Pepsi-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Feb 3, 1984

268 N.L.R.B. 771 (N.L.R.B. 1984)

PEPSI-COLA BOTTLING CO.
Pepsi-Cola Bottling Company of Fresno and Craig S.
Lackey. Case 32-CA-4331
3 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 17 February 1983 Administrative Law Judge
Russell L. Stevens issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order. 1
The judge found that the Respondent, by laying
off employee Craig S. Lackey on I February 1982,
violated Section 8(a)(3) and (1) of the Act. We dis-
agree.
As more fully described by the judge the chro-
nology of events that gave rise to Lackey's layoff
is as follows: Lackey was employed by the Re-
spondent as a truck route salesman. Central Valley
Beverage Union Local No. I represents the Re-
spondent's 90 to 100 union employees, including
the truck route salesmen, and began negotiating a
new contract with the Respondent during the
summer of 1981. Because of Lackey's expressions
of dissatisfaction with the collective-bargaining ses-
sions, the Respondent and the Union invited him to
attend the last negotiating session on 20 August
1981.2 At the meeting Lackey complained about
the Respondent's wage system based on incentive
and asserted that he would rather work fewer
hours for higher hourly wages even if it resulted in
lower annual wages than could be earned under
the Respondent's incentive system. The Respond-
ent's vice president of sales and marketing, Harmon
Morell, advocated the Respondent's work philoso-
phy based on incentive. Neither Morell nor Lackey
was persuaded to adopt each other's views. Shortly
thereafter, the unit employees ratified the contract
agreed to by the parties which, inter alia, retained
the incentive system.
I No exceptions were taken to the judge's recommended dismissal of
the complaint allegations relating to the reassignment, layoff, and refusal
to recall employee Frank Martinez.
2 All dates herein are in 1981 unless otherwise noted.
268 NLRB No. 112
On 19 November Lackey was elected union
president. By letter dated 20 November the Union
informed the Respondent of the election results.
On 21 December Lackey returned to the plant
after completing his route and was told to report to
the office. There his supervisor, Burris, and route
sales coordinator, Donald Smith, discussed certain
deficiencies Smith had discovered while running
Lackey's route during the latter's vacation. 3
Lackey protested the criticisms of his work, but
Burris prepared a corrective interview report
which listed Lackey's work deficiencies as dirty or
unorganized sections, poor rotations, sloppy route
book, and failure to check out at 8 a.m. Burris gave
Lackey a copy of the corrective interview report,
but Lackey refused to sign it.
On 23 December Burris accompanied Lackey on
his route. Burris' report of the trip lists several de-
ficiencies and rates Lackey's overall performance
as fair.4
Because of illness on 5 and 6 January 1982
Lackey did not work. Instead, route sales coordina-
tor Chuck Hinslea ran Lackey's route and subse-
quently rated the route. Hinslea listed several of
the same deficiencies mentioned previously on the
route; however, the overall performance rating for
5 January was "commendable" and for 6 January
was "needs improvement."
On 12 January 1982 Smith accompanied Lackey
on his route. The overall performance rating was
"commendable"; however, it also contained several
deficiencies. One of the recurring deficiencies listed
was Lackey's failure to check out by 8 a.m. On 28
January 1982 Lackey and other union representa-
tives met with management for their first postelec-
tion meeting and discussed seniority and medical
matters. On 1 February 1982 Lackey and employee
Roland Hill were laid off. Lackey's termination slip
states that he was laid off for lack of work and that
he was eligible for rehire.
The General Counsel contends that Lackey was
laid off because he became president of the Union
and because of his activity on behalf of the Union.
The Respondent argues that the layoff was a busi-
ness necessity and that it customarily lays off the
poorest work performers during the slack season.
The judge found that Lackey was less than an
"exemplary route salesman" in that he admitted he
was frequently late leaving the plant in the morn-
ing, and took 8 or 9 hours to complete a route
which was completed by a route sales coordinator
3 Smith indicated deficiencies in product rotation, beverage section
cleanliness, and route organization. He also rated Lackey's work per-
formance as fair.
4Rates for review, from top to bottom, are distinguished, superior,
commendable, fair, and needs improvement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in 3 hours, even though the coordinator was a
stranger to the route. The judge further found that
the December and January route reports setting
forth Lackey's deficiencies were routine and were
not exaggerated in order to justify his layoff. He
determined that there was no evidence that Lack-
ey's supervisor or the two coordinators who had
prepared written reports on Lackey were out to
get him or had been instructed to do so.
Nevertheless, the judge concluded that Lackey's
layoff violated Section 8(a)(3) and (1) of the Act
because there was evidence of animus and the Re-
spondent's justification for the layoff did not con-
form to the record or commonsense. In this con-
nection, he found that the Respondent fundamen-
tally disagreed with Lackey's views toward incen-
tives and would be apprehensive about Lackey's
assumption of the union presidency where he could
challenge the Respondent's relationship with its
work force. The judge noted it was only after
Lackey publicly opposed the Respondent's business
philosophy and became president of the Union that
serious problems began to develop with his work.
He found that it was only after 20 August 1981
that a written record was made of Lackey's work
deficiencies despite the fact that he had been regu-
larly employed since March 1977. This warranted,
he concluded, the inference that the written record
commencing in late 1981 was an attempt to build a
case against Lackey. Finally, the judge found that,
even assuming Lackey had a poor work record
during all his employment, he was kept on the pay-
roll through all previous layoffs and was laid off
only after his union activity.
Contrary to the judge, we find that the Respond-
ent's layoff of Lackey did not violate Section
8(a)(3) and (1) of the Act. It is well settled that an
employee may be dismissed for any reason, or no
reason at all, so long as union activity is not the
basis for the discharge.'
In this case there is insufficient evidence to es-
tablish discriminatory motivation.6 Lackey's princi-
pal union activity, opposition to the recently nego-
tiated collective-bargaining agreement, occurred
prior to his election to the union presidency and
was ineffective since the employees ratified the
contract without his desired changes. It is specula-
tive, at best, to conclude that the Respondent laid
off Lackey out of concern about the incentive issue
I Lawson Milk Co. v. NLRB, 317 F.2d 756, 760 (6th Cir. 1963); Auto-
Truck Federal Credit Union, 232 NLRB 1024, 1027 (1977).
6 In this connection we note that the judge did not credit Lackey's
testimony that, after he became active in the Union, his supervisor,
Harold Boniface, stopped being friendly toward him. The judge also
failed to credit Lackey's assertion that Morell stated that possibly Lackey
was working at the wrong place and offered to arrange an interview for
Lackey at Coca-Cola or that Lackey's statements regarding the job were
placing in jeopardy his job and those of other employees.
when the term of the recently negotiated contract
was for 3 years and Lackey might not be president
at the expiration of the contract.
Nor do the Respondent's proffered reasons for
the layoff warrant an inference of unlawful motiva-
tion. As the judge readily concedes, Lackey was
less than an outstanding employee who had been
talked to on many occasions about his deficiencies.
Contrary to the judge, the record indicates, and
Lackey admitted, that he had been given other un-
favorable reports concerning his work which pre-
dated his union activities. Furthermore, as the
judge found, the January written reports were rou-
tine and there is no evidence that Lackey's apprais-
ers were out to get him or had been instructed to
do so. Given these findings, there is insufficient
basis for the judge's finding that the inference is
warranted that the written record in late 1981 was
an attempt to build a case against Lackey.
In view of the insufficient evidence of animus,
Lackey's unfavorable reports before his union ac-
tivities, and his poor performance in January, we
conclude that the Respondent established that it
would have laid off Lackey regardless of his union
activity.
On the basis of the foregoing, we find that the
Respondent did not violate Section 8(a)(3) and (1)
of the Act by laying off employee Lackey and we
shall therefore dismiss this portion of the com-
plaint.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
case was heard in Fresno, California, on November 17
and 18, 1982.1 The complaint,2 issued May 28, is based
on a charge filed March 12 and a first amended charge
filed March 12 by Craig Lackey,3 an individual. The
complaint alleges that Pepsi-Cola Bottling Company of
Fresno (Respondent) violated Section 8(a)(1) and (3) of
the National Labor Relations Act (Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
On the entire record,4 and from my observation of the
witnesses and their demeanor, I make the following
All dates hereinafter are within 1982, unless stated to be otherwise.
2 The complaint was amended as heard, to correct erroneous dates and
a misspelled name (LeCompte).
s Individuals are referred to herein by their last names.
4 Respondent's motion to correct transcript was not opposed by the
General Counsel, and is granted. Respondent's motion in its brief to
strike certain accepted testimony is denied.
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PEPSI-COLA BOTTLING CO.
FINDINGS OF FACT
1. JURSIDICTION
At all times material herein Respondent, a Delaware
corporation with a place of business in Fresno, Califor-
nia, has been engaged in the manufacture and sale of car-
bonated soft drink beverages. During the past 12 months
Respondent, in the course and conduct of its business op-
erations, purchased and received goods and services
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of California.
Respondent admits, and I find, that Respondent is, and
at all times relevant herein has been, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Central Valley Beverage Union, Local No. 1 (the
Union) is, and at all times relevant herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background5
Respondent is the Fresno facility of Pepsi-Cola Bot-
tling Company, and has a sales force of approximately 35
to 40. The number of Respondent's employees varies
with the seasons, with June, July, and August being the
busiest months and January and February being the least
busy. Harmon Morell is Respondent's vice president of
sales and marketing; Maurice Talbot is sales manager;
Kenneth Burris is route sales supervisor;6 Stan Proctor is
operations manager; Harold Boniface is night loading su-
pervisor; Chuck LeCompte was, at times relevant herein,
a lead truckloader on the night shift; Donald Smith is
route sales coordinator;7 and Kathy Seiler is director of
personnel and administrative services.
Respondent's operations involved in this dispute are
those of truck route deliveries of Respondent's products
to stores and other customers in and near Fresno, and
the loading of trucks for use by all drivers. Truck sales-
men submit each day to Boniface's department load
sheets that describe the products the salesmen need for
5 This background summary is based on stipulations of counsel, and on
testimony and evidence not in dispute.
6 This title formerly was known as district manager.
7 This title formerly was known as specialty salesman. The General
Counsel alleged, and Respondent denied, that Smith and LeCompte are
supervisors or agents within the meaning of the Act. Smith is one of sev-
eral route sales coordinators, who generally do rank-and-file work but
who run routes for route salesmen that are on vacation or otherwise are
off work. Route sales coordinators file written reports on the condition of
routes they run for others, and train route salesmen as required. They
had no authority to hire or fire, discipline, direct the work of of other-
wise supervise employees, or to recommend any such actions. LeCompte
was supervised by Boniface, and generally did rank-and-file work as a
loader. The record does not show that LeCompte had or exercised any
authority other than as a leadman. LeCompte sometimes acted for Burris
when the latter was on vacation or off work, and sometimes witnessed
formal employee actions taken by Boniface, but he was a union member,
attended union meetings, and voted in union elections. It is found that
neither Smith nor LeCompte is a supervisor or agent within the meaning
of the Act. The supervisory status of Morell, Talbot, Burris, Proctor, and
Seiler is not in dispute.
the following day's deliveries. That evening, employees
in Boniface's department load the requested products on
the trucks, and prepare the trucks for use the following
morning. Truck salesmen are under instructions to check
out of the gate by 8 a.m. each day. Each salesman has
one or more routes, which he drives on a rotational
basis. Each salesman keeps a route book in his truck, in
which he records pertinent information relative to his
route and customers, including parking information and
special instructions relating to customer requirements and
peculiarities. Route books are supposed to be written in
pencil, in order to facilitate changes as customers or their
instructions change. Salesmen are responsible for keeping
coolers, shelves, and "back room" storage areas used for
Respondent's products clean and orderly; for rotating
products on a regular basis, in order to move the oldest
products out prior to the newest ones being sold; for as-
sisting in special promotions and sales; for seeing that
displays and advertising signs are in proper location and
order; and for related tasks. Salesmen are paid a basic
wage, plus a commission on products they sell. Their
hours of work are not limited, and they are not paid
overtime. They may work as long each day as they like,
and by working lengthy shifts, they are able to earn sub-
stantial amounts of commissions.
Central Valley Beverage Union Local No. I is an in-
dependent Union which represents Respondent's 90 to
100 union employees, including the truck route salesmen
and some others. In the summer of 1981 Respondent and
the Union were negotiating a new contract, with Morell
principally representing Respondent and Joe Reina prin-
cipally representing the Union. Several bargaining ses-
sions were held, and during the negotiating period the
Union held its own meetings with unit employees. At
two of the union meetings, Lackey objected to several of
Respondent's proposals and expressed particular displeas-
ure with Respondent's method of payment of wages.
The last negotiation session was held by Respondent
and the Union on August 20, 1981. Prior to that session
some of the Union's board members had told Morell
about Lackey's expressions of dissatisfaction with the
Union and Respondent's proposals, and suggested that
Lackey be invited to a negotiation session. Morell
agreed, and Lackey was invited to attend the session of
August 20. Lackey arrived quite late, accompanied by
two fellow route salesmen. Lackey was given an oppor-
tunity to express his views. His principal complaint was
that he had to work too hard in order to make the
money he did. He said that although he made $3,000 or
$4,000 more each year at Respondent's business than he
would make at Coca-Cola he had to work 60 to 70 hours
each week to do so. Morell explained Respondent's phi-
losophy as being one based on incentive, and Lackey ex-
plained that he considered higher hourly earnings under
a Coca-Cola- type contract to be his principal desire,
rather than high total yearly earnings. He said he pre-
ferred an arrangement such as that at Coca-Cola, even
though such an arrangement would mean lower total
earnings. Coca-Cola paid a lower commission on sales
than did Respondent, and rarely permitted any overtime,
but it paid higher hourly wages than Respondent. Morell
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Lackey that Respondent had a competitive advan-
tage by reason of its employment based on incentive and
industriousness, and that he did not want to be "saddled"
with a contract primarily based on hourly wages, such as
the contract under which Respondent's principal com-
petitors, including Coca-Cola, worked. The meeting
ended with neither Morell nor Lackey persuaded to
adopt the other's views. Approximately a week after the
final negotiation session, the unit employees ratified the
contract agreed to by the negotiators.
On November 19 the Union held an election of offi-
cers, and Lackey was elected union president. By letter
dated November 20, the Union informed Respondent of
the election results and listed the names of all five new
officers, including Lackey.
In mid-December Lackey was on vacation I week, re-
turning to work December 21. On December 22 Frank
Martinez, who had worked in the night loading depart-
ment since January 1979, was discharged.8 Martinez had
been the subject of a long list of adverse comments by
his supervisors, corrective interviews, oral and written
warnings, and file notations concerning his work per-
formance. Those matters are discussed in detail, infra.
Martinez talked with Lackey and asked what he should
do about his layoff, which he protested. Lackey said he
would have to see Martinez' personnel file, and Martinez
gave him an authorization slip to pick up the file. Lackey
briefly talked with Morell about Martinez' discharge, and
Morell said the discharge was the responsibility of Marti-
nez' supervisor (Boniface), with whom Morell would not
interfere. Lackey asked to see Martinez' personnel file,
and Morell said the file was kept by the personnel de-
partment (Seiler), with whom Lackey would have to
deal." Martinez never was reinstated by Respondent, and
the General Counsel alleges that his layoff was in viola-
tion of the Act.
After his route was completed on December 22, 1981,
Lackey was called into the office where Burris, his su-
pervisor, and Smith talked with him. Smith had run
Lackey's route during the latter's vacation and had sub-
mitted a route report to Burris and Talbot. ' The report
lists deficiencies in product rotation, beverage section
cleanliness, route organization, and product rotation in
stores. Smith concluded "once again overall job is fair.
Craig is well liked, gets the ads and displays; but we
need to work on the total job which includes all ac-
counts." The three men discussed Smith's route report,
and Lackey protested that there were good reasons for
everything he did on the route, and that no criticism of
his work was justified. Burris prepared a corrective
interview, which listed Lackey's work deficiences as
8 Martinez' release by Respondent sometimes was referred to as a
layoff, and sometimes as a discharge.
a Lackey, Morell, and Seiler testified at some length relative to Lack-
ey's efforts to obtain Martinez' personnel file. Lackey inferred that Re-
spondent somehow refused to cooperate with him in this matter, and
Morell and Seiler testified differently from Lackey. None of the three
witnesses is given full credit on this subject. The testimony has been care-
fully considered, and is given no weight. Resolution of these testimonial
discrepancies is not necessary, since such resolution would not affect any
finding or conclusion herein.
'0 O.C. Exh. 2. There is no dispute concerning the fact that prepara-
tion of such reports is routine when a route sales coordinator (such as
Smith) temporarily runs a salesman's route.
dirty or unorganized warm sections, poor rotations,
sloppy route book, and failure to check out at 8 a.m."
Burris gave a copy of the corrective interview report to
Lackey, which Lackey objected to and refused to sign.
On December 23, as a result of the corrective inter-
view of December 22, Burris rode with Lackey on his
route. Burris' trip report lists several deficiencies and
shows Lackey's overall performance review as "fair."' a
On January 5 and 6 Lackey was off work because of
illness, and his route was run by Chuck Hinslea, a route
sales coordinator the same as Smith. Hinslea prepared
trip reports for both days, with the principal deficiencies
shown as failure to maintain complete and accurate
records, failure to carry complete stock on the truck and
shelves, inadequate shelf cleanliness, poor rotation of
stock, and failure to properly maintain displays. The
overall performance rating of January 5 was "commend-
able"; that of January 6 was "Needs Improvement."
On January 12 Smith again rode Lackey's route with
Lackey,'s and prepared a trip report dated January 12.
The report 14 shows several deficiencies, shows "great
improvement on backrooms," shows overall performance
as "commendable" and states that Lackey needs to work
on checking out of the gate before 8 a.m., and needs to
improve on recordkeeping. The report states "Craig is
liked everywhere. Does a good job selling promotions
.... Excellent improvement over last time."
On January 28 Lackey and other union representatives
met with Morell and other management representatives
in the first postelection meeting following the Union's
election of its new slate of officers. They discussed, inter
alia, seniority and medical matters.
Lackey was laid off on February 1. Another employ-
ee, Roland Hill, was laid off at the same time. Lackey's
employment release form states under "Reason for Ter-
mination," "Lack of work." It also states "Eligible for
Rehire," "Yes." The General Counsel alleges that
Lackey was laid off because of his becoming president of
the Union, and because of his union activity. Respondent
contends that a layoff was necessary; that Respondent
customarily lays off employees during the slack season;
that Respondent customarily lays off its poorest work
performers; and that Lackey was laid off solely for busi-
ness reasons, unrelated to his union activity.
A. Lackey's Layoff
1. Lackey's union activity
Lackey first went to work for Respondent in March
1977, and became a route salesman in July 1978. Lackey
credibly testified that he did not attend any union meet-
ings until June 1981, and that he was quite vociferous
once he began to attend meetings. He said he did not
" G.C. Exh. 3.
12 Resp. Exh. 2. Rates for review are, from top to bottom, distin-
guished, superior, commendable, fair, and needs improvement.
'3 Lackey testified this was a "surprise trip" of which he had no prior
notice. Smith testified that although he did not know for sure whether or
not Lackey was notified of this trip in advance such trips are customary,
and that salesmen are notified of them in advance. Resolution of this dis-
crepancy is not necessary, and is not made.
14 Resp. Exh. 5.
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PEPSI-COLA BOTTLING CO.
agree with Respondent's business philosophy, and pushed
hard for a contract based on an hourly wage rather than
an incentive commission-wage basis. 15 As previously
noted, Lackey confronted Morell on August 20, 1981, at
the last negotiation session concerning his philosophy of
work, his opposition to the Union's position, and his
desire to have a contract based on his philosophy rather
than the one expressed by Respondent and the Union. It
is clear that the confrontation was not a congenial one,
and that Morell was annoyed with Lackey's opposition,
particularly since Lackey became an antagonist quite late
in the day, after negotiations already were well along
toward completion. It is equally clear that Morell
worked well with the Union and its leadership, and that
his annoyance was with Lackey personally, rather that
with the Union as an organization of unit employees.16
Lackey testified that Martinez told him that Boniface
and LeCompte said Harmon was mad at Martinez be-
cause the latter had nominated Lackey for union presi-
dent. Martinez testified that he had nominated Lackey
for union president, and that LeCompte was present at
the union meeting when Martinez made the nomination.
There were two other nominations for union president.
Martinez further testified that LeCompte told him that
Boniface was mad because he heard of Lackey's nomina-
tion by Martinez, and that Boniface told him Morell had
heard about the nomination and was upset about it. Le-
Compte denied this testimony by Martinez. Boniface also
denied Martinez' testimony on this point, and testified
that he considered Lackey his friend, and did not care
who nominated Lackey. Boniface said he first learned
who had nominated Lackey a couple of days after the
nomination, when Martinez told him and LeCompte
about it. Morell did not testify relative to his matter. The
General Counsel alleges that LeCompte created the im-
pression of surveillance of employees' union activity
when he made the statement attributed to him by Marti-
nez, in violation of Section 8(a)(1) of the Act, but the
record does not support that allegation. As found above,
LeCompte was not a supervisor or agent within the
meaning of the Act. In any event, the testimony of Le-
Compte and Boniface is credited over that of Martinez.
Both LeCompte and Boniface were impressive witnesses,
and it seemed highly unlikely that they would have been
concerned with Lackey's nomination, or that Morell
would have talked with them about that subject, as dis-
cussed below. LeCompte and Boniface had worked for a
long time in protecting Martinez, who was a poor em-
ployee frequently involved in mistakes and work inci-
dents. Martinez' testimony on this issue is given no cre-
dence. However, that conclusion does not alter the fact
that Respondent was displeased with Lackey's opposition
to the union contract, and it is clear that Respondent
would not be overjoyed with Lackey's selection as union
president. Whether or not those facts would affect Lack-
'6 Lackey credibly testified that employees customarily were permit-
ted to attend union meetings during work hours.
1' Lackey testified that Boniface formerly was friendly with him, but
that the friendliness disappeared after Lackey became active in the
Union. Boniface testified that he was not interested in Lackey's union ac-
tivity, and denied that he ever had anything against Lackey. Boniface
was a substantially more credible witness than Lackey, and his denial of
Lackey's testimony on this point is credited.
ey's employment with Respondent is a different question,
discussed below.
2. Lackey's work performance
Lackey contends that his work was excellent, and that
there is good reason for each deficiency attributed to
him. Respondent contends that Lackey was, overall, one
of the weakest salesmen on the force, and that he refused
to accept criticism, and often contradicted Respondent's
work philosophy and work direction. It appears that the
truth lies somewhere between the two positions.
Based on observation of the witnesses and after hear-
ing their testimony, it is clear that Lackey is argumenta-
tive, defensive, and somewhat evasive as Respondent
contends. He has an excuse for each criticism of his
work. However, Morell's philosophy of work is quite
different from that of Lackey, and it is apparent that
Morell would like to see Lackey off the payroll. Without
union affiliation Respondent could isolate Lackey and
generally pay little attention to his desire for an easier
job at the same or nearly the same pay. With Lackey as
the union president, a different picture emerges. Lackey
then would be able to press his work philosophy from a
position of some strength.
The fact that Lackey was less than an exemplary route
salesman is quite clear. In addition to his defensiveness,
the reports prepared by Burris, Smith, and Hinslea show
that Lackey was deficient in several areas of his responsi-
bility. Frequently, as Lackey acknowledged, he was late
leaving the plant in the morning; admittedly, he some-
times challenged Respondent's policies and work goals
when talking with supervisors; admittedly, the route that
he ran in 8 or 9 hours only required 3 hours of Hinslea's
time, even though Hinslea was a stranger to the route.
Burris, Smith, and Hinslea reported in writing several of
Lackey's work deficiencies. The fact that Lackey had ex-
cuses for all those things does not alter the fact that they
did occur. The General Counsel argues that Burris,
Smith, and Hinslea exaggerated their reports in order to
justify Lackey's layoff, but the three men credibly denied
that contention. Smith and Hinslea were not supervisors,
but assuming arguendo that they were, the facts remain
that all the reports were routine and in the ordinary
course of business; there is no evidence that any of the
three were out to get Lackey or had been instructed to
do so; and Lackey was interviewed after each report was
made with full opportunity to challenge the reports.
Morell testified that he was not personally familiar
with Lackey's work, but that he was aware of it, and
that, although there were new hires, transfers, and recalls
after Lackey was laid off, Lackey was not recalled be-
cause of his poor work performance.
Burris, Hinslea, and Smith testified at length and in
detail concerning their personal observations of Lackey's
route. They corroborated their own written reports, and
all of them added that there were some deficiencies in
Lackey's route that they talked with him about, but did
not include in their written reviews. Hinslea testified that
the things he found wrong on Lackey's route exceeded
in number and severity the things he found wrong on the
routes of other salesmen he had run in the past. Smith
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified in much the same manner, and stated that he
graded most routes he had run, in the "commendable"
range. Burris testified in the same manner, and stated
that Lackey sometimes resisted his instructions, particu-
larly in the matter of giving promotional discounts to
customers.
It is found that Lackey was not a top work performer;
that his route was, as noted by Smith, only "commenda-
ble"; and that he had been talked with concerning his de-
ficiencies on many occasions by Supervisor Burris. Re-
spondent acknowledges that Lackey was well liked by
his customers, and that he did a good job in some re-
spects.
3. Respondent's animus
As noted above, the relationship between Respondent
and the Union generally was an amicable one. There is
nothing in the record to show union animus on the part
of Respondent. There was no attempt by Respondent, so
far as the record shows, to rid itself of the Union. Boni-
face appeared to be particularly sympathetic with the
employees' union activity, and gave them time off to
attend union meetings.
However, also as noted above, it is clear that Re-
spondent disagreed in a fundamental and serious manner
with Lackey's personal views toward work, and that Re-
spondent naturally would be apprehensive concerning
Lackey's assumption of the union presidency, wherein he
could challenge Respondent's relationship with its work
force. Lackey's strong views directly contradicted, and
went straight to the heart of, Respondent's work con-
cept. Respondent's concern is understandable, but the
question remains as to whether Lackey was laid off,
wholly or partially, because of his unsatisfactory work
performance or because of his union position, or both.
Lackey had been elected president by the union mem-
bers, and when he spoke as president he spoke for the
membership, not as just a single employee. ' 7
4. Lackey's layoff
The contract between Respondent and the Union pro-
vides, inter alia:
ARTICLE III SENIORITY:
In all cases involving an increase or decrease of
forces, or transfer, the Company will consider the
following factors, and where factors (B) and (C) are
relatively equal, length of continuous service with
the Company (Factor A) shall govern.
A. Length of continuous service with the
Company.
B. Knowledge, training, ability to perform the
job, skill, and efficiency.
t" Lackey testified that during the last negotiation session on August
20 Morell stated that possibly Lackey was working at the wrong place,
and offered to arrange an interview for him, with a Coca-Cola represent-
ative; further, that Morell stated that Lackey's misinformation was plac-
ing in jeopardy the jobs of Lackey and other employees. Morell denied
that testimony. Morell was a more convincing witness than Lackey, and
his denial is credited.
C. Physical ability to perform the job duties as
determined by a physician.
The Company will have sole discretion in the de-
termination of an employee's qualification under
factor (B) above.
Seniority shall be defined for the purpose of this
Agreement to mean continuous employment by the
Company beginning with the date on which the em-
ployee began to work after last being hired, less de-
ductions of time lost in excess of three (3) months is
any period of twelve (12) consecutive months due
to sickness, injury, or layoff.
Lackey testified that after he finished his route on Feb-
ruary 1 he met with Burris, Hinslea, and Smith. Burris
said work was slow, layoffs were necessary; "white-
shirts" may have to go back on the routes; top manage-
ment had instructed each division manager to select one
person for layoff; and that Lackey had been selected
from Burris' division because he "had a bad attitude
lately" and was difficult to work with. Lackey would be
recalled when business improved. Burris said transfer to
another division was not possible because those that
were to be transferred to a new plant that was being
opened up already had been selected. In the past, ap-
proximately one person in each of Respondent's five di-
visions were laid off during the winter season. Layoffs
usually are completed by November 1. Generally, Re-
spondent's practice is to lay off the least productive em-
ployees. Lackey said he knows of no policy or contract
provision relative to recall of laid-off employees.
Morell testified that layoffs occur every year and are
anticipated in Respondent's yearly budgets. The budget
for 1981-1982 anticipated the layoff of two route sales-
men,'8 to a total of 36. However, business was unusually
poor in 1981-1982 and additional layoffs were decided
upon. Two routes in Fresno were eliminated, hence
there were 35 salespersons in January'9 and 32 in Febru-
ary. The number increased in March, but it still was
below the budget figure, as it was throughout 1982 until
September, when it was increased to normal in anticipa-
tion of the holidays. The decision to reduce the number
of all employees, including salesmen, was made by man-
agement in January, after which Morell instructed de-
partment managers to start thinking about layoffs. He in-
structed Claude Butler, Respondent's operations manag-
er, to lay off two route salesmen in January. Those to be
laid off were to be anyone Butler selected-Morell left
that decision to Butler. A couple of days later Burris ad-
vised Morell that Roland Hill and Lackey were selected
in his department. Morell questioned the selection of
Lackey because of Lackey's union position, and Burris
assured him that the sole reason for Lackey's selection
was the latter's poor work record. Morell and Burris
checked Lackey's personnel file, and verified his poor
record. Lackey and Hill were laid off the same day be-
t' See Resp. Exh. 8.
"9 The drop from 36 to 35 was occasioned by the maternity leave of
Linda Brown. The drop from 38 in October 1981 to 36 in December
1981 was occasioned by the transfer of John Kellett to the warehouse,
and one voluntary quit.
776
PEPSI-COLA BOTTLING CO.
cause they were the weakest employees in the route sales
department. Throughout the layoff customary policy and
practice were followed. Lackey was not recalled because
of his poor work performance; recall customarily is
based on work performance. Darryl Vail had been hired
November 2 upon recommendation from a bottler in
Iowa, and was laid off in late December because his hire
had been premature in view of the drop in business. Vail
was rehired on February 9 or 12, a week or so after
Lackey was laid off. During that week Jim Peters quit,
and Vail was rehired rather than Lackey because Vail
was a better employee. Danny Wynn was on disability
leave in February and was terminated in March. Em-
ployees Allison and Decker were transferred into the
sales department in March, and two new employees,
Poor and Keck, were hired.
Butler testified that Morell talked with him about the
proposed layoffs after a staff meeting Morell attended.
He instructed Butler to lay off two employees in the
sales department. Butler spoke with all the district man-
agers, and told them to select their two weakest employ-
ees. Burris later reported the two selectees as Lackey
and Hill. That decision was questioned by Butler because
he knew of Lackey's union activity, but Burris assured
him the decision was based solely on work performance.
Butler advised Morell of the decision, and assured him
that it was based solely on the work records of Lackey
and Hill.
Burris corroborated the testimony of Morell and
Butler relative to this matter, and testified concerning the
exact method of selection of Lackey and Hill. He said
that in discussing employees their good qualities were
discussed as well as their poor qualities, and that the dis-
trict managers were unanimous in their selection of
Lackey and Hill. This was the first time Burris said that
he had attended such a meeting of managers to select
employees for layoff because in the past the poor per-
formers were obvious, and there were not so many
people involved in the layoffs. Burris took over supervi-
sion of the division in January 1981.
Discussion
As discussed above, Lackey was not an outstanding
employee, and his testimony that he was a top performer
was glib and unconvincing. However, Respondent's ex-
planation of Lackey's layoff simply does not conform
with the record or with commonsense.
Clearly, Respondent would not be enthusiastic about
having Lackey on the payroll after his views became
known on August 20, 1981, and even more, after he
became union president on November 9, 1981. Respond-
ent is a keen competitor, and its employees' pay system
was designed to keep it competitive. Lackey vociferously
was opposed to that system.
Lackey had been employed by Respondent since
March 1977 and had been a route salesman since July
1978. There have been annual seasonal fluctuations in the
number of salesmen over the years, and there have been
other variations caused by quits, transfers, and other rea-
sons. Yet, Lackey survived all those many changes. He
did not publicly oppose Respondent's business philoso-
phy, so far as the record shows, until August 20, 1981,
and the only record of his corrective interviews com-
menced after that date, so far as this controversy is con-
cerned. The conclusion is all but unavoidable that
Lackey was not in serious trouble with Respondent until
after August 20, 1981.20
Lackey testified that prior to the corrective interviews
of late 1981 and early 1982 his route reports had been
good to excellent, although there were occasional criti-
cisms. His most recent employee appraisal, dated June
1981, and signed by Burris, Talbot, and Hellbush from
management, lists Lackey's strong and weak points and
concludes that his overall performance was "good" on a
scale reading from top to bottom, "outstanding," "very
good," "good," "marginal," and "unsatisfactory." Burris
testified that Lackey was a problem employee continu-
ously from the time Burris took over the division in Jan-
uary 1981, and that he had talked with Lackey about his
problems on many occasions. It is clear that Lackey had
several deficiencies as an employee, but it is equally clear
that those deficiencies were not so serious that they re-
sulted in a written record until after Lackey aired his
views of Respondent's work philosophy. The suspicion is
strong, and the inference is warranted, that the written
record commencing in late 1981 was an attempt to build
a case against Lackey.
Morell went to considerable length in explaining the
various layoffs of employees in 1981 and 1982, but he did
not explain why, if Lackey was not a good employee, he
was not laid off in prior years, or even early in the slack
season of 1981. Morell mentioned in his testimony that
the record on Lackey supported his layoff as a legitimate
business matter, but that record consists of documents
compiled after Lackey became union president.
Assuming that Lackey had a poor work record during
all his employment, he was kept on the payroll year after
year and was laid off without recall only after his union
activity commenced. So far as the record shows, but for
his union activity he still would be on the payroll. His
performance appraisal of June 15, 1981, is not greatly
different from his route reports of December 1981 and
January 1982. So far as the record shows, nothing
changed between June 1981 and January 1982, other
than his union activity.
It is found that Lackey was discharged because of his
union and related activity, in violation of Section 8(a)(3)
and (I) of the Act, as alleged.2 1
B. Martinez' Layoff
Martinez worked in the night loading division, under
the supervision of Boniface. Boniface is responsible for
seeing that the trucks properly are loaded at night, ac-
cording to load sheets prepared by route salesmen, for
use the following morning. There are several different
work positions in the department, and Boniface attempts
20 Some trial time was devoted to an alleged incident wherein Morell
and Burris were said to have admonished employees to quit griping to
customers about the contract signed by Respondent and the Union.
Morell and Burris denied the incident. All that testimony has been care-
fully considered, and is given no weight. Any credibility resolutions rela-
tive to the incident would not affect any finding or conclusion herein.
21 Wright Line, 251 NLRB 1083 (1980).
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to rotate each employee each week, among those posi-
tions. The positions are driver, glass man, flavor man
(two), forklift driver (two), and checker (one or two).
Prior to January 1982 there also was the position of
truck fueler; the position was abolished when the func-
tion was given to the fleet department. As with the rest
of the plant, personnel of the night loading department
varies with the season. Employees are notified when
they are hired that the work varies with the season, and
when layoffs occur, seniority is considered secondarily-
work quality of employee is the first consideration.
Martinez' work record with Respondent was very
poor. Much of that record is contained in Respondent's
Exhibit No. 7. Included are the following documents and
notations:
7-9-80 Oral Discipline
8-8-80 Performance Appraisal
Leadman Memo to
Boniface
Memo
Note by Leadman
Verbal Warning by
Boniface
Corrective Interview
by Boniface
Note by Boniface
Boniface Memo to
Operations Mgr.
Memo
Memo
Corrective Interview
by Boniface
Boniface Note
Boniface Note
Note, LeCompte to
Boniface
Boniface Note
Corrective Interview
by Boniface
Corrective Interview
by Boniface
Note by Boniface
12-17-81 Corrective Interview
by Boniface
Work not satisfactory
Several deficiencies
noted. Rating
"good"
Work unsatisfactory
Late to work
Loafing
Quit work early
Quit work early
Late from lunch
Police problem
Late to work
Late to work
Late to work
Broke fuel nozzle
Broke fuel nozzle
Work unsatisfactory
Work unsatisfactory
Truck accident-
property damage
Truck accident
Work unsatisfactory-
Poor work with
others
Disobeyed orders
Martinez acknowledged many of the incidents listed
above, and testified in such a manner that it was obvious
he was not a satisfactory employee. He offered only a
few excuses for the many instances wherein he was
warned or disciplined.
Boniface and LeCompte corroborated the list set out
above, and added some instances of Martinez' unsatisfac-
tory work which were not reduced to writing.
The 1981-1982 seasonal layoff in Boniface's department
commenced on Octooer 5, 1981, when Marty Staneart
was laid off. A second layoff became necessary and Ron
Garcia volunteered for it because he was going to school
and had found that his job was interfering with his edu-
cation. Garcia was laid off, at his own request, on De-
cember 11, 1981. A third layoff became necessary and
Martinez was laid off December 21, 1981. His release
paper read that he was terminated "Due to Lack of
Work"; the "Eligible for Rehire" column was not
checked, either for "yes" or "no."
Martinez testified that when he was laid off, Boniface
said he was having to do something he did not like to
do. Boniface did not reply when Martinez asked about
possible recall. Martinez asked "why me" and Boniface
replied "don't argue with me." Boniface was upset and
said he was just following orders.
LeCompte testified that he talked with Boniface about
Martinez' layoff, and that Boniface was upset about
having to lay him off because he did not want to do so.
Boniface said a layoff was necessary due to slack work,
and Martinez was the weakest employee left. LeCompte
said Martinez asked about possible recall and Boniface
replied that he did not want to give him an answer at
that time. LeCompte said he did not hear Martinez ask
why it was he who was being laid off nor did he hear
Boniface tell Martinez not to argue with him.
Boniface testified that he did not want to lay off Mar-
tinez, but had to do so because of lack of work; he se-
lected Martinez because of the latter's poor work record.
He said Martinez asked why it had to be him, and Boni-
face replied that his mind was made up and he did not
want to argue about it. He told Martinez he could not
then tell him whether or not he would be recalled.
Discussion
In view of the fact that Martinez was such a poor em-
ployee, the principal question is why Respondent held on
to him as long as it did. Part of the answer is found in
Respondent's Exhibits 7(l), (m), and (n). Respondent's
Exhibit 7(n) was signed, approximately October 10, 1980,
by the then operations manager of Respondent, Marvin
Wilkerson, and refers to an earlier robbery conviction of
Martinez, concerning which Martinez lied to Respond-
ent. Wilkerson stated, inter alia:
On viewing all of the facts in the case, even
though Frank lied to us twice, realizing that he was
on a furlough program and in jail, we decided that
if we did terminate his employment, he would go
back to jail and finish out his sentence which is up
in November and we might be contributing more so
to a social problem that he may have in the future
and this being his first offense, we thought we
would give him another chance to prove himself.
A warning has been written up in detail and
Frank has signed the warning stating that if any in-
dication of any use of drugs, theft, or lying were
found he would be terminated immediately.
The rest of the answer is found in the continuing desire
of Respondent, and of Boniface, to assist Martinez all
they could. Boniface was a considerate, thoughtful super-
visor who worked closely and amicably with the em-
ployees he supervised. That fact was attested by nearly
all witnesses, including Martinez. Boniface ate with the
employees, counseled with them, and assisted them. He
8-6-80
8-11-80
8-18-80
9-9-80
9-10-80
9-9-80
10-10-80
12-12-80
12-16-80
1-23-81
1-30-81
2-2-81
2-13-81
2-17-81
2-17-81
3-19-81
5-2-81
778
PEPSI-COLA BOTTLING CO.
gave employees time off to go to union meetings, and the
employees brought him lunch after the meetings. Marti-
nez acknowledged that Boniface was protective of him,
and gave him breaks and the benefit of doubts. Clearly,
Respondent was not trying to get rid of Martinez.
Martinez had survived earlier layoffs, and the General
Counsel argues that he was laid off in December because
he had nonimated Lackey for union president. As found
above, the record does not support that conclusion.
Burris credibly denied that contention, and it is clear that
Martinez was retained until it no longer was feasible to
keep him on the payroll. Had Respondent wanted to rid
itself of Martinez, it easily could have done so at the
time of the layoff of Steaneart or, later, Garcia. The fact
that layoffs were necessary, credibly was testified to by
Morell and Boniface. The fact that Martinez was the last,
rather than the first or second, to go lends credence to
Boniface's testimony that he was reluctant to let Marti-
nez go, and retained him as long as he could.
It is found that Martinez was laid off, and not recalled
to work solely because of economic reasons unrelated to
Martinez' union or other protected activity.
Paragraph 7(a) of the complaint alleges that in late
November 1981 Respondent reassigned Martinez to a
less desirable job because of his protected activity. That
allegation is found to be without merit.
Martinez testified that in early December he worked in
glass for 2 weeks rather than for the usual I-week rota-
tional period. The General Counsel argues that working
in glass was more onerous than any of the other work
duties in the night loading division, but that argument is
a conclusion not supported by testimony or evidence. In
any event, Boniface credibly testified that, although he
did not remember the incident and possibly he did leave
Martinez in glass 2 weeks instead of 1 week, if he did so,
it was not to punish Martinez-to the contrary, he did
everything he could to protect and assist Martinez. That
testimony has the support of the record. Finally, the
record does not show that the I-week rotation system in-
exorably was followed, without deviation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with their operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent violated Section 8(aX 3)
and (1) of the Act, it will be recommended that Re-
spondent be ordered to cease and desist therefrom, and
to take certain affirmative action designed to effectuate
the policies of the Act.
It is recommended that Respondent be ordered to
offer immediate and full reinstatement of Craig S.
Lackey to his former job, or if that job no longer exists,
to a substantially equivalent job, without loss of seniority
or other rights and privileges, and make him whole for
any loss of earnings he may have suffered with interest
thereon to be computed in the manner prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and
Florida Steel Corp., 231 NLRB 651 (1977).
On the basis of the above finding of fact and on the
entire record, I make the following
CONCLUSIONS OF LAW
I. Pepsi-Cola Bottling Company of Fresno is, and at
all times material herein has been, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Central Valley Beverage Union, Local No. I is, and
at all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(aX3) and (1) of the
Act by laying off an employee because of that employ-
ee's protected activity.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
779