talked to McCrystal "in regards to the over- spend in the area of delivery expenses, significantly over budget, not improving, in fact, a concern that there had been no improvement whatsoever" Assuming arguendo that there had been a budget, this testimony is erroneous, the "budget" in evidence anticipates the delivery cost per case to rise from $ 59 in December to $ 74 in Janu- ary, almost a 25-percent increase, the actual figures show that the per-case-delivery cost declined from $1 05 for December to $1 03 for January McCrystal did not appear to recall this conversation, and given that the printout date of the January figures is the early morning of Saturday, February 6, it likely did not occur In the afternoon of Monday, February 8, according to Shannon, he called McCrystal again to inform him of "the need for a reduction in force" Present in Shannon's office during this phone conversation was Bluegrass Per- sonnel Director Hart Shannon testified that he expressed to McCrystal his concern about the lack of progress in reducing the operating expenses, "specifically, delivery expense," and that "I made the decision for him that there would be a reduction in force in hopes that we could force some efficiency into the distribution in that manner I told him that he was going to have to lay off a couple of drivers" While Shannon had also asser- tedly spoken to McCrystal on a prior occasion about the "potential for layoff," "he had not directed him to lay off any drivers because he was hoping that McCrystal, a new manager, who "was very reluctant to reduce the staff at all" and had conveyed to Shannon that he "had a real problem with it," would "come to that decision" himself McCrystal confirmed his reluctance at the hearing If, however, as 'Shannon asserted, a principal purpose of the conversion to presale is to effect economies and thereby reduce the number of drivers, and this is generally ac- complished no later than 3 months after the new system commences, why would McCrystal have been "very re- luctant to reduce the staff at all?" He had presumably known, for several months before February 8, that the inexorable result of the exercise was to diminish the driver complement, and yet, according to Shannon, McCrystal had a "real problem" with the assertedly ine- luctable This could suggest that the inevitability of layoff might not have been as clearcut as Shannon made it out to be While McCrystal testified about having hoped, in vain, that business would pick.up, so as to jus- tify keeping all nine drivers, that thought, in the absence of a very large influx of soft drink imbibers into the Somerset area, runs contrary to one of the long-term policy objectives alleged by Shannon to underlie the pre- sale system Shannon went on to say that he laid out for McCrystal on February 8 the criteria for "selecting two people for layoff," and that Hart was present to assist in that en- deavor Shannon told McCrystal that since the "problem was efficiency," the eliminated employees should be "those least efficient" He also heard Hart, when the latter then spoke to McCrystal, "secondarily suggest that [the decision] should also include an employee pro- file" Hart, however, did not recall that he made such a statement in the Shannon-McCrystal conversation, testi- fying instead that he may have spoken to McCrystal again later that day The personnel files on the Somerset employees were located in Lexington, but by afternoon on Monday, Feb- ruary 8, Hart, in Louisville, some 80 miles away, had al- ready received from Carolyn Thompson in Lexington "the computer run-out of attendance records" for the Somerset drivers and had also "gotten information" from each driver's file concerning "discipline, any' safety infor- mation, as far as vehicle accidents or personal injuries on the job" Hart testified that when he talked to McCrystal on February 8, "Rick was going to look at what Mr Shannon asked him about efficiencies and cases handled per hour, whatever he asked him there And I was going to look at employee personnel profiles from that angle" In what would have been a second phone conversation, held after Hart had fulfilled his undertaking of "going to look at employee personnel profiles," Hart assertedly told McCrystal that "from the employee profile only," the only two drivers who stood out in the area of "most discipline write-ups" and "vehicle accidents and safety" were Beckman and Fitzgerald McCrystal was not asked about, and did not mention, any such conversation with Hart about a review by the latter of the "employee profiles" of the nine dnvers Fur- thermore, his testimony makes it seem quite illogical that he would have had such a conversation with Hart, either about "employee profiles" or about any professed inten- tion "fo look at what Mr Shannon asked him about effi- ciencies and cases handled per hour" (a specific men- tioned by neither Shannon nor McCrystal in their testi- mony For McCrystal very positively told us that during the Monday call from Shannon, after Shannon told him to "make the decision," he immediately identified to Shannon the two employeesâ€”Beckman and Fitzgeraldâ€” whom he intended to release He so testified despite his later testimony that he "chose them along with personnel records, personnel files, and some help," which is totally inconsistent with the statement that he announced the choice during the phone conversation with Shannon But Shannon muddied the waters even more by testifying - 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that he did not "recall specifically a name being men- tioned" by McCrystal during that conversation This is an appropriate point at which to discuss the subject of the extent to which Respondent's testimony tends to confirm the evidence regarding the employer's knowledge of the identity of the participants in the union activity When Shannon was asked at the hearing about his knowledge of union activity, he replied that he had heard from McCrystal and Stull, in separate conversa- tions, that "there were rumors that it was going on" Stull went further, testifying that he thought he "heard Ralph's name mentioned" in connection with the orga- nizing effort Hart had also heard "rumors" of union ac- tivity "through Rick McCrystal," but he only asked McCrystal "to just let me know if, you know, if he heard anything more, but that was the extent of it" McCrystal said at the hearing that he, and "everybody," had heard the rumor, and, indeed, he had heard "four to six" names mentioned 14 The casualness displayed here is a bit much If, as he testified, Stull had heard in Lexington about Beckman's connection, then he likely heard it from McCrystal, and if the latter had told Hart of "rumors," he must also have told Hart about Beckman (and, since I believed Joe Duncan insofar as he conceded that McCrystal speculat- ed about the connection of the two men to the Union, I feel sure that McCrystal also mentioned Fitzgerald) Moreover, other testimony confirms that, in letting Beckman and Fitzgerald go, Respondent knew that it was selecting two of the employees most active for the Union 15 As shown above, all relevant respondent man- agers at least admitted hearing "rumors" about the union effort, and Stull conceded more specificity, which he would very likely not keep secret from the other offi- cials While Shannon admitted only to having heard union rumors, denied that he knew on February 8 that Beckman and Fitzgerald were involved in the union effort, and did not recall (contrary to McCrystal) that the latter had immediately identified in their telephone conversation these two as the ones to be laid off, three evidentiary items strongly imply that Shannon was aware of the activity of the two employees as of Febru- ary 8 (aside from McCrystal's apparent knowledge as im- plied to Duncan and most probably conveyed to Shan- non) The first is Hart's testimony that his discussion of the layoffs with Shannon on February 8 was the "first time [he] heard anything about union activity," aside from the "rumors a week or two weeks before that" communicat- ed to him by McCrystal The indication here is that the layoff discussion between Shannon and Hart referred, as well, to the union activity The second is McCrystal's testimony that, on February 8, Shannon asked him 14 This information did not prevent McCrystal from stating in a pre- trial affidavit, Prior to my conversation with Greg at 8 00 p m on Feb- ruary the 8th, I had no knowledge of any union activity going on at the Somerset facility" At the hearing, McCrystal floundered around in a dis- tinction between rumors" and 'direct knowledge of any certain individ- uals " For this and several other reasons apparent on the record, I con- sidered McCrystal to be an untrustworthy witness 15 really was only one otherâ€”driver Helton, who engaged in some solicitation of signatures whether "there's no doubt in [his] mind that [he] can prove" who his "weaker performers" are (to which McCrystal replied, "No doubt ") It is difficult to imagine that Shannon would think in terms of "proving" justifi- cation for his selections unless he was aware that the two people to be released were the most prominent union ac- tivists Finally, the record contains a two-page document dated February 8 in which McCrystal explains in consid- erable detail why he selected Beckman and Fitzgerald as the "least productive" delivery employees McCrystal testified that Shannon had "requested" him to prepare such an analysis Respondent's brief (p 10) explains this memorandum by acknowledging the evidence of Re- spondent's awareness "in general terms that there was union activity at Somerset," and asserting (as Shannon did, in fact, testify) that there was some concern about the impact on this activity of this "business decision", hence, the brief argues, "care was taken that those select- ed would be understood as being the poorest performers on an objectiVe basis" But the memorandum was ad- dressed to Shannon, Hart, and Stull, there is no showing that it was posted to assuage the "impact" upon the other employees I am inclined to view it as conscious preparation for possible litigation 16 The economic explanation proffered by Respondent for getting rid of anyone, much less the two alleged dis- cnmmatees, is not entirely coherent Shannon said, as noted, that he told McCrystal to get rid of two employ- ees because of the "lack of progress in reducing the op- erating expenses, specifically, delivery expense," hoping thereby to "force some efficiency into the distribution in that manner" In filling out Fitzgerald's personnel notice on February 8, McCrystal wrote both of the following entries Due to efficacy [sic] of pre-sell we could not maintain the number of positions we had in the de- livery dept Delivery cost had to be reduced We were continuously creating work for people in the delivery dept due to the lack of loads This was causing our delivery cost to be unacceptably high And in a statement given to the Kentucky_ Division of Unemployment Insurance, Carolyn Thompson wrote that the Company was reducing the number of drivers because of "the lack of our volume of work" But while "efficiency of pre-sell" might translate into "lack of volume of work" for drivers, the more likely ex- planation is that, as in past years, the soft drink business is slow in January And lack of work is not what McCrystal pinpointed as the problem at the heanng He said that he was "on a very tough schedule from upper management to get our hourly people under control be- cause our delivery costs were going through the roar', a root cause of this was "excessive unnecessary overtime," the reduction of which he and Duncan had "continuous- 16 In discussing this document in its brief (p 10, fit 4), Respondent seems rather defensive "Concededly [,] in the area of total 'employee profile, McCrystal was looking for and examining minutiae Here, he was selecting for layoff, not discharge" BLUEGRASS COCA-COLA BOTTLING CO 165 ly" emphasized to the drivers This explanation hardly seems consonant with a realization of the potential effi- ciencies of the presell system There are several other areas in which Respondent's evidence displays weakness or grounds for suspicion and which could be discussed for many more pages the pres- ence of Hart, from Louisville, and Stull, from Lexington, at this early meeting on February 9, Hart's admitted error in attributing excessive absences to Beckman at the termination interview, the emphasis put by Respondent on so-called "employee profile" factors at the hearing, despite McCrystal's testimony that job performance was "by far number one over the employee profiles" in weighing these factors, the strange testimony by McCrystal that he immediately named Beckman and Fitzgerald to Shannon on ,February 8, but then pored over the employee production statistics and employee "profiles" (which he apparently did not have in his office) and "just weighed everybody out to see which one was going to be selected", the fact that McCrystal spoke of how, starting back in mid-January, he would have Distribution Manager Duncan (who failed to testi- fy) use the "route itineraries" to "see how we were doing," whereas General Counsel's Exhibit 17, a memo from McCrystal to Duncan dated January 29, states that "[s]tarting Monday, February 4th, we will start using the route itineraries"," Beckman's uncontroverted testimony that, after his discharge, Distribution Manager Arnold Duncan told him that "he didn't know anything at all about this", and other troublesome areas Despite these difficulties and deficiencies in Respond- ent's evidence, which otherwise might serve as a substan- tial basis for finding adversely to Respondent, other testi- mony in the record detracts from the strength of General Counsel's case The theory of the case appears to be that, in the words of General Counsel's brief (p 14), "Obvi- ously, Respondent decided to get rid of the union activ- ists before giving the Somerset facility the full 90 days that Shannon considered necessary to work into the new system " 18 She does not argue that the adoption of the presell system would not appropriately be anticipated to result in a reduction in the driver complement within a fairly short period, but seems basically to contend that that period came sooner than a maximum period which, presumably, the employees are entitled to That, howev- er, is not the theoretical drift of Shannon's testimony The time at which it might be said that the union ac- tivity, to the Employer's knowledge, "began," is some- what problematical Beckman, whose sense of timing, as earlier noted, did not seem acute, gave some confusing testimony to the effect that in January, he had contacted Rick Bussell, the union steward at a baking company, but then decided that he "wasn't gding to say a whole " It would seem, however, that Respondent must have been using some sort of monitoring system prior thereto McCrystal also spoke of mileage and overtime lists which had been maintained 12 This somewhat mischaractenzes Shannon's testimony He said that "in some cases as early as 30 days we would start to see the system pull- ing together to the point we could comfortably start' adjusting [i e, re- ducing the work force]," and that "a 30 to 90 day penod of time for ad- justment is reasonable to give all people Involved in the new system a chance to get to feel for their responsibilities" February 8 marked the 69th day after the inception of the system at Somerset lot to anyone," thereafter, apparently spontaneously, "several people" approached him and said that a union was needed He then contacted Bussell again," a meet- ing was set uk with a union representative for February 1, and pnor to the meeting he spoke to several fellow drivers about it He also testified, however, that he knew in January that Respondent had "more people than it needed at the time, but [he] thought it was just a tempo- rary thing" But his affidavit concedes that in January, both McCrystal and Duncan "told [him] at different times that they were overmanned at Somerset and that a couple of drivers would be cut " 2Â° The record, indeed, makes clear that on a number of occasion during Decem- ber-January period, drivers vk+re sent home for lack of work or given "busy work" That McCrystal also had at least one conversation with Beckman in January about a general overtime prob- lem is disclosed by Beckman's testimony that perhaps â€¢a week prior to February 1, he "had gone in and talked to" McCrystal about "some of the overtime that we had got," 2 ' proposing that a weekend worker be hired to al- leviate what Beckman obviously knew to be regarded as a problem And while I do not believe McCrystal's testi- mony that he "continuously" talked to the drivers about excessive overtime, the foregoing testimony clearly im- plies that the subject had been adverted to, as does Fitz- gerald's testimony that at a meeting "about the third week of January," somewhere around that time," Arnold Duncan had said that overtime "wasn't no big problem right now," but the drivers should speed up their work Joe Duncan, on the other hand, who gave certain testi- mony favorable to Beckman and Fitzgerald which Gen- eral Counsel asks me to credit, said that McCrystal and Duncan discussed excessive overtime perhaps "two, three times" at drivers' meetingsâ€”"it was an issue with them" Fitzgerald also testified about this overtime conversa- tion Placing it as "possibly" during the first or second week of January, Fitzgerald heard McCrystal say that "he was going to have to get the overtime down some way, that he was catching a lot of heat from his superi- ors about the amounts of overtime He said that it looked like that he was going to have toâ€”that the Com- pany wanted him to cut one position 22 . 12 His pretrial affidavit states that he "first contacted" Bussell on or about January 19, but that â€¢ at least a week before that," there was 'a good bit of talk" about the Union, this appears to contradict his testimo- ny 20 At the hearing, Beckman said he believed that McCrystal might have referred to only one driver being terminated, but he seemed willing to defer to his affidavit Ii R Exh 8 shows that for the 10-week period from December I, 1987, through February 8, 1988, Beckman had amassed 123-1/2 overtime hours, as compared to 82-1/2 for Fitzgerald, 82-1/2 for Helton, 82-1/4 for Craig, and a range of 45 to 11 for the other five drivers The figure shown for Craig on R-8 is only 20-3/4 overtime hours, at heanng, coun sel for General Counsel detected that this was an error, and I left the record open for postheanng correction of Craig's statistic A letter from cininsel for Respondent dated July 20, 1988, shows that Craig incurred 82-1/4 hours of overtime from the payroll period ending December 5, 1987, through the period ending February 6, 1988 I have marked, and now receive, the letter as it Exh 1 22 As noted, Beckman's affidavit states that he was told by McCrystal and Duncan in January that "they were overmanned at Somerset and that a couple of drivers would be cut" 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It would thus appear from the foregoing testimony that at what could be a time considerably preceding Beckman's "first contact" with the baking company union steward, and well before Fitzgerald had become involved in the union effort, McCrystal was telling the employees that his superiors were putting pressure on him because of the overtime problem, 23 and also that employees were going to be released That the employees understood that the driver com- plement would be diminished as a result of the conver- sion is nowhere better revealed than in the earlier de- scribed testimony of General Counsel's witness Andy Roberts Roberts may have been uncertain with regard to the question of whether Account Manager Hutchison was advancing his own opinion or stating a fact about the reason for the layoffs, but he was quite clear in twice testifying to Hutchison's stated belief that Respondent was "going to lay off two drivers," but, he wasn't tooâ€” didn't think that Ralph and Greg were the two to begin with" This indicates a general impression that the need for a layoff was anticipated Another factor seems to militate against the claim that the terminations were an abrupt response to the organi- zational activity 24 That factor is the absence of any indi- cation that after February 9, Respondent was required to hire replacements for Beckman and/or Fitzgerald, to use swmgmen or account managers to perform their work, or otherwise to exact from the remaining drivers an ex- traordinary amount of effort or overtime While it might at first seem improbable that seven employees could handle the work of nine, the evidence shows, as earlier noted, that prior to February 9, an uncertain number of drivers had, for lack of sales, been working short weeks or engaged in odd jobs So far as the record shows, up to the time of the hearing in mid-May, there were still only seven driVers (Fitzgerald having been recalled in April to replace a driver who had quit), and the operat- ing report for April showed that the delivery expense per case had dropped to 68 cents (as against the alleged 23 This is another area of suspicion McCrystal's January 29 memoran- dum to Arnold Duncan seems to treat the overtime problem as a relative- ly recent one The memo (aC Exh 17) recites that the deliverymen had run up a total of 332-1/2 overtime hours in the past 3 weeks (49-1/2 for the week ending January 16, 84-1/2 for the period ending January 23, and 198-1/2 for the period ending January 30 (how McCrystal would be able to Incorporate this last figure into a memorandum dated January 29 (a Friday) and purportedly typed by a secretary can be explained only, I suppose, either (1) by the fact that the memo was not really typed on January 29 or (2) by the fact that McCrystal and the secretary stayed at the plant that Friday night until all drivers had returned, and then wrote the letter) If we assume that in the first week in February, this 3-week average of about 110 overtime hours per week was maintained, that would mean that only 110 hours of overtime were used in the first 6 weeks (or about 18 hours per week), since the total overtime on R Exh 8, as amended, is 542 hours Despite this apparently low amount of driver overtime during the first part of January, Respondent may not have con sidered it to be trivial (as the testimony shows, driver overtime also en- tails overtime for the warehousemen who have to wait for the drivers to return to unload the remaining goods on the trucks) In any event, the testimony of Beckman and Fitzgerald is there in the record, while I might possibly hold that the two witnesses simply erred in their recall of the tunes, and that McCrystal and Duncan made those remarks only after the union activity became apparent, that would simply be a gratuitous favor to the General Counsel 24 Abrupt they were, but, as discussed immediately above, not without forewarning that a layoff loomed budgeted figure of 59 cents, the report further shows that in the other four categories of operating expense, the actual April figures also exceeded, by from 2 to 8 cents per case, the budgeted figure) The state of the record on this point thus implies that removal of two drivers on February 9 was a seemingly prudent business decision 25 General Counsel's brief contains no alternative argu- ment that, conceding arguendo the reasonableness of ter- minating two employees on February 9, the selection of Beckman and Fitzgerald was suspiciously capricious or unjustifiable 26 As for Beckman, that would be an awful- ly difficult contention to make R-8 (as amended by J-1), which portrays the raw statistics about the performance of the 9 drivers from December 1, 1987, to February 8, 1988, shows that Beckman had by far the lowest cases per hour delivered (17, with the other drivers ranging from 22 to 32) and the largest amount of overtime (123- 1/2 hours, with the others ranging from 11 to 82-1/2) Although Beckman had been praised in the past, he had also been criticized after the new system was installed (but long before any union activity commenced) While Beckman testified, as General Counsel's brief quotes (p 14), that McCrystal told him on February 9 that Beck- man had "done a good job," Beckman at the same time conceded that McCrystal said the termination decision had been based on "overtime, sick days, and job per- formance" It is also worth noting that when Roberts spoke to Hutchison, Roberts only expressed puzzlement about the termination of Fitzgerald, whom he considered to be a good worker (Roberts' testimony indicates equal familiarity with Beckman's job performance) 27 Fitzgerald's statistics are less stark While the 10,240 cases he delivered during the period covered by R-8 led all the rest (the next highest being 9832 and the latest 6101), his "cases per hour" figure was only 24, a fourth- best record which he shared with 3 other drivers (top- ping him in this category were drivers with 32, 28, and 26 cases per hour) Fitzgerald also was the leaderâ€”no honor thisâ€”in cases returned unsold, showing 2730, or a percentage of 21 percent, 28 and was tied for second highest overtime hours, at 82-1/2 Under the presale system, the account managers, who do the selling, would seem responsible for the overloading of cases for deliv- ery (which cases then must be unloaded when returned to the warehouse) As Fitzgerald testified, however, at least 90 percent of his returns were attributable to the Winn-Dixie store, where he had sold for 3-1/2 years 25 Former employee Donnie Helton testified that, at some unspecified time after the two left, the remaining drivers "got to where" they were pricing fewer rows of cans and 2-liter bottles He said, however, that the practice of pricing less than all of the displayed product had been "done before," and General Counsel did not elicit an estimate of how much time this change saved (nor does she refer to the matter in her brief) I do not see how I can draw any substantial conclusions from such scant evidence 28 Fitzgerald could name only two other drivers whom he thought were "poorer performers" than himself 27 It may further be noted that, in 1987, neither Fitzgerald nor Beck- man was selected to be an account manager 28 This averages 273 per week over the 10-week period covered, or (in a 5-day week) 54 6 cases Friday Helton guess[ed] that the normal return would be around 10 to 15 cases maybe" ' BLUEGRASS COCA-COLA BOTTLING CO 167 prior to the conversion, and he worked "jointly" with the new account managers in determining how much product to deliver to Winn-Dixie 29 The foregoing discussion leads us into the boundaries of a rather complex discretionary area in which only very clear second-guesses of right or wrong would be proper The evidence here is not clear enough 39 Based on the foregoing analysis, and not without con- siderable misgivings, I feel constrained to conclude that General Counsel has not made out a case of discrimina- tion here, whether the theory be that the concept of the layoffs or the selection of the employees to be released was inspired by the union activity which the record shows Although Respondent's explanations and actions are riddled with problems of all sorts, many are capable of characterization as the kind of self-conscious defensive reactions often stimulated when discharges are made in a known context of organizing, when an employer in such a situation fudges about the extent of its knowledge of the union activity, as happened here, and may even have fabricated evidence, it makes itself look even worse But here, as discussed, there is evidence from General Coun- sel's own case which seems to me to weaken that case Just enough as to require a conclusion that General Counsel has not shown the union activity of Beckman and Fitzgerald to be a "motivating factor" in their termi- nation on February 9 NLRB v Transportation Manage- ment Corp, 462 U S 393, 401 (1983) The case is close, another finder of fact might, not unreasonably, disagree with me, but, on the record before me, I find that Gener- al Counsel has failed to prove the 8(a)(3) allegation by a "preponderance of the testimony taken," as required by Section 10(c) of the Act I do find, however, that Respondent violated Section 8(a)(1) of the Act when McCrystal inquired of Joe Duncan as to who was behind the union drive and, more specifically, whether Beckman and Fitzgerald were re- sponsible for starting the union effort These unjustified, naked probes into the Section 7 activities of other em- ployees by the highest ranking plant official, questions to which Duncan responded by lying or silence, must surely have to be viewed as possessing a reasonable tend- ency to restrain Duncan in his own exercise of rights 29 Fitzgerald testified that after asking his advice, the account manag- ers "would go on from my suggestion and add cases to what I had said even," ills difficult to believe, however, that the managers would contin- ue to do this to any great extent after being proven wrong a time or two A major difficulty I encountered with Fitzgerald s testimony appeared in his account of his termination interview After being led Into a lengthy account of how he explam[ed] at the meeting the difficulties he had found under the new system by being forced to drive a tractor-trader, for which he 'hadn't had training (Tr 211), he said on cross the next day that he did not "think that I said that, I had no training" In addition, his affidavit does not reflect that he described the alleged discourse about the problems with the trailer during the interview 30 It may be noted that of the nine drivers, only threeâ€”Beckman, Fitz- gerald, and Craigâ€”had recorded disciplinary entries in their files Fitz- gerald's had to do with verbal warnings he received for failures of serv- ice at the Roger store on December 8 and 18, based on complaints by Roger managers Beckman had, on November 3, 1987, received a person- nel file entry documenting four recent admonitions given to him Craig, who had been employed by Respondent since May 1979, received a rep- rimand for failure to properly service certain stores on December 10, 1987 under that section, should he have been interested in doing so CONCLUSIONS OF LAW " 1 Respondent is an employer engaged in commerce with the meaning of Section 2(2) of the Act 2 Local Union No 651, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO is a labor organiza- tion within the meaning of Section 2(5) of the Act 3 By, in January 1988, coercively interrogating em- ployee Joe Duncan, Respondent violated Section 8(a)(1) of the Act 4 The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act 5 Except as set out above, Respondent has not been proved to have violated the Act in any other respect al- leged in the complaint THE REMEDY I shall recommend the entry of a traditional cease-and- desist order and further recommend that Respondent be required to post appropriate notices On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Bluegrass Coca-Cola Bottling Com- pany, Louisville, Kentucky, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Coercively interrogating employees with regard to the activities of employees on behalf of, any labor organi- zation (b) In any like manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organi- zation, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid, or to refrain from any and all such activities 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its place of business in Somerset, Kentucky, copies of the attached notice marked "Appendix "32 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by Respond- ent's authorized representative, shall be posted by it for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily 3 i If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 32 If 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 Nation- al Labor Relations Board' shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD posted Reasonable steps shall be taken by the Respond- ent to ensure that said notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS ALSO ORDERED that those portions of the com- plaint found to be without merit are hereby dismissed APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has Or- dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT coercively interrogate employees with regard to the activintes of employees on behalf of any labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the nghts guaranteed them by Section 7 of the Act BLUEGRASS COCA-COLA BOTTLING COMPANY