Pepsi-Cola General Bottlers

National Labor Relations Board - Board Decisions

Jun 25, 2002

337 N.L.R.B. 701 (N.L.R.B. 2002)

701 PEPSI-COLA GENERAL BOTTLERS
Pepsi-Cola General Bottlers, Inc. and Steven C. Saun­
ders. Case 9–CA–38197
June 25, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On October 29, 2001, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. The
Charging Party filed exceptions and a supporting brief,
and the Respondent filed a limited cross-exception and a
brief in support of the judge’s decision and its limited
cross-exception. The Charging Party filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.
Naima R. Clarke, Esq., for the General Counsel.

Edward S. Dorsey, Esq., of Cincinnati, Ohio, for the Respon­

dent-Employer.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on August 29, 2001, in Cincinnati, Ohio,
pursuant to a complaint and notice of hearing (the complaint)
issued by the Regional Director for Region 9 of the National
Labor Relations Board (the Board) on May 23, 2001. The
complaint, based upon an original charge filed by Steven C.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In adopting the judge’s credibility
determinations, we do not rely on his specific finding that Charging
Party Saunders’ testimony was inconsistent regarding the extent of his
knowledge of an incident in February 1993 involving former employ­
ees Assum and Radcliff. This does not affect our affirmance of the
judge’s overall discrediting of Saunders’ testimony.
We adopt the judge’s dismissal of the complaint on the basis that it
is time-barred. Thus, we find it unnecessary to pass on the judge’s
alternative findings regarding the substantive allegations of the com­
plaint. We also find it unnecessary to consider whether the judge erred
by denying admission of the corroborative evidence of Human Re-
source Manager Handley’s contemporaneous notes of a conversation he
had with alleged discriminatee Saunders, because the denial was at
most a harmless error.
Saunders (the Charging Party or Saunders) on January 11,
2001, alleges that Pepsi-Cola General Bottlers, Inc. (the Re­
spondent or Pepsi) has engaged in certain violations of Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).
The Respondent filed a timely answer to the complaint denying
that it had committed any violations of the Act.
Issues
The complaint alleges that Respondent, since about July 15,
2000,1 has refused to hire, or consider for hire, the Charging
Party. The Respondent, as part of its affirmative defense, ar­
gues that it made the decision not to hire Saunders and commu­
nicated that decision to him on June 22, more than 6 months
before the charge was filed.
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow­
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the manufacture,
sale, and distribution of soft drinks. It has an office and place
of business located in Cincinnati, Ohio, where it annually pur­
chases and receives goods valued in excess of $50, 000 directly
from points outside the State of Ohio. The Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. It also
admits that Teamsters Local 1199, an affiliate of the Interna­
tional Brotherhood of Teamsters, AFL–CIO (the Union), is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a business in the highly competitive beverage
industry. As part of its sales, distribution, and manufacturing
operations, the Respondent employs, among others, certain
employees who are covered by collective-bargaining agree­
ments with the Union. The bargaining unit positions include
such titles as merchandiser, full service driver, forklift operator,
and machine operator. At all material times, Daniel Handley
was the human resource manager and Kathleen A. McCabe,
esquire, held the position of employee relations manager at
Respondent.
Saunders held the position of full-time paid union president
between January 1, 1988, and December 31, 1999, when he
was removed from his position having been voted out of office.
Once Saunders was removed from the presidency, he ceased to
remain a member of the Union in good standing because he did
not hold a bargaining unit job. Saunders, prior to becoming
union president, worked as a production employee at Respon­
dent’s biggest competitor Coca-Cola Bottling Company for
approximately 12 years. During his tenure of employment at
Coca-Cola, Saunders operated production machinery including
1 All dates are in 2000, unless otherwise indicated.
337 NLRB No. 109
PEPSI-COLA GENERAL BOTTLERS 702
depaletizers, palletizers, and forklifts. He also served in the
quality control department as a sanitation technician and syrup
mixer.
Saunders, while holding the position of union president,
regularly engaged in contract negotiations and grievance ad-
ministration with representatives of Respondent including
Handley.
B. Timeliness of the Charge
The Respondent asserts in its answer and presented evidence
during the hearing, that the subject complaint must be dis­
missed as the charge was not timely filed. In this regard, Re­
spondent argues that it made its decision not to hire Saunders
and communicated that decision to him on June 22, more than 6
months before the charge was filed on January 11, 2001.
Saunders testified that he sought full-time employment with
Pepsi in June 2000, and telephoned Handley to inquire if he
could submit an application. During this telephone conversa­
tion, Saunders asked Handley whether obtaining employment
would be a problem because of his union background. Handley
said, he would look into it and get back to him. After about a
week, Saunders called Handley and left a voice-mail message
again inquiring about the possibility of acquiring a position
with Pepsi. Since Saunders did not hear back from Handley, he
decided to personally visit the facility. Saunders prepared a
resume over the July 4 holiday and visited the facility on July 7.
He went directly to the front desk and spoke with the reception­
ist, who informed him that Handley was in his office. Saunders
knocked on Handley’s office door and asked if he could speak
with him. Handley informed Saunders that he was busy but if
he would wait in the cafeteria Handley would meet with him
once his business was completed. Thereafter, Handley went to
the cafeteria to meet Saunders, and they returned to his office.
Saunders gave Handley a copy of his resume and informed him
that he wanted to apply for either a merchandiser or full service
driver position. Handley informed Saunders that he would look
into it and get back to him.
Since Saunders did not hear from Handley, he telephoned
him on or about July 13 or 14, and inquired whether Handley
had considered his job application. Handley replied that he
knew Saunders from prior dealings and because of his personal­
ity he chose not to hire him. Saunders replied that he was sur­
prised, since he was fully qualified to hold any available open­
ing at Respondent. Saunders telephoned Handley on or about
July 18 or 19, and asked whether he had reconsidered. Handley
informed Saunders that the Respondent would not hire him.
Saunders continued to make inquiries about the possibility of a
position at Respondent and left voice-mail messages for Hand-
ley in July and October 2000, that he needed a job. According
to Saunders, he left a copy of his updated resume and commer­
cial drivers’ license for Handley on December 29, but Handley
testified that he never received it. Saunders testified that at no
time prior to July 14, did Handley ever inform him that he
would not be hired at the Respondent.
Handley’s version of the events is considerably different. He
testified that Saunders appeared outside his office door on June
15, without being announced by the receptionist or having a
scheduled appointment. Saunders presented a resume to Hand-
ley and informed him that he was interested in obtaining em­
ployment at Pepsi, expressing interest in the positions of full
service driver or merchandiser. Handley did not make any
commitments to Saunders at that time. Handley testified that 2
or 3 business days after June 15, he made a notation on the
upper right-hand corner of the resume that stated, “rec’d 6/15 or
6/16/00” (R. Exh. 3).
On June 22, Saunders telephoned Handley to inquire whether
he would be hired. Handley made notes of the telephone con-
versation.2 Handley testified that he told Saunders there were
no openings and he did not feel that employment at the Re­
spondent would work out. Saunders asked, “if it was because
of his union activity.” Handley replied, “[N]o.” Saunders in­
quired why he was not being hired and Handley said, “[Y]ou
are viewed as argumentative and we do not feel you’d fit in.”
Handley also testified that Saunders left a voice mail message
on July 13 that he was still looking for a job, and that his notes
confirm such a conversation. Additionally, on July 31, Hand-
ley testified that in a telephone call Saunders informed him he
heard the pay rate for merchandisers had been increased be-
cause the Respondent could not find or keep individuals in that
position. Handley testified that his notes confirm the telephone
call and he informed Saunders that nothing was available at that
time.
Central to a decision on the timeliness issue, is the credibility
of the testimony of Saunders and Handley. During the course
of the hearing, former bargaining unit employee Paul Assum
testified about an incident that took place in or around February
1993. The Respondent suspected that employee Jim Radcliff
was taking products off his delivery truck or was stealing cases
of soft drinks. Accordingly, Radcliff was removed from his
delivery route and Assum was substituted as the driver. Shortly
after his removal from the route, Radcliff stopped Assum while
he was making deliveries and informed him that he needed to
remove some extra cases of soda from under the front seat of
the truck. Assum helped Radcliff remove the cases from the
truck and placed them in Radcliff’s personal vehicle. Assum
then finished his route and returned to the facility. He informed
the union steward what had occurred and it was decided that
Assum should talk to Saunders. In February 1993, during a
telephone conversation, Saunders told Assum to be quiet about
the matter and if he “ratted” on a union brother, he could be
fined. Assum testified that during this telephone conversation
he was told by Saunders to talk with the union attorney before
talking with management. On cross-examination, Saunders
admitted that Assum apprised him about Radcliff taking prod­
ucts off the truck. When called on rebuttal by the General
Counsel, and in response to my questions, Saunders denied that
the union steward telephoned him so he could talk to Assum
and further denied that either the union steward or Assum in-
formed him about Radcliff’s taking product off the Pepsi truck.
He also testified that it was not until the October 1993 Radcliff
discharge arbitration that he first learned that Assum had any
knowledge concerning Radcliff’s alleged conduct. I have sin-
2 I rejected, as a proffered exhibit, the written notes because Handley
testified about their content. Addit ionally, I determined the notes were
cumulative (R. Exh. 6).
703 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cere doubts about Saunders denial that the union steward did
not apprise him about his conversation with Assum or that As-
sum did not inform Saunders until the arbitration that Radcliff
had stolen product from the Respondent. Additionally, Saun­
ders admission and then denial that Assum informed him that
Radcliff removed product from the truck is suspect and the
subject of inconsistencies. Handley credibly testified that
Saunders was a strong union leader and regularly injected him-
self into issues even when stewards were present. Likewise, I
can’t imagine that the union steward would not immediately
inform Saunders about potentially damaging evidence concern­
ing Radcliff, who had recently been suspended for theft, had
filed a grievance, and was pending discharge. Thus, based on
this incident, I find that Saunder’s overall credibility is cast in
doubt.
To buttress Handley’s credibility, the Respondent presented
the testimony of McCabe to support Handley’s assertions that
Saunders was informed on June 22, that he would not be hired.
McCabe testified that in the regular course of business in late
2000, Handley forwarded Saunders resume to her attention.
When McCabe received the resume, she personally observed
the notation on the upper right-hand corner that said, “rec’d
6/15 or 6/16/00.” On February 1, 2001, McCabe authored the
Respondent’s position statement that was prepared and filed
with the Board in response to the subject unfair labor practice
charge (GC Exh. 3). McCabe testified that based on her con­
versations with Handley, she discussed in the position state­
ment the initial meeting that occurred between Handley and
Saunders on June 15, and the subsequent telephone call that
took place on June 22, wherein Saunders was informed he
would not he hired.3 Further, I conclude that McCabe was
aware that Handley made notes of his conversation with Saun­
ders on June 22.
Based on the foregoing, and my personal observation of the
witnesses’ demeanor, I am persuaded that Handley and
McCabe’s testimony concerning the events in question are
more accurate and precise. Thus, I find Handley told Saunders
on June 22, that he would not be hired at the Respondent.
Therefore, since Saunders was informed of the decision not to
hire him on June 22, a period of time more than 6 months be-
fore the charge was filed on January 11, 2001, I find that the
charge was not timely filed.4 Under these circumstances, I
recommend that the subject complaint be dismissed.
3 Attached to the position statement is Saunder’s resume. McCabe
credibly testified that when the position statement was prepared, she
redacted the notation in the upper right hand corner, to conform with
the fact that upon receipt of Saunders resume on June 15, Handley did
not make any notations on the document. Rather, it was not until 2 or 3
business days later that Handley made the notations on the resume.
McCabe asserts, however, that she personally observed the handwritten
notations on the resume when it was forwarded to her by Handley in
late 2000, prior to the filing of the subject charge.
4 I reject the General Counsel’s argument that the Respondent’s July
31 refusal to hire Saunders was an independent violation of the Act and
falls within the plain language of the complaint. In this regard, I find
that the reasons Respondent did not hire Saunders on July 31 remained
unchanged from June 22, and the complaint did not allege an independ­
ent refusal to consider or hire Saunders on July 31.
C. The 8(a)(1) and (3) Allegations
For the following reasons, even if the charge is timely, I
would find that Respondent refused to consider or hire Saun­
ders for legitimate reasons unrelated to his union activities.
In FES, 331 NLRB 9 (2000), the Board stated the elements
that the General Counsel must establish to meet its burden of
proof in a discriminatory refusal-to-hire case as follows:
(1) that the respondent was hiring, or had concrete plans to
hire, at the time of the alleged unlawful conduct; (2) that
the applicants had experience or training relevant to the
announced or generally known requirements of the posi­
tions for hire, or in the alternative, that the employer has
not adhered uniformly to such requirements, or that the
requirements were themselves pretextual or were applied
as a pretext for discrimination; and (3) that antiunion ani­
mus contributed to the decision not to hire the applicants.
I find that the General Counsel has met its burden of proof
regarding the first two elements of the test set forth above. In
this regard, Saunders possessed 12 years of related training and
experience during the course of his employment at Coca-Cola
that qualified him for Respondent’s vacant full service driver
and merchandiser positions. Moreover, the parties stipulated
that at the time Saunders was applying for positions at Pepsi,
the Respondent was hiring (GC Exh. 4), and he possessed the
necessary experience and training relevant to the announced
requirements for the vacant positions. With respect to element
(3), I am not convinced, as argued by the General Counsel, that
antiunion animus contributed to the decision not to consider or
hire Saunders for the following reasons.
First, Handley cited Saunders complete disregard of protocol
when he came to Respondent’s premises to meet with bargain­
ing unit employees. In this regard, Saunders repeatedly refused
to first notify a member of management or human resources
when he wanted to come on the premises. Rather, he would
proceed to enter the facility unannounced and Handley was
informed after the fact that Saunders was at the facility. De-
spite repeated requests for Saunders to follow the pre-
announcement procedure, he consistently refused to do so.
Second, in February 1999, Respondent scheduled a up-
date/status meeting with 70 bargaining unit employees to dis­
cuss ongoing contract negotiations with the Union. Saunders
came to the meeting, despite not being invited, and interjected
himself by interrupting the speaker. When the facilitator
opened the floor for questions, Saunders stated to the employ­
ees that we have work to do and headed for the steps with one
or more union stewards. While the majority of the employees
remained in the meeting and a give-and-take discussion took
place, Handley believed that this was rude and disruptive. Al­
though it did not occur, Saunders actions could have cut short
the opportunity to communicate with the bargaining unit em­
ployees on a critical subject that was of mutual interest to all
concerned.
Third, Handley was very concerned with the statements and
actions of Saunders surrounding the arbitration of discharged
employee Radcliff, a portion of which was discussed above. In
this regard, Handley had been provided two independent state­
ments from respondent managers who had spoken with Assum
PEPSI-COLA GENERAL BOTTLERS 704
in October 1993, that confirmed the threat that Saunders made
to Assum (R. Exhs. 7 and 8). Handley had also met with As-
sum prior to the scheduled arbitration. During that conversa­
tion, Assum informed Handley that Saunders had threatened
him with a fine if he told the truth about Radcliff removing
product from the delivery truck. After Assum testified at the
arbitration proceeding, and repeated the threat under oath,
Handley had grave doubts about the honesty and trustworthi­
ness of Saunders. Since it appeared that Saunders had engaged
in witness intimidation, Handley had no intention of hiring him.
Fourth, Handley testified that Saunders often was late for
prescheduled negotiation and grievance meetings. He esti­
mated that Saunders would be late from 5 minutes to 1-1/2
hours at least 30 percent of the time. Handley believed that a
trait of not being punctual was one he did not want in a newly
hired employee.
For all of the above reasons, I credit Handley’s rationale for
not wanting to hire Saunders. In this regard, I find that the
reasons relied upon were legitimate and were not related to
Saunders’ union activities.
As further evidence to establish that Handley did not take
union activities into consideration when he determined not to
hire Saunders, I find that Respondent supported other bargain­
ing unit employees who held union positions. In this regard,
Handley credibly testified that he was involved in the recom­
mendations to promote four bargaining unit employees to su­
pervisory positions during his tenure as human resource man­
ager. These employees held union steward positions or were
members of the union bargaining committee that participated in
contract negotiations with Handley. In another instance, Hand-
ley prepared a memorandum for bargaining unit employee Bill
Wells, setting forth the benefits that he would retain if he de­
cided to run for union office (R. Exh. 9).
In agreement with Respondent, I find that union animus was
not a factor in its decision not to consider or hire Saunders.5
5 Under FES, once the General Counsel has established a prima facie
case, the burden shifts to the respondent to show that it would not have
Under these circumstances, I find that the Respondent did
not violate Section 8(a)(1) and (3) of the Act. Therefore, I
recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
1.The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The subject unfair labor practice charge was not timely
filed.
3. The Respondent did not engage in violations of Section
8(a)(1) and (3) of the Act by its refusal to consider or hire Ste­
ven C. Saunders.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The complaint is dismissed.
hired the alleged discriminatees even in the absence of their union
activities or affiliation. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). While I
found that the General Counsel has not established a prima facie case,
if others disagree, I would still find that the Respondent met its Wright
Line burden of showing that it would not have hired Saunders even in
the absence of his union activity.
6
If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur­
poses.