Great Plains Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 509 (N.L.R.B. 1993)

509
311 NLRB No. 56
GREAT PLAINS COCA-COLA BOTTLING CO.
1 In agreeing with the judge that the election should be set aside
and a second election conducted, we do not rely on his finding that
the errors on the Excelsior Underwear, 156 NLRB 1236 (1966), list
affected the results of the election. We find that the Respondent’s
unlawful conduct during the critical period, including the threats
made by Night Production Supervisor Willy Frisby on December 20,
1991, discussed infra, was sufficient to affect the election results,
warranting a second election.
The Respondent has excepted to the judge’s finding that it violated
Sec. 8(a)(1) when the Respondent’s vice president for sales-western
area, William Agnew, coercively offered employee Lisa Weldon a
promotion. The Respondent asserts that the judge’s finding of a vio-
lation for that conduct is inconsistent with the judge’s finding that
the adverse effects of Agnew’s antiunion comments and threats
made during the same conversation with Weldon were counteracted
by the assurances Weldon received immediately thereafter from the
Respondent’s director of telemarketing, David Burns. We note that
the issue of Agnew’s antiunion comments and threats is not before
us, but, in any event, Burns’ assurances to Weldon did not cure the
coerciveness of Agnew’s offer of promotion. See Passavant Memo-
rial Area Hospital, 237 NLRB 138 (1978).
In agreeing that the January 23 photographing of peaceful pickets
was illegal as the judge found, Member Oviatt notes that the Re-
spondent earlier had engaged in similar conduct, illegally
photographing handbillers on September 13, without advancing any
justification or even excepting to the judge’s finding that its conduct
was unlawful in that respect, as well as engaging in other unfair
labor practices that color its January 23 activity.
2 The judge inadvertently failed to include a narrow injunctive pro-
vision in his recommended Order and notice to employees. We shall
modify the recommended Order and notice to provide such injunc-
tive relief in accordance with the violations found.
3 Chairman Stephens finds it unnecessary to pass on the exception
to the dismissal of this allegation since the judge’s order contains
a cease-and-desist provision concerning threats of discharge.
Great Plains Coca-Cola Bottling Company and
General Drivers, Chauffeurs and Helpers Local
Union No. 886, affiliated with the International
Brotherhood of Teamsters, AFL–CIO. Cases
17–CA–15868, 17–CA–15963, and 17–RC–10740
May 28, 1993
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 4, 1992, Administrative Law Judge
James L. Rose issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in response. The
General Counsel filed cross-exceptions and a sup-
porting brief, and the Respondent filed a brief in re-
sponse.
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.2
The General Counsel has excepted, inter alia, to the
judge’s dismissal of the portion of complaint paragraph
5(f) alleging that the Respondent violated Section
8(a)(1) when the Respondent’s production manager,
Johnny Compton, threatened employee Mark Tate that
employees would be discharged if the Union came into
the plant. The General Counsel also excepted to the
judge’s finding at footnote 11 of his decision that the
complaint did not contain a paragraph 5(o). We dis-
agree with the judge in these respects for the reasons
set forth below.
1. The judge found uncontroverted employee Tate’s
testimony that on September 27, 1991, Production
Manager Compton stated to him that if the Union
came in, employees would be required
to take efficiency tests, the production workers
would have to take machine tests. . . . and he
asked me if I thought that—or he said something
to the effect that most of the people in our plant
were illiterate and did I think they could pass the
test. He said it would probably hurt the people in-
stead of helping people.
The judge, however, concluded that the above-quoted
statement did not contain a threat of discharge. We
disagree with his conclusion and find that Compton’s
suggestion that employees’ illiteracy may prevent them
from passing the efficiency and machine tests which
would be imposed as a result of the employees’ selec-
tion of the Union as their bargaining representative
contains an implied threat of discharge if the employ-
ees chose representation by the Union. Compton’s fur-
ther statement, that employees would probably be hurt
rather than helped, only served to reinforce the threat-
ening tone of the statement. Accordingly, we find that
Compton’s statement violated Section 8(a)(1) of the
Act.3
2. Contrary to the judge’s finding, the complaint as
amended alleges at paragraph 5(o) that the Respondent
violated the Act on December 20, 1991, when Night
Production Supervisor Willy Frisby informed employ-
ees that ‘‘it would watch its employees more closely
if they selected the Union as their collective-bargaining
representative.’’ In this regard, employee Stephen
Aiello testified that Frisby told him and about four or
five quality control employees in the production office
on that date ‘‘that management watches you more if
there is a union. And they would have to pay more so
they watch more, and you would have to work hard-
er.’’ Neither Frisby nor any of the quality control em-
ployees present testified. Therefore, Aiello’s testimony
stands undenied and we find that Frisby threatened em-
ployees in violation of Section 8(a)(1).
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Great
Plains Coca-Cola Bottling Company, Oklahoma City,
Oklahoma, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Insert the following as paragraphs 1(i) and (j).
‘‘(i) Threatening to watch employees more closely
or to require harder work if the employees were to se-
lect the Union as their bargaining representative.
‘‘(j) 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. Substitute the attached notice for that of the ad-
ministrative law judge.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held
among the employees in the unit found appropriate,
whenever the Regional Director deems appropriate.
The Regional Director shall direct and supervise the
election, subject to the Board’s Rules and Regulations.
Eligible to vote are those employed during the payroll
period ending immediately before the date of the No-
tice of Second Election, including employees who did
not work during that period because they were ill, on
vacation, or temporarily laid off. Also eligible are em-
ployees engaged in an economic strike that began less
than 12 months before the election date and who re-
tained their employee status during the eligibility pe-
riod and their replacements. Those in the military serv-
ices may vote if they appear in person at the polls. In-
eligible to vote are employees who have quit or been
discharged for cause since the payroll period, striking
employees who have been discharged for cause since
the strike began and who have not been rehired or re-
instated before the election date, and employees en-
gaged in an economic strike that began more than 12
months before the election date and who have been
permanently replaced. Those eligible shall vote wheth-
er they desire to be represented for collective bar-
gaining by General Drivers, Chauffeurs and Helpers
Local Union No. 886, affiliated with the International
Brotherhood of Teamsters, AFL–CIO.
To ensure that all eligible voters have the oppor-
tunity to be informed of the issues in the exercise of
their statutory right to vote, all parties to the election
shall have access to a list of voters and their addresses
that may be used to communicate with them. Excelsior
Underwear, 156 NLRB 1236 (1966); NLRB v. Wyman-
Gordon Co., 394 U.S. 759 (1969). Accordingly, it is
directed that an eligibility list containing the names
and addresses of all the eligible voters must be filed
by the Employer with the Regional Director within 7
days from the date of the Notice of Second Election.
The Regional Director shall make the list available to
all parties to the election. No extension of time to file
the list shall be granted by the Regional Director ex-
cept in extraordinary circumstances. Failure to comply
with this requirement shall be grounds for setting aside
the election if proper objections are filed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT interrogate you concerning your inter-
est in or activity on behalf of General Drivers, Chauf-
feurs and Helpers Local Union No. 886, affiliated with
the International Brotherhood of Teamsters, AFL–CIO.
WE WILL NOT threaten plant closure if you were to
select the Union as your bargaining representative.
WE WILL NOT solicit your complaints and grievances
with the implied promise to make changes in order to
discourage your union activity.
WE WILL NOT threaten you with discharge, layoff, or
loss of jobs in order to discourage your union activity.
WE WILL NOT engage in surveillance of your union
activity by taking photographs.
WE WILL NOT instruct you not to wear union insig-
nia at the facility.
WE WILL NOT prohibit you from wearing union hats
or insignia away from the facility.
WE WILL NOT promise promotion opportunities in
order to discourage your union activity.
WE WILL NOT threaten to watch you more closely or
to require you to work harder if you were to select the
Union as your bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
GREAT PLAINS COCA-COLA BOTTLING
COMPANY
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. These consoli-
dated cases were tried before me at Oklahoma City, Okla-
homa, on May 13 and 14, 1992. The complaint, as amended,
alleged generally that the Respondent engaged in various
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act. Some of this activity was also alleged by the
Charging Party to have been conduct affecting the results of
the election held pursuant to the petition in Case 17–RC–
511GREAT PLAINS COCA-COLA BOTTLING CO.
1 All dates are in late 1991 or early 1992 unless otherwise indi-
cated.
2 The September 3 allegation as to Wertzbeger was withdrawn at
the hearing.
10740. Thus, the complaint and hearing on objections were
consolidated.
The Respondent generally denied that it engaged in any
unfair labor practices, or in any conduct affecting the results
of the election.
All parties were represented (the General Counsel and Re-
spondent by counsel) and were given an opportunity to call,
examine and cross-examine witnesses, and to file posthearing
briefs.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Great Plains Coca-Cola Bottling Company (the Respond-
ent or the Company), is a corporation engaged in the manu-
facture and distribution of soft drinks with its office and
principal place of business at Oklahoma City, Oklahoma. In
the course and conduct of its business, the Respondent annu-
ally purchases and receives directly from points outside the
State of Oklahoma, goods, products, and materials valued in
excess of $50,000 and annually sells and ships directly to
points outside the State of Oklahoma, goods, products, and
materials valued in excess of $50,000. It is alleged, admitted,
and I find that the Respondent is an employer engaged in
interstate commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION
The Charging Party and Petitioner, General Drivers,
Chauffeurs and Helpers Local Union No. 886, affiliated with
the International Brotherhood of Teamsters, AFL–CIO (the
Union), is admitted to be, and I find is, a labor organization
within the meaning of Section 2(5) of the Act.
III. FACTUAL OUTLINE
The Respondent is a large soft drink bottling company. Its
only facilities involved in this matter are the two located at
Oklahoma City. Material to this matter, its employee com-
plement consists of employees engaged in manufacturing,
warehousing, and distribution.
With early morning handbilling on September 13, 1991,1
the Union began an organizational campaign among the Re-
spondent’s employees. The Union filed a representation peti-
tion on December 5, and an election was held on January 23.
Of approximately 453 eligible voters, 168 cast votes for and
254 cast votes against representation.
Beginning September 13, through various supervisors and
management personnel, the Respondent is alleged to have en-
gaged in numerous acts violative of Section 8(a)(1), some of
which occurred between December 5 and January 23. The
latter are alleged by the Union to be grounds for setting aside
the election. In addition, there are two allegations of an
8(a)(1) violation occurring after the election. The facts of
each allegation will be set forth in the analysis section.
IV. ANALYSIS AND CONCLUDING FINDINGS
A. Interrogation
1. Scott Wertzberger
Former employees James Tharp and Arron Childs testified
that on September 17, a meeting with six drivers was called
by their immediate supervisor, Scott Wertzberger. While
other company officials attended, and spoke, Wertzberger led
the meeting.
According to Tharp, Wertzberger started the meeting by
asking why each had applied for his job. He apologized for
any hard feelings the drivers might have and then ‘‘he asked
us if we had seen the Teamsters handing our (sic) flyers.’’
Childs testified similarly.
Asking employees if they had seen handbilling or hand-
bills I do not believe constitutes coercive interrogation pro-
scribed by Section 8(a)(1). Such a question is rhetorical in
nature and does not involve asking employees about their en-
gaging in concerted activity. Rossmore House, 269 NLRB
1169 (1984). I therefore conclude that complaint paragraph
5(a) as to Wertzberger should be dismissed.2
David Burns
Also at this meeting of September 17 was David Burns,
the Respondent’s director of telemarketing. It is alleged that
he interrogated employees, among other things. Though
Tharp and Childs testified to certain statements made by
Burns, none of the statements attributed to him was in the
nature of interrogation. I therefore conclude that the General
Counsel failed to prove the allegation in paragraph 5(a) of
the complaint as to Burns.
Gerald Morris
Randall Hilbers testified that on the first day of
handbilling (September 13), Route Supervisor Gerald Morris
asked if he was aware of the handbilling and ‘‘He asked me
if I knew anything directly about it, and I told him, no.’’
Since Morris did not testify, I find that he made the state-
ments attributed to him by Hilbers.
Certainly on the first day of handbilling, that such was
going on would be a topic of conversation in the plant. The
inquiry by Morris, in such circumstances and isolated from
any other unlawful conduct, would be the kind of thing the
Board found normal and permissible in Rossmore House. I
therefore conclude that the General Counsel did not establish
Section 5(a) of the complaint as to Morris.
Les Talent
Les Talent is another route supervisor. Tharp testified that
on September 18 Talent went along on Tharp’s route. Tharp
testified that Talent ‘‘asked me what I thought of the union
and I told him that I didn’t know, I had heard pros and cons
and before I made a decision I was going to find out more
about it.’’ Talent went on to ‘‘all he had heard about the
union was bad things and all they could promise us was
monthly dues.’’ Talent did not deny the statements attributed
to him, and I find he made them.
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Miller testified that he did not ride with Tharp on September 27
and then interrogate him. But Tharp did not testify Miller had. Mil-
ler’s specific denial of an event which is not alleged to have oc-
curred is curious. It does not, however, amount to a denial of the
testimony of Tharp.
4 Several allegations of threats in par. 5(b) of the complaint were
withdrawn at the hearing.
5 Counsel for the General Counsel also argued in his brief a threat
made by Compton on September 13. However, at the hearing this
allegation was withdrawn, thus I will not consider it.
I conclude that the questioning by Talent went beyond
normal inquiry. Talent specifically asked an employee his
thoughts about the Union. This, I conclude, was coercive in-
terrogation in violation of Section 8(a)(1).
Kent Miller
Kent Miller is also a route supervisor who is alleged to
have interrogated employees on September 22 and 27, and
October 14. Childs testified concerning two occasions of in-
terrogation by Miller and Tharp one.
Childs testified that during the week after the September
17 meeting, Miller asked ‘‘if I had got any literature on the
union and I told him that I had. He asked me my opinion
on the union and I told him that I did not have an opinion
(on) it one way or the other, because I didn’t want getting
fired.’’ The second time, Miller asked Childs ‘‘if I got lit-
erature, again. I said that I had and that was the end of the
conversation.’’
Tharp testified that on September 27 Miller and Childs
were standing together and Miller ‘‘asked us if we had got
a literature package from the union and I told him no. He
asked us our opinion of the union, how we would vote and
I told him that if it was going to benefit me and my family,
give me job security, that I was all for it. He told me I had
better reconsider what I had heard, what I had found out, be-
cause all they could do was promise me monthly dues.’’
Miller testified but did not deny the testimony of Childs
and Tharp.3 Therefore, I find that he made the statements at-
tributed to him. And I conclude that Miller thereby coer-
cively interrogated employees concerning exercise of their
Section 7 rights in violation of Section 8(a)(1).
B. Threats of Plant Closure and/or Sale4
Tom Pierson
Mark Tate testified that on the day of the second
handbilling, as he read a handbill supervisor, Tom Pierson,
asked what he was reading. Tate told him and Pierson ‘‘said,
oh, well, if the Teamsters come in you know they will prob-
ably shut this plant down’’ Pierson did not testify, thus I find
he made the statement attributed to him.
I conclude that telling an employee that the plant would
probably close if employees choose the Union as their bar-
gaining representative was a clear violation of Section
8(a)(1).
Johnny Compton
Tate testified that also on September 27, Production Man-
ager Johnny Compton talked to him about what would hap-
pen if the Union was successful and ‘‘he did say if the com-
pany did go union, either they would have to probably shut
it down or sell it out to CCE, which is Coca Cola Enter-
prise.’’
Compton denied threatening plant closure or sale to CCE
at the meeting of September 13.5 And he testified generally
that he never told employees that the plant would close or
be sold in the event the Union was successful. However, he
did not testify whether or not he had a conversation with
Tate on or about September 27.
I found Tate to be generally credible, and since Compton
did not testify at all concerning this conversation, or deny it
took place, I conclude that it happened as related by Tate.
I conclude that Compton’s statement that the plant would
probably close or be sold in the event the Union was suc-
cessful was a threat in violation of Section 8(a)(1).
C. Threats of Discharge and Plant Closure
Jack Early is the Company’s electronics engineering super-
visor. His one bargaining unit employee is Tony Yates.
Yates testified that on November 11, Early said ‘‘I see you
and Andy Gallier have made the union committee list. I said,
yes, I did.’’ There followed a 30-minute conversation during
which Early said ‘‘if the union comes in this plant, he (CEO
Browne) will move this company up the road and he said,
this is Mr. Browne’s plant and he will do what he wants to
with it. If the union was to come in today, it would break
this plant economically. He would move to Ucon or Mus-
tang.’’
Early did not testify, and as I found Yates to be a credible
witness, I find that Early made the statements attributed to
him. I conclude that Early threatened discharge by plant clo-
sure should the employees exercise their right to vote for
representation by the Union. He thereby violated Section
8(a)(1).
D. Threats of Department Closure and Unspecified
Reprisals
Yates testified that on January 11 Early came out of his
office yelling that he did not need this ‘‘headache’’ and that
‘‘I will close this shop down, union or no union. He said
people are messing with me. At that time, I said, Jack, if I
am giving you any problem, let me know. He said, it’s not
just you, it is everything.’’ Then he talked about getting out
his 105 (which apparently is some kind of a weapon). This
is the violation alleged in paragraph 5(d) of the complaint,
which is alleged to have occurred on November 11.
While Early was no doubt angry and made threats con-
cerning closing the department and otherwise, from Yates’
testimony it does not appear that Early was threatening re-
prisal because of employees’ union activity. Indeed, it ap-
pears something else triggered Early’s wrath. I therefore con-
clude that his statements do not make out a violation of Sec-
tion 8(a)(1) and I will recommend that paragraph 5(d) be dis-
missed.
E. Soliciting Complaints and Grievances
Les Talent
It is alleged that in early October and again on October
15, Route Supervisor Talent promised employees improved
terms and conditions of employment by soliciting complaints
513GREAT PLAINS COCA-COLA BOTTLING CO.
6 Alleged violations by Scott Wertzberger on September 3 and
Doug Chance on September 13 were withdrawn at the hearing.
and grievances. This is alleged to have occurred when, ac-
cording to the undisputed testimony of Philip Graham, Talent
told him and another employee that ‘‘Mr. Browne wanted a
list of things that we would like to see changed at Coke to
make it a better place to work.’’ Graham testified that the
other route supervisors—Miller, Morris, and another—
verified this.
Talent admitted he asked employees for a list of problems
‘‘because I had taken over an area that I was not famliar
(sic) with and if there were problems with my drivers as far
as their trucks, just in general, what I could do to help things
and make it better for them.’’ And in fact, there were some
changes made to the trucks and procedures.
In agreement with the General Counsel, I conclude that by
this course of action the Respondent violated Section 8(a)(1).
When, during the course of a union organizational drive, an
employer asks employees for their complaints concerning
working conditions, it thereby impliedly promises to make
changes. Such is clear response to, and therefore interference
with, the exercise of employees’ Section 7 rights. Mast Ad-
vertising & Publishing, 286 NLRB 955 (1987).
Robert Browne
Similarly it is alleged that in his letters to employees of
December 31 and January 17, Browne solicited grievances.
Counsel for the General Counsel argues that in three para-
graphs of Browne’s December 31 letter he used the term
communicate (or communications), from which it should be
concluded that he solicited grievances. In this letter there is
no direct asking employees for their complaints, or any indi-
cation that such had been done in the past. ‘‘Communica-
tion’’ has a broad meaning and can be on a variety of sub-
jects. It does not appear to be a code word for soliciting
grievances. I conclude that Browne’s letter of December 31
does not support the allegation in paragraph 5(e) of the com-
plaint.
However, in the letter of January 17, Browne wrote at
length about talking to employees and stated, ‘‘The problems
and frustrations you have expressed to me in many cases
have been addressed or are currently being addressed with
your help in the form of cross-functional task forces (pilot
projects) to get everyone’s concerns under consideration.’’
By this I conclude that Browne promised employees’ that
the Company would resolve employees grievances and he
did so in the context of an ongoing campaign for representa-
tion. His direct message to employees was to eschew the
Union and the employees’ problems would be addressed and
solved. Such violates Section 8(a)(1).
F. Threats of Discharge, Layoff, or Loss of Jobs6
David Burns
At a meeting of route drivers on September 17, referred
to above, Burns is alleged to have threatened employees with
discharge, layoff, or loss of jobs. Lisa Weldon testified to
this event, stating that Burns did most of the talking and
after noting that the Union was trying to come into the Com-
pany, he invited employees to go to the union hall and get
literature and said, ‘‘Don’t feel like your job is going to be
threatened because we won’t do that to you.’’ She testified
that Burns went on to say ‘‘that more than likely there would
be a lot of people laid off.’’
Tharp testified that Burns ‘‘spoke up and he said, it is a
touchy situation and he did not want to tell us what to do
because if the Teamsters were voted in there would be lay-
offs, cutbacks, and the company would go into financial
trouble.’’ Childs concurred, testifying that Burns ‘‘said he
didn’t want to say much about it, but if the union come in
there would be layoff, cutback and financial trouble (sic).’’
While Burns did not specifically deny telling employees
there would be layoffs, he did state that he told them they
were free to explore the truth and ‘‘there will be no re-
prisal.’’
Burns testimony that he specifically told employees there
would be no reprisals was confirmed by Weldon. However,
his statement that their would probably be a lot of layoffs
gives the clear message that by selecting the Union, the em-
ployees would put their jobs in jeopardy. Such is not pro-
tected by Section 8(c). On balance, therefore, I conclude that
the General Counsel did establish the violation alleged in
paragraph 5(f) as to Burns.
Johnny Compton
Counsel for the General Counsel argues that in the con-
versation Compton had with Tate on September 27, set forth
above in section B, Compton threatened employees with dis-
charge by stating that with the union people would be re-
quired to ‘‘to take efficiency tests, the production workers
would have to take machine tests. . . . and he asked me if
I thought that—or he said something to the effect that most
of the people in our plant were illiterate and did I think they
could pass the test. He said it would probably hurt the people
instead of helping the people.’’
Although Tate’s testimony concerning this conversation
stands undenied, I find nothing in the quoted statement
which threatened employees with discharge, layoff, or loss of
jobs should the Union be selected. Thus, I conclude that the
General Counsel did not establish the violation alleged in
paragraph 5(f) as to Compton.
Spencer Nero
Warehouse department employees Larnell Dennis, Roy
Webb, and Michael Holman all testified that at a department
meeting on or about October 23 warehouse supervisor, Spen-
cer Nero, told them they did not want the Union. He told
them if the Union came in, the Company would layoff half
the employees in order to pay the other half.
Nero denied making such a statement to employees, but
did say that he often is asked about the downsizing of the
warehouse department, which, in the last 2 years, has gone
from 26 to 19 employees.
The testimony of Dennis, Webb, and Holman is mutually
corroborated and was generally credible. I credit their testi-
mony and discredit Nero’s denial and find that he made the
statement attributed to him. I conclude that Nero threatened
loss of jobs should the employees select the Union as their
bargaining representative and thus violated Section 8(a)(1).
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Agnew apparently is no longer employed by the Company.
8 Par. 5(g) was withdrawn at the hearing. The section designations
in this part of the decision are meant to track the complaint, there-
fore, G. is omitted.
William Agnew
Lisa Weldon testified that a couple weeks before the elec-
tion William Agnew (the Company’s vice president for sales,
western area) told her to come into his office. Among other
things, he told her that having seen her name on the union
committee list ‘‘just disgusts me.’’ Finally, ‘‘He tossed a ‘No
Vote’ pin at me and said I suggest you wear this or you can
find you another job.’’
However, she further testified that thereafter Burns told
her not ‘‘to worry about it. I told him (Burns), right now I
am so confused I don’t know whether or not I want to go
union or not. Right now I just fear for my job. He said, don’t
worry about your job because Will Agnew is on his way out,
anyway. As far as Will Agnew, don’t let it be a concern to
you because he is going to be gone after this, anyway.’’
Weldon was credible, and as Agnew did not testify,7 I
conclude he made the statements attributed to him, which
certainly contained a veiled threat of discharge. Heritage
Nursing Homes, 269 NLRB 230 (1984). However, under the
circumstance of Burns’ immediate assurance to Weldon that
whatever Agnew said was no threat to her , I conclude that
a remedial order as to this event would not be appropriate.
Accordingly, I will recommend that paragraph 5(f) as to
Agnew be dismissed.
G. Telling Employees Selecting the Union Would
Be Futile8
David Burns
Graham testified that in late October he had a conversation
with Burns about job related matters, ‘‘me and David have
been friends for quite awhile and he had made the statement
that we are not going to be able to sit down and have these
little chit-chats like we used to.’’ And, ‘‘he said that Mr.
Bob Browne, himself, told the managers that they would not
negotiate with the Teamsters in this matter.’’
Burns testified that ‘‘What I said, Bob Browne won’t tol-
erate this and so he (Graham) picks up on that and says, are
you telling me Bob Browne won’t negotiate with the union?
I said, absolutely not, that is not what I am saying. I am say-
ing Bob Browne won’t tolerate me if I don’t—if I allow
working conditions to get to the point where you think that’s
your best alternative. If I don’t handle your problems in a
way that you find the relief you need, he is going to have
a problem with me.’’
I found Burns to be a generally credible witness, and con-
clude that his version of the conversation with Graham is
more likely than Graham’s. I conclude that Burns did not tell
an employee that it would be futile to select the Union or
that the Company would not negotiate with the Union.
John Ustes
Similarly, in late December or early January, maintenance
supervisor, John Ustes, is alleged to have told the members
of the Eagle Team ‘‘that there was no way that he was going
to let the union come in, he would not agree to any contract
that was made.’’ This is from the testimony of Linda
Mahurin. Tate testified that at one of the company sponsored
weekly antiunion meetings, Ustes said ‘‘if you think I am
going to negotiate with the Teamsters, you’ve got to be
crazy.’’ Ustes denied making the statements attributed to him
by Tate and Mahurin.
Ustes testified that he told employees that he would not
personally negotiate with the Union, that he would partici-
pate, but that negotiations would be done by a ‘‘third-party
representation.’’ This is not inconsistent with Tate’s testi-
mony and I believe more accurately represents the statements
made by Ustes.
Mahurin’s specific testimony that Ustes said he would not
agree to a contract was not included in the affidavit given
by Mahurin during the Board’s investigation. This, and the
fact that Mahurin’s statement is not corroborated by Tate,
lead me to conclude that Ustes denial is more credible. I
therefore conclude that the General Counsel did not establish
the allegation in paragraph 5(h) as to Ustes.
David Burns
Yates testified that at a meeting of employees on January
14, ‘‘David Burns, he said, Mr. Browne would never nego-
tiate contract. I said, that’s against the law, you are—the em-
ployer is supposed to negotiate fairly.’’ None of the other
employees present at the meeting testified. Burns denied
making this statement, a denial which counsel for the Re-
spondent contends was corroborated by Ustes. I find in the
record no specific corroboration by Ustes, thought such
might be a reasonable interpretation of his testimony.
Yates generally gave credible and detailed testimony, how-
ever on this allegation his testimony is sketchy, open to in-
terpretation and not corroborated, though there were other
employee witnesses available. Burns was also a generally
credible witness. On balance, I credit Burns’ denial and con-
clude his statement to employees was not precisely as re-
called by Yates. If he used other words than those specifi-
cally testified to by Yates there would not necessarily be the
violation alleged. Therefore, I conclude that the General
Counsel did not establish paragraph 5(h) as to Burns.
H. Engaging in Surveillance by Taking Photographs
The Respondent admits that Manager Raymond Lawton
took photographs of the Union’s handbilling (and of employ-
ees accepting the handbills) on September 13 and of employ-
ees picketing on January 23.
Counsel for the Respondent made no argument concerning
the September 13 matter, but contends that photographing the
picketers on January 23 was necessary to preserve evidence
perceived unfair labor practice on the part of picketers.
Counsel argues that the picketers challenged ‘‘the sterility
the voting environment by shouting, carrying signs and
handbilling within view and hearing of the polling place.’’
The Respondent’s evidence does not support this argu-
ment. Ustes testified that the polling place was about 40
yards from the entrance of the building and ‘‘there was a lot
of truck activity in the area, a lot of trucks pass through
there and especially at that time, probably as many as 80
trucks pass by in certain periods. All I heard was some
shouting, periodically.’’ Burns testified that it was about 30
paces from the site of the picketing to the building and an-
other 40 paces from there thereto the polling place. When
515GREAT PLAINS COCA-COLA BOTTLING CO.
9 Though Early is named in the complaint, the evidence was that
McClure gave the unlawful instruction alleged, and as this was fully
litigated, the violation may be found.
10 The violation found was not alleged, as to Agnew, but it was
fully litigated, thus may be the basis of a remedial order and objec-
tions to the election.
asked if one could see from ‘‘one point to the other,’’ he
said, ‘‘No.’’
Taking photographs of employees who are engaged in pro-
tected activity is inherently intimidating and in the absence
of proper justification, violates the Act. Waco, Inc., 273
NLRB 746 (1984), and cases cited therein.
Here there was no attempt to justify photographing the
September 13 handbilling. Although the handbilling was by
union agents, rather than picketing by employees, employees
were present when the pictures were taken, and as testified
to by Mark Harvey, some who were in line to take a handbill
turned and left. For purposes of the intimidating effect on
employees, I conclude there is no distinction between pick-
eting and handbilling.
The offered justification for photographing the January 23
picketing is not supported by the Respondent’s evidence.
Employees were peacefully picketing with signs encouraging
fellow employees to vote ‘‘yes,’’ but they were some dis-
tance from the polling place and could not be seen from it.
Other employees could see the pickets on their way to work,
but this is not improper interference with the election.
I therefore conclude that the Respondent violated Section
8(a)(1) of the Act when Lawton took pictures of the
handbilling on September 13 and of the picketing on January
23.
I. Informing Employees It Would Cease Communicating
with Them
In the conversation Graham had with Burns in late Octo-
ber referred to above, Graham testified that Burns said, ‘‘we
are not going to be able to sit down and have these little
chit-chats like we used to. I asked him why not, and he said,
you would have to have your union steward present when-
ever you wanted to talk to me.
This statement is alleged to have been violative of Section
8(a)(1). The Board has held that an employer does not vio-
late the Act by telling employees that with the Union will
be ‘‘a change in the manner in which employer and em-
ployee deal with each other,’’ Tri-Cast, Inc., 274 NLRB 377
(1985), or a ‘‘loss of access to management,’’ Koons Ford
of Annapolis, 282 NLRB 506 (1986), or that the Company’s
‘‘ open-door policy’’ would no longer exist. SMI Steel, 286
NLRB 274 (1987).
Considering the statement by Burns in light of these cases,
I conclude he did not violate the Act.
J. Instructing Employees Not to Wear Union Insignia at
the Facility
It is undisputed that on January 9, Supervisor Bill
McClure told employee Roy Webb that the ‘‘union’’ jacket
he was wearing was unacceptable. McClure told Webb that
only Coca Cola jackets were allowed. Webb said that next
time he would leave the jacket in his car, though he contin-
ued to wear it that day. Though unclear from the record, it
appears that Webb did not wear the jacket subsequently.
It is unlawful, absent special circumstances, for an em-
ployer to prohibit employees from wearing union buttons.
Burger King Corp., 265 NLRB 1507 (1982). The Board
treats article of clothing the same as a button. Mack’s Super-
markets, 288 NLRB 1082 (1988).
Since the Respondent offered no special circumstance for
prohibiting the wearing of union jackets, I conclude
McClure’s announcement to Webb violated Section 8(a)(1)
of the Act, notwithstanding that he did not immediately take
off the jacket.
K. Prohibiting Employees from Wearing Hats with
Union Insignia Away from the Facility
Tony Yates testified that on January 10, Early told him he
was ‘‘not supposed to wear anything but Coke uniform, so
you need to get that (union) hat off and put a Coke hat on,
Tony.’’ There followed some conversation about this and
about 3 hours later, Yates was told by production manager,
Bill McClure, ‘‘its okay for you to wear the union hat, since
everyone else is going to wear their sweatshirts, nonunion
sweatshirts, you can wear your hat, but don’t take it out into
the public. I said, okay.’’
Not only did the Respondent not offer evidence of special
circumstances for prohibiting the wearing of union insignia
away from the plant, there is evidence that supervisors wore
‘‘vote no’’ buttons.
The Respondent’s argument on this allegation is that the
prohibition of Yates wearing his union hat at the plant lasted
only 3 hours. The Respondent did not address the further off-
site prohibition. Though the original instruction to Yates was
rescinded, the Respondent never rescinded the general prohi-
bition against wearing union insignia off the premises. Since
there was no showing of special circumstances, I conclude
that McClure’s instruction to Yates was violative of Section
8(a)(1).9
L. Promised Unspecified Promotion Opportunities
In the conversation set forth in section K, between Webb
and McClure, McClure is said to have ‘‘said that he feels
there are ways to get better position and pay throughout the
company.’’
I reject the General Counsel’s contention that implicit in
this statement is a promise of benefit in violation of Section
8(a)(1).
It is also alleged that Agnew made a promise of benefit
to Weldon in conversation about 2 weeks before the election
in which he made the threat found in section F above.
Weldon testified that Agnew ‘‘even offered me a promotion
in the same breath that day, he said, I can promote you if
you like, an I said, no, I am fine right where I am at.’’
Although Weldon declined, in the context of Agnew’s
antiunion comments and threats, the offer of a promotion
was coercive and violative of Section 8(a)(1). E.g., Gencorp
General Tire Division, 294 NLRB 717 (1989).10
M. Informed an Employee that his Union Support
Caused him to Receive a Smaller Wage Increase
Yates testified that on January 3, Early told him it was
time for a regular performance review and said ‘‘we are
going to give you four percent this year, I would like to get
you more money, but your name showed up on the union
committee list and Bill (presumably McClure) and Don
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 This paragraph was added at the hearing. There is no paragraph
O.
Buckmeir had seen your name on the list and I don’t think
it would be very easy to pass any more money through them.
I said, wait a minute, you just tell me that the reason I
wasn’t getting any more money was because they seen my
name on the union committee list. He said, what I really
mean is, the company cannot afford more than a 4 percent
raise this year. I said, okay. He said, I would like to get you
more money next year.’’
Yates’ testimony is undenied; however, what Early is re-
ported to have said is ambiguous. He first said that Yates
was denied more than a 4-percent raise because of his union
activity, but when questioned, said the Company could not
afford more. In view of this, I conclude that Early’s state-
ment was not violative of Section 8(a)(1).
N. Interrogated an Employee About Charges Filed with
the NLRB11
Yates testified that on March 10, Early ‘‘said, you know,
I know you filed federal charges on me, Tony. I said, I don’t
know what you are talking about. He said, you know exactly
what I am talking about, you are the only one under me.
That was about it.’’ Later that day, Yates initiated further
conversation about this.
Again, Yates’ testimony was undenied; however, nothing
in his testimony amounts to interrogation. At best, Early
made a declarative statement that Yates had filed charges. I
do not believe such to be violative of the Act.
O. Impliedly Threatened Employees
The next day, Yates requested a meeting with Early and
McClure because he felt that Early’s attitude toward him had
been ‘‘very negative’’ recently. During this, that Yates had
filed ‘‘federal charges’’ was discussed.
Yates testified that Early said, ‘‘you know, you filed fed-
eral charges on me. It is hard to be nice, I can’t pretend to
be nice. He then said, I could have put you out there in that
pit, which is a wash rack. He said, if you want to change
positions, Tony, we can put you back over there building
pallets, west side shipping. I said, no, Jack, I like my job just
fine. He said, well, you tried to push that union down my
throat and it put pressure on me.’’
The General Counsel argue that by saying he could have
put Yates in the pit, which Yates referred to as a ‘‘dirty,
nasty filthy job,’’ Early made an implied threat. I reject this
argument. I find no threat in Early’s statement, implied or di-
rect. Further, whatever was said was in the course of a con-
versation initiated by Yates. The general tenor of the discus-
sion as related by Yates does not appear coercive. Therefore
I will recommend this allegation be dismissed.
P. The 8(a)(3) Allegations
1. Denying Mark Tate overtime
It is alleged and denied that on November 8, Tate was in-
structed to clock out and go home early, thus denying him
overtime because of his activity on behalf of the Union.
Records of the Company show that of the five team lead-
ers, two received no overtime during the week ending No-
vember 8, one received .30 hours, one .64 hours, and Tate
received .90 hours. That Tate was denied overtime generally
available to other team leaders is not supported by the docu-
mentary evidence. On November 8 he received more over-
time than any other team leader. There is no support for his
testimony that he had not worked 40 hours when told to
clock out. Indeed, the evidence suggests the contrary—that
he had worked 40 hours plus .9 hours overtime.
Further, a review of the summary of overtime for team
leaders from weekending November 1 through weekending
January 31 shows that Tate generally received as much or
more overtime than any other team leader.
It may well be, as Tate testified, that his supervisor told
him to clock out on November 8 and that there was still
work to be done. However, this does not mean that but for
his union activity, Tate would have received more overtime
that day. I do not believe it is reasonable to assume he would
have. Therefore, I conclude that the General Counsel failed
to establish the violation alleged in paragraph 6(a) of the
complaint.
2. Issuing a warning to Mark Tate
It is alleged and admitted that on December 21, Tate was
given a warning for having been absent for scheduled over-
time on December 21. The Respondent denies this was for
reasons proscribed by the Act.
Tate admitted that he was absent on December 21, but
contends that he was given permission. Tate testified that at
the time James Hyrick was the team coordinator and he was
a line employee. Early in the week Hyrick asked Tate if he
could work Saturday and Tate said he could not, he had
planned to take a trip. Hyrick told him this would be no
problem, and he would get someone else to work in Tate’s
place.
Tate admitted that a schedule of who was to work on De-
cember 21 was posted the preceding Wednesday and he was
on the schedule. He contends, however, that he saw no su-
pervisor Friday or Saturday whom he could ask for permis-
sion to be absent on Saturday.
Team coordinators are not supervisors. Notwithstanding
Tate’s suggestion to the contrary, they do not have the au-
thority to give time off (authority which is associated with
supervisory status) according to the credible testimony of
Compton. Compton further testified that there are four super-
visors in the area where Tate worked who would have been
available to give permission for him not to work.
I conclude that Tate was scheduled to work on December
21, did not do so and had not asked to be excused from one
who had the authority to give such permission.
The warning Tate was given the following Monday is cer-
tainly not out of line with his offense, and I conclude that
absent his union activity, under these facts Tate would have
been similarly disciplined. Accordingly, I conclude that the
General Counsel failed to establish the violation alleged in
paragraph 6(b).
3. Limiting the annual pay raise to Tony Yates
As noted above, in early January Early gave Yates his an-
nual performance evaluation which recommended a 25-cents
per hour wage increase. Yates testified that first Early said
he could not get more of an increase because Yates was
named on the union organizing committee. When questioned,
Early said that 4 percent was all the Company could afford.
517GREAT PLAINS COCA-COLA BOTTLING CO.
He added his hope that Yates would be given a larger in-
crease next year.
The raise Yates received is not necessarily inconsistent
with his performance review. Nor is there any evidence that
he was treated disparately. The only evidence tending to
prove this allegation is Yates’ testimony, which I find was
minimal and not particularly persuasive. Given the dearth six
of evidence on this issue, I conclude that paragraph 6(c) was
not established.
V. REMEDY
Having concluded that the Respondent engaged in certain
unfair labor practices affecting interstate commerce and the
free flow thereof, I shall recommend that it cease and desist
therefrom and take certain affirmative action and that the
Board issue the Order set forth below.
VI. REPORT ON OBJECTIONS
Following election, the Union filed timely objections,
which included some of the allegations set forth in the com-
plaint as well as an allegation that the list of employees fur-
nished the Company ‘‘contained in excess of 25% incorrect
employee addresses.’’
The petition was filed on December 5 and the election was
held on January 23. The tally of ballots shows that of ap-
proximately 453 eligible voters, 168 cast ballots in favor of
representation by the Union and 254 were opposed. Thus, the
issue raised by the Union’s objections is whether the Com-
pany’s conduct between December 5 and January 23 was
sufficient to conclude that it affected the results of the elec-
tion, considering the size of the unit, the severity and extent
of the conduct and other relevant factors. E.g., Metz Met-
allurgical Corp., 270 NLRB 89 (1984).
The Respondent contends that none of the activity alleged,
even if true, was more than de minimis, and therefore the
election should not be set aside. The General Counsel took
position on the objections. The Union did not file a brief.
a. The Excelsior list
Mike Harvey, the Union’s agent in charge of this organi-
zational campaign, testified that the list he received from the
Company pursuant to Excelsior Underwear, 156 NLRB 1236
(1966), had 86 to 90 incorrect addresses, based on returns of
mail the Union sent to employees. On the Union’s copy of
the list offered into evidence, there are 94 highlighted names,
79 of which show some handwritten correction to the ad-
dress.
Counsel for the Company stated that based on the Com-
pany’s returned mailings, he would guess that the number of
incorrect addresses was more like 40 or 50. He stipulated the
incorrect number was in the neighborhood of 10 percent. A
subsequent witness for the Company had 38 returned mailers.
It should first be noted that there were simply errors on
the list, not omissions from the list. Further, there is no evi-
dence that errors were part of a plan by the Company or
were even due to the Company’s negligence. While the
Board considers errors less serious than omissions, EDM of
Texas, 245 NLRB 934 (1979), substantial compliance with
the Excelsior rule is required, lest the employer defeat its
purpose: ‘‘to further ‘the fair and free choice of bargaining
representatives . . . by encouraging an informed employee
electorate and by allowing unions the right to access to em-
ployees that management already possesses.’’’ Thrifty Auto
Parts, 295 NLRB 1118 (1989) (citations omitted).
The policy of requiring a company to furnish a list of em-
ployees’ names and addresses is to give the petitioning union
a fair opportunity to communicate with employees. Whether
the policy has been met in a particular case depends on the
number of errors on the list, and whether, even with the er-
rors, the Union has had a fair chance to present its case to
the employees. The fact that the Company may have used
the same list for its mailers is beside the point, since the
Company can, and did, communicate its position to employ-
ees at the plant. Company witnesses testified that they had
at least four meetings with each employee.
The list submitted as a union exhibit has 94 highlighted
names, which are those whose addresses were in error ac-
cording to the Union. Of this, 79 were apparently corrected;
however, it is unknown when the Union received the correct
addresses and whether such was in time to communicate ef-
fectively with the employee. Any question in this regard
must be borne by the Company, since it was the Company
which furnished the list.
From the Company’s witnesses and the stipulation of its
counsel, there is little doubt that at least 10 percent of em-
ployee addresses were wrong. From this I conclude that the
Company did not comply with the Excelsior rule. In a bar-
gaining unit of this size, where employees live in various
towns (but mostly Oklahoma City) errors in addresses which
render a mailer undeliverable seems as serious as the omis-
sion of names. In either case, the Union was not given a fair
opportunity to communicate with these employees. Further,
that the Union may have in fact communicated with most of
the employees whose addresses were in error does not cure
the Company’s breach of the Excelsior rule. Thrifty Auto
Parts, supra.
It is of course unknowable whether this affected the out-
come of the election. But it could reasonably have had a sub-
stantial impact on how a significant number of employees
voted. Therefore, I conclude that the errors on the Excelsior
list were sufficient to affect the results of the election and
on this basis, the election should be set aside.
b. Other objectionable conduct
To summarize, above I concluded that the Company vio-
lated Section 8(a)(1) when it: promised employees that it
would resolve employee grievances in Browne’s January 17
letter; took photographs of picketing on January 23; in-
structed an employee not to wear his union jacket on January
9; instructed an employee not to wear union insignia off the
premises on January 10; and, coercively offered an employee
a promotion 2 weeks before the election.
The last three acts were directed only to one employee of
a unit in excess of 450 and might be considered minimal.
However, Browne’s letter went to all employees and it is
reasonable to conclude that the photographing was seen by
a substantial number of employees.
On balance, therefore, I conclude that the Company’s con-
duct during the critical period was sufficient to affect the re-
sults of the election and that even without the Excelsior vio-
lation, the election should be set aside and a second election
directed.
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Great Plains Coca-Cola Bottling Com-
pany, Oklahoma City, Oklahoma, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their interest in, or
activity on behalf of, the Union.
(b) Threatening plant closure if employees were to select
the Union as their bargaining representative.
(c) Soliciting complaints and grievances with the implied
promise to make changes in order to discourage union activ-
ity.
(d) Threatening discharge, layoff, or loss of jobs in order
to discourage union activity.
(e) Engaging in surveillance of employees’ union activity
by taking photographs.
(f) Instructing employees not to wear union insignia at the
facility.
(g) Prohibiting employees from wearing union hats or in-
signia away from the facility.
(h) Promising promotion opportunities in order to discour-
age employees’ union activity.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility copies of the attached notice, which
is marked ‘‘Appendix.’’13 Copies of the notice, on forms
provided by the Regional Director for Region 17, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
shall be maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees cus-
tomarily are posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that Case 17–RC–10740 is sev-
ered and that the election conducted on January 23, 1992, in
Case 17–RC–10740 is set aside and a new election be held
as directed below.
[Direction of Second Election omitted from publication.]