Cott Beverages Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 12, 2017

16-CA-181144 (N.L.R.B. Sep. 12, 2017)

JD–68–17
San Antonio, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COTT BEVERAGES INC.
and Case 16-CA-181144
JOSEPH KELLY, An Individual
Eva Shih, Esq.,
for the General Counsel.
Brian Stolzenbach, Esq., and
Karla E. Sanchez, Esq.,
(Seyfarth Shaw LLP)
Chicago, Illinois,
for the Respondent.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried in San Antonio, Texas, on
May 24, 2017. Joseph Kelly, an individual charging party, filed the charge on July 29, 2016, and
the Director of Region 16 of the National Labor Relations Board (the Board) issued the
complaint on February 27, 2017. The complaint alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by coercively interrogating employees
about their concerted activities on May 13, 16, and 17, 2017, and also by maintaining overly-
broad rules prohibiting employees from having cell phones on the manufacturing floor or at their
work stations. The Respondent filed a timely answer in which it denied committing any violation
of the Act. By Order dated May 24, 2017, the Board unanimously denied the Respondent’s
motion for partial summary judgment seeking dismissal of the complaint allegation regarding the
Respondent’s cell phone policy.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following findings of fact and conclusions of law.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a beverage manufacturing facility in San
Antonio, Texas, where it annually receives products, goods, and materials valued in excess of
$50,000 directly from points located outside the State of Texas. The Respondent admits that it
is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
JD–68–17
2
II. ALLEGED UNFAIR LABOR PRACTICES
A. FACTS
1. Background5
The Respondent is a beverage manufacturing company that operates 15 facilities,
including one in San Antonio, Texas. It produces and packages carbonated soft drinks, juices,
and purified water. The Respondent employs 190 individuals at its San Antonio facility, of whom
about 50 work in production and 15 in the warehouse. The Respondent’s employees are not 10
represented by a labor organization.
The Respondent produces beverages at the facility by combining various raw materials
with treated water. There are four production lines at the San Antonio facility, each of which
produces beverages or containers and/or fills containers with beverages. The lines operate 15
continuously during the shifts when they are in operation, with four to six employees on each
line during a given shift. Transcript at Page(s) (Tr.) 139. Employees assigned to the production
lines do not have scheduled breaks, but they do have unscheduled breaks, including 30 minutes
for lunch. Each production line has a lead employee, referred to as a “line lead,” who oversees
the operation of the line. When an employee working on the line takes a break it is generally 20
the line lead who relieves that employee and steps in to perform the relieved employee’s duties.
The noise level on the production floor is generally quite high. Much of the work is fast-paced,
but particular employees are assigned to equipment that operates very slowly. In addition to the
production floor, the facility has a 350,000 square foot warehouse area where raw materials and
product are stored. Five employees work in the warehouse on any given shift. Forklifts are 25
used in both the production and the warehouse areas at the facility to move materials and
product.
Darren Heinsohn is the process leader for one of the four production lines at the facility.
In that capacity, he oversees the line lead employee as well as the regular employees on that30
production line. Heinsohn reports to Shane Owens who is the facility’s production manager.
Brian Vanley is the human resources manager at the facility.1
2. Ammonia Leak Accident on May 12
35
On Thursday, May 12, during second shift – which runs from 2 pm to 10 pm – there was
an emergency involving a leak of anhydrous ammonia into the air at the facility. The record
does not show how dangerous the employees’ exposure to this substance was from a medical
perspective, but does show that the experience was traumatic for many of the exposed
employees. Some employees were placed in ambulances or otherwise provided with first aid. 40
Exposed employees experienced coughing, trouble breathing, and burning of their eyes and
noses. At approximately 8:30 or 9:00 pm, after all the employees had evacuated the affected
area, the Respondent sent the employees home. The record shows that, even by the
Respondent’s own lights, the evacuation of employees from the affected area was very poorly
executed.45
Joseph Kelly is the charging party and a production line employee who is also a member
of the facility’s safety committee. He was the first employee to react to the May 12 ammonia
leak. When he smelled the ammonia entering his work area he informed a line lead and also

1 The Respondent admits that Heinsohn and Vanley are agents of the Respondent. General
Counsel’s Exhibit Number (GC Exh.) 1(f).
JD–68–17
3
used the Respondent’s radio system to warn others to evacuate. He made a phone call about
the incident to public safety officials using the 911 system. Later that day, Kelly discussed the
incident with Joseph Carey, a human resources coordinator. Carey told Kelly that he had
responded appropriately to the ammonia leak, and also asked Kelly to visit him the next day and
provide a written account of what had happened. Kelly testified that for several weeks prior to 5
this incident he had smelled ammonia at the facility and had reported it to the Respondent in his
capacity as a member of the safety committee.
3. May 13: Employee Petition, Suspension of Kelly, Interrogations by Heinsohn
10
After the second shift employees were evacuated, the Respondent repaired the
ammonia leak and deemed it safe for employees to return to the facility. By the time second
shift employees were scheduled to begin their May 13 shift, the facility had been back in
operation for some time. When the employees assigned to the second shift appeared for work,
a number approached Kelly – safety committee delegate – and indicated that they were upset 15
and scared as a result of the May 12 leak and were looking to Kelly to help ensure their safety.
Those who approached Kelly to express concerns included production line employees Kirk
Dudley and Laura Maltarich. During the shift meeting with a supervisor and a line lead,
employees sought assurances and information from the Respondent regarding their safety and
about the ammonia leak. However, the supervisor and line lead stated that they had not been 20
present for the accident and could not answer questions about it.
About an hour into the May 13 shift, the line lead relieved Kelly for the purpose of
allowing Kelly to visit the human resources department and provide the written statement that
Carey had requested a day earlier. After being relieved, Kelly did not immediately proceed to 25
the meeting with Carey, but took a number of minutes to draft a petition asking the Respondent
to meet with employees to provide information about the ammonia leak. Then Kelly approached
employees who were at their work stations, stated that “we’re trying to get a meeting” about the
ammonia accident, and offered employees the opportunity the sign the petition. Kelly
approached these employees while they were on work time, but according to Kelly’s unrebutted30
testimony he only approached employees who “weren’t immediately in the middle of
something.” The petition read as follows:
We respectfully request a meeting with management by 6:00 pm, 13 May 2016,
in order to discuss yesterday’s incident with anhydrous ammonia. So far, no one 35
from management has spoken with us as a group so that we all might learn
- what actually happened
- what went well
- what failed
- how we all are going to prevent similar incidents and failures. 40
Eight employees, including Kelly, signed the petition.
After obtaining the signatures, Kelly proceeded to the human resources department for
the meeting with Carey. Before turning to the planned subject of that meeting, Kelly presented 45
the signed petition to Carey and stated that employees were “very freaked out” and wanted to
have a meeting. Then, as had been requested by Carey, Kelly prepared a written account
regarding the May 12 ammonia emergency. After he provided that written account to Carey,
Kelly left the human resources department and returned to the production floor. Before
resuming his duties, Kelly stopped to converse with each of the persons who had signed the 50
petition. The subject of these discussions was the possibility that employees would collectively
engage in a work stoppage or slowdown if the Respondent did not meet with them as requested
JD–68–17
4
in the petition. Dudley, one of the individuals who signed the petition, told Kelly that he would
not risk his job by engaging in a work stoppage. After this conversation with Kelly, Dudley
reported to a line lead that employees were talking about a possible work stoppage. That line
lead called process leader Heinsohn, who was not at the facility. He told Heinsohn that Kelly
“was out there talking to the employees with a document, about having them sign a document 5
about stopping work.” Heinsohn reacted by calling his own supervisor – production manager
Owens – to alert him. Owens directed Heinsohn to go to the facility and eject Kelly from the
building. Heinsohn went to the facility, told Kelly that he was being suspended for “disrupting
production,” confiscated Kelly’s badge and keys, and escorted him out of the facility. Heinsohn
did not question Kelly. 10
Heinsohn testified that his job responsibilities did not include conducting investigations
into possible violations of the Respondent’s policies and procedures. Nevertheless, after
ejecting Kelly from the facility, he summoned four of the petition’s signers – Anthony Arellano,
Dudley, Sonia Lopez, and Maltarich – to an office, questioned them, and directed each to 15
prepare a statement. The record shows that Heinsohn was the supervisor of these employees,
although there was a line lead employee who oversaw their work more directly. According to
Heinsohn’s own written account of the interviews, what he questioned the employees about was
the discussions they had had regarding a work stoppage, not about whether employees were on
break time or work time when the petition was passed around. General Counsel’s Exhibit 20
Number (GC Exh.) 18. In his report, Heinsohn reported that he asked each of the employees
to “give a statement for how the work stoppage discussion was started, whom and what if any
details.” Ibid. Heinsohn placed each of these individuals alone in an office and waited for him
or her to finish writing the statement. Maltarich declined to provide a statement, explaining to
Heinsohn that she did not want to get anyone “in trouble.” In addition, Maltarich refused 25
Heinsohn’s direction to return to work, stating that she was afraid to do so because she had not
been sufficiently reassured about safety relative to the ammonia leak. Based on this refusal,
Heinsohn suspended Maltarich, and on May 20 the Respondent issued a written warning that
references the purpose of the Heinsohn interview being to “discuss the events of an earlier
issue where a work stoppage was called for.” GC Exh. 14. The other three employees30
provided written statements. Dudley, the employee who had informed the Respondent that
employees were discussing a work stoppage, testified that during the interactions with Heinsohn
on May 13, he “felt very comfortable,” under no “pressure,” and did not believe he was in
trouble. The written statement that Dudley provided to Heinsohn ends by stating: “I
immediately told my line lead . . . about what was going on. I really like working here and would 35
not do anything to jeopardize that. Thank you.”
Later that day, Heinsohn contacted Vanley by phone to communicate with him about the
suspension of Kelly and his questioning of employees who had signed the petition. Vanley
testified that what Heinsohn told him was “that there was a potential work stoppage and a 40
petition that had been filed or run around.” Vanley did not testify that Heinsohn told him whether
the employees were on break time or work time when they took part in these activities.
Heinsohn informed Vanley that he had already suspended Kelly and taken statements from
three employees. He also stated that he had tried to obtain a statement from Maltarich but that
she had refused and that he had sent her home. Vanley did not direct Heinsohn to perform any 45
investigation of the matter, but did tell Heinsohn to bring the employee statements when the two
met on Monday, May 16.
4. May 16 and 17: Interrogations by Vanley
50
On May 16 and 17, Vanley conducted his own interviews of seven of the employees who
had signed the May 13 employee petition. These included the four employees who Heinsohn
JD–68–17
5
had already questioned. At trial, Vanley testified that that he was investigating whether Kelly
had violated the Respondent’s solicitation policy by approaching employees during working
time.2 On May 16 he interviewed five of the employees – Arellano, Dudley, Armando Gomez,
Lopez and Alva Rios. Vanley had had occasion to speak to all of these individuals prior to the
incidents at issue here. The next day, May 17, Vanley interviewed the petition’s creator, Kelly, 5
as well as Maltarich.3 Vanley testified that he did not interview the remaining petition signer,
Christopher White, because White was a temporary employee. Vanley did not further explain
why White’s status as a temporary employee would mean that his account would not be
relevant to the purported subject of Vanley’s investigation – i.e., whether Kelly had solicited
other employees during working time. He also did not testify about his reasons for not obtaining 10
statements from employees who, while they did not participate in the petition, were in a position
to tell him whether Kelly had approached them, or nearby employees, during working time.
Regarding the manner in which he questioned witnesses on May 16, Vanley testified as
follows: “I actually came and asked them if they were approached during work time, or pretty 15
much what happened and what – opened the question, ‘what happened,’ and during what time
and when it happened, and I left it at that for them to fill in the blank on that one.” Tr. 40-41.
After the questioning, Vanley presented each interviewee with a typed statement that he had
prepared for them and allowed them the opportunity to review the statement and to make
changes before signing it. Four of the five accounts included the identical statement: “To my 20
knowledge, Joseph [Kelly] was not on break when he made this request,” i.e., the request to
sign the petition. One of the statements, the one that Rios signed, was slightly different, reading
“To my knowledge, I do not know whether Joseph [Kelly] was on break when he made this
request.” GC Exhs. 9 through 13. In addition, each of the five addressed the question of the
work stoppage issue. Arellano, Gomez, Rios, each stated that they had not been approached 25
about a work stoppage, and Lopez stated that she did not “participate” in a work stoppage. The
sworn testimony shows that these individuals had, in fact, been approached by Kelly about the
possibility of collectively stopping work. For his part, Dudley testified that when Kelly raised the
issue of a work stoppage with him, he “[i]mmediately went to my team lead . . . and told him
what was happening.”30
On May 17, Vanley interviewed Kelly. The interview took place in Kelly’s office, and was
also attended by Ewing Bond, the process leader for the production line on which Kelly worked.
Kelly recorded the interview, and the parties subsequently reached agreement on the accuracy
of a written transcript of the entire interview.4 Vanley began the interrogation by asking “From 35

2 The Respondent’s “solicitation and distribution of literature policy” provides in relevant part:
“Solicitation of any kind by one associate of another associate is prohibited while either person is on
working time. Working time is defined as times when the associate solicited and the associate doing the
soliciting are expected to be performing work functions.” Respondent’s Exhibit Number (R Exh.) 5,
Section 2.0. The policy defines “solicitation” as “[t]he act of obtaining orders for merchandise or business,
appeals for contributions to outside organizations, petitioning, or distribution of materials or programs that
are not work related.” Id. at Section 4.0.
3 Vanley testified that the May 7 interview with Maltarich focused on an unrelated matter. The
General Counsel did not present any evidence that specifically contradicted Vanley’s testimony on this
point.
4 On June 6, 2017, the Counsel for the General Counsel submitted a transcript of the May 17
interview to me, represented that the parties had agreed to its accuracy, and requested that I receive the
transcript as Administrative Law Judge Exhibit Number (ALJ Exh.) 1. This submission was served on the
other parties and no opposition has been received. I have ordered that the stipulated transcript be made
part of the record as ALJ Exh. 1. The transcript is 20 pages long, and while the entire recording lasts 39
minutes, the portion of the recording that constitutes Vanley’s interview of Kelly lasts approximately 29
minutes.
JD–68–17
6
your perspective, what happened Friday?” Kelly answered that after the ammonia leak many
employees came to him in his capacity as a part of the safety committee asking him to “take
care of this” and asking for “somebody to come and tell them what was going on.” Vanley
asked Kelly why he thought “a petition was the best way to try to get management to talk to
you,” and asked why he did not use the Respondent’s preferred method for addressing safety 5
concerns about which Vanley said that Kelly had previously received a “documented coaching.”
Kelly stated that employees had attempted to obtain information from the Respondent prior to
preparing the petition. Vanley pressed Kelly regarding those efforts and asked again “why the
petition?”
10
Then Vanley asked Kelly when it was that he had obtained signatures on the petition.
Kelly confirmed that he created and circulated the petition as “part of that time off” that he had
been granted to visit Carey and provide a statement about the May 12 ammonia leak incident.
He stated that after he met with Carey and gave him the petition and the requested statement,
he reported to the signers what Carey had said and had discussions with them about the 15
possibility of a collective work stoppage. Vanley asked Kelly to reveal who had first raised the
idea of a work stoppage and Kelly responded “I am not going to tell you who was talking about
collective action.”
Kelly indicated that he was concerned about safety in part because the ammonia 20
detector and refrigerator alarm had not “went off” when the leak occurred. Vanley questioned
why, if persons had felt unsafe, they waited to raise it in a petition during the shift, rather than
“express that at the very beginning of the shift during the meeting.” Kelly said that given the
facility’s emphasis on “keeping that line running,” it would take “strength to stand up against that
and say, ‘I’m scared,’” and that most employees “don’t know that it’s – it’s their right that they 25
don’t have . . . to tolerate dangerous things.” Then Vanley again criticized Kelly’s decision to
raise the safety issue by way of the employee petition. He complained that Kelly had repeatedly
failed to handle safety concerns in the manner preferred by the Respondent, and asked Kelly
“What will it take for you to understand that? What are we not communicating clearly to you?”
Kelly stated that he had “acted within my rights.” Vanley responded: “How do you figure that? 30
Yeah. You know you broke Company policy when you did this. That’s why I’m suspending
you.”
Later in the interrogation, Vanley returned to the subject of Kelly’s decision to raise the
concerns in a collective petition, asking Kelly “what part of the communication process do 35
people not understand, or you?” Kelly said that people followed the communication processes,
but “it doesn’t work,” and people were wondering “why aren’t we heard? . . . what is it going to
take.” Vanley again asked Kelly why he felt that “this particular action,” i.e., the petition, was
called for rather than individually going up the chain of command. Kelly answered that he had
used the petition “[b]ecause my co-workers asked me . . . to represent their concerns to 40
management.” Kelly opined that more disruption was being caused by the Respondent
questioning people and throwing people off the property than by the submission of a petition
stating that employees wanted a meeting to address their safety concerns. Once again Vanley
stated his concern was with the method, i.e., that Kelly had used a petition to raise the safety
concerns rather than following the process that the Respondent had described to him. “I’m just 45
curious,” Vanley said again, “why you just can’t follow the process.” Kelly stated that at the shift
meeting the available supervisors declined to respond to employee concerns. Kelly stated that
by taking the matter to the human resources department he had “gone up the chain of
command,” but Vanley stated that Carey was “not in the chain of command.”
50
In the last moments of the meeting, Vanley, for the first time during the interview ,
asserted that Kelly had been soliciting other employees on “company time.” Vanley stated that
JD–68–17
7
“you felt like you had the right to do this, but you still violated Company policy.” Kelly opined
that the solicitation policy was unlawful, and Vanley responded: “No, it’s not . . . . [Y]ou keep
quoting law. I wonder where you’re getting your information because I had a conversation with
corporate legal today, and the employment attorney for us and they don’t see it that way.”5 The
Respondent terminated Kelly’s employment shortly after this meeting, but there is no allegation 5
in this case that the termination was unlawful.
Based on my review of the record, I find that, contrary to Vanley’s testimony, the subject
of his questioning of Kelly and the other employees who signed the petition was not to
determine whether Kelly had solicited employees during working time in violation of company10
policy, but rather to flush out information about the work stoppage discussions, including the
identities of the employee or employees who started those discussions or expressed support for
them. There was never any dispute that Kelly had approached employees with the petition
during their working time. Three employees had already divulged this in response to
Heinsohn’s questioning on May 13 and the Respondent does not claim there was any contrary 15
information. Therefore, Vanley’s claim that on May 16 and 17, he had to interview six of the
persons who signed the petition in order to determine whether Kelly had solicited them for those
signatures during working time is simply not credible. In addition, the record provides a
reasonable basis for inferring that one purpose of Vanley’s interviews was to intimidate the
employees who had signed the petition. Specifically, I note that employees who had not 20
themselves signed the petition would still have had information about whether Kelly approached
them, and perhaps others stationed nearby, during working time, but Vanley did not interview
any of those employees. The only witnesses who Vanley subjected to being pulled off the
production floor and summoned to his office for questioning where those who had themselves
engaged in concerted activity by signing the petition. I also note that Vanley subjected every 25
one of the signers to this treatment with the exception of White, who was the one temporary
employee who signed. However, if Vanley’s purpose had really been to find out if Kelly
approached employees during work time, the testimony of this temporary employee would have
been just as valuable as that of the six permanent employees who signed the petition and who
the Respondent did interview. If, however, Vanley’s purpose was to intimidate or purge 30
employees who were inclined to engage in concerted activity, that would explain why Vanley did
not feel it was important to interrogate a signer whose tenure at the facility was already
temporary.
5. Prohibition on Cell Phones35
The General Counsel alleges that the Respondent’s policies prohibiting employees from
having personal cell phones in the facility’s production and warehousing areas or at their work
stations unlawfully interferes with employees’ right to engage in protected concerted activity.
There are two statements of policy at issue – one a corporate-wide policy and one promulgated 40
for the San Antonio facility. The “cleanliness” section of the corporate policy, which has been in
effect since approximately March 25, 2014, states:

5 Vanley subsequently prepared an investigation summary, dated May 18, in which he discussed his
May 17 questioning of Kelly. Vanley’s account in that document is less than candid insofar as he
describes the focus of his questioning as being Kelly’s collection of signatures during working time. See
GC Exh. 19. The stipulated transcript of the interview makes it abundantly clear that the focus of Vanley’s
questioning and criticism was Kelly’s decision to use a petition, rather than the Respondent’s preferred
avenues for bringing concerns to management’s attention. In addition, Vanley sought to discover who had
first raised the idea of using the group petition approach to express employees’ safety concerns. Indeed,
I find that by the time he interviewed Kelly, Vanley had already determined that Kelly solicited signatures
from employees who were on work time.
JD–68–17
8
4. All jewelry, including earrings, body piercing such as tongue, cheek,
eyebrows, and nose, necklaces etc. and other objects that might fall into the
product, equipment, or containers must be removed. (Stoneless wedding bands
and Medical Emergency I.D. necklaces are allowed in the processing, batching 5
and production areas.) (Medical Alert Bracelets are not permitted.) Medical
emergency I.D. needs, must be reported to HR.
5. Items are not to be kept in shirt pockets or in any location above the waist that
would allow them to fall into the product, food contact surface, or food packaging 10
materials. No personal cell phones are permitted on the manufacturing floor
except for those which are company issued or approved. Cellular
communication devices may be maintained on the person for management and
leadership roles. Radios and company provided communication devices are to
be used as the primary form of communication in the manufacturing area. 15
Clothing and personal belongs, such as cigarettes, purses, newspapers,
magazines, medications, and personal cell phones are not to be kept at the work
station. These items are to be stored in lockers or in your personal vehicle. No
personal portable electronic equipment i.e. MP3 players, IPODS, pocket pagers,
portable games etc. are allowed in manufacturing, processing, or warehousing 20
areas.
GC Exh. 3.
At the San Antonio facility the Respondent has promulgated the following prohibition, 25
which has been in effect since approximately April 2015:
PERSONAL BELONGINGS:
Personal items (items not directly related to production processes or job 30
requirements) are not allowed in work areas. These include, but are not limited
to: clothing, cell phones, MP3 players, gaming devices, cigarettes, purses,
magazines, medications, newspapers, etc. These may be kept in an associate’s
locker and may be used during break periods in designated areas.
35
JEWELRY:
All jewelry, including earrings, body piercing such as tongue, cheek, eyebrows,
and nose, necklaces etc. and other objects that might fall into the product,
equipment or containers must be removed (plain wedding bands and Medical 40
Emergency I.D. necklaces are allowed in the processing, batching and
production areas).
* * *
45
NO ITEMS ABOVE THE WAIST:
No items may be carried in shirt pockets (i.e. pens, pencil[s], combs, etc.) All
loose items must be carried in pants pockets or otherwise secured below the
waist; such items should be minimized. Plants providing uniforms are 50
encouraged to purchase shirts with no pockets, to help enforce this policy.
JD–68–17
9
GC Exh. 4.
Patrick Rank was the Respondent’s corporate senior director of quality from October
2013 to May 2017, and during that period he headed a team that developed the “good
manufacturing practices” policies that contain the prohibitions set forth above. He testified that 5
there were two basic reasons for the Respondent’s promulgation of the prohibitions on personal
cell phones and electronic devices. The first was to protect against contamination. In particular,
he stated that “hav[ing] a cell phone or something above the belt would allow a foreign material
to be dropped in a container” used in the production of food. Tr. 146. He indicated that such
foreign material could include the device itself. Tr. 147-148. Rank testified, and the General 10
Counsel does not dispute, that all of the Respondent’s plants are regulated by the U.S. Food
and Drug Administration (FDA) pursuant to the Food, Drug, and Cosmetic Act (FDCA). See 21
U.S.C. Section 301, et seq.; 21 C.P.R Section 110.5, et seq.
Rank testified that the second reason for the prohibition was that the Respondent was 15
concerned about the safety of its employees. Tr. 146. Employees’ use of cell phones near the
production lines, he stated, could distract employees and slow their reaction to problems or
cause them to injure themselves. He stated that use of the cell phones in the warehouse might
distract employees and cause someone, or something, to be hit by a forklift.6 Neither Rank’s
testimony, nor the record as a whole, identifies any actual incidents when an employee’s 20
possession of a cell phone or similar device resulted in product being contaminated or in injury
to a person or property.
Rank was asked by counsel for the Respondent whether it would be possible to address
concerns about cell phones in a less restrictive manner – for example, by allowing employees to 25
possess cell phones but restricting how they carried and used them. Rank’s testimony till that
point had been largely fluid, but in response to this softball question from sympathetic counsel
his speech became hesitant and stammering. His uncertainty was apparent to me from his
demeanor, but it is evident even from a simple review of the transcript of his answer:
30
No. No. I don’t – I think if you – if you try to implement a policy such as the one
you just recommended or not recommended, but just suggested, it is one that – I
don’t see how a – I don’t see how it could be managed. It is not a policy that –
you don’t – you would then be in a position to have to manage the – every single
minute of what an associate was doing with that particular device, so I don’t think 35
the policy in itself would be manageable.
Tr. 150-151. Not only was Rank’s response on this subject strained and uncertain, but it was
also self-serving and conclusory. I find that this response was not credible and give it no
weight. 40
Rank stated that while the contamination and safety concerns discussed above justified
prohibiting employees from even possessing cell phones in the production and warehouse
areas, the Respondent permitted line lead employees to possess and use cell phones in those
same areas.7 He stated that the Respondent did not apply the prohibition to lead employees45

6 The Respondent’s counsel asked Rank about chemicals used at the Respondent’s facilities, and
Rank responded that cleaning chemicals used at the Respondent’s facilities could be dangerous if used
improperly. Rank did not, however, claim that the presence of cell phones or other electronic devices
increased the risk that chemicals would be used improperly or that the risk involving cleaning chemicals
had anything to do with the prohibitions at issue here.
7 In its Brief the Respondent exaggerates the difference in risk presented by allowing all employees
JD–68–17
10
and managers because those individuals “have a responsibility to communicate . . . to the
outside world or to the management” about occurrences at the manufacturing facility. Rank also
expressed the view that because supervisors are “not tied to a piece of equipment” Tr. 149, the
Respondent did not, by allowing those individuals to possess and use cell phones, create the
same risk that it would by allowing regular employees to exercise that freedom. It appears,5
however, that Rank, who was a corporate-level official, did not have an accurate understanding
of the role that lead employees played at the San Antonio facility. In particular the evidence
showed that, at the San Antonio facility, line lead employees were generally the ones who took
over other employees’ production line duties during breaks. Tr. 62-63,177. Rank appears to
have been unaware of this insofar as he denied that lead employees ever fill-in for other 10
employees during breaks, and asserted that production lines are, instead, “staffed with” “relief
operators” who fill-in during breaks. Tr. 153-154.
As set-forth above, the corporate policy relaxes the prohibition slightly by stating that it
applies to cell phones “except for those which are company issued or approved.” The record 15
did not show how often the Respondent “issued or approved” cell phones for use by rank-in-file
employees. Neither Rank, nor any other witness, stated whether, or on what basis, the
Respondent believed that an employee’s possession of a company approved or issued cell
phone would not pose the same risks of contamination and injury that were posed by an
employee’s possession of a personal cell phone.20
Heinsohn testified that at all times when employees are physically present on the
production line they are expected to be working and are considered to be on “working time.” Tr.
63. They cannot leave the line for breaks unless they are relieved. Rank also stated that the
employees take their breaks in facility break rooms that are not part of the manufacturing floor. 25
Ibid.
B. THE COMPLAINT ALLEGATIONS
30
The Complaint alleges that the Respondent coerced employees in violation of Section
8(a)(1) of the Act on May 13, 2016, when Heinsohn interrogated employees about their
concerted activities, and on May 16 and 17, 2016, when Vanley interrogated employees about
their concerted activities. In addition, the Complaint alleges that the Respondent violated
Section 8(a)(1) by maintaining overly broad rules that prohibit employees from possessing 35
personal cell phones on the manufacturing floor or at their work stations.

on the manufacturing floor to carry cell phones as opposed to just allowing the line leads and
management employees to do so. It asserts that “At any given time only about three management
individuals are on the manufacturing floor carrying cellular phones, compared to 190 total employees.”
Brief of the Respondent at Page 10. The evidence shows, however, that only 50 employees work in the
Respondent’s production operation, Tr. 74, and that “at any given time” at most 16 to 24 of those – four to
six on each of four lines – are on-duty on the production lines, Tr. 62. Even that figure overstates the
number of regular employees on the production floor at any given time because not all four lines operate
on every shift. Tr. 61. Similarly, the Respondent’s claim that it only permits three persons to have cell
phones on the production floor at any given time is dubious since it takes account of only three line leads,
not of the other supervisors and managers – e.g., Heinsohn (a process leader), Bond (a process leader),
and Owens (production manager) – who its policy allows to possess personal cell phones while in the
production area. Nor does it account for the fourth line lead who would be present if all four lines were
operating.
JD–68–17
11
III. ANALYSIS
A. INTERROGATIONS
5
1. Questioning by Heinsohn on May 13
On May 13, after Heinsohn learned that, earlier that day, employees had submitted a
petition to the Respondent and discussed a work stoppage among themselves, he questioned
four of the employees who signed the petition – Arellano, Dudley, Lopez, and Maltarich – in his
office and asked each to prepare a written statement. The General Counsel alleges that10
Heinsohn’s actions coerced the employees’ exercise of their Section 7 right to collective action
and violated Section 8(a)(1).8 The Board has held that an interrogation is unlawful if, in light of
the totality of the circumstances, it would reasonably tend to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. North Memorial Health Care, 364 NLRB No.
61, slip op. at 30, enfd. in relevant part 860 F.3d 639 (8th Cir. 2017); Mathews Readymix, Inc., 15
324 NLRB 1005, 1007 (1997), enfd. in part 165 F.3d 74 (D.C. Cir. 1999); Emery Worldwide, 309
NLRB 185, 186 (1992); Liquitane Corp., 298 NLRB 292, 292-293 (1990). Factors the Board has
recognized as bearing on this question include: whether the interrogated employee was an open
or active union supporter; whether proper assurances were given concerning the questioning;
the background and timing of the interrogation; the nature of the information sought; the identity 20
of the questioner; and the place and method of the interrogation. Stoody Co., 320 NLRB 18, 18-
19 (1995); Rossmore House Hotel, 269 NLRB 1176, 1177-1178 (1984), affd. sub nom. Hotel &
Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). “In the final analysis,”
the Board has stated, the “task is to determine whether under all the circumstances the
questioning at issue would reasonably tend to coerce the employee at whom it is directed so 25
that he or she would feel restrained from exercising rights protected by Section 7 of the Act.”
Medcare Associates, Inc., 330 NLRB 935, 940 (2000); see also Sunnyvale Medical Clinic, 277
NLRB 1217 (1985).
The circumstances in this case overwhelmingly favor finding that Heinsohn’s questioning 30
would reasonably tend to intimidate and coerce employees in the exercise of their Section 7
rights. According to Heinsohn’s own contemporaneous written account, his questions were
directed at finding out who had started the employees’ discussions about a collective work
stoppage and what the employees had said.9 Employees engage in protected concerted
activity when they discuss whether to engage in a work stoppage. See Sunrise Senior Living, 35
Inc., 344 NLRB 1246, 1255-1256 (2005), enfd. 183 Fed. Appx. 326 (4th Cir. 2006).10 Heinsohn’s
efforts to flush out information about the employees’ protected discussions, and in particular
about who had initiated those discussions, would reasonably lead employees to worry that the
Respondent intended to single out employees who instigate collective work action. Indeed by
the time of these interviews, the Respondent had already ejected Kelly from the facility. It is not 40
surprising, and quite revealing, that Maltarich responded to Heinsohn’s questioning by saying

8 Section 7 states that employees have the right to, inter alia, “engage in . . . concerted activities for
the purpose of . . . mutual aid or protection.” 29 U.S.C. Section 157. Section 8(a)(1) makes it unlawful for
“an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in
Section 7.” 29 U.S.C. Section 158(a)(1).
9 As discussed in the statement of facts, the record establishes that his purpose was not to determine
whether Kelly had circulated the petition during work time in violation of the solicitation policy.
10 This is true even if actually engaging in the work action being discussed would not itself be
protected activity. Sunrise Senior Living, 344 NLRB at 1255-1256.
JD–68–17
12
that she did not want to get anyone “in trouble.” In Sunrise Senior Living, the Board affirmed a
finding that an interrogation was unlawful where, as here, the questioning sought to get
“interviewees to unmask the person or persons behind the petition and the work stoppage
discussions.” 344 NLRB at 1255.
5
In addition, it is notable that three of the four employees questioned by Heinsohn had not
previously revealed anything to the Respondent about a potential work stoppage or their
discussions with other employees on that subject. Cf. Stoody Co., 320 NLRB at 18-19 (factors
bearing on whether interrogation was coercive include whether interviewees were active and
open in their support for the union). The only one of the four who the record shows revealed 10
this to the Respondent was Dudley – an employee who had expressed fears to both the
Respondent and Kelly that participating in a work stoppage would put his job at risk and who
rushed to inform the Respondent that employees were discussing a stoppage. The fact that a
number of the interviewees were not open about their discussions regarding a collective work
action, weighs to some degree in favor of finding that they would have found it intimidating and 15
coercive to be called away from their work duties and questioned by Heinsohn about that
activity. See Medcare Associates, Inc., 330 NLRB at 939 (It increases the coercive nature of an
interrogation if the “employee [is] called from work to the boss’s office.”). Heinsohn is not an
upper level manager, but he was a level above the line lead employees who most directly
oversee the employees on the line. In addition, the employees would reasonably understand 20
Heinsohn’s involvement to mean that the Respondent was adopting an aggressive posture
towards the work stoppage discussions since Heinsohn had been brought back to the facility at
a time when he was not otherwise working to confront employees within hours of their work
stoppage discussions. The fact that the Respondent had found out about the Section 7
discussions so shortly after those discussions occurred, and acted so swiftly to interrogate 25
employees and eject Kelly, would reasonably chill employees from engaging in such
discussions.
I also note that there is no claim that Heinsohn mitigated the coercive nature of the
interrogations by offering the employees assurances that the purpose of the inquiry was benign 30
and that their responses would not result in discipline. This would have been especially
important here in light of the Respondent’s decision to eject Kelly from the facility for reasons
related to the petition. The Board has repeatedly noted that an employer’s failure to provide
such assurances when questioning employees about their protected activities weighs in favor of
finding such questioning unlawfully coercive. North Memorial, 364 NLRB No. 61, slip op. at 30; 35
Stoody Co., 320 NLRB at 18-19; Rossmore House Hotel, 269 NLRB at 1177-1178.
To the extent that there was some evidence that weighs against finding the
interrogations coercive, that evidence does so only lightly. I considered that it appears
Heinsohn did not press Maltarich to provide answers about the work stoppage discussions once 40
Maltarich indicated an unwillingness to do so. I also considered that Dudley testified that during
the questioning he felt comfortable and under no pressure. At the same time, however, the
record shows that Dudley, both during his conversation with Kelly about the possible work
stoppage and in written statements he provided to Heinsohn and Vanley, expressed concern
that participating in a work stoppage would put his job at risk. After considering the totality of 45
the circumstances, I find that the factors showing that the questioning was coercive easily
outweigh the countervailing factors and that Heinsohn’s questioning would reasonably tend to
coerce employees and cause them to feel restrained in the exercise of their Section 7 rights.
JD–68–17
13
For the reasons discussed above I find that the Respondent violated Section 8(a)(1) on
May 13, 2016, when Heinsohn coercively interrogated employees about their Section 7
activities.
5
2. Questioning by Vanley on May 16 and 17.
I find that Vanley’s interrogations of employees on May 16 and May 17 were also
unlawfully coercive. As discussed in the fact section, a focus of this questioning was to flush out
information about the employees’ discussions regarding a possible group work stoppage, 10
including information about the identity of the employee who had initiated those discussions or
the petition. The questioning was carried out in a way that would reasonably tend to intimidate
the employees who had participated in protected activity to address safety lapses at the facility.
It was only the employees who had signed the petition that were summoned away from their
work to the office of Vanley, a high level official at the facility, to be questioned about their 15
protected activities.
The conclusion that Vanley’s questioning would reasonably tend to discourage protected
concerted activities is supported by the transcript of his interrogation of Kelly. During
approximately 29 minutes of questioning, Vanley repeatedly criticized Kelly for choosing to 20
address safety concerns by initiating an employee petition, rather than by individually taking his
safety concerns up the chain of command or otherwise using processes preferred by the
Respondent. Cf. Valley Hospital Medical Center, 351 NLRB 1250, 1254 (2007) (an employer
“may not interfere with an employee's right to engage in Section 7 activity by requiring that the
employee take all work-related concerns through a specific internal process”), enfd. sub nom. 25
Nevada Service Employees Union, Local 1107, 358 Fed. Appx. 783 (9th Cir. 2009). Vanley’s
purported reason for the interview – i.e., to determine whether Kelly had solicited during
employees’ working time in violation of company policy – was barely touched upon during the
interrogation of Kelly and was, at any rate, not in dispute. Rather Vanley devoted most of the 29
minutes to bullying Kelly to disavow, or apologize for, exercising his Section 7 right to 30
collectively petition the employer.
The record does not indicate that Vanley provided any of the employees with
assurances that the inquiry into their protected activities was benign or that their responses
would not result in discipline. The transcript of Vanley’s interrogation of Kelly shows that he did 35
not provide such assurances to Kelly. Vanley’s failure to mitigate the coercive interrogations by
providing assurances weighs in favor of finding the interrogations unlawful. North Memorial,
supra; Stoody Co., supra; Rossmore House Hotel, supra. It is not surprising that, in the
absence of such assurances and given the subject matter of the questioning, three of the
employees signed statements in which they denied that they had been part of discussions about 40
a work stoppage. To put it another way, not only were the interviewees not open and active
about their participation in discussions regarding a collective work stoppage, but they concealed
their participation. As the Board recognized in Medcare Associates, when employees feel
compelled to respond to an employer’s questions about their protected activity by untruthfully
denying that activity, it suggests that the questioning reasonably tended to coerce the employee 45
at whom it was directed so that he or she would feel restrained from exercising Section 7 rights.
330 NLRB at 939 and 940.
The Respondent violated Section 8(a)(1) on May 16 and 17, 2016, when Vanley
coercively interrogated employees about their Section 7 activities. 50
JD–68–17
14
B. PROHIBITION ON EMPLOYEES POSSESSING CELL PHONES AT WORK
Employees have a Section 7 right to engage in photography and audio or video
recording in the workplace for their mutual aid and protection provided that no overriding
employer interest justifies prohibiting the activity. Whole Foods, 363 NLRB No. 87 slip op. at 35
(2016), enfd. __ Fed. Appx. __, 2017 WL 2374843 (2d. Cir. 2017); T-Mobile USA, Inc., 363
NLRB No. 171, slip at 3-4 (2016), enfd. in relevant part 865 F.3d 265 (5th Cir. 2017); Rio All-
Suites Hotel & Casino, 362 NLRB no. 190, slip op. at 4 (2015). Photography and recording
serves important Section 7 purposes. Such purposes include “documenting unsafe workplace
equipment or hazardous working conditions, documenting and publicizing discussions about 10
terms and conditions of employment, documenting inconsistent application of employer rules, or
recording evidence to preserve it for later use in administrative or judicial forums.” Whole
Foods, supra. As the Board has noted, the case law is “replete with examples where
photography or recording, often covert, was an essential element in vindicating the underlying
Section 7 right.” Id. To see how this might be the case, one need look no further than the 15
coercive interrogation of Kelly. Vanley claimed that the purpose of that interrogation was to
determine whether Kelly had solicited other employees during working time, but Kelly’s covert
recording of that interrogation made clear that most of it was directed at coercing Kelly not to
address employee concerns through a collective petition. The General Counsel argues that the
Respondent has infringed on its employees’ right to engage in photography or recording for 20
Section 7 purposes, and violated Section 8(a)(1), by maintaining a rule prohibiting employees
from possessing cell phones and other portable electronic devices because that rule explicitly
encompasses and/or would reasonably be construed to encompass, a prohibition on employees
engaging in photography and recording in the workplace for Section 7 purposes. See Lutheran
Heritage Village-Livonia, 343 NLRB 646, 647 (2000).11 For the reasons discussed below, I find 25
that the General Counsel is correct, and that the Respondent’s policy prohibiting the possession
of personal cell phones unlawfully infringes on the Section 7 rights of its employees.
I find that the challenged prohibition on the possession of cell phones and electronic
devices constitutes an explicit restriction on the type of employee activity recognized to be 30
protected in Whole Foods, supra, T-Mobile USA, Inc., supra, and Rio All-Suites Hotel & Casino,
supra. Cell phones and electronic devices are the primary, if not exclusive, means by which
employees engage in the type of photography and recording activity that the Board has held to
be protected by Section 7. The Respondent does not identify any means of engaging in such
activity that employees would be expected to have at their disposal without running afoul of the 35
challenged policy. By prohibiting employees from possessing the means to engage in protected
photography and recording activity, the Respondent necessarily and completely prohibits that
activity. If anything the interference represented by the Respondent’s rule is more complete
than would be the case if the rule simply prohibited photography and recording activity, since
depriving employees of the equipment necessary for that activity forecloses the possibility that 40
employees might choose to risk the consequences of violating the prohibition in circumstances
where the Section 7 purpose is sufficiently compelling.12 Given that the rule does not permit the

11 In the Lutheran Heritage, supra, the Board stated that a work rule violates Section 8(a)(1) if it:
explicitly restricts protected activity; would reasonably be construed by employees to prohibit Section 7
activity; was promulgated in response to protected activity; or has been applied to restrict Section 7
activity. In this case the General Counsel alleges that the Respondent’s policy either explicitly restricts, or
would be reasonably construed as restricting, Section 7 activity. The General Counsel does not allege
that the challenged policy was promulgated as a response to, or applied so as to target, employees’
Section 7 activity.
12 As discussed above, I find that the Respondent’s policy explicitly prohibits Section 7 activity and
therefore it is not necessary, under Lutheran Heritage, supra, to consider whether employees would
JD–68–17
15
possession of such equipment in the production and warehouse areas, the rule necessarily
does not differentiate between uses that are protected by Section 7 and those that are
unprotected, a circumstance that led the Board to find the prohibitions in Whole Foods and T-
Mobile, unlawfully overbroad. Whole Foods, slip op. at 4, T-Mobile, slip op. at 4
5
The Respondent contends that even if its cell phone policy interferes with employees’
exercise of Section 7 rights, the policy is justified by overriding employer interests. The Board’s
decisions in T-Mobile USA, Inc., and Rio All-Suites Hotel & Casino, make clear that an employer
relying on such an argument bears the burden of showing that the policy is narrowly tailored to
address an overriding interest. 363 NLRB No. 171, slip op. at 4 (finding a violation where the 10
employer’s “proffered rationales cannot justify the rule’s broad restriction that employees would
reasonably read as prohibiting activity protected by Section 7”); 362 NLRB No. 190, slip op. at 4
(finding a violation where the Respondent failed to tie the “prohibition at issue here to any
particularized interest”). The Respondent suggests that it has demonstrated that concerns
about food contamination and employee safety constitute such overriding interests in this 15
case.13 Based on the record in this case, I find that while preventing contamination and
maintaining safety are important objectives, the Respondent has not shown that its interference
with Section 7 rights is narrowly tailored to address those objectives.
To support its contention that concerns about food contamination justify its cell phone 20
and electronic device prohibition, the Respondent presented the testimony of Rank, its former
senior director of quality. Rank testified that “hav[ing] a cell phone or something above the belt
would allow a foreign material to be dropped in a container.” However, even that testimony
implicitly suggests that a narrower restriction would meet the Respondent’s professed
contamination concern. If the problem is the risk posed by an employee keeping a cell phone or 25
electronic device “above the belt,” then that concern could be addressed by a narrower
restriction that requires employees to keep such devices in pants pockets or otherwise secured
below the belt. Indeed, that is exactly what the Respondent does with respect to employees’
possession of a range of other personal items that might contaminate product. The rule at the
San Antonio facility allows employees to carry other “loose items” – including “pens, pencils, 30
combs” – “in pants pockets or otherwise secured below the waist,” but not in “shirt pockets.”
Similarly the corporate policy, while prohibiting employees from possessing cell phones, states
that, with respect to other loose items, employees are only prohibited from carrying them “in
shirt pockets, or any location above the waist that would allow them to fall into the product, food
contact service, or food packaging materials.” A cell phone/electronic device rule that, like the 35
rule for other loose items, restricted employees from carrying cell phones and electronic devices

reasonably construe the policy to prohibit Section 7 activity. See, supra, footnote 11. However, if I were
not persuaded that the prohibition is properly characterized as an explicit restriction on Section 7 activity, I
would find a violation because the prohibition would reasonably be understood by employees to restrict
Section 7 activity. Indeed, it is hard to imagine how any reasonable employee could conclude that the
Respondent’s ban on possession of the means to engage in photography and recording activity did not
prohibit them from photographing and recording for Section 7 purposes. See also Whole Foods, slip op.
at 2 (“An employer rule is unlawfully overbroad ‘when employees would reasonably interpret it to
encompass protected activities.’”), quoting Triple Play Sports Bar, 361 NLRB No. 31, slip. op. at 6 (2014),
enfd. 629 Fed. Appx. 33 (2d Cir. 2015).
13 See also Flagstaff Medical Center, 357 NLRB No. 65 (2011) (Given the “weighty” privacy interest of
hospital patients and the need to prevent wrongful disclosure of health information, employees would
reasonably interpret the employer’s limited restrictions on the use of electronic equipment and cameras
as a means of protecting privacy and not as a prohibition on using such devices for protected activity.)
review granted in part and enfd. in part 715 F.3d 928 (D.C. Cir. 2013).
JD–68–17
16
in shirt pockets, but permitted them to carry them secured below the waist, would interfere far
less with Section 7 rights than does the cell phone ban, if it would interfere with those rights at
all. The Respondent does not provide a reason, much less an overriding reason, why the
narrower restriction that is applied to prevent contamination by personal items such as combs
and pens would not suffice for employees’ personal cell phones.5
The Respondent’s contention that its rule is narrowly tailored to address overriding
concerns regarding contamination is further rebutted by the fact that the Respondent’s rules
permit line leads to carry and use personal cell phones while performing the same tasks as the
production line employees who are prohibited from carrying them. The record shows that line 10
leads at the San Antonio facility take over the tasks of production line employees when those
employees go on lunch and other breaks. In attempting to justify the prohibition, Rank
incorrectly asserted that line leads do not take over the duties of production line employees
during their breaks. In addition, Rank suggested that concerns about permitting line leads to
carry cell phones are outweighed by the countervailing interest in allowing those individuals “to 15
communicate . . . to the outside world or to management.” He did not claim, however, to have
given any consideration to the fact that employees also have a significant countervailing interest
– i.e., their interest in being free to engage in statutorily protected collective action by
photographing or recording unsafe or otherwise problematic conditions and activity in the
workplace. The Respondent’s argument that its ban is justified by overriding contamination 20
concerns is undercut still further by the fact that the corporate rule prohibits an employee’s
“personal” cell phone, but permits employees to possess cell phones “which are company
issued or approved.” The Respondent did not present evidence or argument from which one
could reasonably conclude that company issued or approved cell phones create less risk of
contamination than do personal cell phones. 25
In reaching the conclusion that the Respondent’s asserted concerns about food safety
do not, in this case, constitute the sort of overriding interest that may justify otherwise unlawful
interference with Section 7 activity, I considered the Respondent’s argument that its facilities are
subject to regulatory requirements imposed by the FDA. See 21 CFR Section 110 (2016). This 30
argument would be more persuasive if the Respondent had shown that the prohibition on cell
phones was specifically mandated by, or necessary to comply with, requirements imposed by
the FDA.14 However, the regulations identified by the Respondent, while requiring regulated
entities to implement controls to protect food safety, make no mention of cell phones or
electronic devices and do not state that those items are to be banned from all production and 35
warehouse areas. Indeed, it is clear the Respondent’s argument that the FDA prohibits the
possession of cell phones on the manufacturing floor does not even convince the Respondent.
As discussed earlier, the Respondent allows line leads and managers to possess cell phones
and allows any employee to possess a cell phone as long as it is “company issued or
approved.”40

14 See Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 143-144 (2002) (“’[T]he Board is obliged
to take into account other “equally important Congressional objectives”’” when considering action that
would “potentially trench upon federal statutes and policies unrelated to the N[ational ]L[abor]
R[elations]A[ct].”) and Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942) (“[T]he Board has not
been commissioned to effectuate the policies of the Labor Relations Act so single-mindedly that it may
wholly ignore other and equally important Congressional objectives. Frequently the entire scope of
Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not
too much to demand of an administrative body that it undertake this accommodation without excessive
emphasis upon its immediate task.”).
JD–68–17
17
The Respondent attempts to minimize the extent to which it is interfering with Section 7
activity, and to distinguish Whole Foods, supra, and T-Mobile, supra, by suggesting that the
prohibition is limited to working time inasmuch as all employee time at their work stations is
“working time.” Even assuming that the prohibition would be permissible if limited in that
manner, the Respondent’s argument fails because its prohibition encompasses nonworking 5
time. First, I note that the Respondent not only prohibits employees from possessing cell
phones in their work areas, but provides that cell phones are to be kept in lockers, except during
“break periods in designated areas.” The Respondent did not show that it has “designated” any
areas at all where it permits employees to use cell phones while on breaks, and certainly has
not shown that such areas include all the non-work areas where an employee would lawfully be 10
entitled to photograph or record for Section 7 purposes during non-work time. Second, the rule
places no discernible limits on the Respondent’s discretion to decide what areas, if any, are
designated for cell phone use. The Board has held that an employer rule that requires an
employee to obtain management’s permission before recording for Section 7 purposes or
engaging in other types of protected activity violates the Act. Whole Foods, supra; G4S Secure 15
Solutions (USA), Inc., 364 NLRB No. 92 (2016), enfd. ___ Fed. Appx. ___, 2017 WL 3822921
(11th Cir. 2017); General Electric, Co., 169 NLRB 1101, 1104 (1968), enfd. 411 F.2d 750 (9th Cir.
1969). The Respondent’s rule limits employees’ ability to engage in photography and recording
activity to those instances in which the employer has granted permission by designating an area
were such activity is allowed. Third, the record shows that not all the time that employees are in 20
the production area is work-time. Rather the evidence suggests that employees begin their
breaks at the production line, when the line lead relieves them. This means that there would be
periods of time when employees are on break in the manufacturing area, but explicitly prohibited
from possessing cell phones and electronic devices, at least for the portion of their break time it
takes them to proceed to a “designated” area. Moreover, the Respondent did not show that25
employees assigned to the warehouse area are on “work-time” whenever they are in the
warehouse.
The Respondent also claims that it has an overriding interest in banning cell phones and
electronic devices because allowing employees to possess them in the production and
warehouse areas – regardless of any restrictions placed on how employees carried those 30
devices or when they could be used – would present unacceptable risks of injury to persons or
property. This, it should be noted, is the only interest that appears to be asserted to justify the
prohibition as it relates to the warehouse areas at the facility, since the Respondent presented
no evidence that that the warehouse area had open containers or food processing surfaces that
could be contaminated by personal items. The Respondent has not presented persuasive35
evidence for this purported safety interest. The record does not include a description of a single
actual accident at the facility, much less of recurrent accidents attributable to employees being
distracted by cell phones or similar items. Nor did the Respondent show that it took other steps
– such as special training – to address the safety concerns that it claims are so substantial as to
warrant a significant intrusion on employees’ Section 7 fights. Instead, Rank endeavored to 40
support the Respondent’s purported safety concerns by noting that employees operate forklifts
in the production and warehouse areas of the San Antonio facility. Tr. 148. However, the use
of forklifts is ubiquitous in manufacturing and warehousing facilities. The Respondent did not
provide a basis for believing that the use of this standard piece of equipment represents special
risks at its facility that are so profound as to override the employees’ Section 7 rights. It would 45
seem that, under the Respondent’s theory, safety concerns would override employees’ Section
7 rights to engage in photography and recording activity at every production or warehousing
facility that uses forklifts or similar equipment. Moreover, assuming that some type of restriction
on cell phones is warranted to address safety concerns at the Respondent’s facility, the
Respondent has not shown that the complete prohibition it has imposed is narrowly tailored to 50
the interest. The Respondent produced no credible evidence that a narrower restriction – for
JD–68–17
18
example, on the use of cell phones while driving a forklift – would not meet the Respondent’s
concerns without so thoroughly trammeling employees’ rights under the Act to photograph and
record for their mutual aid and protection.
Rank also expressed concern that harm could be caused if an employee did not react
promptly to a problem because that employee was distracted by a cell phone. Once again, the 5
Respondent did not describe a single actual accident of the type it asks me to conclude is
sufficient to justify its prohibition of personal cell phones, nor did it show that it had any concerns
in this regard that would not apply to every other employer with a production or warehousing
operation. Finally, as with the Respondent’s claims about contamination risk, I find that the
cogency, and perhaps the sincerity, of its risk assessment is undercut by the fact that the cell 10
phone policy provides that line leads are allowed to possess and even use cell phones while
performing the same tasks as other employees and that any employee may possess a cell
phone if it is company issued or approved. For these reasons, I find the Respondent has failed
to show that it has an overriding safety interest that warrants upholding its intrusion on
employees’ Section 7 rights. 15
I find that the Respondent has violated Section 8(a)(1) by maintaining overly-broad rules
that prohibit employees from having personal cell phones on the manufacturing floor or at their
work stations.
CONCLUSIONS OF LAW20
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
2. By coercively interrogating employees and by promulgating overly-broad rules 25
prohibiting employees from possessing cell phones the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
3. The Respondent, by Darren Heinsohn, violated Section 8(a)(1) on May 13, 2016, by 30
coercively interrogating employees about their Section 7 activities.
4. The Respondent, by Brian Vanley, violated Section 8(a)(1) on May 16 and 17, 2016,
by coercively interrogating employees about their Section 7 activities.
35
5. The Respondent has violated Section 8(a)(1) by maintaining overly-broad rules that
prohibit employees from having personal cell phones on the manufacturing floor or at their work
stations.
REMEDY40
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. The General Counsel asks that I order the notice in this case
be posted not just at the Respondent’s San Antonio facility, but at all of the Respondent’s 45
facilities nationwide. I find that it is appropriate under the circumstances present here to confine
the posting remedy to the one facility about which specific evidence was presented at the
hearing, i.e., to the San Antonio facility. The evidence does not show that circumstances at the
Respondent’s other facilities are sufficiently similar that an independent analysis of those
JD–68–17
19
circumstances is not warranted.15 Moreover, the parameters of the policy regarding cell phone
possession in this case are set by the combined action of one rule promulgated at the
corporate-wide level and a second rule that was promulgated at the San Antonio facility. The
latter rule was not shown to be in place at other facilities, and certainly not at all the
Respondent’s facilities. I am unable to conclude on the record here that the circumstances 5
regarding facility-specific rules at other facilities would not mitigate the unlawful interference that
the corporate-wide rule imposes under the circumstances shown at the San Antonio facility.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.1610
ORDER
The Respondent, Cott Beverages, Inc., San Antonio, Texas, its officers, agents, 15
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about employees’ concerted activities for their 20
mutual aid and protection.
(b) Maintaining any overly-broad policy prohibiting from possessing personal cell phones
on the manufacturing floor and/or at their work stations.
25
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
30
(a) Rescind its overly broad policy prohibiting employees from possessing personal cell
phones on the manufacturing floor and/or at their work stations.
(b) Furnish employees with inserts for the current policies that (1) advise employees that
the unlawful prohibition has been rescinded, or (2) provide the language of a lawful prohibition, 35
or to the extent that that the Respondent has not already done so, publish and distribute revised
policies that (1) do not contain the unlawful prohibition, or (2) provides the language of a lawful
prohibition.
40

15 I considered that Rank, a manager at the corporate level, testified that the operations he described
did not differ meaningfully from one facility to the next. However, I found him an unreliable witness in this
regard. I note in particular that Rank testified that line lead employees did not fill-in for employees who
work on the production line when they go on breaks, but the evidence showed that, at least at the San
Antonio facility, line lead employees do exactly that.
16 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 purposes.
JD–68–17
20
(c) Within 14 days after service by the Region, post at its facility in San Antonio, Texas,
copies of the attached notice marked “Appendix.”17 Copies of the notice, on forms provided by
the Regional Director for Region 16, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In 5
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings, the 10
Respondent has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since January
2016.
15
Dated, Washington, D.C., September 12, 2017

____________________20
Paul Bogas
Administrative Law Judge

17 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.”
,_st--- e-~'C'
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT coercively question you about employees’ concerted activities for mutual aid and
protection.
WE WILL NOT maintain an overly-broad policy prohibiting you from possessing personal cell
phones on the manufacturing floor and/or at your work station.
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 rescind the overly broad policy prohibiting you from possessing personal cell phones
on the manufacturing floor and/or at your work station.
WE WILL furnish you with inserts for the current policies that (1) advise that the unlawful
prohibition has been rescinded, or (2) provide the language of a lawful prohibition, or to the
extent that that we have not already done so, publish and distribute revised policies that (1) do
not contain the unlawful prohibition, or (2) provide the language of a lawful prohibition.
COTT BEVERAGES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
(817) 978-2921, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/16-CA-181144 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (817) 978-2925.