Pepsi-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 882 (N.L.R.B. 1994)

882
315 NLRB No. 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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. The Respondent further
claimed essentially that the proceedings here were tainted by bias.
After a careful examination of the entire record we are satisfied that
this allegation is without merit.
With respect to the judge’s finding that employee Faass’ discharge
was unlawful, the judge placed reliance on the fact that the Respond-
ent waited over 2 months after Faass’ last personal injury to dis-
charge him. We note that there is a testimonial discrepancy as to
when Faass’ last personal injury occurred. We find, regardless of
when the injury occurred and without relying on any 2-month delay,
that the judge correctly found that the General Counsel established
a prima facie case of discriminatory motivation for the discharge,
and the Respondent failed either to rebut that case or establish a de-
fense under Wright Line, 251 NLRB 1083 (1980).
Member Devaney, in adopting the judge’s finding that several
statements at the captive audience meeting constituted threats of ter-
mination for engaging in union activities, finds it unnecessary to rely
on the judge’s citation of Baddour, Inc., 303 NLRB 275 (1991), in
which he dissented, and which he views as distinguishable on its
facts.
Member Stephens would not find that employee William Bryan
Frazier was an agent of the Respondent. When an employer places
an employee in a position such that other employees could reason-
ably believe that the employee speaks on behalf of management, the
employee’s actions are attributable to the employer. Here, as the
judge found, employees initially asked Frazier to be their union shop
steward, an incongruous circumstance if employees truly could per-
ceive Frazier as an agent of the Respondent. Further, Frazier’s agen-
cy status rests on virtually the identical factors found insufficient to
confer supervisory status on him, e.g., signing timecards, writing up
employees, solving maintenance problems, and performing various
reportorial duties. In Member Stephens’ view, the performance of
these duties is also insufficient to cloak Frazier with agency status.
He concludes, nonetheless, that even without a finding that Frazier
was an agent, the record still establishes that the Respondent’s dis-
charge of employee Munn violated Sec. 8(a)(3) and (1).
2 At one point in his decision the judge stated that employee Cur-
tis’ discharge violated Sec. 8(a)(3) as well as Sec. 8(a)(5). There
was, however, no allegation that Curtis’ discharge violated Sec.
8(a)(3), nor does the judge include such a finding in his conclusions
of law. In adopting the judge, we clarify that Curtis’ discharge vio-
lated Sec. 8(a)(5) and (1) only.
3 The judge inadvertently failed to include an affirmative order re-
quiring the Respondent to provide the information requested in the
Union’s July 14, 1993 letter. We will modify the recommended
Order so as to require the Respondent to provide the requested infor-
mation to the extent consistent with this decision.
Pepsi-Cola Bottling Company of Fayetteville, Inc.
and United Food and Commercial Workers
Union, Local 204, affiliated with United Food
and Commercial Workers International Union,
AFL–CIO, CLC. Cases 11–CA–14889, 11–CA–
15034, 11–CA–15181, 11–CA–15281, 11–CA–
15289, 11–CA–15383, and 11–CA–15556
December 16, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On May 11, 1994, Administrative Law Judge Low-
ell M. Goerlich issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order, as
modified.
The judge found, inter alia, that the Respondent un-
lawfully refused to provide the information requested
by the Union in its letter dated July 14, 1993. The Re-
spondent excepts to that finding. We find merit in the
Respondent’s exception insofar as it relates to part of
the Union’s information request.
Items 1 and 2 of the Union’s information request in-
volved lists of all terminations and hires since January
18, 1993. The union representative who testified at the
hearing stated, as the reason for requesting these items,
a need to update files because she had been newly as-
signed to service the plant. As to these matters, we
agree with the judge’s conclusion that the information
was necessary to the Union for adequate representation
of employees and, thus, the Respondent’s refusal to
furnish it violated Section 8(a)(5) and (1) of the Act.
As to items 3 and 4 in its letter, the Union requested
information concerning the terminations of employees
Schriber and Faass. The day after it sent its letter to
the Respondent, the Union filed unfair labor practice
charges with the Board concerning the discharges of
these employees. It is well established that the Board
procedures do not include pretrial discovery. For that
reason, the Board has held that when information is
sought that relates to pending 8(a)(3) charges, it gen-
erally will not find that a refusal to provide such infor-
mation violates the Act. Union-Tribune Publishing Co.,
307 NLRB 25, 26 (1992), and WXON-TV, 289 NLRB
615, 617 (1988). We recognize that WXON-TV is fac-
tually different from the instant case. In that case, an
8(a)(3) and (5) charge was filed the day after the infor-
mation was sought. In the instant case, the 8(a)(3)
charge was filed on the day after the information was
sought and the 8(a)(5) charge was added 2 weeks later.
Despite this difference in timing, we believe that the
inference is plain that the information was sought be-
cause of its relationship to the 8(a)(3) charge. Amer-
ican Oil Co., 171 NLRB 1180, 1188 (1968). Thus, for
the reasons stated in the above decisions, we conclude
that the Respondent did not violate Section 8(a)(5)
when it failed to provide the information described in
items 3 and 4 of the Union’s July 14, 1993 request.3
883PEPSI-COLA BOTTLING CO.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pepsi-
Cola Bottling Company of Fayetteville, Inc., Fayette-
ville, North Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Add the following as paragraph 2(f) of the
judge’s Order and renumber the subsequent paragraphs
of the Order accordingly.
‘‘(f) Furnish the Union with the information re-
quested as items 1 and 2 in its letter of July 14,
1993.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX B
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.
WE WILL NOT unlawfully discharge any of our em-
ployees or discriminate against them in any manner be-
cause of their union affection or union activities.
WE WILL NOT unlawfully discharge or discipline any
of our employees because they have violated rules that
we have unilaterally put into effect without bargaining
with the Union as required by law.
WE WILL NOT unlawfully represent to our employees
that it is futile to choose a union as their bargaining
agent.
WE WILL NOT unlawfully threaten that our employ-
ees will lose benefits if they choose the Union as their
bargaining agent.
WE WILL NOT unlawfully threaten employees that
we will close our plant if the Union comes in.
WE WILL NOT unlawfully threaten our employees
that they will be terminated if they choose the Union
as their bargaining agent.
WE WILL NOT unlawfully blacklist employees.
WE WILL NOT unlawfully interrogate employees
about their union activities.
WE WILL NOT unlawfully withhold wage increases
to discourage union activities and WE WILL reimburse
any employees from whom we have unlawfully with-
held wage increases.
WE WILL NOT unlawfully assign employees onerous
tasks because of their union affection.
WE WILL NOT unlawfully make unilateral changes in
our employees’ wages, hours, working conditions, or
other conditions of employment concerning mandatory
subjects of bargaining without bargaining collectively
with the Union in accordance with the requirements of
Section 8(a)(5) of the National Labor Relations Act.
WE WILL NOT unlawfully refuse to provide informa-
tion relevant and necessary to the Union’s performance
of its function as bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Robert Dale Munn, Jerry Lane
Parker, Christopher Matthew Hyatt, Joseph Theodore
Lee Jr., Benjamin Frank Curtis, and John P. Faass Jr.
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to the seniority or
any other rights or privileges previously enjoyed, and
WE WILL make them whole for any losses of earnings
and other benefits resulting from their discharges, less
any net interim earnings, plus interest.
WE WILL notify the above-named employees that we
have removed from our files any reference to their dis-
charges and that the discharges will not be used
against them in any way.
WE WILL remove from our files any reference to the
disciplinary action taken against Roger Deskin on May
28 and June 26, 1992, and reimburse him for the earn-
ings he lost by reason of his suspension, with interest.
WE WILL rescind and cease giving effect to rules for
shop employees put in effect on May 12, 1992, the
shop requirement that shop employees change tires and
clean drains, the zero settlement policy effective De-
cember 9, 1992, the change of pay for full-service, tell
sell, and bulk service employees, the change in the
sparemen’s work schedule, changes in hiring guide-
lines and employment guidelines in respect to driving
violations, change in work schedules for merchan-
disers, and changes in lost time injuries and WE WILL
bargain collectively on request with the Union with re-
spect to the new rules and changes as the exclusive
representative in the appropriate unit.
WE WILL reimburse our employees for any losses
which they have suffered by reason of our unilateral
changes and for any losses by reason of our withhold-
ing wage increases together with interest in accordance
with the Board’s usual policy.
WE WILL furnish the Union with the information re-
quested by the Union’s letter of July 14, 1993, de-
scribed in items 1 and 2.
PEPSI-COLA BOTTLING COMPANY OF
FAYETTEVILLE, INC.
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 25, 1993, the Board on a direct appeal allowed an
amendment to par. 14.
2 Certain amendments were allowed at the hearing.
3 The facts found are based on the record as a whole and the ob-
servation of the witnesses. The credibility resolutions have been de-
rived from a review of the entire testimonial record and exhibits,
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S.
404, 408 (1962). As to those witnesses testifying in contradiction of
the findings, their testimonies have been discredited either as having
been in conflict with the testimonies of credible witnesses or because
the testimony was in and of itself incredible and unworthy of belief.
All testimony has been reviewed and weighed in the light of the en-
tire record. No testimony has been pretermitted.
Paris Favors Jr., Esq., for the General Counsel.
Joel I. Keiler, Esq., of Reston, Virginia, and Margie Case,
Esq., of Raleigh, North Carolina, for the Respondent.
Shelda J. Upchurch, of Durham, North Carolina, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
charge in Case 11–CA–14889, filed by United Food and
Commercial Workers International Union, AFL–CIO, CLC
(the Union) on February 27, 1992, was served on the Re-
spondent, Pepsi-Cola Bottling Company of Fayetteville, Inc.,
on February 27, 1992. An amended charge was filed by the
Union on July 27, 1992, and was served on the Respondent
on July 27, 1992.
The charge in Case 11–CA–15034 was filed by the Union
on June 15, 1992, and was served on Respondent on June
15, 1992. An amended charge was filed by the Union on
July 27, 1992, and was served on Respondent on July 29,
1992.
The charge in Case 11–CA–15181 was filed by the Union
on October 7, 1992, and was served on the Respondent on
October 7, 1992. An amended charge in Case 11–CA–15181
was filed by the Union on November 19, 1992, and served
on the Respondent on November 19, 1992. A complaint and
notice of hearing having issued in Case 11–CA–14889 on
April 10, 1992, and an order consolidating cases, consoli-
dated complaint, and notice of hearing having issued in
Cases 11–CA–14889 and 11–CA–15034 on October 26,
1992, and a second order consolidating cases, consolidated
complaint, and notice of hearing issued in Cases 11–CA–
14889, 11–CA–15034, and 11–CA–15181 on November 9,
1992. A second order consolidating cases, amended consoli-
dated complaint, and amended notice of hearing was issued
in Cases 11–CA–14889, 11–CA–15034, and 11–CA–15181
on November 20, 1992.
Among other things, it was alleged in the amended con-
solidated complaint that the Respondent unlawfully threat-
ened its employees with loss of benefits, plant closure, re-
prisals, the futility of selecting the Union, termination for en-
gaging in union activities, blacklisting employees because of
union activities, withholding of wage benefits, bargaining
from scratch, and onerous working conditions to dissuade its
employees from supporting the Union and unlawfully interro-
gated its employees and promulgated a rule for its employees
by requiring that all conversations pertain to company busi-
ness all because of its employees’ union activities, and all in
violation of Section 8(a)(1) of the National Labor Relations
Act (the Act). Additionally in the amended consolidated
complaint it was alleged that the Respondent unlawfully dis-
charged employee Robert Munn, assigned more onerous
work to Roger Deskin and Jimmy Evers, warned and sus-
pended Roger Deskin and withheld from its full-service route
salesmen wage increases. It was further alleged that the Re-
spondent violated Section 8(a)(5) of the Act by unlawfully
making certain unilateral changes in working conditions.
It is also alleged in the amended consolidated complaint:
On or about April 10, 1992, the Regional Director,
after investigation of the charge in Case No. 11–CA–
14889, issued a Complaint and Notice of Hearing alleg-
ing, inter alia, that the Respondent, at its Fayetteville,
North Carolina facility, withheld from its employees, a
wage increase.
On or about August 17, 1992, the Respondent and
the Union entered into a private settlement which was
to dispose of the alleged unfair labor practice described
in paragraph 16 above. On August 18, 1992, the Union
submitted a withdrawal request of that portion of the
charge in Case No. 11–CA–14889 pertaining to that un-
fair labor practice and on August 18, 1992, the Re-
gional Director issued an Order Conditionally Approv-
ing Partial Withdrawal Request and Partially Withdraw-
ing Complaint and Notice of Hearing as it pertained to
the unfair labor practice in paragraph 16 above. On Oc-
tober 27, 1992, the Union advised the Regional Direc-
tor that the Respondent had not complied with the
terms and the private settlement as it pertained to four
full service route salesmen.
The Acting Regional Director, by letter dated November
20, 1992, partially revoked the order conditionally approving
partial withdrawal request and partially withdrawing com-
plaint and notice of hearing in Case 11–CA–14889 because
of evidence that the Respondent had not performed the terms
of the private settlement insofar as it pertained to the with-
holding of a wage increase to the full-service route salesmen
as more particularly described in paragraph 14.1
The Respondent filed timely answers denying that it had
engaged in the unfair labor practices alleged.
The amended consolidated complaint, as amended,2 came
on for hearing on December 7, 8, 9, and 10, 1992, and Feb-
ruary 1, 2, and 3, 1993, at Fayetteville, North Carolina.
All parties were afforded a full opportunity to be heard,
to call, to examine and cross-examine witnesses, to argue
orally on the record, to submit proposed findings of fact and
conclusions, and to file briefs. All briefs have been carefully
considered.
On the entire record in these cases and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT3
I. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and has been at all times material,
a Delaware corporation with a facility located at Fayetteville,
885PEPSI-COLA BOTTLING CO.
4 Respondent’s attorney, Joel I. Keiler, supplied the information on
the flip chart.
North Carolina, where it is engaged in the manufacture and
sale of soft drink products.
During the past 12 months, which period is representative
of all times material, the Respondent, in the conduct of its
business operations described above, derived gross revenues
in excess of $500,000.
During the past 12 months, which period is representative
of all times material, the Respondent received at its Fayette-
ville, North Carolina facility goods and raw materials valued
in excess of $50,000 directly from points outside the State
of North Carolina.
The Respondent is now, and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Captive-Audience Meetings
David Schriber, a route salesman for the Respondent,
made the initial contact with the Union in 1991. Thereafter,
Shelda Jean Upchurch, an organizer for the Union, became
involved in the union campaign among the Respondent’s em-
ployees, ‘‘approximately the week of September 16, 1991.’’
Thereafter an election was held on October 11, 1991, and in
due course the Union was certified as bargaining agent on
September 4, 1992.
During the union campaign the union circulated a pam-
phlet citing ‘‘35 things your employer cannot do.’’ The Re-
spondent responded by holding captive-audience meetings on
October 8 and 9, 1991, in which it discussed 34 things the
employees could do. Randall Calvin Kennedy, general sales
manager of the Respondent’s Fayetteville and Sanford oper-
ations, presented the case for the Respondent. The 34 things
were written on a flip chart4 which Kennedy reviewed with
the employees and explained as he ‘‘went along.’’ A copy
of the flip chart, attached hereto as Appendix A (omitted
from publication), was received in evidence.
Kennedy, in his testimony, related what he had told the
employees. Among other things he stated in this testimony:
If you voted no, you voted the union out, the open
door policy would continue, we would continue to work
one-on-one, and wages and benefits could be improved
. . . grievance or problems would be handled through
a union steward . . . and at that point all wages and
benefits would be frozen . . . .
The next thing was if you vote yes and the Union
is voted in, the only thing the Union really gets is the
right to sit down and negotiate with our attorney, and
that’s the only right they get.
[T]here were two things the Union could not do. First,
they could not come on Company property and, second,
they would not be allowed to talk with management.
We stressed, at that point, that negotiations start at
zero, that, in fact, they could get less than what they
presently have.
According to Kennedy, he told employees that the Union
would want three things: checkoff, property visits, and per-
mission for the steward to conduct union business on com-
pany time:
I told them that there wasn’t anyway that the Company
would negotiate and give those things away, and then
I said but, everything is negotiable, now if the Union
wanted to give up something else to get one of these
things, negotiations start at zero.
According to Kennedy, he stressed that employees,
through negotiations, might get less than they do now.
Kennedy also told the employees that the Respondent
would ‘‘not take a strike.’’ He pointed out that the Respond-
ent in two of its establishments had beat a strike and ‘‘per-
manently replaced the people who went out on strike.’’ ‘‘I
told them that they if they went out on strike, we would defi-
nitely permanently replace them. They would get their job
back if and when their permanent replacement left the Com-
pany.’’ ‘‘[T]here would not be any funds paid by the Union
for first-time strike because there hadn’t been any Union
dues paid in.’’ ‘‘[I]f you’re not getting any money from
Pepsi, unemployment benefits, and from the Union, the only
possibility . . . is you might be able to get welfare.’’
‘‘[W]ho’s going to provide for your families.’’
Kennedy also exhibited $246 worth of groceries which he
averred equaled the amount an employee would have to pay
dues to the Union. ‘‘I told them that Pep Com Industries had
13 plants in North Carolina, we were privately owned by a
large Japanese company, the Union was headed by Shelda,
and I asked them, there’s going to be war . . . which side
do you think is going to win.’’ (Emphasis added.)
William Ivey Starnes Jr., a route manager for the Respond-
ent, testified that he heard Kennedy make the statement
‘‘when the war started, where would you fall at or who do
you think would win.’’ (Emphasis added.) Starnes also testi-
fied that he heard Kennedy say:
If you vote no for the Union, the open-door policy con-
tinues, there’s still a one-to-one relationship, and wages
and benefits could be improved.
If you vote yes for the Union . . . all benefits and
wages were frozen at that point.
The Union has only one right . . . to sit down and
ask our lawyer for a contract, and that is all. The Union
can not come on the property, they can’t talk to man-
agement, negotiations would start at zero, it was con-
ceivable that you could end up with less than what you
have at the present time.
Thomas Lee Swanson, a Respondent supervisor, testified
Kennedy said, ‘‘[T]he only right [the Union] has is the
Union has a right to sit down and ask you, our lawyer, for
a contract. That’s the only right they have.’’ ‘‘Pep Com is
owned by a large Japanese company . . . when the war
starts who do you think would win.’’ (Emphasis added.)
Jimmy Ray Goodman, the Respondent’s planning man-
ager, heard Kennedy testify that all the Union would be ‘‘al-
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Keiler was interrogating Munn. The fact that Munn was facing
Keiler enhances his credibility.
6 Apropos is the language in Ron Junkert, 308 NLRB 1135 fn. 2
(1992):
In this context, Junkert’s statement that he had only to negotiate
with the Union, not sign a contract, and negotiations could last
a year, was not a mere statement of the law as argued by the
Respondent. Rather, in this context, it was coercive and, indeed,
and a threat that employee support for the Union would be fu-
tile.
lowed to do is sit down with our lawyer and negotiate a con-
tract and that is all. The Union would not come on company
property.’’ ‘‘Negotiations would start at zero. Now, you can
lose more than you currently have.’’ ‘‘The Company would
not allow that [checkoff, union ‘property visits’ or ‘a shop
steward to conduct Union business on Company time’] that
to happen.’’ In case of strike ‘‘the Plant would not close its
doors but you would be permanently replaced and when and
if your permanent replacement left, you could get your job
back.’’
Several of the Respondent’s employees testified as to what
Kennedy said in his captive-audience remarks. Robert Dale
Munn, a mechanic, among other things, remembered that
Kennedy had said, ‘‘[T]hat everything is frozen from this
day on, there would be more benefits, you won’t get no more
benefits, you won’t get no more holidays, and you’re going
not [to] get no pay raises because he said the Union is trying
to come in and the Union has froze everything for us.’’
Munn testified that Attorney Keiler said in an answer to a
question, ‘‘He said that he would go to the bargaining table,
but he would not bargain with us, he didn’t have to . . . we
were going to get less.’’ According to Munn, Keiler told him
to ‘‘sit down and shut the hell up, that he would see me on
welfare before he gave me anything . . . he said that he
would not bargain, he would go to the table, but he would
not bargain with us.’’ Munn further quoted Keiler as saying,
‘‘[I]f you strike, it don’t make any difference because its ille-
gal, that you can’t have a job back, we’ll just bring new peo-
ple in to replace you.’’ Munn testified that Keiler ‘‘threat-
ened to close down the plant.’’ According to Munn, he asked
Keiler ‘‘[W]hy are they threatening us’’ he said, ‘‘[F]or me
to go to hell, that you wasn’t going to give us nothing and
you would see me on welfare before you signed anything.
You stated that you would go to the bargaining table, but
you would not bargain. . . . [O]ther people started asking
questions and it just started getting real loud.’’5 Munn attrib-
uted these remarks to Keiler, ‘‘That you wouldn’t sign no
contract’’ and in answer to a question Keiler said, ‘‘we mean
go back to minimum wage, you said we will start with noth-
ing, no benefits, no pay, nothing. . . . [Y]ou said to every-
body else that you can all go to hell and that you would not
give us nothing, we would start from zero . . . and you
would not sign no contract, you will not bargain.’’
Craig Lee Sanders, a forklift operator, remembered that
Kennedy said, among other things, ‘‘[T]hat as far as benefits
that, when or if the Union came in, that we would start with
zero benefits and we would just go in with a scratch piece
of paper.’’ He said that the Union would ‘‘force us out on
strike.’’ Sanders quoted Keiler as saying, ‘‘[W]hen we come
to bargain we’re going to sit down at a table, across from
him, and he’s going to tell us to go to hell, we gonna have
a list of all the things that we want and he’s going to tell
us to go to hell.’’
Roger Leon Deskin, a fleet vehicle mechanic, remembered,
among other things, that Keiler said to Munn who had made
a comment ‘‘shut up and go to hell and Bob Munn said he
didn’t have to talk to him in that way, that he was a grown-
up—and then he said that he would see him on the street on
welfare before he worked at Pepsi Cola.’’ Deskin further
quoted Keiler as saying ‘‘[I]f we were to continue these
Union activities that he would see us all on the street on wel-
fare before we would work for Pepsi Cola again.’’ ‘‘When
you sit down at a table with me, you may get two or your
may have nothing when we sit at the table but by law I have
to negotiate in good faith. . . . [Y]ou may end up with what
you have now or nothing, something to that effect.’’ Negotia-
tions could take ‘‘five years’’ but ‘‘you would have to nego-
tiate in good faith.’’ Deskin further testified, ‘‘There were a
lot of hot collars that day. . . . I believe it started with Bob
Munn. . . . That’s when everything got kind of ugly.’’
Deskin testified that Kennedy said the plant would not close.
James Earl Britt, a merchandiser, attended the sales depart-
ment meeting. He remembered, among other things, that
Keiler said, ‘‘[W]e wouldn’t get anything we went to nego-
tiate.’’
David Scott Schriber, forklift operator, attended the Octo-
ber 9, 1991 captive-audience meeting with the sales force.
Munn was not in this meeting.
Schriber quoted Keiler as saying, ‘‘[L]et me explain to
you what’s going to happen in negotiations. . . . you’re
going to come in . . . we want this and we want that in our
contract. . . . I’m going to tell you, no, go to Hell.’’
Schriber commented that ‘‘it didn’t sound like you were bar-
gaining in good-faith if every time we asked you for some-
thing you would tell us, no, go to Hell.’’ Keiler replied,
‘‘What’s going to happen, you’re going to charge me with
not dealing in good-faith . . . . We’ll file the charges with
the Labor Board, it will take a month or two before we get
to court on the charges . . . when we get to court, I’m going
to ask for a continuance. . . . Because I’m busy. . . . We’ll
go to court, I’ll ask for a continuance because I’m busy.
Then it will be a couple more months down the line before
we get there after the continuance. Even if they find me
guilty of not bargaining in good-faith, I will appeal the deci-
sion to Washington, D.C. . . . When we get to D.C., I ask
for a continuance because, once again, I’m busy. . . . Then
it will be further down the line before we get down to there.
. . . [W]e could be over two and a half (2-1/2) to three (3)
years just on the continuances going to court.6 . . . Even if
I’m found guilty in Washington, D.C. we’ll come back here,
we’ll put a little sign up on the bulletin board back there say-
ing—we’re sorry, we didn’t bargain in good-faith, we’ll go
back to the negotiation table, we’ll sit down and you’ll say
we want this and that in the contract and I’m going to tell
you, no, go to Hell.’’
Kennedy said, ‘‘[I]f you went out on strike that you would
lose your job, you would be permanently replaced.’’ Schriber
said that the Union had a strike fund. Keiler responded,
‘‘There’s no Union in the United States that has a first time
strike fund.’’ Schriber testified that no one said the plant
would close for any reason, but it was said that ‘‘you could
get a contract that would be less than you have.’’ Manage-
ment did not actually say it would not sign a contract.
887PEPSI-COLA BOTTLING CO.
7 Swanson testified that Keiler said that if the union negotiators
said something smart ‘‘he would just tell them no, to go to hell.’’
McLamb read Kennedy’s affidavit before testifying.
8 There is a strong implication here that if the employees voted yes
they would be terminated.
Jerry Lane Parker, a route salesman, remembered that in
answer to a question, Keiler said, ‘‘[W]e didn’t need a damn
Union . . . he held up a blank sheet of paper and he said,
this is what you will have. . . . [N]othing because all he had
to do was negotiate in good faith and to him good faith was
considered just showing up . . . and he didn’t care because
the longer he stayed there the more he got paid.’’
Thomas Odell McLamb, a route supervisor, attended the
salesmen’s meeting. He remembered Kennedy said, ‘‘If you
vote yes, no open-door policy. If you vote yes, salaries and
no problems. Problems would have to go to [the] steward,
then steward to Shelton, from Shelton to attorney in Atlanta
and then our Company would go to Washington for our law-
yer, and then all wages and benefits would be froze. If the
Union is voted in, they only gets one right and that is to sit
down with our lawyer and ask for a contract. The Union
would not be allowed to come on our property. The Union
could not talk to management.’’ ‘‘Negotiations would start at
zero and they could wind up with less.’’ The Company said,
‘‘[N]o way’’ to checkoff or union business on company time.
‘‘Rockingham and Durham had a strike and they did not shut
the doors and we will not shut the doors. . . . If you take
a strike, we will permanently replace you.’’ McLamb testi-
fied that Keiler said, among other things, ‘‘[h]e’d say the
hell7 with it and walk out, or something like that.’’
Keiler’s testimony conformed quite closely to Kennedy’s
testimony. Of war he testified Kennedy said, ‘‘This may de-
velop into a war. You’ve got a large Japanese company with
thirteen plants in North Carolina that’s well financed on one
side, and you’ve got shelter [sic] on the other side. Who do
you think is going to win? Which side do you want to be on?
(Emphasis added.) Keiler denied that he had told any em-
ployee to ‘‘go to hell’’ or see him on welfare. He reminded
the employees that he had negotiated cuts in wages. ‘‘At
some point, they’re [the Union] going to say, ‘That’s it,
we’re not taking less than this, and we insist that this is what
it is’ and I said, ‘If I look them in the eye and if I tell them
I’m not going to do it, go to hell, what are they going to
do? Get up and punch me in the nose?’ That’s all that was
said about that.’’ ‘‘The real world is that you could get less.
If you think I’m wrong [bargaining in bad faith] and you file
charges, wait three years and find out if I’m right or not.’’
Kennedy testified, ‘‘Your go to hell was not to Munn or to
any employee, you were acting out the role-play what you
would say in that particular situation with negotiations, if
they’d reached an impasse.’’ Goodman testified he remem-
bered Keiler said at the point of impasse, ‘‘I would tell the
Union lawyer to go to hell.’’
The last item on the flip chart was ‘‘Vote No—No one is
terminated.’’8
The foregoing evidence which I have credited establishes
that the Respondent harbored a strong antiunion animus and
in manifesting such animus made statements which advised
employees that it would be futile for its employees to select
the Union as their bargaining representative. These state-
ments, which were deliberately conditioned to cause employ-
ees to forgo or abandon any affection for the Union, coming
2 days before the election, had a coercive and restraining ef-
fect on employees’ rights protected by Section 7 of the Act
and were in violation of Section 8(a)(1) of the Act.
The Respondent used language which would lead employ-
ees to believe they must strike in order to obtain any conces-
sions more than zero, and that a war between the Union and
the Respondent was inevitable which the Union would lose.
In judging the Respondent’s conduct, we must be mindful
that ‘‘[t]he central purpose of the Act [is] to protect and fa-
cilitate employees’ opportunity to organize unions to rep-
resent them in collective bargaining negotiations.’’ American
Hospital Assn. v. NLRB, 499 U.S. 606, 609 (1991); Long Is-
land Hospital, 310 NLRB 689 (1993).
B. The Supervisory Status of William Bryan Frazier
The General Counsel asserts that William Bryan Frazier
was a supervisor and/or an agent within the meaning of the
Act. The Respondent contests this assertion.
Frazier worked in the automobile repair shop as a truck
mechanic. Other mechanics assigned to the shop were Jimmy
Ray Evers, Robert Dale Munn, and Roger Leon Deskin.
Munn testified that Robert J. Tauchen, fleet manager, and
Fraizer’s supervisor told him that Fraizer ‘‘would be running
the shop and, if we had any problems or anything, to see
him.’’ Munn testified Frazier ordered parts, was contacted
when employees were out sick, gave employees permission
to ‘‘be off,’’ gave employees daily work schedules, told
them what was to worked on, signed employees’ timecards,
and gave employees their job assignments.
According to Evers, Tauchen told him that Frazier was
acting as the employees’ supervisor. Evers testified that
Frazier gave out work assignments. Some work assignments
were given verbally, others were posted, ‘‘if we done a job
and it wasn’t done proper he would write us up for it.’’
Frazier occupied an office. ‘‘We reported directly to Billy
Frazier for any maintenance problem that we had. We were
instructed by Bob Tauchen that we answered directly to Billy
Frazier.’’ Frazier was advised by employees when they went
to lunch and when they came back. In Evers’ affidavit ap-
peared, ‘‘If I was sick or needed time off, I would tell Billy
and he would get it approved through Bob Tauchen’’ and
‘‘Billy really didn’t give me work schedules, I had my own
area to work.’’
Deskin testified that Frazier gave out assignments, sched-
uled worktimes, and was available for employee problems
with their work. ‘‘He would have a maintenance work sheet
posted on the bulletin board with dates and vehicle numbers
on it and I would follow that work sheet prescribed by him
and if anything would be changed, he would do so at the
time of his arrival or my arrival.’’
Tauchen, who was in charge of the Respondent’s shop ac-
tivities including the Fayetteville shop, testified that Frazier’s
wage was lower than that of Evers or Deskin. Tauchen clas-
sified Fraizer as a fleet mechanic who worked on vehicles.
‘‘He executed the Preventive Maintenance Policy and kept
me informed what was going on in the shop.’’ Frazier told
employees what do. ‘‘He would do the prescribed month end
reports, vehicle inspections.’’ He executed purchase orders
within limits. Frazier worked directly for Tauchen with
whom he communicated with by telephone. ‘‘I tried to get
down there once a week.’’
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Frazier’s vacation was 1 week.
10 I credit the foregoing testimony of Munn, Evers, and Deskin. I
consider Frazier to be an unreliable witness. Frazier admitted talking
about the Union with Munn.
11 In House Calls, Inc., 304 NLRB 311 (1991), the Board opined:
Under Board law, the test for agency is whether, under all the
circumstances, an employee would reasonably believe that the
alleged agent was speaking for management and reflecting com-
pany policy. Lovilia Coal Co., 275 NLRB 1358, 1372 (1985).
See also Corrugated Partitions West, 275 NLRB 894, 900 (1985);
Minnesota Boxed Meat, 282 NLRB 1208, 1213 (1987); and Roskin
Bros., 274 NLRB 413, 421 (1985).
Tauchen further testified that the mechanics reported to
Frazier; Frazier discussed with Tauchen ‘‘which trucks were
in the shop and who was working on the trucks’’; Tauchen
reviewed the P.M. schedule with Frazier, based on his
knowledge of the mechanics’ expertise, Frazier would assign
work to them; Frazier observed the other employees’ work;
Frazier exercised independent judgment, ‘‘he was acting as
a mechanic and whether or not a particular part was needing
replacement or was defective.’’ ‘‘[I]f there were deviations
from that plan [directions as to which trucks needed to be
worked on] he could deviate but he was expected to notify
me and keep me abreast of any deviations’’; in emergencies
Frazier had the responsibility of assigning the work; Frazier
made Tauchen aware of any disciplinary matters when
Tauchen was absent to which Tauchen would respond (if the
matters were severe enough) by coming to Fayetteville; there
was a $200 to $400 limit on Frazier’s purchase of parts.
Frazier testified that he was a truck mechanic and voted
without a challenge in the representation election. Although
other supervisory employees received raises, he did not.
Frazier had never been told he was a supervisor. Tauchen
conferred with Frazier; he checked ‘‘the files’’ and made
sure that ‘‘the trucks were being repaired and everything and
go over time schedules, looking at bills, asking any ques-
tions.’’ ‘‘If I had a problem, if I needed a special part, I had
to call for his approval. Or, if there was a problem with
scheduling or repairing a truck, any difficult item that he
needed to know about, then I would notify him, or any ques-
tion that I had . . . if someone was out or if they needed
to relay a message to him . . . . If they wanted a day off
or something, I would notify him.’’
Frazier was present when Munn was discharged. In the of-
fice Frazier ‘‘[f]iled the work orders and stuff when they
completed the job.’’
Frazier worked in the shop from August 1986 until Octo-
ber 1992. Frazier could not hire or fire employees and had
no authority to discipline or effectively recommend hiring,
firing, or disciplining employees.
Tauchen testified that Frazier exercised independent judg-
ment in respect to ‘‘[s]pecific mechanic’s tasks meaning
areas where he was acting as a mechanic and whether or not
a particular part was needing replacement.’’
A supervisor is defined in Section 2(11) of the Act:
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Frazier’s job does not fit this criterion. He was a conduit
for Tauchen without supervisory powers. Moreover, although
other employees claimed he was their supervisor, neverthe-
less, incongruously, they asked Frazier to be their shop stew-
ard. According to Munn, ‘‘Nobody knew whether he was a
supervisor or not.’’ I find that Frazier was not a supervisor
within the meaning of the Act.
Nevertheless, the General Counsel insists that Frazier was
an agent of the Respondent and the Respondent was bound
by his acts.
The record reveals that Frazier first said he was for the
Union but, as testified to by Munn, ‘‘Bob Tauchen came
down and stayed a day with us and him and Billy stayed in
the office probably about five and a half hours and then he
went on—Billy, that day, went on vacation. When he come
back from vacation, then he was totally against the Union.
He kept on telling me that I was going to be fired if I voted
for a Union.’’ These detailed events occurred about 3 weeks
after Munn was hired, which would have been around Sep-
tember 23, 1991.9
Jimmy Evers testified that after Frazier came back from
his vacation, ‘‘[h]e started hassling us about the Union, tell-
ing us the Union wasn’t no good for us and the Union was
going to cause us to loose our benefits, our raises, our merit
increases.’’
Roger Leon Deskin testified of Frazier, ‘‘[H]is attitude
turned around completely . . . . [H]e said he didn’t want
nothing to do with the Union. It wasn’t worth shit and it
would keep us from getting a wage increase and benefits.’’10
From this testimony it is clear that Frazier was advancing
the Respondent’s antiunion stance.
The Respondent placed Frazier in a position where em-
ployees could reasonably believe that he spoke on behalf of
the Respondent. Not only did Frazier fulfill functions for the
Respondent such as work assignments, signing of timecards,
permitting employees to get off, writing up employees, solv-
ing of maintenance problems, approving sick leave through
Tauchen, executing the preventative maintenance policy, in-
forming Tauchen what was going in the shop performing ve-
hicle inspections, doing monthend reports, executing pur-
chase orders, working directly for Tauchen, observing other
employees work, making Tauchen aware of any disciplinary
matters when Tauchen was absent, and referring requests for
time off to Tauchen; he was also reflecting the Respondent’s
antiunion policy. Frazier was also present at the discharge of
Munn and participated in and reported on Deskin’s alleged
failure to repair a truck properly. Frazier was the conduit
through which Tauchen operated. Frazier was Tauchen’s rep-
resentative in the shop and so conducted himself. Thus, the
Respondent placed Frazier in a strategic position where em-
ployees could reasonably believe that he spoke on behalf of
the Respondent. Because the Respondent vested apparent au-
thority in Frazier to act for it, Frazier’s actions are attrib-
utable to the Respondent. I find that Frazier was an agent of
the Respondent.11
889PEPSI-COLA BOTTLING CO.
12 According to Tauchen, Hawkins was a ‘‘consultant’’ to him.
13 ‘‘Munn was complaining [to Hawkins] that he didn’t have
enough to do’’ (Tauchen’s testimony), and that Frazier was phys-
ically abusing him. Both of these complaints ‘‘bothered’’ Tauchen.
14 Roger Deskin, an employee who attended the meeting, testified
Keiler said, ‘‘[I]f we were to continue these union activities that he
would see us all on the street on welfare before we would work for
Pepsi Cola again.’’
15 Frazier denied that he made such statement. His denial is not
credited.
16 Frazier admitted that Munn had complained about not being as-
signed work.
Tauchen utilized Frazier to transmit instructions to the em-
ployees in the shop and to furnish him with reports on the
operation of the shop and the conduct of the employees.
C. The Discharge of Robert Munn
Robert Dale Munn was employed as a mechanic by the
Respondent from September 2, until November 22, 1991, on
which date he was discharged. According to Tauchen, who
discharged him, he was discharged because he went to
Carlton Hawkins, vice president of operations,12 with com-
plaints.13 Tauchen ‘‘felt’’ that Munn had ‘‘gone over his
head.’’ Tauchen also testified that he hired Munn and at the
time he considered that Munn was an employee who could
be put in the Respondent’s employment. During Munn’s em-
ployment, Tauchen had received no complaints about Munn’s
job performance. Although Tauchen claimed that he did not
know Munn was a union partisan, he knew about the union
campaign. According to Tauchen, when Munn accused
Tauchen of firing him because of his union activities, he de-
nied it.
Munn testified that he became involved with the Union
and signed a union card. He attended union meetings and
talked to people about the Union. Frazier knew of Munn’s
union sympathies. As noted above Frazier was initially
prounion but after a protracted conversation with Tauchen,
and on his return from vacation, he changed his attitude and
spoke against the Union.
Munn testified that he attended the captive-audience meet-
ing at which Kennedy presented the Employer’s position.
Munn further testified that he said at the meeting, ‘‘I don’t
know much about the Union and I don’t know much about
Pepsi, I ain’t been working here that long, but if you don’t
care if the Union comes in, why are you threatening us by
no raises, no insurance, and being fired and stuff like that,
and the Pepsi attorney told me to sit down and shut the hell
up, that he would see me on welfare before he gave me any-
thing,14 and I got upset and I told him, look I didn’t curse
at you that way and I expect you not to curse at me that way
and, as far as being on welfare, I have never been on welfare
and I will not be on welfare, and he said that he would not
bargain, he would go to the table, but he would not bargain
with us. . . . They ended the meeting . . . people started
yelling and stuff . . . . Mr. Kennedy told me to calm down
and told everbody to calm down and then he said the meet-
ing’s going to dismiss.’’ When Munn returned to the shop,
Frazier told Munn that ‘‘Mr. Kennedy told him that I was
a hot head over the Union.’’15 According to Munn, Frazier
said, ‘‘I told you if you voted for the Union, you were going
to get us in trouble, that’s going to get us fired, I told you
you wouldn’t even get a job in Fayetteville.’’
Munn testified that after the captive-audience meeting and
‘‘vote, Billy [Frazier] was not giving [him] work to do.’’
When Munn asked Frazier for assignments, he would ‘‘not
ever answer’’ him. ‘‘He started right after [to withhold work
assignments] the meeting, but then it got worse after the
vote.’’
About a week or two after the election, Munn went to
Frazier’s office. According to Munn, he asked Frazier why
he was not giving him work. ‘‘He said if you’d done like
I told you to, to keep this Union out, we’d all be all right,
but right now we’re all going to loose our jobs. I said . . .
I need to show that I’m productive because when it comes
for a raise, then I ain’t going to get one because I ain’t
shown I’m doing any work. He said, well, we ain’t going to
get no raise anyway because they’re all froze because of the
Union. . . . He said I’m still on my 120 day probation and
I could be fired.’’16
According to Munn, on November 17, 1991, he asked
Hawkins, who was on one of his visits to the plant, whether
he could talk to him. Munn told Hawkins that ‘‘Frazier was
not giving me no work to do. . . . [t]hat I was concerned
because I was still on my 120 day probation, that if I wasn’t
showing I was productive that I could get fired.’’ Hawkins
phoned Tauchen and told him that there was a problem and
‘‘he needed to come next morning and straighten it out
now.’’
After Munn had left his conversation with Hawkins,
Frazier accosted him. Munn testified, ‘‘Frazier grabbed me
around the throat and throwed me up against the wall . . . .
He asked me what in the hell did I think I was doing by
go talking to Carlton Hawkins. I said look, you ain’t give me
no work to do and I ain’t getting no raises if I ain’t got no
work to do. He said you ain’t going to get no raise anyway
because they’re froze and if you done like I told you to and
vote this shit out, we won’t have this Union, we won’t be
in this predicament.’’
According to Munn, Tauchen came to the shop on Novem-
ber 20, 1991. He spoke to Frazier in the office for about 6
hours. Tauchen came out of the meeting and said ‘‘there
would be a change, that Billy [Frazier] would not be running
the shop, that he would be for right now.’’ Thereafter,
Tauchen gave Munn some work to do. Later, Munn talked
to Tauchen who said:
I [Munn] had good reports, that you’re a good me-
chanic, that you was good on carburetors.
Bob said that I was caught between a rock and a
hard spot and he said you coming in here and a union
trying to get in here. He said how do you feel [about]
the Union. I said well, I feel like if you feel like the
Union is for you, you vote for it. If you don’t, then
don’t. That’s your right. He said fine.
On November 21, 1991, while Munn was working on a
trailer, Tauchen asked Munn about the Union. ‘‘He said that
he used to work at [a] place where they tried to get a Union
in and the atmosphere was bad and a lot of employees got
sacrificed because of the Union.’’
On November 22, 1991, Frazier asked Munn to come to
Tauchen’s office. According to Munn, Tauchen told him,
‘‘[I]t was time for Bob Munn and Pepsi to part.’’ Munn
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Tauchen, as did Frazier, denied that he was discharged ‘‘because
his pace was too fast’’; however, Tauchen did not testify as to what
he told Munn in respect to the reason for his discharge. Frazier, who
was present at the discharge meeting, testified that he was ‘‘letting
him [Munn] go because he was evaluating him on his 120 days and
that he wasn’t satisfied with his work.’’ That was all that Frazier
recalled Tauchen say. According to Frazier he was asked to attend
the meeting by Tauchen as a witness. Hawkins name was not men-
tioned during the meeting.
18 Hawkins did not testify at this hearing.
19 Tauchen admitted that Munn ‘‘said something about being ter-
minated for being involved in the Union.’’
20 As stated in Greco & Haines, Inc., 306 NLRB 634 (1992):
Under Board precedent, a prima facie case may be established
by the record, as a whole and is not limited to evidence pre-
sented by the General Counsel. . . . The Board’s precedent al-
lows the judge to analyze the prima facie case based on all
record evidence.
21 Tauchen testified that ‘‘before [he] fired Mr. Munn, [he] didn’t
have any complaints about his work or job performance.’’
22 The Board has said in Best Plumbing Supply, 310 NLRB 143
(1993):
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), the Board explained its causation test for cases alleging
violations of the Act that turn, as does this case, on employer
motivation. First, the General Counsel must establish a prima
facie showing sufficient to support an inference that the pro-
tected conduct, such as an employee’s union activity, was a mo-
tivating factor in the employer’s decision. The elements com-
monly required to support a prima facie showing of discrimina-
tory motivation under Section 8(a)(3) are union activity, em-
ployer knowledge, timing and employer animus. Once such
prima facie unlawful motivation is shown, the burden shifts to
the employer to demonstrate that it would have taken the ad-
verse action against the employee even in absence of the pro-
tected activity. It is within this framework that we analyze the
evidence, the arguments of the parties . . . .
23 The Board has said:
The elements commonly required to support a prima facie show-
ing of discriminatory motivation under Section 8(a)(3) are union
activity, employer knowledge, timing and employer animus.
Best Plumbing Supply, supra at 143. The General Counsel has met
this test.
24 Apparently Frazier and Tauchen were confused as to what line
their testimony should take.
asked why, and Tauchen answered, ‘‘[T]hat my pace and
Pepsi’s pace were different. That my pace was too fast and
they just didn’t feel like they needed somebody like that to
work here and he told me to give him the shop keys and to
leave the premises and do not discuss my dismissal or the
Union to nobody.’’17
The following Monday, Munn called Hawkins, who did
not know Munn had been fired. Munn told him that his pace
was too fast. Hawkins18 observed that ‘‘that didn’t sound
right.’’ He then asked Munn if he would like to have a meet-
ing with Tauchen. Munn answered, ‘‘[Y]es.’’
On the Wednesday after his discharge, Munn met with
Tauchen. Munn testified as to what occurred at the meeting:
I asked Bob, I said Bob I want to know why you
fired me because I don’t think the pace that wasn’t a
good enough reason. He said you tell me. I said I feel
like the reason why you fired me is because you think
I am enticing Jimmy and Roger to vote yes for the
Union and that I [was] putting Union ideas in their
head. He said you said it, not me. And he said the ter-
mination still stands and that was the end of the meet-
ing.19
Munn’s personnel records jacket reveals, ‘‘Terminated dur-
ing 120 day pro oak [sic] period.’’ On a resignation notice
it is entered ‘‘Robert Munn refused to sign.’’ ‘‘Bob Tauchen,
11/29/91 and Robert Munn was terminated during his 120
probationary period, signed R.T. 11/29/91.’’
In the case of Munn, the General Counsel’s prima facie
case showing discriminatory motivation is supported by the
following credible evidence:20
1. The Respondent’s antiunion animus was of such an ada-
mant nature that the Respondent committed unfair labor
practices as a means of dissuading its employees from union
affection.
2. The Respondent was aware of Munn’s union affection
and that he was an activist for the Union.
3. Prior to Munn’s discharge, the Respondent had no com-
plaints about Munn’s job performance and considered him to
be a good employee.
4. Technically Munn did not go over Tauchen’s head be-
cause Hawkins was not Tauchen’s immediate supervisor but
a consultant.
5. Hawkins did not recommend any disciplinary actions
for Munn’s contacting him.
6. This was the first time Munn had lodged a complaint
with a company official.
7. Fraizer, who was in a position to evaluate Munn’s
work, did not recommend Munn’s discharge nor had he com-
plained to Tauchen about Munn’s work.
8. Tauchen, who spent most of his time in Raleigh, would
have had little opportunity to observe Munn’s work. More-
over, before Tauchen fired Munn he had no complaints about
his job performance.21
9. The Respondent’s witnesses presented inconsistent rea-
sons for discharge: Fraizer stated that Tauchen told Munn
that he was letting Munn go because he was not satisfied
with his work, whereas Tauchen stated Munn was discharged
because he went to Hawkins over his head.
10. The Respondent threatened to see Munn on welfare.
In Wright Line, 251 NLRB 1083 (1980), the Board estab-
lished the rule that when the General Counsel makes a prima
facie case showing sufficient evidence to support the infer-
ence that protected conduct was the ‘‘motivating factor’’ in
the employer’s decision to discharge, the burden shifts to the
employer to demonstrate that the discharge would have taken
place even in the absence of the protected conduct.22
The Respondent has not met this burden.23 As to its de-
fense, the Respondent asserts that Munn was discharged be-
cause he went over Tauchen’s head to complain to Hawkins.
To accept this defense Tauchen has to be believed even
though Frazier testified that Tauchen told Munn he was fir-
ing him because Tauchen was not satisfied with his work. I
do not credit Tauchen, I found him to be an unreliable wit-
ness. Tauchen’s reasons stated for firing Munn appears to
have been and afterthought to counter the fact that Munn was
a good employee and it could not be proved that Munn’s
work was so unsatisfactory that he warranted discharge.24 I
891PEPSI-COLA BOTTLING CO.
25 As stated in W. F. Bolin Co., 311 NLRB 1118 (1993):
Discriminatory motivation may reasonably be inferred from var-
ious factors, including an employer’s expressed hostility toward
protected activity together with its knowledge of the employees
protected activity . . . . An employer cannot simply present a
legitimate reason for the its action but must persuade by a pre-
ponderance of the evidence that the same action would have
taken place in the absence of protected activity.
The Respondent has not met its burden.
26 See Teksid Aluminum Foundry, 311 NLRB 711 fn. 2 (1993).
27 I do not credit the denials of Starnes and Goodman.
28 In the case of Fredeman’s Calcasieu Locks Shipyard, 206
NLRB 399 (1973), the Board held a statement ‘‘if the Union gave
the employees anything else, the Respondent would ‘have to take
something back that [it] had already given [them]’’’ was a violation
of Sec. 8(a)(1). See also Teksid Foundry, supra at fn. 2 and 717–
718. In Lear-Siegler Management Service Corp., 306 NLRB 393
(1992), the Board confirmed the standard set out in Taylor-Dunn
Mfg. Co., 252 NLRB 799, 800 (1980), enfd. 810 F.2d 638 (9th Cir.
1982):
It is well established that ‘‘bargaining from ground zero’’ or
‘‘bargaining from scratch’’ statements by employer representa-
tives violate Section 8(a)(1) of the Act if, in context, they rea-
sonably could be understood by employees as a threat of loss
of existing benefits and leave employees with the impression
that what they may ultimately receive depends upon what the
union can induce the employer to restore. On the other hand,
such statements are not violative of the Act when other commu-
nications make it clear that any reduction in wages or benefits
will occur only as a result of the normal give and take of nego-
tiations.
find that the reason for which Tauchen claimed that he fired
Tauchen is false. I find that the Respondent fired Munn for
his union sympathies. The Respondent’s antiunion animus by
way of discharge was visited on Munn, a union partisan who
voiced his union sympathies at the captive-audience rankling
meeting. By discharging Munn the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act.25
IV. THE 8(A)(1) ALLEGATIONS
(a) The General Counsel asserts that the Respondent
threatened its employees with loss of benefits if they selected
the Union as their collective-bargaining representative. The
General Counsel cites the following facts to support his con-
tention. Employee David Schriber testified that on September
5, 1992, he talked to Supervisor Mike McFarland in his of-
fice. Schriber asked McFarland, ‘‘What is all this I am hear-
ing about, you know we’ll lose all our benefits and start with
a blank piece of paper.’’ McFarland answered, ‘‘Well, basi-
cally that’s how it works.’’
Employee James Britt, ‘‘probably a couple of months’’ be-
fore the election, conversed with Supervisor Bill Starnes in
his office. Starnes asked him what he knew about the Union,
‘‘did I know what was going on.’’ Among other things,
Starnes told Britt that the Union would start with a blank
piece of paper when they went to the bargaining table. ‘‘You
might wind up with less after you get the Union than you’ve
got right now.’’ ‘‘The loading crew he said that was a bene-
fit to us and we may not even have that after we got a Union
in.’’
Britt also testified that Supervisor Goodman ‘‘[h]eld up
piece of paper and told us this is what we’re going to start
with.’’
Jerry Parker testified that in late September he had a con-
versation with Supervisor Jay Goodman, along with em-
ployee Zack Hams, which lasted for over 2 hours. Among
other things, Goodman asked them if they ‘‘knew much
about the Union’’ and what ‘‘they thought about it.’’ Good-
man said they ‘‘would be paying from $50.00 to $60.00 a
week in Union dues and that it wouldn’t benefit us.’’ The
Union ‘‘didn’t care about us as individuals.’’
Employee Craig Sanders testified that at a captive-audi-
ence meeting, Kennedy stated that ‘‘no one could receive
any wage increase because everything was frozen and . . .
that as far as benefits . . . [they] would start with zero bene-
fits and we would just go in with a scratch piece of paper.’’
Deskin testified that about the second week of October,
Frazier informed him that Frazier ‘‘didn’t want nothing to do
with the Union. It wasn’t worth shit and it would keep us
from getting a wage increase and benefits and that he didn’t
want nothing else to do with it.’’ The flip chart, among other
things, discloses, ‘‘all wages and benefits are frozen’’26 ‘‘ne-
gotiations start at zero,’’ ‘‘you can end up with less.’’
I agree with the General Counsel that the foregoing evi-
dence, which I credit,27 establishes that the Respondent
threatened employees with loss of existing benefits if they
selected the Union as their collective-bargaining representa-
tive, thus the Respondent violated Section 8(a)(1) of the
Act.28
(b) The General Counsel asserts that the Respondent
threatened its employees with plant closure if they selected
the Union as their collective-bargaining representative. The
General Counsel cites the following testimony to support his
contention.
Employee Jerry Lane Parker testified that he conversed
with Supervisor Tommie Swanson in late September to early
October. Swanson told Parker, ‘‘[I]f the Union came in that
Pepsi would shut the doors on the Plant and that there was
no way that they were going to let a Union come in and he
also said that people like us or like hisself and like me that
didn’t have college educations would have a hard time if
they lost their jobs because of the Union . . . .’’ This testi-
mony, which is not inconsistent with the other of the Re-
spondent’s credited mouthings, I credit, and find that by
Swanson’s statements, the Respondent violated Section
8(a)(1) of the Act.
(c) The General Counsel asserts that the Respondent
threatened its employees with unspecified reprisals if they se-
lected the Union as their bargaining agent.
Supervisor Thomas Odell McLamb testified that at one
time Parker, during the union campaign, came up to him and
asked him, ‘‘[W]hat did I think of the Union and I told him
that I hoped it didn’t come in because because I didn’t like
a Union.’’
Parker testified that McLamb on one occasion asked him
how may people were at the union meeting, and how he
‘‘thought the Union was going to go. Was they going to go
for it or against.’’ Parker answered that he thought it would
go ‘‘strongly for the Union.’’ McLamb responded, ‘‘I should
hope that it didn’t because if it did, things would definitely
change for the worse if the Union came in because the Com-
pany was not going to allow a union.’’ The conversation oc-
curred around October 7, 1991. According to Parker, after
the vote, McLamb asked him how he ‘‘thought the vote had
gone.’’ Parker responded that he thought ‘‘it had come in.’’
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 I credit Parker as to these conversations.
30 Munn testified that Frazier said, ‘‘[I]f we lost our jobs that we’d
never get a job in Fayetteville because soon as the company called
back for a job reference, that Pepsi would tell them we was involved
in union activities and he said we won’t get no job.’’ Frazier told
Munn that he was still in his probationary period and he could be
fired for voting for the Union. Frazier also told employees ‘‘if [they]
voted for the Union [they were] going to get in trouble, [they] were
going to get fired and [they] would not be able to get a job in Fay-
etteville.’’
31 The General Counsel requests that the complaint be amended to
include Billy Starnes’ interrogation of Britt in that the incident was
fully litigated. The amendment is granted.
McLamb said, ‘‘I should hope that it didn’t because if it did,
things would change for the worse.’’29
By McLamb’s statements that, if the Union prevailed,
things would change for the worse constituted a threat of the
loss of employee benefits and was in violation of Section
8(a)(1) of the Act.
(d) The General Counsel asserts that the Respondent
threatened its employees with termination for engaging in
union activities. The General Counsel cites the following fac-
tors to support his contention.
Employee Deskin testified that at the October meeting
Keiler told Robert Munn to ‘‘shut up, go to hell’’ and that
Keiler said that he would ‘‘see him on the street, on welfare
before he worked at Pepsi-Cola’’ Deskin also testified that
Keiler said, ‘‘[I]f employees continued their union activities
he would see us all on the street on welfare before we would
work for Pepsi-Cola again.’’30
Item 18 of the flip chart reads ‘‘we will permanently re-
place you’’; item 19 states ‘‘when the strike is over, you
could get your job back, if and when your replacement
leaves’’; and the last item reads, ‘‘vote no—no one will be
terminated.’’
It would have been a dull employee indeed who would not
have grasped the message from the presentations of the Re-
spondent that it was antiunion and that a vote for the Union
would put employees’ jobs in jeopardy. An employee could
anticipate, from the Respondent’s presentation, a refusal to
bargain, a contrived strike, replacement, loss of the strike,
and probable loss of employment. To so beleaguer employ-
ees in such a manner was an interference with their Section
7 rights. Compare Larson Tool & Stamping Co., 296 NLRB
895 (1989); Baddour, Inc., 303 NLRB 275 (1991).
(e) The General Counsel asserts that the Respondent
threatened to blacklist employees because of their union ac-
tivities. He cites the following testimony to support his asser-
tion.
Munn testified credibly that during the captive-audience
meeting Kennedy told employees that ‘‘if they were fired or
lost their jobs at Pepsi, when they applied for work else-
where and the potential employer called for job references,
Pepsi would tell them that they were involved in union ac-
tivities and they would not be hired anywhere in Fayetteville.
Munn testified that Frazier said:
that if we lost our jobs that we’d never get a job in
Fayetteville because as soon as the company called
back for a reference, that Pepsi would tell them that we
were involved in union activity and he said we won’t
get no job.
By the statements of Kennedy and Frazier, the Respondent
violated Section 8(a)(1) of the Act. See Alaska Pulp Corp.,
296 NLRB 1260, 1262 (1989); Fontaine Body & Hoist Co.,
302 NLRB 863 (1991).
(f) The General Counsel asserts that the Respondent inter-
rogated its employees concerning their union activities. He
cites the following evidence to support his assertions.
Jerry Lane Parker testified that on or about October 7, Su-
pervisor McLamb questioned him about his union activities.
McLamb asked Parker, ‘‘[W]as there many people at the
union meeting.’’ Parker answered, ‘‘I told him a right good
many.’’ McLamb also asked Parker ‘‘[H]ow I thought the
Union was going to go. Was they going to go for it or
against it. I told him I thought it would go strongly for the
Union. He said, well, I hope—I should hope that it didn’t
because if it did, things would definitely change for the
worse if the Union came in because the Company was not
going to allow a Union in.’’ On another occasion, McLamb
asked Parker ‘‘how I thought the vote had gone.’’ Parker re-
sponded that he ‘‘thought it had come in and again he told
me that I should hope that it didn’t because if it did, things
would change for the worse.’’
Supervisor Billy Starnes, during the union campaign,
asked James Britt what he knew about the Union. ‘‘Did I
know what was going on and I told him I’d heard about
it.’’31
These interrogations during an on-going union campaign
by an employer who was hostile to the union constituted un-
lawful interrogation and were in violation of Section 8(a)(1)
of the Act. See Rossmore House, 296 NLRB 1176 (1984),
enfd. sub nom. Hotel & Restaurant Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985).
The test evaluating the legality of an interrogation is
whether, in the totality of the circumstances, the questioning
reasonably tends to restrain, coerce, or interfere with employ-
ees’ exercise of statutory protected rights. These interroga-
tions meet the test.
(g) The Respondent threatened to withhold wage increases
from its employees because of their support for the Union.
The General Counsel cites the following evidence to support
his assertion.
According to Kennedy, the employees at the Fayetteville
plant would have received a wage increase in January 1992
but, as he said, ‘‘[A]ll of the wage and fringe benefits will
be frozen until we’re done negotiating.’’
Kennedy testified that in the 6 years he had been with the
Respondent, it was an annual corporate decision to grant
wage increases and he would be notified of this in September
or October. Kennedy had the responsibility for implementing
the increases at the two facilities under his direction, the
Fayetteville and Sanford, North Carolina plants. All other
plants of the Respondent were included in the wage in-
creases. Sanford employees, who were nonunion, received
the wage increases Fayetteville did not. To deny the Fayette-
ville employees the customary wage increases other Re-
spondent employees were given was a violation Section
8(a)(1) and (3) of the Act. See Martin Industries, 290 NLRB
857, 859 (1988). It is clear that had the Fayetteville employ-
ees been nonunion employees with a union not in the picture,
893PEPSI-COLA BOTTLING CO.
32 Kennedy testified that in June or July after the ballots were
opened, ‘‘it was decided we would put into effect the pay changes
that had been budged [sic] for our facility for 1992 and those pay
changes would bring us in line . . . with our other facilities.’’
33 Had the raise in wages been given as scheduled, it would have
confirmed the employees’ expectations who had for a number of
years received such increases and which did occur in the Respond-
ent’s other establishments. It was the withholding of such increases
that frustrated the employees’ expectation and led employees to be-
lieve that the Respondent was visiting a reprisal on them because of
the advent of the Union. See DTR Industries, 311 NLRB 833 (1994).
Apropros language is ‘‘[t]he only reasonable inference left for em-
ployees was that their own desire to improve their lot though union
representation had deprived them of increases that they might have
otherwise received.’’ (311 NLRB at 837.)
they would have received the budgeted32 wage increases as
did employees in the other plants of the Respondent.33
(h) The General Counsel asserts that the Respondent ad-
vised its employees that if they selected the Union as their
collective-bargaining representative, bargaining would start
from scratch. He cites the following facts: item 7 of the flip
chart states ‘‘negotiations start at zero.’’ The same idea was
stated in the captive-audience meetings. Employee Craig
Sanders testified that Michael Kaelin, vice president for sales
for the Respondent, told him the day after the captive-audi-
ence meeting that ‘‘when you start collective bargaining you
start with zero benefits.’’
The implication in this evidence is that if employees chose
the Union, their extant wages and benefits would be put in
jeopardy, all of which is clear from the context in which the
idea of starting from scratch or zero in bargaining was pre-
sented and the totality of all the circumstances. The employ-
ers alleged ‘‘hard bargaining’’ anticipated ultimate loss of
employee benefits and a fixed disposition to punish the em-
ployees for choosing the union.
In Plastronics, Inc., 223 NLRB 155, 156 (1977), the
Board opined:
Depending upon the surrounding circumstances, an
employer which indicates that collective bargaining
‘‘begins from scratch’’ or ‘‘starts at zero’’ or ‘‘starts
with a blank page’’ may or may not be engaging in ob-
jectionable conduct, Saunders Leasing System, 204
NLRB 448, 454 (1973); Stumpf Motor Company, Inc.,
208 NLRB 431, 432 (1974). Such statements are objec-
tionable when, in context, they effectively threaten em-
ployees with the loss of existing benefits and leave
them with the impression that what they may ultimately
receive depends in large measure upon what the Union
can induce the employer to restore. On the other hand,
such statements are not objectionable when additional
communication to the employees dispels any implica-
tion that wages and/or benefits will be reduced during
the course of bargaining and establishes that any reduc-
tion in wages or benefits will occur only as a result of
the normal give and take of collective bargaining. White
Stag Mfg. Company, 219 NLRB 1246, 1246–51 (1975)
(Member Fanning dissenting); Computer Peripherals,
Inc., 215 NLRB 293, 293–294 (1974) (Member Fan-
ning dissenting); C & K Coal Company, 195 NLRB
1038, 1038–39 (1972). The totality of all the cir-
cumstances must be viewed to determine the effect of
the statements on the employees.
As in the Plastronic, Inc. case, supra, the Respondent’s
statements were objectionable because in context, they effec-
tively threatened employees with loss of existing benefits and
left them with the impression that what they might ultimately
receive depended in a large measure on what the Union
could induce the Employer to restore. The Respondent’s start
from scratch or zero statements threatened employees with
the loss of existing wages and benefits and were violations
of Section 8(a)(1) of the Act. See also Columbus Mills, 303
NLRB 223, 236 (1991).
(i) The General Counsel asserts that the Respondent be-
cause of union activities promulgated a rule for its employees
by requiring that all conversations pertain to company busi-
ness. He cites the following facts to support his contention.
On May 12, 1992, the Respondent unilaterally issued a list
of rules for shop employees. The first rule stated, ‘‘Talking
amongst themselves. This should be kept to a minimum and
only pertain to shop and truck repair issues.’’ Evers testified
that prior to May 12, employees could talk to one another
as long as they did not abuse the privilege. Deskin testified
that prior to May 12, 1992, there was no restriction on em-
ployees talking among themselves. Thereafter, Tauchen told
employees they could only talk about shop business.
The General Counsel claims this rule was promulgated to
separate active union supporters and curtail their discussions
about the Union. The General Counsel has not established a
prima facie case.
A. The Alleged Assignment of More Onerous Work to
Employees Roger Deskin and Jimmy Evers
The General Counsel claims that the Respondent violated
the Act when shortly after the election, Roger Deskin, a fleet
vehicle mechanic, was assigned to change tires on a 10-bay
delivery truck. Subcontractors had performed this work; how-
ever, when the subcontractors were busy, shop employees
would sometimes change the tires.
The General Counsel also claims that a week after the
election Jimmy Evers was assigned to clean the drains and
had to resort to digging out the sludge with a shovel and
bucket. The drains had been cleaned by an outside contrac-
tor.
In view of the Respondent’s strong union animus, its var-
ious unlawful threats, its apparent desire to wean its employ-
ees away from the Union, I find that the Respondent’s as-
signment of more onerous work was in violation Section
8(a)(1) of the Act.
B. The Warnings and Suspension Issued to
Roger Deskin
The General Counsel maintains that Deskin was given
warnings and a 5-day suspension because of his union activi-
ties. He asserts that ‘‘Deskin’s union activities and the Re-
spondent’s demonstrated animus towards the same’’ estab-
lished a prima facie case.
Deskin was given a ‘‘counseling statement’’ on May 28,
1992, by Tauchen in which it was stated, among other
things, ‘‘The employee failed to do a thorough and complete
repair on route truck 81–13. See attached statements from
Billy Frazier and Bob Tauchen.’’
Deskin testified that he had ‘‘worked on the steering gear
box unit and transmission selector unit’’ of vehicle 8113
from May 15 to May 21, 1992. Thereafter, the vehicle was
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 The pin was described as:
Its a straight pin with a machine hole drilled through it with
a flat surface on the other side to keep it from going straight
through and you push it through two different units, one being
attached to the transmission and the other piece being the cable
attached through the floor board on the selector drive. . . . [I]t
attaches to two pieces together as a link and it is locked in place
by a cotter key.
35 Tauchen testified, ‘‘Billy Frazier called me and explained to
me—I don’t remember if Billy called me directly or—actually, to be
honest with you, I don’t remember exactly how I learned of this in-
cident.’’
36 ‘‘That is a service and repair from front to rear of a vehicle
changing fluids, repairing and replacing light bulbs, lenses, what
have you.’’
37 ‘‘By the manufacturer’s specification a vehicle is—when it’s put
into a parking position—. . . on any incline, forward or reverse, is
not to move when the application of the parking brake is applied.’’
38 Deskin was disciplined because he ‘‘failed to adjust the parking
brake.’’
road-tested by Frazier, passed, and returned to service. On
May 26, 1990, the driver of the truck phoned and stated that
it would not move. Deskin went to the truck to see if he
could repair it. Deskin found that a ‘‘clevis pin’’ was miss-
ing.34 Deskin ‘‘repaired it enough’’ to bring it to the shop
so it could be corrected, which was done, whereupon the
driver with the truck returned to his route.
Frazier asked Deskin what he had found. Deskin told him
that ‘‘the clinch pin was missing.’’ Frazier reported the inci-
dent to Tauchen.
Two days later Tauchen called Deskin to his office and
handed him a counseling statement. According to Deskin,
Tauchen did not understand the nature of the alleged infrac-
tion. His information came from Frazier. On the request of
Tauchen, Deskin explained, ‘‘step by step’’ how ‘‘it worked
technically.’’ Deskin explained to Tauchen that ‘‘the vehicle
would not have functioned properly the first day it went on
the road test if it wasn’t done correctly at that time because
due to the vibration of that particular type of model, it would
not have stayed in.’’
Tauchen testified that he did not inspect Deskin’s repair
job himself but ‘‘perhaps’’ he received his information from
Frazier.35 Tauchen related that he went to Fayetteville and
asked Frazier to show him what happened. Tauchen looked
under the truck and discussed the matter with Frazier. At the
time of the inspection the truck had been repaired. Deskin
was not present when Tauchen examined the truck. Tauchen
had received no complaints from the driver nor did he inter-
view the driver. According to Tauchen, Frazier’s road testing
‘‘would insure that the repair—that the truck functioned and
was okay to go.’’ Tauchen ‘‘believed that Billy would have
road tested the vehicle.’’
Tauchen explained what he thought occurred: ‘‘Either he
forgot to put in the cotter pin or it was installed incorrectly
and it broke and fell out.’’
On June 26, 1992, Tauchen issued another counseling
statement to Deskin setting forth, that, among other things,
‘‘The employee failed to adjust the parking brake on vehicle
#87.75–2. . . . The employee—will be suspended for one
week without pay.’’
According to Deskin, he was assigned a breaking problem
on a Chevrolet Astro Mini-Van to survey and repair. After
it was repaired, it was road-tested by Frazier. Frazier said
after the test that ‘‘it ran and steered funny.’’ Frazier said
‘‘[T]o go ahead and do a complete G-9-G-11 services on
it.’’36 Deskin performed this work. Deskin again appeared in
Tauchen’s office. Sammy Jones, who had been hired within
the last 2 weeks as a supervisor, was also present. Deskin
was given a counseling statement. Deskin was told that the
problem was that ‘‘the parking brake traveled too far.’’ (Em-
phasis added.)37 Jones determined that the parking brakes
were not working properly ‘‘by applying the parking brake
and using the accelerator.’’ This is not the test which con-
forms to the manual. Deskin told Tauchen that Frazier had
road tested the vehicle and said ‘‘it was all right,’’ and asked
that Frazier be brought in the meeting. Tauchen refused the
request. Deskin was suspended from June 29 to July 3, 1992,
without pay.
According to Deskin, if Jones’ test were applied, the car
would have moved because he applied the parking brake
while the vehicle was in gear at the same time he applied
the accelerator. Tauchen testified that he determined Deskin
failed from a review of the situation with the shop manager,
a review of the work orders. Jones made no recommendation
nor did Tauchen examine the brakes. Tauchen is not a first
class mechanic or an engineer, although he is in charge of
all the Respondent’s vehicles and five or six repair facilities.
Jones was not called to testify.
Tauchen testified Jones determined on a test drive ‘‘that
the rear brakes, the emergency brake, was not adjusted prop-
erly and it was determined that the rear brakes were not ad-
justed.’’38 (Emphasis added.)
Although Tauchen testified that in a conversation after
June 26, 1992, he told Deskin ‘‘it hurt me personally when
I learned that he was involved in the union . . . he should
re-examine where he’s going and what his motivations
were.’’
Tauchen testified in respect to his knowledge of Deskin’s
union activities:
The specific time and date I don’t remember.
Q. Was that before you issued him the warnings.
A. I can’t say for certain.
The General Counsel has established that the Respondent
harbored an antiunion animus and that Tauchen did not re-
spond favorably to Deskin’s union sympathies. Deskin’s al-
leged improper repair jobs were based on tenuous and flimsy
representations. In regard to the clinch pin incident, there is
no credible proof that Deskin had faulted; in regard to the
brake incident, in the test applied, i.e., placing a foot on the
accelerator and applying the brake, it would appear that the
car would have moved in any event. Indeed, there is a ques-
tion whether it was a rear or a parking brake involvement.
Moreover, Jones was not called as a witness to verify the test
which was not the one set out in the manual. Additionally,
Frazier had by a road test approved the repair of each vehi-
cle. Frazier was not disciplined for any laxity nor was he
called in the meeting at which Deskin was disciplined for the
second incident, although Deskin made the request. Frazier
was antiunion. Frazier was apparently favored. Thus, it ap-
pears that the foregoing incidents were utilized by the Re-
spondent without an apparent discernable reason for dis-
ciplining Deskin unless it was because of Deskin’s union af-
fection.
895PEPSI-COLA BOTTLING CO.
39 Chinese overtime was explained by Kennedy, ‘‘Basically the
more hours you worked, the less you make per hour over 40.’’
40 As stated in Page Litho, 311 NLRB 881 (1993):
It is well settled that the real harm in an employer’s unilateral
implementation of terms and conditions of employment is to the
Union’s status as bargaining representative, in effect undermin-
ing the union in the eyes of the employees.
The Respondent had failed in its burden to show that it
would have issued the warnings and suspension to Deskin
even in the absence of his protected concerted activities. See
Wright Line, supra.
C. The Withholding of the January 1, 1992 Wage
Increase for the Full-Service Employees
On August 1, 1992, Kennedy called the full-service sales-
men, namely, Chris Blanchard, David Schriber, Tony Wil-
liams, and Mike Brewington, into the conference room where
he proceeded to tell them the method of paying their wages
would be changed. Chinese overtime was involved in the
change.39
Kennedy testified:
[W]hat we did with Full Service and Tell Sell is
brought them in line with the rest of the Company,
structured like the rest of the Company.
Full Service went to $4.00 an hour, 19 cent a case,
and it’s the Chinese overtime where you figure half-
time combining the cases and the hourlys.’’
Michael H. Kaelin, vice president of sales, testified that
‘‘the drivers are making less under the new system than the
old system.’’ Kaelin admitted the wage changes and that the
changes had not been negotiated with the Union but were
implemented unilaterally.
Kaelin testified that the Respondent did not grant these
employees the wage increases retroactive to January 1, 1992.
The Respondent’s failure to grant the wage increases was in
violation of Section 8(a)(1) and (5) of the Act. Mike O’Con-
nor Chevrolet, 209 NLRB 701, 703 (1974); Toyota of
Berkely, 306 NLRB 893 (1992).
D. The Withholding of the January 1, 1992 Wage
Increase from Felix Romero and
Others Similarly Situated
Romero was a bargaining unit employee of the Respond-
ent from January 1, 1992, until he voluntarily quit his em-
ployment on or about June 1992. He was rehired on or about
November 1992. He asked for his wage increase which ac-
crued during his tenure. It was denied because he had quit
his employment. The Respondent, by withholding the wage
increase from Romero and other employees similarly situated
was in violation of Section 8(a)(1) and (5) (see supra). See
DTR Industries, 311 NLRB 833 (1993).
E. Unilateral Changes40
(a) On May 12, 1992, Tauchen implemented a list of rules
for the shop employees. The General Counsel claims these
rules contained unilateral changes. Prior to the implementa-
tion of the rules, employees had unlimited access to the tele-
phone. The rule restricted the employees’ use of the tele-
phone to emergencies. According to Evers, Tauchen in-
formed the employees that they would no longer have more
than two 15-minute break periods. In addition, Tauchen
changed the lunch periods for the employees.
Evers testified that Tauchen stated, ‘‘[T]hat he didn’t like
Roger and I having lunch at the same time and we wasn’t
allowed to talk to one another.’’ Prior to May 12, 1992,
‘‘standing around a few minutes and talking, there was no
problem.’’
Deskin testified, ‘‘I could no longer [after May 12, 1992]
or anybody could no longer punch out and wander through
the shop and talk to another mechanic or whoever happened
to be at the shop at that time. . . . There was no limits to
where I could eat my lunch.’’
The rules conditioned employees talking among them-
selves: ‘‘This should be kept to a minimum and only pertain
to shop and truck repair issues.’’ ‘‘Phone calls, new guide-
lines . . . personal phone calls while on duty should be lim-
ited to emergencies.’’ ‘‘When a person is punched out, he
should not be standing around talking to employees who are
punched in.’’
Because the Respondent failed to bargain with the Union
in respect to the foregoing rule changes, which were manda-
tory subjects of bargaining, the Respondent by the rule
changes violated Section 8(a)(1) and (5) of the Act. Living-
ston Pipe & Tube v. NLRB, 987 F.2d 422 (7th Cir. 1993).
(b) Deskin’s assignment to change tires and Evers’ assign-
ment to clean shop drains with a bucket and a shovel were
unilateral changes in working conditions which were manda-
tory subjects of bargaining in violation of Section 8(a)(1) and
(5) of the Act.
(c) The implementation of the zero settlement policy, a
mandatory subject of bargaining, on December 9, 1991, was
a unilateral change in violation of Section 8(a)(1) and (5) of
the Act. This new policy, effective December 9, 1992, unlike
the policy then in effect, required route salesmen to check
up to ‘‘zero’’ on a nightly rather than on a weekly basis with
respect to ‘‘cases, empties, monies and flats.’’ See further
discussion, infra under the discharge of Jerry Lane Parker.
(d) The unilateral changes in the method of pay for the tell
sell route salesmen and the bulk truckdrivers.
Prior to July 1992, the bulk truckdrivers were paid what
was called ‘‘a 663 and its a Chinese overtime type deal.’’
Thereafter, this rate was ‘‘$7.35 an hour and time and a half
for anything over 40 hours.’’ They were also placed on a 5-
day week.
A new pay system was also put in effect for the tell sell
and full-service route salesmen. Tell sell ‘‘deliver bottle and
can, and Food Service, which is the part that goes into res-
taurants and bag in the box.’’ Full-service ‘‘fills vending ma-
chines.’’ The changes that were effected for the bulk truck-
drivers, tell sell route salesmen, and the full-service route
salesmen were not discussed with the Union prior to the
changes. Thus, the unilateral changes, which were mandatory
subjects of bargaining, were in violation of Section 8(a)(1)
and (5) of the Act.
F. The Discharge of Jerry Lane Parker
Jerry Lane Parker was discharged according to Kennedy,
‘‘I terminated Mr. Parker for failing to settle—it was zero
settlement policy and Mr. Parker failed to abide by that pol-
icy.’’ Kennedy testified, ‘‘We’ve always had the policy that
the salesman settles to zero . . . . But he was allowed, at
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 The policy was put in effect after the employees had designated
the Union as their bargaining agent.
42 These guidelines were printed in an employee handbook.
43 Kennedy testified, ‘‘[T]here is a list of moving violations that
is printed, I guess by the State of North Carolina that lists everything
that’s, you know, the codes for them and their moving violations.
A conviction would be that he’s, as I discussed earlier, the police-
man writes him a ticket for DWI, speeding, or whatever. The fact
that he gets it reduced doesn’t matter. That’s a conviction.’’
44 Kennedy testified: ‘‘[A] chargeable accident is he has an acci-
dent. It can be on the grounds or it can be on the street and either
they write him a ticket on the street or the Safety Committee deems
it to be his responsibility. That’s chargeable.’’
45 The word ‘‘conviction’’ was left out of the Respondent’s pro-
posal to the Union on guidelines.
times, to—if he checked up short on Tuesday, then the mon-
ies would not be taken out of his check until Friday . . . we
went to a policy that said there’s no change, we still have
zero settlement. Now, instead of weekly settling, you’ve got
to settle on the daily basis.’’ (Emphasis added.)
Kennedy’s testimony confirms that the zero settlement pol-
icy was changed. Because it was an unlawful unilateral
change without negotiating with the employees’ bargaining
agent,41 it was in violation of Section 8(a)(1) and (5) of the
Act. See Blossom Nursing Center, 299 NLRB 333, 341
(1990). Thus, the discharge of Parker was in violation of
Section 8(a)(1) and (5) of the Act. See Randolph Children’s
Home, 309 NLRB 341 (1992). Livingston Pipe & Tube,
supra.
G. Cases 11–CA–15281, 11–CA–15289, and 11–CA–
15383
Cases 11–CA–15281, 11–CA–15289, and 11–CA–15383
came on for hearing in Fayetteville, North Carolina, on Au-
gust 17 and 18, 1992. The complaints in the cases, among
other things, alleged that the Respondent had made certain
unlawful unilateral changes and had unlawfully discharged
several employees in violation of Section 8(a)(1), (3), (4),
and (5) of the Act. The Respondent denied any wrongdoing.
H. The Unilateral Changes
First: A ‘‘spareman’s responsibility at Pepsi-Cola is to fill
in for any driver or assist any driver in stocking Pepsi prod-
ucts in their store or in their machines.’’ In November 1992
the Respondent, without bargaining with the Union, changed
the sparemen’s work schedule.
Jimmy Manfred Barber, a spareman, brought the schedule
change to the Union’s attention and thereafter the sparemen
were returned to the former schedule some time in January
1993.
Because the schedule change was made without the Re-
spondent bargaining about a mandatory subject of bargaining,
the Respondent violated Section 8(a)(1) and (5) of the Act.
Whether any backpay is owing to the sparemen is left to the
compliance stage of this proceeding.
Second: The hiring guidelines and employment guide-
lines,42 which were handed to the employees alleged to have
been unlawfully discharged, were as follows:
HIRING GUIDELINES
Convictions or accidents totalling the following
amounts make an applicant ineligible for employment
requiring driving of a Company vehicle:
3 moving violation convictions43 or chargeable acci-
dents44 in past 12 months
4 moving violation convictions45 or chargeable acci-
dents in past 36 months
1 DWI in past 36 months.
EMPLOYMENT GUIDELINES
All drivers must comply with the hiring guidelines.
Chargeable accidents—includes those in which the
police issue a citation or the accident committee deems
was avoidable. Also included are the incidents involv-
ing Company vehicles which result in property damage
in excess of $250.00.
Employees who must drive a Company vehicle to
accomplish their jobs will be terminated if their totals
equal the stated guidelines. These positions are Route
Salesmen, Route Supervisors, Transport Drivers, Vend-
ing Mechanics, Food Service Mechanics and Garage
Mechanics.
Employees who drive a Company vehicle to get to
the location where they do their job will lose the privi-
lege of using a Company vehicle if their totals equal
the stated guidelines. The loss of this privilege will be
for 6 months or until their record on a rolling calendar
is not in excess of the guidelines, whichever is longer.
Permanent revocation of the Company vehicle driv-
ing privilege will result from either of the following: a
second incidence of exceeding the guidelines or a mov-
ing violation conviction or accident during a period of
suspended privilege.
Any DWI conviction is immediate cause for termi-
nation or loss of driving privilege. The loss of driving
privilege will be for a minimum of 24 months.
The General Counsel maintains that these guidelines were
unilaterally changed without bargaining with the Union and
announced to employees on January 14, 1993. The following
evidence was offered to support this claim.
According to Joseph Franklin Murphy, Randall Calvin
Kennedy, general sales manager, met with the route salesmen
on or about January 14, 1993. Kennedy pointed out on a
chart or bar graph that Fayetteville had more accidents than
any other Pepsi Cola plant. Kennedy said, ‘‘[U]pper manage-
ment had looked at this and they weren’t going to tolerate
our high number of accidents.’’ Continuing Kennedy said:
[I]f you were cited for a ticket and whether you were
charged with it or not, or convicted, you would be held
accountable for it by Pepsi Cola. And he said it didn’t
matter how deep your pockets was from the standpoint
that if you got a lawyer and you weren’t charged with
it Pepsi Cola would look at that as a conviction and
hold it against you anyway.
Around 32 employees attended the meeting.
Joseph Theodore Lee also attended the meeting. He testi-
fied that Kennedy said:
897PEPSI-COLA BOTTLING CO.
46 David Schriber, a member of the Union’s negotiating commit-
tee, testified that during the negotiations the Respondent presented
the proposal but no agreement was reached.
47 Kennedy testified that he had no discretion in retaining employ-
ees who had gone beyond the safety requirements.
48 Had the Respondent’s rule rested on citations as claimed by
Kennedy rather than convictions, Hyatt apparently should have been
discharged on January 12, 1992, when he incurred his fourth viola-
tion.
49 Hyatt testified that the accident on February 12, 1991, and the
accident on August 2, 1991, were found by the accident committee
to be ‘‘avoidable.’’
50 Kennedy testified in regard to Hyatt’s attendance at driving
school:
[T]he ticket would be taken off the record but it doesn’t change
the fact that he got the ticket so if he was guilty of the speeding,
he just got it dropped for insurance purposes or driving records
or whatever for his own personal driving record. We still count-
ed it as a chargeable.
51 The Employer’s performance record card showed that these
events had occurred.
Yes, sir, he said it didn’t matter if your pockets were
deep, that if you got a lawyer and you got out of it,
it didn’t matter. They still—if they knew about it, it
was considered you were an unsafe driver after so
many things. They were going to do that now.
[H]e said it was going to be different now, that it had
gone through PepCom and they was going to restruc-
ture where it was going to be that if you showed any
inclination of unsafe driving manner that you were
going to be terminated for three of them. It didn’t mat-
ter if they were chargeable or not. That if they came
up that you were going to be terminated.
Kennedy remembered the meeting but not the exact date;
however, he thought it was shortly after the first of the year.
Among other things, Kennedy explained, ‘‘[C]onvictions are
chargeable accidents. . . . [I]f the Safety Committee deter-
mines that he’s at fault, then that’s the same thing as if he
got a ticket on the street. . . . [I]f you got a DWI and you
had a good lawyer and you could get that reduced . . . we
still view that as you got a DWI because you got the DWI
because you were guilty of being under the influence.’’
Kennedy denied that at the bar graph meeting he told em-
ployees for the first time that ‘‘it wasn’t the convictions that
counted but the fact that they got the ticket and did it.’’ Ken-
nedy claimed that he had made this statement to employees
between ‘‘eight and twelve times’’ prior to the bar graph
meeting.
Kennedy admitted that he had said, ‘‘[H]aving deep pock-
ets and getting out of the tickets.’’ ‘‘That if you had deep
pockets and you cold get a ticket, a DWI, reduced to im-
proper equipment, it was still a DWI as far as PepCom was
concerned.’’
Based on the credible evidence, the question is: Did the
Respondent unilaterally change the rule to include as charge-
able accidents and moving violations situations in which the
employee was not convicted of fault in an accident or con-
victed of a moving violation. The General Counsel claims a
new rule was announced on July 14, 1993, changing the con-
cept of chargeable accidents and moving violation convic-
tions. The Respondent claims the rule was already in effect.
Based on the credible evidence, I find that the rule was
changed in that prior to the rule change only moving viola-
tion convictions and chargeable accidents were counted for
discharge whereas thereafter moving violations without con-
viction and accidents without fault were counted for dis-
charge. This conclusion is buttressed by the fact that the Re-
spondent has taken lightly its obligation to bargain with the
Union concerning changes in working conditions and that its
contract proposal to the Union omitted the word ‘‘convic-
tions.’’46 I find that the Respondent’s misconduct in making
the unlawful unilateral changes without bargaining with the
Union concerning a mandatory subject of bargaining is in
violation of Section 8(a)(1) and (5) of the Act. See Frontier
Hotel & Casino, 309 NLRB 761, 766 (1992).
F. The Discharges of Christopher Matthew Hyatt,
Joseph Theodore Lee Jr., and Benjamin Curtis
Christopher Matthew Hyatt, Joseph Theodore Lee Jr., and
Benjamin Frank Curtis were each discharged because each
was declared by the Respondent to have reached the maxi-
mum for allowable chargeable accidents or moving violation
convictions.
First: In regard to the discharge of Hyatt on December 30,
1993. Kennedy testified that ‘‘Chris Hyatt was terminated
because he fell out of the—his driving record fell out of the
guidelines, the retention guidelines. He had four accidents or
moving violations within a thirty-six month period. Actually
he had five.’’47
Kennedy’s list of infractions were:
2–13–91—Hit pickup $150.00
8–2–91—Bent a bumper $175.00
6–5–92—Hit truck getting out warehouse
1–12–92—Speeding 67/55
7–25–92—Speeding 69/5548
Kennedy testified that Hyatt was involved in another acci-
dent not on the list—June 20, 1992.
Hyatt admitted the following accidents: February 2,
1991—the air brakes on Hyatt’s truck failed and he ‘‘ran into
the back of a lady,’’ he ‘‘received a ticket but it did not go
on his license’’; August 2, 1991—Hyatt backed into a pylon
going to the warehouse in back of the garage;49 June 5,
1992—Hyatt’s truck was hit by another truck driven by John
Norman while standing still near the warehouse, Hyatt re-
ported the accident to Kennedy and Kennedy said, ‘‘I was
not at fault because I was sitting still.’’
Hyatt admitted the two moving violations. Hyatt testified,
‘‘I took them both to court.50 I had the first one reduced to
improper equipment. The second one, I went to a driving
school and had it dismissed.’’51 Hyatt’s motor vehicle report
(MVR) indicates no moving violation convictions for acci-
dents on February 12, 1991, and June 12, 1990.
When Hyatt arrived to work on December 23, 1992, he
was ushered into Kennedy’s office where Kennedy advised
him that he was being discharged for ‘‘having five charge-
able accidents within thirty-six (36) months.’’ Hyatt pro-
tested. Kennedy read the list of Hyatt’s accidents. When he
came to the one involved with Norman, Hyatt voiced that it
was Norman’s fault. Kennedy said he would ‘‘check with
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
52 On Hyatt’s violation and review record, Kennedy noted regard-
ing the July 25, 1992 speeding ticket, ‘‘On 10/10/92 he goes to Wil-
mington for a driving school. All points will be dropped.’’ Both of
Hyatt’s traffic tickets were given to him while he was driving his
private car.
Bill Peterson on it and get back to me later on that
evening.’’ Hyatt also told Kennedy he had no speeding tick-
ets. Kennedy asserted to the contrary. The next morning
Hyatt went to Kennedy’s office with his driving record
which as of August 26, 1992, showed no record of convic-
tions or suspensions. According to Hyatt, while discussing
the accidents with him, Kennedy dropped the Norman acci-
dent. In respect to the moving violation charges, Hyatt, ad-
dressing Kennedy, said, ‘‘How could he charge me with it
and the State of North Carolina didn’t.’’ Kennedy said he
would check into it and that Hyatt should call him back later
on that afternoon.
Hyatt phoned Kennedy. Kennedy asked him to come to
the plant but Hyatt said that if you are going to terminate
me, terminate me on the phone. Kennedy accommodated.
According to Hyatt, Kennedy said he was discharging Hyatt
for ‘‘four chargeable accidents.’’
Hyatt testified that when he first received the traffic ticket
he told Kennedy he was ‘‘going to hire myself a lawyer, and
I was going to take it to court and I was going get it
dropped.’’ Kennedy replied, ‘‘fine . . . just bring me the re-
sults,’’ which Hyatt did.52
When the Union was organizing, Hyatt helped handbill
and went to union meetings. He also ‘‘talked with different
employees about it.’’ Supervisors drove by while Hyatt was
handbilling. Hyatt also talked to Supervisors Starnes,
McLamb, Conway, Lewis, and Melvin. Hyatt told Starnes,
among other things, that it would be better for the employees
to have a union.
The credible record indicates that Hyatt was involved in
two chargeable accidents and received two traffic tickets for
speeding for which he was absolved. It is obvious that he
was not convicted of two moving violations. No persuasive
proof exists in the record that it was his fault when his
brakes failed. Although he ‘‘reached in his pockets’’ and pre-
vailed in court, under the new rule which permitted a finding
of guilt without a conviction he was discharged.
In view of the fact that Hyatt was a known partisan, that
the Respondent harbored a deep antiunion animus, and that
Hyatt was discharged under an unlawful unilaterally changed
rule, I find that the Respondent violated Section 8(a)(1), (3),
and (5) in discharging Hyatt. I further find that had he not
been a union partisan he would not have been discharged.
See Wright Line, supra.
Second: The discharge of Joseph Theodore Lee Jr.—
March 19, 1993. Kennedy described the reason for Lee’s dis-
charge as ‘‘Mr. Lee’s three accidents within twelve months
or three citations or a combination of chargeable accidents
within 12 months put him outside the retainment guide lines
of our company.’’
Lee’s MVR from North Carolina (August 17, 1992) shows
a speeding violation of August 31, 1988, 60/45 for which he
was charged three points. An MVR from Florida (August 17,
1992) shows a speeding violation of April 7, 1992, 65/55 for
which he was charged three points.
Lee admitted a moving violation in Florida in May 1992
before he was employed at Pepsi Cola. Lee admitted that he
was charged with failing to stop at a school stop in March
1993. As explained by Lee it appeared that he was not
guilty. Indeed, Lee was never convicted of the above alleged
violation. As explained by Lee, ‘‘I went to court with Mike
Walford, a lawyer here in town, and I got out of it. I had
deep pockets, as Kennedy, would say.’’
In November 1992, Lee testified that he had an accident.
It was raining ‘‘very heavily.’’ A car pulled out in front of
him; he stomped on his brakes; the trailer swung to the right.
‘‘I let off the brakes to bring it back around and swung back
to the left. And I went into the other lane to keep from going
up in that car. So the trailer came on around and smacked
the tractor and crushed the driver side of the tractor door
in.’’ The person who had caused the accident ‘‘took off.’’
When Lee returned to the plant he was shown an accident
report which revealed that a man had called and reported that
he had seen the accident and that the truckdriver could not
have avoided it.
Lee went before the safety committee and gave his version
of the accident, ‘‘every body in the room seemed to agree
with him.’’ In January 1993, Kennedy informed Lee that he
was found chargeable and he would have to pay the deduct-
ible, which he did.
On March 19, Lee was called into Kennedy’s office. Ken-
nedy told him he was going to terminate him because he had
two moving violations and a wreck. Referring to the school
crossing incident, Lee said, ‘‘I haven’t been charged with
this yet. . . . It’s just a citation and I told you I’ve got a
lawyer and I’m going to get out of it.’’ Kennedy replied,
‘‘[T]hat didn’t matter, that was the way it was now I can no
longer have a job with Pepsi.’’
As noted above, the Respondent unlawfully changed the
rules with respect to the basis for discharge. Because Lee
was discharged under an unlawful unilaterally changed rule,
the Respondent violated Section 8(a)(1) and (5) when it dis-
charged him.
Third: The discharge of Benjamin Frank Curtis—March 3,
1993. Kennedy testified that he discharged Curtis, a route
salesman because he was involved in an accident in the plant
‘‘totally uncalled for.’’ Curtis ran into a truck where the
trucks were checking out. Curtis was suspended. An emer-
gency meeting of the safety committee was held. It reviewed
the accident and found the accident was ‘‘definitely uncalled
for’’ and a chargeable accident; Curtis was terminated for
‘‘unsafe driving.’’ The accident occurred on February 26,
1993.
Curtis testified that he was on his route on February 27,
1993, when Kennedy appeared and said he was suspended
until further investigation of the accident. On March 3, Curtis
was discharged. ‘‘They said, looking at my past driving
record and the accident that happened—that took place on
the Pepsi lot, they said they had to terminate me because of
my driving record.’’ Kennedy ‘‘called’’ out Curtis’ driving
record.
Because it would appear that Curtis fell victim to the same
unlawful rule as Hyatt and Lee Jr., I find the Respondent
violated Section 8(a)(1), (3), and (5) of the Act when it dis-
charged Curtis.
The credible evidence indicates that Curtis had not exceed-
ed the Respondent’s guidelines.
899PEPSI-COLA BOTTLING CO.
53 According to Kennedy, ‘‘The doors are laid such that when
they’re all the way up, they’ll lock in—it’s not locked but they stay
in place. They won’t come back down until you take the strap and
pull it back down.’’ ‘‘[T]he person going in and out that trailer is
responsible to see that the door is all the way up.’’
54 ‘‘It’s a roller door that goes up and down.’’
55 According to Kennedy, on an accident report Mitchell indicated
that if a brace had been supplied, the accident could have been
avoided; however, upon checking it was found that if the door was
all the way up it would not come down.
56 On the counseling statement it was written:
That this is very serious safety violation that will result in termi-
nation of the employee if this occurs again. Due to receiving 3
write-ups in less than 60 working days any further write ups will
result in termination.
57 On the counseling statement it was written, ‘‘Felix is suspended
for (2) days without pay and any other accidents will result in termi-
nation.’’
58 It was further noted, ‘‘Due to Felix’ [sic] unsafe work history
he is hereby terminated for contributing to an unsafe work atmos-
phere.’’ It was signed by Mitch Pittman.
59 General Counsel’s motion to amend the complaint in Case 11–
CA–15383 set out Br. 20 dated January 5, 1992, is denied.
G. The Discharge of Felix Romero III
Romero was discharged on April 6, 1993. Romero testified
in this case on December 8, 1992. After the union campaign,
Romero resigned voluntarily. He was rehired. According to
Kennedy, Romero was discharged because of his accidents.
Romero was a lift truckdriver. He described what occurred
on the day he was discharged. Romero was putting pallets
on a truck. When he put the third one on, the truck door fell.
‘‘It was raining and when Dwight [Muffet, warehouse man-
ager] seen the door fall he told me to stop. And the dock
was wet and when I stopped my brakes locked up and I slid
into the door and the door shot back up and I slid into the
truck. In the back of the truck. Then the door—it went up
with a force that when I slid under it, it come down behind
me.’’53 Romero had had a similar experience before (see
infra).
Kennedy told Romero to run the lift truck in and out of
the truck ‘‘to see if the door fell.’’ Romero went on and off
the truck ‘‘about three times’’ and the door did not fall. Ken-
nedy left and returned to his office. Romero returned to
work.
When Romero described to Leonard Williams, Dwight
Muffet, and Mitchell Pittman what happened, Muffet said,
‘‘[I]t was plain to see that it wasn’t my fault.’’
Thereafter, Kennedy called Romero into his office. Ro-
mero explained what happened. Kennedy listened and then
said, ‘‘[G]o back out and do your work and I’ll let you know
what I am going to do.’’
Romero was fired. He describes the incident:
He told me the last time I had an accident that I was
going to get terminated and I had had too many acci-
dents. I wasn’t being safe and I didn’t lock the door
down like I was told the last time. He wrote me up and
Randy Kennedy had a note that he had wrote to Mitch-
ell to let me sign saying that I had had too many acci-
dents and I was terminated. On the write up it said that
I was being unsafe and I didn’t have the door lock
down like it should have been and I wasn’t paying at-
tention. Mitchell asked me to sign it—to sign that—to
sign the note that Randy Kennedy had wrote and plus
my termination paper. I signed my termination and the
note that Kennedy wrote, but the write up I did not
sign, because I was not given the right equipment to
lock down the door like the warehouse manager said.
As noted above, Romero had been involved in a similar
accident which occurred in January 1993. As Romero de-
scribed the incident, he was unloading a super route trailer.
He had gone on to the truck a couple of times. ‘‘[A]bout the
seventh time I was coming off the door54 just—it failed. The
spring let go and the door fell behind me . . . the front mast
on my forklift hit the door and bent it off track.’’55
According to Romero he was suspended for 3 days and
was told if he had any more accidents he would be termi-
nated.
Prior to the accidents set out above, Romero was involved
in an accident while operating his forklift. Romero punctured
a hole in the wall of the warehouse manager’s office. Ro-
mero was ‘‘written up’’ and told ‘‘to be careful, to just
watch what I was doing.’’
Romero received counseling statements on June 28, 1991,
for failure to report for work on June 28, 1991, and not con-
tacting his supervisor, on June 23, 1992, for coming in late
for work, on March 9, 1993, for riding on the back of an
O.T.R. Trailer,56 on December 30, 1992, for causing damage
to warehouse office wall, and on January 8, 1993, for care-
lessness in operating a forklift.57 Romero’s last counseling
statement was composed on April 5, 1993. It reported ‘‘That
due to lack of attention to proper safety procedures Felix has
developed a work history indicating an unsafe employee.’’58
Kennedy testified that Romero was discharged for violat-
ing the following work rule appearing in the employees’
handbook:
14. Willful violation of safety rules, creating or con-
tributing to unsafe or unsanitary conditions.
According to Kennedy, this rule was the guideline for
forklift operator. There is no rule which calls for the dis-
charge of a forklift operator after a certain number of acci-
dents.
Romero’s name, among others, appeared on a union hand-
bill passed out by the Union and admittedly seen by Ken-
nedy. A part of the handbill read, ‘‘We have authorized the
United Food and Commercial Workers Local 204 to use our
name to encourage others to vote yes!’’
As noted, Romero gave testimony in this case for the Gen-
eral Counsel on December 8, 1992. He had returned to work
for the Respondent on November 9, 1992.
I do not find that Romero, as claimed by the General
Counsel, was discharged in violation of Section 8(a)(3) and
(4) of the Act in that it would appear that he would have
been discharged even though he was a union partisan or even
though he had testified in this proceeding.59
H. Case 11–CA–15556
Case 11–CA–1556 came on for hearing at Fayetteville,
North Carolina, on November 30 and December 1, 1993. In
the complaint it was alleged, among other things, that the
Respondent unlawfully discharged John Faass on May 27,
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
60 Faass pulled his stomach muscle on the route ‘‘lifting a bag in
a box’’; he went to the doctor; and lost 3 days.
61 Faass lifted drinks out of the truck and pulled muscles in his
back. He lost 2 days: he saw a doctor.
62 Faass pulled the muscles in his right forearm lifting drinks out
of a truck. He lost a week’s work.
63 Faass climbed on some pallets that gave way; he fell with the
drinks and pallets on top of him. He injured his right knee. Faass
was given medical attention. He lost 2 weeks’ work.
64 Faass testified that a pallet fell out of a truck and hit his ‘‘col-
larbone.’’
65 Faass did not mention this injury in his testimony.
66 According to Faass, he ‘‘jerked’’ a pallet ‘‘real hard’’ to avoid
hitting a person who walked in front of it and ‘‘made [his] bicep
real tender on [his] arm.’’ Faass testified that the injury occurred in
April 1993.
67 Kennedy denied this incident. His denial is not credited.
68 Kennedy testified:
The initial one was probably spring—I’d say somewhere
spring of ’92 and he came in and asked me something involving
pay. John wasn’t happy with his pay at that time and wanted
to know was there anything that could be done and I explained
to him that we were, you know, negotiating with the Union and
that was it. I also explained to him that I couldn’t discuss this
kind of stuff with him and we ended it at that.
The latter part of ’92 there was a situation where he came in
and—came by the office and asked me did I have a minute and
I said, yeah, and he asked me where we were with the Union
deal and I explained to him that I didn’t understand what he was
talking about and he said, well, he was going to talk to his law-
yer to see what could be done about getting rid of the Union
and I explained to him again that, John, these are conversations
I can’t have with you.
Then the other one was early ’93, the same thing, situation
on pay again, and John came by and John would have a tend-
ency to stop by the office occasionally and he stuck his head
in the door asking about pay and I told him the same thing
again. We’re in negotiations with the Union and that’s it.
I am not convinced that these discussions occurred as narrated by
Kennedy. It appears to me they were colored in order to accommo-
date the Respondent’s claim.
69 Kennedy further testified:
JUDGE GOERLICH: What’s the unwritten rule?
THE WITNESS: We take a look at—if an employee is con-
stantly getting injured, pops up before the Safety Committee
quite often and starts to exhibit a pattern of unsafe working or
being accident prone or whatever, then we’ll review that individ-
ual.
JUDGE GOERLICH: Is there a specific number of incidents that
you require before you discharge him?
THE WITNESS: No, sir, there’s not.
JUDGE GOERLICH: You could discharge him for one incident
under your—
THE WITNESS: Well, I think we could but then that wouldn’t
be in line with him establishing a pattern so I don’t think we
would do that, no, sir.
JUDGE GOERLICH: There has to be a pattern. If a pattern is
established you use that as a basis for discharge?
THE WITNESS: Yes, sir.
1993, unlawfully unilaterally changed employees’ working
conditions, and unlawfully failed to provide the Union with
certain requested information, all in violation of Section
8(a)(1) and (3) of the Act. The Respondent denied any
wrongdoing.
I. The Discharge of John P. Faass Jr.
John P. Faass Jr. was hired on June 6, 1991, and was ter-
minated on May 27, 1993. According to his separation no-
tice, Faass was terminated ‘‘because of [his] accident and in-
jury record.’’ According to the notice, Faass had been in-
volved in two ‘‘driver accounts,’’ one ‘‘unavoidable,’’ and
the following ‘‘personal accidents’’:
8–7–91 pulled muscle60
3–9–92 pulled muscle61
4–17–92 hurt right wrist62
6–3–92 fell between pallets63
11–17–92 lower backbone bruised64
11–23–92 left upperback65
3–17–93 injured forearm muscle66
Faass reported all the personal injuries he received to his
supervisors. According to Kennedy (although he was not
wholly clear on the subject), all the personal injury reports
were submitted to the safety committee which reviewed the
situation and composed recommendations. Kennedy testified:
[A]fter the employee has described what happened . . .
[t]he Safety Committee or myself will ask him ques-
tions if there are any to be asked. He will leave the
room and then the Safety Committee will decide wheth-
er or not it’s preventable or non-preventable and make
their recommendations at that point. . . . [L]et’s say he
pulled a muscle and in his describing the accident and
from the questions, it would be determined that he
pulled a muscle because he was not working properly
the way, you know, he’s supposed to work. In that case
the Safety Committee would say that that accident was
a preventable accident and it was preventable on the
part of the employee.
Neither the notes of the safety committee nor the rec-
ommendations were offered into evidence by the Respondent.
Kennedy was unable to quote any findings or recommenda-
tions of the committee. Nor did he review them before he
fired Faass.
Faass operated what was called a ‘‘Tellsell Route.’’ Faass
drove a ‘‘regular ten pay truck.’’ He covered an area ‘‘about
a eighty square mile around Fayetteville.’’
Faass became involved in union activity when he voted for
the Union. He attended union meetings. On one occasion,
Faass spoke at a sales meeting that was conducted by Ken-
nedy in April 1993. Present were the employees of the sales
and route managers and General Manager Kennedy. Kennedy
told employees that ‘‘all wages and back pay were frozen
due—because of the Union.’’
Faass replied, ‘‘I bet if the Union was in, we would get
all of our back pay, our retro-pay.’’67
Kennedy did testify that on three occasions Faass dis-
cussed the Union with him either in his office or at the door
of his office.68
The credited evidence further discloses that Faass never
received any warning that he would be discharged for too
many personal injuries, that there was no written rule or un-
written rule on the subject of discharge for personal injuries
deciminated to employees69 that Kennedy never talked to
Faass prior to his discharge in regard to his personal injuries,
that Faass’ discharge was not recommended by any of his su-
901PEPSI-COLA BOTTLING CO.
70 Kennedy claimed he fired a person when he worked at Lumber-
ton as sales manager. The person was involved in three ‘‘accidents
. . . in a close period of time.’’ It is not clear whether these in-
volved personal injury accidents or ‘‘driving accidents’’ involving
personal injuries.
71 Waiting for 2-1/2 months before discharging Faass could not
have been an oversight on Kennedy’s part because Kennedy was al-
legedly privy to the safety committee’s findings and recommenda-
tions.
72 Kennedy asked, ‘‘Did Faass ever discuss the Union with you?’’
Kennedy answered, ‘‘There were three occasions when he attempted
to discuss the Union with me.’’ 73 Cf. Livingston Pipe & Tube v. NLRB, supra at 429.
pervisors, and that Faass was the only person who was ever
discharged at the Fayetteville plant for excess personal inju-
ries.70 Kennedy waited 2 months and 15 days after Faass’
last personal injury to fire him.
The General Counsel claims that Faass was discharged in
violation of Section 8(a)(1), (3), and (5) of the Act. The
8(a)(1) and (5) violations are based on the Respondent’s dis-
charge of Faass under a new rule or standard which was in-
stituted unilaterally and made effective against Faass without
negotiating with the Union in respect to the change in such
employment conditions. The 8(a)(3) violation is planted on
the claim that Faass was discharged because of his union
leanings.
The following credible evidence supports the General
Counsel’s prima facie case.
Neither in its handbook nor orally had the Respondent ad-
vised its employees that as a condition of employment an
employee would be discharged if a ‘‘pattern’’ of personal in-
juries was ascertained. Nor was there any explanations to
employees as to the number or type of personal injuries that
would establish a pattern nor the timeframe in which the per-
sonal injuries must occur in order to fix a pattern, neither did
the Respondent negotiate or discuss the charge in such condi-
tion of employment with the Union as it was required to do
without implementing it unilaterally.
Faass was the first and only employee discharged for in-
curring excess personal injuries. Kennedy discharged Faass
without reviewing the findings or recommendations of the
safety board which he admitted he could not remember.
Faass never received any warnings that he would be dis-
charged for receiving too many personal injuries. Kennedy
never discussed Faass’ personal injuries with him prior to his
discharge. Faass’ discharge was not recommended by any of
his supervisors. Kennedy waited over 2 months after the last
personnel injury incident to discharge Faass. Nothing had oc-
curred during this period to which Kennedy could point for
discharge.71 The record herein is replete with evidence of the
Respondent’s antiunion animus. Faass’ discharge occurred
after Faass at a sales meeting said he ‘‘bet if the Union was
here’’ employees would have received their backpay and
cost-of-living increases. Kennedy admitted that Faass had at-
tempted to ‘‘discuss’’ the Union with him on three occa-
sions.72 The credible evidence does not establish that Faass
was other than a satisfactory employer.
A prima facie case having been established by the General
Counsel, the burden shifted to the Respondent to show that
it would have discharged Faass even though it knew of his
union activities. See Wright Line, supra. The Respondent has
not sustained that burden. Kennedy formulated a new rule
and siezed on it to discharge Faass, who had demonstrated
his union partisanship which no doubt aroused Kennedy’s
antiunion sympathies. As noted above, nothing occurred be-
tween Faass’ last personal injury incident and his discharge,
except that he again had given utterance to union sediments.
Except for his union activity, I find that Faass would not
have been discharged. He was discharged in violation of Sec-
tion 8(a)(3). Because he was discharged for an unlawfully in-
stituted rule instituted in violation of Section 8(a)(5), the Re-
spondent also violated Section 8(a)(1) and (5) of the Act.73
J. Unilateral Changes
First: Around July 1, 1993, the Respondent unilaterally
changed the work schedules of merchandisers so that mer-
chandisers worked on Saturday and were given a day off
during the week. Prior to the change, merchandisers did not
work on Saturday. The change was effected without bargain-
ing with the Union. The Respondent dealt directly with the
employees involved.
Second: In June or July 1993, the Respondent unilaterally
changed the starting time for route salesmen from 6 to 5:45
a.m. without bargaining with the Union. The Respondent
dealt directly with the employees involved.
After the Union became the bargaining agent, the Re-
spondent became obligated to bargain with the Union in re-
spect to the change of work rules that effected wages, hours,
and working conditions. This the Respondent did not do.
Thus, the Respondent’s direct dealing with its employees and
its unilateral change of the bargaining rules offended Section
8(a)(1) and (5) of the Act.
In the instant case, the credible evidence indicates that the
Union was given no notice of the Respondent’s intent to
change the foregoing rules and regulations nor does the cred-
ible evidence indicate that the Union had waived its right to
bargain about the changes.
K. The Request for Information
A letter dated July 14, 1993, was addressed to the Re-
spondent requesting the following information:
The union request the following information:
(1) A listing of all employees terminated since Janu-
ary 18, 1993, with dates of termination and reason for
termination.
(2) A listing of all new hires, with dates of hire, ad-
dress, phone number, job assignment and rate of pay,
since January 18, 1993.
(3) A copy of the termination paper on David
Schriber copies of any statements used in terminating
him, and copies of all previous disciplinary actions
against him, and a copy of the company policy concern
charging employees for missing cash. We would also
like to know if the cash loss from Schriber’s truck safe
was covered by the company insurance?
(4) A copy of the termination paper on John Faass,
including a listing of on-the-job injuries used in decid-
ing to terminate him (including dates, incident, time
missed from work). We further request any prior dis-
ciplinary actions against this employee, and a record of
any other employees who have been disciplined for on-
the-job injuries.
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union stated the following reason for requesting the in-
formation:
John Faass had been fired. He had been told it was
for having too many on-the-job injuries so I wanted to
object to a new policy concerning on-the-job injuries
and to request a copy of the policy if there was a policy
in writing. The Handbook did not make any reference
to a number of on-the-job injuries that could get you
fired so I assume it must have been a new policy.
I was asking for a list of employees who had been
terminated since the last list I had which was January
18, ’93, and—so I could update my files since I had
just been newly assigned to service this plant. . . .
Well, I needed to update my list. I needed to know who
was still working there so I’d know, you know, who the
employees were that we were representing. . . .
In Item Number 2 I asked for a list of the new hires,
their dates of hire, and address and phone number, job
assignment and rate of pay similarly to add them to my
list so I would be able to contract them and so I would
know, you know, what job categories they were as-
signed to.
. . . .
I felt we needed to update the list. I knew that there
had been several people who had left or had been ter-
minated. I assume that there had been a number of new
hires in that time and I needed to have this information
so we could properly represent them.
. . . .
David Schriber had been fired prior to my getting
this assignment. I was requesting—I had—was request-
ing information concerning his termination and other
actions that had been taken against him.
Also, earlier he had been—sometime in January he
had been accused of cash missing out of his safe in his
truck. He was not terminated for that reason but he was
forced to pay for the loss of the money which was
about $2,000.00 through wage garnishment on a weekly
basis and I wanted to know whether the Company had
recovered that money through an insurance policy in
which case I wanted to represent Mr. Schriber because
I didn’t think he should have to pay for it if the Com-
pany had recovered that money through an insurance
claim. So, that’s the other part of the request.
. . . .
John Faass had been fired so I asked for relevant in-
formation concerning the reasons for his discharge. He
had been told it was on-the-job injuries and I wanted
to know any other actions that had been against him
and also wanted to know if there had been other em-
ployees disciplined for on-the-job injuries so I could
evaluate the charge that the Union was filing in his be-
half.
For the reasons stated by the Union it is clear that the in-
formation requested was essential to the Union for adequate
representation of the employees. In failing to furnish the in-
formation requested by the Union the Respondent violated
Section 8(a)(1) and (5) of the Act. See Enertech Electrical,
309 NLRB 896 (1992), and cases therein cited.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and it will effectuate the purposes of the Act for jurisdiction
to be exercised.
2. The Union is a labor organization with the meaning of
Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees
in the exercise of rights guaranteed by Section 7 of the Act,
the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1).
4. By unlawfully discharging Robert Dale Munn on Sep-
tember 2, 1991, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act.
5. By unlawfully discharging Jerry Lane Parker on January
29, 1992, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the
Act.
6. By unlawfully discharging Christopher Matthew Hyatt
on December 30, 1993, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act.
7. By unlawfully discharging Joseph Theodore Lee Jr. on
March 19, 1993, the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the
Act.
8. By unlawfully discharging Benjamin Frank Curtis on
March 3, 1993, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
9. By unlawfully discharging John P. Faass Jr. on May 27,
1993, the Respondent engaged in unfair labor practices with-
in the meaning of Section 8(a)(1), (3), and (5) of the Act.
10. By unlawfully disciplining Roger Deskin on May 28
and June 26, 1992, the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
11. By assigning more onerous work to employees, the
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
12. By withholding the January 1, 1992 wage increase for
employees, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
13. By unilaterally making changes in its employees’
wages, hours, working conditions, or other conditions of em-
ployment concerning mandatory subjects of bargaining with-
out bargaining collectively with the Union in accordance
with Section 8(a)(5) of the Act, the Respondent engaged in
and is engaging in unfair labor practices in violation of Sec-
tion 8(a)(5) and (1) of the Act.
14. By refusing to furnish the Union with lawfully re-
quested information, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (5)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act. Having also found that the
Respondent unlawfully discharged Dale Munn, Jerry Lane
Parker, Christopher Matthew Hyatt, Joseph Theodore Lee Jr.,
903PEPSI-COLA BOTTLING CO.
74 As stated in Porta-King Building Systems, 310 NLRB 539
(1993):
Indeed, in cases involving unlawful unilateral changes, the
Board’s normal remedy is to order restoration of the status quo
ante as a means to ensure meaningful bargaining . . . .
75 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
76 As to Parker, see Randolph Children’s Home, 309 NLRB 341
fn. 3 (1992).
77 See Premier Maintenance, 282 NLRB 10 (1986).
78 See Randolph Children’s Home, supra at fn. 2; Porta-King Bldg.
Systems, supra.
Benjamin Frank Curtis, and John P. Faass Jr., and has failed
and refused to reinstate them in violation of the Act, it is
recommended that the Respondent remedy such unlawful
conduct. In accordance with Board policy, it is recommended
that the Respondent offer the above-named persons imme-
diate and full reinstatement to their former positions or, if
such positions no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any other rights
and privileges previously enjoyed, dismissing, if necessary,
any employees hired on or since the date of their discharges
to fill the positions, and make them whole for any loss of
earnings they may have suffered by reason of the Respond-
ent’s acts here detailed, by payment to them of a sum of
money equal to the amount they would have earned from the
date of their unlawful discharges to the date of valid offers
of reinstatement, less their net interim earnings during such
periods, with interest thereon, to be computed on a quarterly
basis in the manner established by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
It is further recommended that the Respondent restore the
status quo ante of all unilateral changes.74
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended75
ORDER
The Respondent, Pepsi-Cola Bottling Company of Fayette-
ville, Inc., Fayetteville, North Carolina, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discouraging union or concerted activities of its em-
ployees or their membership in United Food and Commercial
Workers Union, Local 204, affiliated with United Food and
Commercial Workers International Union, AFL–CIO, CLC
or any other labor organization, by unlawfully and discrim-
inatorily discharging its employees or discriminating against
them in any manner in respect to their hire and tenure of em-
ployment or conditions of employment in violation of Sec-
tion 8(a)(3) and (1) of the Act.
(b) Unlawfully representing to employees that it is futile
to choose the Union as their bargaining agent.
(c) Unlawfully threatening employees that they would lose
benefits if they chose the Union as their bargaining agent.
(d) Unlawfully threatening employees that if the Union
came in it would close its plant.
(e) Unlawfully threatening employees that they would be
terminated if they chose the Union as their bargaining agent.
(f) Unlawfully blacklisting employees.
(g) Unlawfully interrogating employees about their union
activities.
(h) Unlawfully withholding wage increases from employ-
ees to discourage union activities.
(i) Unlawfully assigning employees onerous tasks because
of their union affection.
(j) Unilaterally making changes in its employees’ wages,
hours, working conditions, or other conditions of employ-
ment concerning mandatory subjects of bargaining without
bargaining collectively with the Union in accordance with
the requirements of Section 8(a)(5) of the Act.
(k) Refusing to bargain with the Union by failing or refus-
ing to furnish timely requested information relevant and nec-
essary to the Union’s performance of its function as bargain-
ing representative.
(l) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Robert Dale Munn, Jerry Lane Parker,76 Chris-
topher Matthew Hyatt, Joseph Theodore Lee Jr., Benjamin
Frank Curtis, and John P. Faass Jr. immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to a substantially equivalent position, without prejudice
to their seniority or any other rights or privileges previously
enjoyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section
of the decision.
(b) Remove from its files any reference to the unlawful
discharges of the above-named employees and notify the em-
ployees in writing that this has been done and that the dis-
charges will not be used against them in any way.
(c) Remove from its files any reference to the disciplining
action taken against Roger Deskin on May 28 and June 26,
1992, and reimburse him for the earnings he lost by reason
of his suspension with interest.
(d) Rescind and cease giving effect to rules for shop em-
ployees put in effect on May 12, 1992, the requirement that
shop employees change tires and clean drains, the zero settle-
ment policy effective December 9, 1992, the change in pay
of full-service, tell sell, and bulk service employees, the
change in the sparemen’s work schedule, changes in the hir-
ing guidelines and employment guidelines in respect to driv-
ing violations, change in work schedules for merchandisers,
changes in lost time injuries, and reimburse employees for
any losses suffered by them by reason of unilateral changes
and because employees were unlawfully denied wage in-
creases77 together with interest in accordance with the
Board’s usual policy and comply fully with the remedy and,
on request, bargain about any future rule changes.78
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
79 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
National 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.’’
(f) Post at its Fayetteville, North Carolina establishment
copies of the attached notice marked ‘‘Appendix B.’’79 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 11, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the complaints be dis-
missed insofar as they allege violations of the Act other than
those found in this decision.