Pepsi Cola Bottlers of Miami, Inc.

National Labor Relations Board - Board Decisions

Nov 3, 1965

155 N.L.R.B. 527 (N.L.R.B. 1965)

PEPSI COLA BOTTLERS OF MIAMI, INC. 527
There was testimony that, in addition to acting as subcontractor for
A. H. Smith Company, L & S has made contracts in its own name.
However, such contract bids were apparently made only after consulta-
tion with the other. Smith companies and as part of a coordinated bid
subject to A. H. Smith's control.
On the basis of the entire record in this case, particularly the com-
mon ownership, centralized control of labor relations, and the inter-
relation of operations, we find that the Employer and the other A. H.
Smith enterprises at Branchville, Maryland, are a single employer for
unit purposes. We further find that employees of L & S share similar
working conditions and facilities with the employees of the other
Smith companies, particularly those of liquid asphalt division; are
under the same administrative control; and engage in intercompany
transfer. Accordingly, as L& S is so physically and functionally inte-
grated with the other Smith companies and as its employees have such
a substantial community of interest with the employees of the other
companies located at Branchvill.e,s we find the unit of L & S employees
sought by Petitioner is inappropriate and hereby dismiss the petition.'
[The Board dismissed the petition.]
While we recognize that the record facts are incomplete in this respect , it is possible,
in view of what appears to be close coordination between their respective work crews on
construction projects and integration of their facilities at the Branchville site, that a
combined unit of employees of L & S and liquid asphalt division might be appropriate.
However , no party sought such a unit and this issue was therefore not litigated.
7 See Halstead tf Mitchell Co., 151 NLRB 1460.
Pepsi Cola Bottlers of Miami, Inc. and General Sales Drivers &
Allied Employees Union , Local Union No. 198, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Cases Nos. 12-CA-2805 and
12-CA-2999. November 3,1965
DECISION AND ORDER
On May 26,1965, Trial Examiner Thomas S. Wilson issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it case and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision and Respondent filed a brief in sup-
port of its exceptions.
155 NLRB No. 50.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, Respondent's brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner, except as modified herein.
We agree with the Trial Examiner's finding that Respondent pro-
mulgated and enforced an illegal no-solicitation rule against union
organizing in the plant in violation of Section 8 (a) (1) of the Act.
However, in reaching this conclusion, we rely solely on the ground that
the record evidence establishes that the rule in question was promul-
gated and enforced for a discriminatory purpose.
The rule with which we are here concerned was contained in Re-
spondent's "red bordered" notice to employees which was posted in the
plant at the beginning of each union organizational campaign.' Para-
graph 6 of this notice provided as follows :
(6) No person will be allowed to carry on union organizing activ-
ities on the job. Anyone who does so and who thereby neglects his
own work or interferes with the work of others will be subject to
discharge.
The Board on at least two other occasions has passed upon the word-
ing of such a rule and found that it was not an unreasonable limitation
upon the rights of the employees.2 For this reason, we do not adopt
the Trial Examiner's finding that the rule here involved is discrimi-
natory on its face. Nevertheless, although the Respondent's no-
solicitation rule might be valid and enforceable under different
circumstances, the record here demonstrates that Respondent was
motivated by discriminatory considerations in promulgating and en-
forcing the rule. Thus, Respondent posted this sign on two occasions
only, in March or April 1963, and in October 1963,3 for approximately
30 days on each occasion and then took the notice down. We find that,
on each occasion, the motivating reason for posting the notice was the
commencement of union organizing activities, and the reason for its
IIn addition , Respondent had posted throughout the plant other notices prohibiting
solicitations , but the Trial Examiner found, and we agree, that these signs were intended
to be applicable to nonemployee solicitors and not to Respondent 's own employees.
2 White Oak Acres, Inc., 134 NLRB 1145, 1150; Southwire Company, 145 NLRB 1329,
footnote 5.
3 We hereby correct the Trial Examiner 's inadvertent error in stating that Respondent's
"red bordered" notice was posted in March or April 1964 and during the previous Septem-
ber-October union drive , instead of in March 1963 and October 1963, as is reflected by
the record.
PEPSI COLA BOTTLERS OF MIAMI, INC. 529
removal was the cessation of these activities. Prior to the time of
Perez' discharge for alleged violation of the rule, the notice had not
been posted for at least 10 months, which was the last time that major
union organizing activities had been undertaken.
Furthermore, the Respondent made no effort to prevent other types
of solicitations from being carried out by employees on company time
and property .4 For example, in August 1963, some 4 months after the
notice had first been posted, three employees solicited money for the
wife of a fellow employee, James Thrift, and Respondent's officials,
according to credited testimony, contributed to the fund. In No-
vember 1963, after the assassination of President Kennedy, driver-
salesman Merkin solicited funds for the family of Patrolman Tippitt;
General Manager Paige, having been informed of the purpose of the
fund, gave his consent and approval to this effort.
It is well settled that management can prevent employees from solic-
iting for a union during working hours, provided the ban is imposed
on a nondiscriminatory basis. We find that the basis on which the ban
here was attempted to be imposed was discriminatory, because the
times at which the ban was promulgated were restricted to times of
intensive union activity and no other time and other types of solicita-
tions were and had been allowed. Accordingly, we conclude that
Respondent by discriminatorily promulgating and enforcing its no-
solicitation rule violated Section 8 (a) (1) of the Act.5
We also agree with the Trial Examiner's finding that Attorney
Greene's interrogation of employee Alvarez was violative of Section
8(a) (1) of the Act. Like the Trial Examiner, we are convinced that
Respondent intended Alvarez' interrogation to serve as a justification
for the discriminatory discharge of employee Perez.
The events leading to the August 3 discharge of Perez are these. On
July 30, Perez solicited Alvarez to sign a union authorization card on
company premises, but after the work day hed been completed. Alva-
rez accepted the card, but requested time to think the matter over. A
few minutes later, Alvarez reported to his supervisor, Boyd, the fact
that he had been solicited to sign a union card and placed the union
card on Boyd's desk. Although queried by Boyd, Alvarez refused to
reveal the identity of the solicitor. Boyd promptly reported the mat-
ter to General Manager Paige, leaving the union card with him. On
Friday, July 31, Perez asked Alvarez about the card he had given him
the evening before. When Alvarez answered he did not have the card
* In its brief Respondent excepted to the findings of the Trial Examiner that there had
been six incidents of such solicitation . Respondent contends that the General Counsel
failed to prove that those incidents occurred on company time. We note here that the
two incidents described above undeniably occurred on company time and that the other
four incidents occurred on company property, with the time element an unproved factor
in the latter cases.
5 The Wm. H. Block Company, 150 NLRB 341 ; Walton Manufacturing Company, 126
NLRB 697, enfd 289 F . 2d 177 (C.A. 5).
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with him, Perez produced another card which Alvarez signed.6 Fol-
lowing this conversation, Alvarez informed Boyd that he had been
approached again by the same driver to sign a union card and had in
fact done so.
Late that afternoon, Vice President and General Manager George
Mason made an unusual Friday afternoon inspection of 5 of its 70-odd
trucks. The last truck inspected was that of employee Perez. In the
glove compartment of Perez'truck Mason found some union authoriza-
tion cards, one of which was the card Alvarez had signed. Mason,
according to his own testimony, destroyed these cards and reported the
matter to Assistant Sales Manager Johnson.
On Saturday morning, August 1, Boyd asked Alvarez whether he
had signed a union card and was reminded by Alvarez that he had so
informed Boyd the previous afternoon. About 11 a.m., Alvarez was
called into Boyd's office where he found Boyd, Respondent's Attorney
Greene, an interpreter, and a court reporter waiting for him. Alvarez
was then "sworn in" and interrogated by Attorney Greene, the testi-
mony being transcribed by the court reporter.
After identifying Alvarez for purposes of the record, Attorney
Greene advised Alvarez that he wanted to ask some questions "about
this driver coming up and talking to you while we were working."
The very next questions asked of Alvarez were : "Do you know Al
Perez?" and "Did he stop you and try to get you to sign anything last
week while you were on company time and while you were working?"
Alvarez testified in the affirmative to both questions. Thereafter, on
Monday, August 3, Respondent discharged Perez, allegedly for solic-
iting union cards in violation of the Company's no-solicitation rule.
Respondent contends that its interrogation of Alvarez was justified
because it had the right to determine whether or not its no-solicitation
rule had been violated.? While it is true the Board has in some circum-
stances permitted the interrogation of employees for the purposes of
determining whether or not a valid no-solicitation rule has been vio-
lated, it has not heretofore found such interrogation to be permissible
where, as here, it is carried out in support of what we have found to be
an illegal no-solicitation rule that has been enforced and promulgated
for a discriminatory purpose.
The interrogation of an employee concerning his or other employ-
ees' compliance with a no-solicitation rule which has been discrimina-
torily promulgated and enforced constitutes an extension of the rule's
The Trial Examiner found that this second solicitation , like the first, occurred on
nonworking time.
7 Respondent ' s interrogation of Alvarez cannot properly be analogized to those situations
in which the Board has permitted certain forms of interrogation by an attorney in the
course of his preparation of a defense to a complaint , alleging the commission of unfair
labor practices by his client . At the time of the incident , here involved , no charges were
pending against Respondent . See Johnnte'a Poultry Go., 146 NLRB 770.
PEPSI COLA BOTTLERS OF MIAMI, INC. 531
illegal purpose and, beyond that, serves to add to the coercive impact
of the unlawful rule by emphasizing the strict enforcement intended
to be given it. That we believe is the situation here.
Moreover , it is quite apparent that Respondent was well aware of
the fact that Perez was the driver who had solicited Alvarez, as evi-
denced by Attorney Greene's commencement of the questioning with
"Do you know Al Perez ? " and that its purpose in conducting the inter-
rogation was to supply a color of legitimacy to the determination it
had independently reached to rid itself of an active union adherents
For these reasons , we find Respondent violated Section 8 ( a) (1) of
the Act by reason of its agent , Attorney Greene's , interrogation of
employee Alvarez.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner , as modified
herein , and orders that the Respondent , Pepsi Cola Bottlers of Miami,
Inc., Miami , Florida, its officers , agents , successors , and assigns, shall
take the action set forth in the Trial Examiner 's Recommended Order,
as modified below.
1. Paragraph 1(b) of the Trial Examiner 's Recommended Order is
amended to read:
"(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization , to form
labor organizations , to join or assist General Sales Drivers & Allied
Employees Union, Local Union No. 198, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from engaging in any or all such
activities."
2. Add the following as paragraph 2 (b) to the Trial Examiner's
Recommended Order, and renumber the present paragraph 2(b) and
all succeeding paragraphs:
"(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948 , as amended, after
discharge from the Armed Forces."
s The interrogation is also improper because the questioning occurred in the presence
of a court reporter and against a background of demonstrated union animus by Respond-
ent See Lindsay Newspapers, Inc , 130 NLRB 680, enfd. as modified 315 F. 2d 709
(C A. 5) ; Guild Industries Manufacturing and Paul A . Saari, 135 NLRB 971, enfd. 321
F. 2d 108 (C A. 5).
212-809-66-col. 155-35
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Amend the last paragraph of Appendix A to read :
"All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named Union or any
other labor organization."
4. Paragraph 2(d) of the Trial Examiner's Recommended Order is
amended to read :
"(d) Post at its plant in Miami, Florida, copies of the attached
notice marked "Appendix A." s Copies of said notice, to be furnished
by the Regional Director for Region 12, shall, after being duly signed
by the Company's representative, be posted by the Company immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be
taken by the Company to insure that said notices are not altered,
defaced, or covered by any other material."
5. Add the following after the first indented paragraph of Appen-
dix A attached to the Trial Examiner's Decision:
WE WILL NOT unlawfully interrogate our employees concerning
their union activities or the union activities of other employees.
WE WILL NOT promulgate or enforce a rule prohibiting our
employees from soliciting membership in any labor organization
or from engaging in union activities on company property during
nonworking time.
6. The fourth indented paragraph of Appendix A is amended to
read:
WE WILL NOT in any other manner, interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist the above-named
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from engaging in any or all such
activities.
7. Add the following immediately below the signature line at the
bottom of the Appendix attached to the. Trial Examiner's Decision :
NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of th€, United States of his right to
full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
9 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order".
PEPSI COLA BOTTLERS OF MIAMI, INC . 533
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed in Case No. 12-CA-2805 on December 5, 1963, and
upon a charge duly filed on August 3, 1964, and thereafter amended on November 24,
1964, in Case No. 12-CA-2999 by General Sales Drivers & Allied Employees Union,
Local # 198, affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter called the Union, the General
Counsel of the National Labor Relations Board, hereinafter called the General
Counsels and the Board, respectively, by the Regional Director for Region 12
(Tampa, Florida), issued its consolidated complaint dated November 30, 1964,
against Pepsi Cola Bottlers of Miami, Inc., hereinafter called the Respondent. The
complaint alleged that Respondent had engaged in and was engaging in untair labor
practices affecting commerce within the meaning of Section 8(a)(1), (3), and (4)
and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as
amended, herein called the Act Copies of the various charges, the consolidated com-
plaint, and notice of hearing thereon, were duly served upon Respondent and the
Union.
Respondent duly filed its answer admitting certain allegations of the complaint but
denying the commission of any unfair labor practices.
Pursuant to notice a hearing thereon was held in Miami, Florida, on February 9
and 10, 1965, before Trial Examiner Thomas S. Wilson. All parties appeared at
the hearing and were represented by counsel and afforded full opportunity to be
heard, to produce, examine, and cross-examine witnesses, and to introduce evidence
material and pertinent to the issues Short oral arguments were heard from each
counsel at the conclusion of the hearing. Briefs were received from General Counsel
and Respondent on April 5, 1965.
Upon the entire record in this case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Pepsi Cola Bottlers of Miami, Inc., is an Ohio corporation licensed to do business
in the State of Florida, where it is engaged in the manufacture, distribution, and sale
by wholesale of soft drinks at its Miami, Florida, plant. During the past 12 months
Respondent purchased materials valued in excess of $50,000, which were shipped
directly to it from suppliers located outside the State of Florida.
The complaint alleged, Respondent's answer admitted, and I find that Respondent
is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
General Sales Drivers & Allied Employees Union, Local # 198, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
Sometime prior to October 1, 1963, the Union began an organizing drive among
Respondent 's driver-salesmen . On October 1, 1963, the parties agreed to a consent
election in the appropriate unit consisting of Respondent 's driver -salesmen. Pursuant
thereto an election was held in this appropriate unit on October 30, 1963.
Between the date of the execution of the consent election and the date of the
election several incidents occurred-
(1) During a regular Wednesday morning driver -salesmen 's meeting , Supervisor 2
Raul Ordonez ordered the Spanish-speaking driver-salesmen , of whom Respondent
then employed 15 or 16, to wait after the conclusion of the regular sales meeting. At
this ensuing meeting Ordonez told the Spanish -speaking drivers in Spanish , "We will
be fools if we join the Union and whoever votes for the Union or something about
a union, the Company will fire him." Ordonez added: "I am a supervisor , a company
man, and I have to tell the Company if you say something to me about the Union."
'This term specifically includes the attorney appearing for the General Counsel at the
hearing.
2 Since the election, Respondent has referred to the position held by Ordonez as that of
"lead salesman." The Board found on December 16, 1964, and I agree, that Ordonez
was, and Is, a supervisor within the meaning of the Act.
534 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Ordonez further stated that the Spanish-speaking drivers had to be careful because if
the Union "won the election, every driver was going to be fired." 3
(2) Also during this same period Vice President and General Manager George
Mason inquired of driver salesman Sidney Merkur it he had signed a union card and
if he believed in the Union. Merkin denied having signed a union card and admitted
antipathy to unions due to previous experiences. Subsequently on October 30, Mason
selected Merkin to be the company observer at the consent election, accoiding to
Mason, by "pure chance." 4
(3) Employee Acosta testified that shortly prior to the October 30 election he was
called to the office of General Manager Paige where, in the presence of Paige, Mason,
and Assistant Sales Manager Edward E. Johnson, he was asked if any member of
the Union had approached him to sign a union authorization card After Acosta
denied having been approached, Ordonez informed Acosta that Acosta "couldn't
belong to a union because [he] used to be an owner of a company in Cuba " .;
As a result of the above incidents, on January 7, 1964, Respondent and the Union
entered into a settlement agreement of charges filed by the Union in Case No 12-CA-
2805, containing the not unusual caveat that "by the execution of this agreement, the
undersigned employer does not admit it has violated the Act," whereby Respondent
here agreed to comply with all the terms and provisions of the following notice
which Respondent agreed to, and did, post at its plant:
We WILL NOT interrogate our employees concerning their membership in, or
activities in behalf of the General Sales Drivers & Allied Employees Union, Local
No. 198, or any other labor organization.
We WILL NOT in any other manner interfere with, restrain or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist said General Sales Drivers & Allied Employees Union, Local No. 198, or
any other labor organization, to bargain collectively through representatives of
their own choosing and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.
On December 16, 1964, following a hearing on challenges to certain votes at the
consent election of October 30, 1963, at which, among others, employee Alberto
Perez testified at the request of the Union, the Board issued a decision certifying the
Union as the bargaining representative of Respondent's driver-salesmen.
In March or April 1964 the Union began organizing the plant employees of
Respondent. As had previously occurred during the September-October drive among
driver-salesmen, Respondent posted in its lobby a red-bordered notice reading as
follows:
TO ALL EMPLOYEES
Since the Union has been putting on a campaign to get in here, some of you
have been asking questions in regard to the following matters We have decided
to state the Company's position on these subjects as clearly as we can for every-
body alike:-
(1) This matter is, of course , one of concern to the Company. It is,
however, also a matter of serious concern to you and our sincere belief is
that if this Union were to come into this Plant, it would not work to your
benefit.
'On cross-examination Ordonez acknowleged the fact of the meeting but denied having
made statements roughly paraphrased from the above findings For the purposes of this
case I assume that Ordonez intended his denials to apply to the statements actually
attributed to him.
Ordonez described his statements at this meeting as follows:
A. I told them my situation was different in this country, different from the United
States citizens, and we shouldn't get involved in any labor situation in my opinion.
Q. That that was your opinion
A. Right.
The coercive effect of this admitted statement upon Spanish-speaking employees in
Miami is not saved by the addition of the words "in my opinion," even if perchance added
at the meeting. However, from the credited testimony of the other witnesses to the event,
I further find that the phrase was not used at the meeting.
4 Mason admitted speaking to most, if not all, of Respondent's employees in "explaining"
Respondent's position against the Union. As noted infra, Mason was successfully im-
peached whereas Merkin appeared to be an honest witness despite the fact that Respondent
had enforced in court a "noncompetitive" clause of his employment agreement with
Respondent against Merkin I credit the testimony of Merkin as found above
e A11 four company officials unanimously denied that any such meeting occurred.
PEPSI COLA BOTTLERS OF MIAMI, INC. 535
(2) It is our positive intention to oppose this Union and by every propel
means to prevent it from getting in here.
(3) We would like to make it clear that it is not necessary, and it is not
ever going to be necessary, for anybody to belong to any Union in order
to work in this Plant.
(4) Those who might join or belong to this Union are not going to get
any advantages or any preferred treatment of any sort over those who do
not join or belong to any Union.
(5) If anybody causes you any trouble at your work or puts you under
any sort of pressure to join the Union, you should let the Company know,
and we will undertake to see that this is stopped.
(6) No person will be allowed to carry on Union organizing activities on
the job. Anybody who does so and who thereby neglects his own work or
interferes with the work of others will be subject to discharge.
Anybody who tells you anything contrary to any of the foregoing is not tell-
ing you the truth .6
Admittedly the posting of this statement of this company "position" constituted an
integral part of Respondent's campaign to keep unions out of its plant. It was
Respondent's custom to post this notice during the period a union organizing cam-
paign was in progress at the plant. Respondent had also posted this red-bordered
notice in October during the Union's campaign among the driver-salesmen.
In addition there were two painted signs, one near the check-in booth and the
other in the plant proper, which read: "Private Property. No soliciting and no
loitering." 7
Also in the lobby leading to the executive offices, rarely visited by employees, there
was another posted sign which read substantially as follows: "No solicitations-all
solicitations must be submitted to the Better Business Bureau."
In reference to the signs, other than the red-bordered one, General Manager Paige
testified as follows:
A. Well, I think that the main situation would be insurance collection. Some
of our plant people buy insurance by the week and habitually these insurance
collectors would come in and try to come into the yard and our checkers who
are in charge of the yard have instructions that no insurance collectors have a
right on our premises, that they must wait outside of the gate to make collections.
Q. Do you in fact enforce that and keep these insurance collectors outside
the gate?
A. Yes, we do.
It is admitted that Respondent has no written statement of company policy nor any
rules and regulations for the guidance of its employees. Further, Respondent admits
that it has never orally expounded to its employees any such rules and regulations or
any statement of company policy, even though many of its employees only speak the
Spanish language.
6 Either this or almost identical notices appear to have been quite prevalent in southern
United States. See, for example, White Oak Acres, Inc., 134 NLRB 1145, and Soathu;ire
Company, 145 NLRB 1329.
7 According to some witnesses the final word on these painted signs was "loafing"
instead of "loitering."
The evidence showed that these signs were not painted by the present Respondent but
were in existence at the time the Respondent acquired the property. Respondent's own
witnesses indicated their own uncertainty as to the exact terminology of the painted signs,
thus indicating their own lack of familiarity therewith. Although there is a considerable
distinction between "loitering" and "loafing" which could be of some importance here,
Respondent failed, even on the second day of the hearing, to produce evidence making
that terminology certain. In view of this and in view of the fact that the burden of
proving the existence of a valid "no-solicitation" rule rested upon Respondent, I find
that final word on the painted signs was "loitering."
On page 87 and 88 of the transcript of this proceeding the reporter has, for reasons
known only to himself, interlined "(loafing)" over the word "loitering" in an answer
given by the witness Crawford and in a question by General Counsel. It being clear from
the transcript, as well as in my notes and memory, that the word used in each of these
instances was the word "loitering," I will on my own notion strike said interlineations.
No objections having been received to General Counsel's "Motion to Correct Record"
dated March 12, 1965, said motion is hereby granted.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the past 2i/2 years Respondent's employees have been solicited at work for
contributions by fellow employees on a number of occasions:
(1) About 21/2 years prior to the hearing in the instant matter employee Clarence
Crawford solicited funds from employees in the plant to help employee Morris Ford
finance a hernia operation without objection from Respondent.
(2) On another occasion about August 1963, employee Charles Westmoreland
and two other employees solicited money in the plant for fellow employee James
Thrift in order to help him with certain personal hospital bills. Respondent officials
Johnson and Mason contributed, Respondent made no investigation of, or objection
to, this solicitation.
However, when the union organizational drive among the driver-salesmen began
about October 1963, Respondent posted at the check-in counter its red-bordered
statement of policy with its paragraph 6 forbidding solicitation of union memberships
on company property.
(3) In February 1964 employee Jose Diaz started soliciting funds to assist
employee Lydia Oakley, a bottle inspector for Respondent, who had suffered burns at
her home thereby losing a week's work. Boyd contributed to this fund and reported
the matter to Paige who, in turn, contrary to Respondent's general policy, ordered
Boyd to pay Oakley 1 week's salary and to have the contributions returned to the
employees.
(4) Shortly after the assassination of President Kennedy, driver-salesman Sidney
Merkin began soliciting funds among Respondent's employees for the widow of slain
policeman Trippett. Merkin sought contributions from various officials of Respond-
ent which, in turn, caused General Manager Paige to approve Merkin's efforts and to
agree that Respondent would match whatever contributions the employees made.
(5) A month or more prior to August 1964, driver-salesman Jorge Gonzalez lost a
sales pouch containing sales receipts amounting to approximately $50. Driver-
salesman Alberto Perez thereupon took up a collection from the driver-salesmen as
they reported back from their routes and from other employees in the plant. After
the collection had been turned over to Gonzalez, Gonzalez posted a letter of apprecia-
tion at the check-in office. Respondent, the ultimate recipient of the solicitation by
Perez, made no investigation of, or objection to, this solicitation.
(6) Sometime during the year 1964 Supervisor Raul Ordonez solicited funds from
Respondent's employees in order to help employee Puchates following an accident
which kept him from work. Respondent made no investigation of, or objection to,
this solicitations
Between 5 and 6 p.m. on July 30, 1964, after both men had ended their workday
but were still on company property, Alberto Perez solicited tow driver Hector Alvarez
to sign a union authorization card. Alvarez accepted the card but requested time to
think the matter over to which Perez agreed.
Five minutes later Alvarez reported the matter to his supervisor, Richard Boyd, in
Boyd's office. According to the testimony of Alvarez, which is in substantial agree-
ment with the testimony of Boyd, Alvarez reported as follows
A. (In English) ' "Look, Mr. Boyd, somebody giving me this card for the
Union. I don't want a union and I don't want to throw away any fellow. Here
is a problem. I signed this card " He [Boyd] says, "Who give it to you9" "This
is not the problem, who gave it to me. The problem is I like you to understand
that I don't want the Union and I don't want to throw away my fellow. It's a
problem. I don't put on a sign The problem is I have an election and I don't
want a Union, or want a Union I put my sign on." "That is not my problem,"
he said, "that is not my problem." "And that's all I want to tell you," I said.
Following this conversation Alvarez left the office leaving the union authorization
card with Boyd. Alvarez explained this as follows:
A. I talk to him about it [the union authorization card] and I put it on top of
his [Boyd's] desk and then I just forgot to pick it up before I left. It might have
been that I just didn't want him to think that I was too interested in signing that
card.
8 Although the date of the solicitation of Ordonez on behalf of Puchates is indefinite in
the record. Johnson estimated that the injury occurred "around September" 1964. The
part of Ordonez in this solicitation was not denied.
0In general Alvarez testified in Spanish through an interpreter because of his difficulty
in expressing himself in English. As his report to Boyd was admittedly made in English,
he was specifically asked to answer this question in English.
PEPSI COLA BOTTLERS OF MIAMI, INC. 537
Boyd promptly reported this matter to General Manager Paige leaving the union
authorization card with him.10
On Friday , July 31, 1964,11 Perez asked Alvarez about the card he had given him
the evening before Alvarez answered that he had left a card "at home." Perez
thereupon stated that that was all right , secured another authorization, and offered it
to Alvarez for signature . Alvarez signed it 12
Shortly after lunchtime , according to the testimony of Alvarez and Boyd , Alvarez
met Boyd while working with his tow truck and informed Boyd that he, Alvarez, had
been approached again by the same driver to sign a union card and had in fact done
so. Boyd answered , "It's all right, Hector." 13
That Friday afternoon Vice President and General Manager George Mason made
an unusual Friday afternoon inspection of the trucks of five driver -salesmen as the
drivers returned from their routes and before they had left the plant. The last truck
io Boyd's testimony on this point is revealing:
Q. [By the TRIAL EXAMINER I Now, as I get your testimony, Mr. Alvarez first re-
ported to you on Thursday?
A. Yes, sir.
Q Did you report that conversation to any of your superiors?
A. No, sir.
Q You didn't report that to anyone?
A. No, sir.
Q. Have I brought up anything that anyone wants to inquire about"
Mr. JEFFERS: Yes, sir.
Mr. WILSON: All right.
(By Mr. JEFFERS ) One moment. Do you recall giving a statement to the National
Labor Relations Board, Mr. Boyd?
A. Yes, sir.
Q. Now, after your first conversation with Mr. Alvarez didn't you tell Mr. Paige
about that?
A. I was just thinking about that. I did mention that to Mr. Paige, that he had
been approached to sign a card.
Q. (By the TRIAL EXAMINER.) Now, was this the Thursday conversation that you
reported or the Saturday conversation?
A. Both.
Q You reported both 9
A. Yes, sir. The first one, I mean, I just told him that he had been appioached
to sign the card and there was no long conversation about it.
Q. (By, Mr. JEFFERS ) You gave Mr Paige the card, too?
A. Yes, sir.
Mr. JEFFERS: I have no further questions.
Mr. GREENS: Nothing further.
ii There is dispute in the testimony as to the exact time. Perez testified that his second
solicitation of Alvarez occurred early in the morning before work and outside the plant
whereas Alvarez testified that the solicitation occurred between 12:30 and 1 p in inside
the plant. Alvarez' testimony given through an intepreter on this point was as follows
on direct examination:
A. We started to work at 12 40 and as soon as I started the first thing I did was
to go in and get gas for my tow motor and that was what I was on my way to do
Q Were you working on the second occasion when Mr. Perez talked to you?
k 3 C * * • d
The WITNESS: (through the interpreter) Yes, I was. [Emphasis supplied
It thus appears that, even if the testimony of Alvarez is accepted, this second solici-
tation occurred within moments of Alvarez' lunch period, either just before its end or just
after its end.
13 Again there is a conflict with Perez testifying that Alvarez signed the card against
the outside wall of the plant whereas Alvarez testified that he signed on the left front
fender of Perez' truck inside the plant Testimony by Perez that his truck was built
without fenders remain uncontradicted in this record
Accordingly, if this conflict had to be resolved, I would credit the testimony of Perez
13 Boyd admittedly became confused as to the number of conversations on this matter
he had with Alvarez. In his testimony Boyd omitted this Friday afternoon conversation
although the whole testimony in this record proves that Alvarez was correct I accord-
ingly credit the testimony of Alvarez, who was essentially an honest witness, albeit
admittedly frightened at the idea of executing a union card as indicated supra
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so inspected was that of Alberto Perez. In the glove compartment of the truck driven
by Perez, Mason found-and , according to his evidence , destroyed-some union
authorization cards, one of which was the card Alvarez had signed.14
That afternoon 15 Mason reported to Assistant Sales Manager Johnson his finding
and throwing away of these union authorization cards in the Perez truck.
About 5 p.m. that day Perez again saw Alvarez and said, "Look brother, the card
that you signed for me was taken from my truck " To this Alvarez, having already
spoken to Boyd about the matter , answered : "It's all right, there is no problem."
On Saturday morning, August 1, Alvarez reported at the plant seeking overtime
work. Boyd came up to him and asked, "Hector, did you put your signature on a
union card?" Alvarez reminded Boyd that he had so informed Boyd the afternoon
before and Boyd replied , "Oh, yes, . . . all right."
About 11 a.m. that Saturday, August 1, Alvarez was called into Boyd's office
where he found Boyd, Respondent's Attorney Greene, an interpreter, and a court
reporter waiting for him. Alvarez was then sworn in and interrogated by Attorney
Greene with a transcript being made thereof by Harry E. Coleman, a court reporter
and notary public.
After four questions eliciting Alvarez ' name, occupation , and length of company
service, this transcript continues:
Q. Hector, I want to ask you some questions, not about how you feel about
the Union or what you may do away from the plant. I merely want to ask you
some questions about this driver coming up and talking to you while you were
working. Do you understand that?
A. Yes, sir.
Q. Do you know Al Perez?
A. Yes, I know him. He drives truck 111.
Q. Did he stop you and try to get you to sign anything last week while you
were on company time and while you were working?
A. Yes.
Q. What did he do or say to you?
A. This guy stopped me inside of the plant and handed me a card. He told
me that everybody was signing these cards for the Union and he asked me to
sign one. When I got the card I didn't want to get into any trouble with the
Union, so I handed it to Mr Boyd. The next day when I came back to the plant
I saw this guy on the job. He was on a reload, and he asked me again if I had
14 Paige and Mason estimated that 90 percent of the allegedly weekly truck inspections
made by Respondents were made on Saturdays while the trucks were all parked in plant
confines . This percentage may well be low because driver-salesman Crawford knew of
only one other such inspection during his 5 years as an employee
Mason ' s testimony on this point is also revealing. On direct examination he testified
as follows:
Q. Approximately how many [union authorization] cards did you find's
A. There was-well, I couldn't give you the exact number, but approximately four
or five I would say.
Q Were they blank cards or were they signed'
A. Blank . . .
On cross-examination by General Counsel Mason testified as follows
Q. Now, were these union cards that you removed from Mr. Perez' glove conipait-
ment in his truck, were they signed or unsigned, sir's
A. I don't know, I answered that before I didn't look at them
Q. I am sorry I understood you to say that they were signed but you say that you
can't say now whether they were signed or unsigned'?
A. I said before that they were cards that I just took out and threw away.
Q. Are you sure they were union cards'
A. Yes, sir.
Q. Flow did you know they were union cards?
A. The tops of them said so.
Q. You looked at the tops"
A. Yes.
Mr. JEFIuxas • You did I have no further questions.
Q. (By Mr. GREENE ) Did you see any signatures on those cards, Mr Mason?
A. No.
Q Then as far as you know they were unsigned
A. Yes, sir.
15 Mason , like Boyd, was indefinite as to dates and times.
PEPSI COLA BOTTLERS OF MIAMI, INC, 539
signed the card. I told him that I had left the caid at home. He told me that
that wasn't any problem about the signing the card, so he handed me another
card and I signed it.
Q. At the time that this man Al Perez talked to you about the card, were you
working?
A. Yes.
Q. On both occasions were you working?
A. Yes.
Q. Was Al Perez supposed to be working too?
A. Yes, he was working because he was inside the plant.
Q. What time of the day was the first occasion [solicitation]?
A. Close to 6 o'clock in the evening.16
Q. And what time was the second conversation?
A. Around 1 p.m.
About 6 30 or 7 a.m. on Monday, August 3, when Perez next reported for work, he
was met at the plant gate by Assistant Manager Johnson, who, in the presence of
employees Carlos, Parliticci, and Roberto Gonzalez, requested his salesman's keys
from Perez and, upon receiving them, informed Perez he was fired for participating
in union activities at the plant Johnson thereupon turned on his heels and walked off.
At the next Wednesday morning sales meeting following this discharge Johnson
took occasion to tell the assembled driver-salesmen that "Perez was fired for union
activities which was against the law and company policy " Johnson ended this state-
ment by saying, "Anyone else practicing this would be discharged."
Johnson's testimony differed from the findings of the above two paragraphs only in
that instead of the term "union activities," Johnson testified that he said "for soliciting
union cards on company time and property." None of the other witnesses to either
of Johnson's statements heaid anything said about "soliciting union cards," or "com-
pany time and property." Although Johnson's testimony indicates an interesting
familiarity with the legal terms applicable to this Act, I must credit the other witnesses.
The following cross-examination of Roberto Gonzalez, a witness for the General
Counsel, who was present, is noteworthy:
Q. [By Mr. GREENE ] Did you see the subpena or a piece of paper asking you
to come down here?
A. Yes, sir, right here .
Q. When you got it, did you call Mr. Johnson about it9
A. Yes, sir.
Q. Over the telephone?
A. Yes.
Q What did you say to him9
A. See, I thought it was a little trap and I told Mr. Johnson I had a letter from
the National Labor Relations Board and he says to me, well, I am going to tell
you the truth on this, now, he says to me, well, all you have got to say is that I
heard I said, what do you mean by what I heard9 He said, yes, Perez was fired
for union activities on company time which hadn't been said before, not to my
knowledge, you know, not to my knowledge
Q. Did Mr. Johnson tell you to come down and tell you to testify at the
hearing?
A He didn't tell me that exactly, but he said to tell that that is the truth of
everything.
Q He told you to tell what you knew and what you had heard, didn't he?
A. What you knew and what you heard and then he says to me that he was
fired for union activities on company time, and I didn't hear that before.
16 It is interesting how effectively the few factual answers permitted to Alvarez in this
deposition dissipated the impression Respondent's attorney was attempting to create
through his leading and suggestive questions If, as suggested in one of the questions
asked, Alvarez was still working at 6 p in , then Alvarez must have been on duty for 11
or 12 hours. In his testimony at the instant hearing, Alvarez testified that both he and
Perez had already punched out on the first occasion and that he, Alvarez, had either just
started working or "was on his way" to start working on the second occasion.
It is admitted that Respondent had no set hours of employment for driver-salesmen but
that such employees were permitted to work according to their own convenience and
inclination.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Isn't it a fact, Mr . Gonzalez , that Mr Johnson asked you over the telephone
about what you had heard him say at the time Perez was discharged , and didn't
he ask you to tell him what you had heard?
A. Yes, but that wasn 't what I heard.
Q. He asked you what you had heard and you told him that you had heard
him say, give me your keys you are fired for solicitation for the Union on com-
pany time'1 Now , isn't that what he said over the telephone"
A. Yes.
Q Is that what you said over the telephone?
A. That is what he says
Q. Is that what you told him over the telephone?
A. No.
Q. In other words, it is your testimony that you did not tell Mr. Johnson over
the telephone-
A. Yes.
Q. Wait just a minute , you did not tell him over the telephone that you heard
him say that you are fired for soliciting for the Union on company time?
A. I didn't tell Mr. Johnson.
Q. You didn't tell him that?
A. Wait let me tell you. I called Mr. Johnson and I told him about the paper
I have and he says to me, all you have to say is what you heard I said, and what
did I heard , and he says to me Al Perez was discharged for soliciting on company
time and I never heard that that was company time . I never heard that when he
fired Al Perez but that is what he says to me.
Q. What did you say to Mr Johnson after he said that to you?
A. I say, all right , and I hang up the phone.
Johnson was asked no questions about this telephone conversation and hence the
above remained undenied.17
B. Conclusions
1. Discharge of Perez
As found above, Respondent Official Johnson told Alberto Perez at the time of his
discharge and the other driver-salesmen a few days later at a sales meeting that Perez
was discharged for engaging in union activities at the plant The facts fully confirm
the correctness of Johnson's admission. In short. General Counsel proved a conclu-
sive puma facie case that Respondent had discriminated against Perez because he had
engaged in union activities at the plant
Respondent attempted to exculpate itself from this pi inia facie case on the ground
that the Respondent had a valid, existing, no-solicitation rule in the plant and that it
discharged Perez for having breached that no-solicitation rule and not for having
engaged in protected union activities.
The Supreme Court in N L R B v Babcock & Wilcox Company, 351 U.S. 105, 113,
stated the general rules as to "no-solicitation rule for employees of nonretail estab-
lishments," such as Respondent here, as follows-
. No restriction may be placed on the employees' right to discuss self-organiza-
tion among themselves, unless the employer can demonstrate that a restriction
is necessary to maintain production or discipline. Republic Aviation Coip. v.
N L R.B, 324 U.S 793, 803. [65 S Ct. 982, 988, 89 Led. 1372 1
As Respondent is relying upon the existence of a no-solicitation rule as a defense,
it has assumed a burden of proving the existence and the terms of a nondiscriminatory
no-solicitation rule as well as the necessity for the existence of such a rule.
Respondent offered no evidence on the question of the necessity for such a rule
other than that the two episodes involved here consumed a total of 4 to 6 minutes, or
2 or 3 minutes each. This amount of time is hardly sufficient to justify the necessity
for the existence of the rule. It is in fact minimal and hardly qualifies as "interfer-
ence" with one's job. Especially is this so if one compares the amount of time which
subsequently has been and will be spent on these two short episodes by innumerable
persons before this matter is finally concluded. Proof of necessity is lacking here
is If this episode had been alleged in the complaint, I would have found it to have
constituted a violation of Section 8(a) (1) of the -let on the theory expressed by the Boaid
in its footnote in the Hilton Credit Corporation, 137 NLRB 56.
PEPSI COLA BOTTLERS OF MIAMI, INC. 541
In the admitted absence of any written rules and regulations governing the conduct
of its employees as well as the acknowledged lack of any oral exposition of a no-
solicitation rule to its employees, Respondent's proof of the existence of such a rule
depends upon certain signs on company property:
(1) Two painted signs in existence when Respondent acquired the premises
reading:
Private property-no solicitations and not loitering [or "loafing"].
(2) One notice posted in the lobby of the plant, rarely used by employees, saying
in substance:
No solicitations-all solicitations must be approved by the Better Business
Bureau.
It is clear from the terminology and location of these signs, as well as General Man-
ager Paige's own explanation regarding their purpose in excluding collectors of weekly
insurance premiums from Respondent's employees, that these permanent signs were
intended to be applicable to nonemployee solicitors-and not to Respondent's own
employees.
Indeed Respondent's employees had no idea that these signs had anything to do
with them. The record is clear that at least six solicitations were carried on by
employees, or a supervisor, among Respondent's employees during the 2'h years
prior to the present hearing without objection or investigation by Respondent, some of
whose officials even contributed thereto. Therefore, not only the terminology of the
signs but also the enforcement thereof proves that these so-called no-solicitation rules
had nothing to do with Respondent's employees.
However, even if construed as being applicable to employees as Respondent
attempts to do here, these signs are invalid as a no-solicitation rule for the reason that
they are too broad and illegally prohibit solicitations on the employees' own time as
well as on company time.
(3) The third and last sign Respondent relies upon is the red-bordered sign which
Respondent customarily posted at the beginning of each union organization cam-
paign as an admittedly integral part of Respondent's own campaign against the Union
and then removed at the conclusion of that campaign. Paragraph 6 of these signs read
as follows:
(6) No person will be allowed to carry on union organizing activities on the
job. Anybody who does so and who thereby neglects his own work or inter-
feres with the work of others will be subjected to discharge.
Although distinctly labeled as being applicable to the employees, this paragraph 6
as a no-solicitation rule is invalid and illegal in that it was promulgated solely to pre-
vent union organization, does not even purport to prohibit anything except solicita-
tions on behalf of the Union, is not a general rule against all solicitations, and conse-
quently is in and by itself discriminatory and a violation of Section 8(a) (1) of the
Act, especially in the absence of any proof of its necessity for production or discipline
or any other reason other than to stop union organizing. It was not even posted or in
effect at the time in question here Therefore, said paragraph 6 is illegal and of no
assistance to the Respondent here.
Accordingly 1 must find that at the time of the discharge of Perez there was no
valid, existing, legal no-solicitation rule applicable to the employees of Respondent's
plant, despite Respondent's efforts to concoct one for use in this case.
Further the record here is clear that, at least until the appearance of Respondent's
labor relations counsel late Saturday morning, Respondent's sole interest in these
solicitations was to learn the identity of the Union's solicitor and to stop his activities
because his solicitations were being made on behalf of the Union. Otherwise Boyd
would not have limited his interrogation of Alvarez to the question of "who" and
Mason would not have been searching for, and more particularly destroying, personal
property not belonging to Respondent found by him in the Perez' truck which, in this
case, significantly consisted of union authorization cards of which one had already
been executed. Therefore Respondent's interest was to stop union activity among its
employees.
The first apparent interest by Respondent in any alleged breach of a no-solicitation
rule came simultaneously with the arrival of Respondent's counsel late Saturday morn-
ing when he took a deposition from Alvarez. An examination of this deposition
demonstrates that Respondent's attorney was only interested in creating the impression
of an alleged violation through his use of leading and suggestive questions and not
in proving an actual violation of any such rule through the determination of the actual
facts of the situation Obviously the object was to create a pretext with which to
discharge Perez for his solicitations on behalf of the Union.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indeed if counsel had been interested in facts, he would have learned, as determined
here, that at the time of the first solicitation on Thursday both Alvarez and Perez had
checked out and were on their own time, a fact counsel could have suspected from the
6 o'clock hour at which Alvarez then said the solicitation occurred, and that any
breach of the alleged no-solicitation clause on Friday depended, even accepting Alva-
iez' version, upon whether Alvarez had "just" started work or "was on his way" to
start work after his lunch break. Thus, if there were a breach on Friday, it was more
theoretical than real and further constituted no real interference with the job.
But Greene's purpose on Saturday was not to determine from facts as to whether
or not a breach had in fact occurred but, on the contrary, was designed to provide
some semblance of a legitimate reason for discharging Perez even though the real
reason Respondent was about to discharge him was the fact that he had been engag-
ing, to Respondent's knowledge, in protected union activities.
On all the facts here involved I must find that Respondent discharged Perez because
it knew that Perez had been engaging in protected concerted union activities, that at
the time involved here Respondent had no existing, valid and legal no-solicitation rule
at its plant, and that Respondent's contention that it had discharged Perez for alleg-
edly violating or breaching such a no-solicitation rule was a mere pretext and an
attempt to hide the fact that it discharged Alberto Perez on August 3, 1964, because
he had engaged in protected concerted union activities in violation of Section 8(a) (3)
and (1) of the Act. I so find.
The amended complaint also alleged that Perez was discharged because he gave
testimony under this Act It is true that in 1963 subsequent to October 30, 1963,
Perez did so testify. But the facts show that thereafter Perez worked steadily for
Respondent from that time to August 3, 1964. While his having given testimony in
1963 served to identify him to Respondent as a union adherent, there is no showing
that he would not have continued thereafter in Respondent's employ but for his hav-
ing engaged in his further union activities on July 30 and 31, 1964.
Under these circumstances I will recommend that the Section 8(a) (4) allegations
of the present complaint be dismissed
2. Interference, restraint, and coercion
(a) At the Wednesday morning sales meeting following the discharge of Perez,
Assistant Sales Manager Johnson took occasion to inform Respondent's driver-
salesmen that Perez had been discharged for engaging in union activities at the plant
which was "contrary to the law and company policy" and that "anyone practicing
that would be discharged "
Johnson's statement that such activity was "contrary to the law and to company
policy" is incorrect on the first count at least. The law is quite clear that, absent an
existing, valid prohibitory rule, solicitations for a Union or other union activities on
company property do not lose the protection of the Act merely because they occur
on company time.18 And, as found above, Respondent had no existing valid no-
solicitation rule in effect at the plant. An employer may not justify a discharge of an
employee for engaging in union activities on company time and property when the
rule preventing same remains uncommunicated to the employees. This is not to say
that an employer may not properly and explicitly notify its employees that it is insti-
tuting a valid, legal, nondiscriminatory no-solicitation rule binding upon its employ-
ees But Respondent here had not done so.
Thus Johnson's threat was intended to interfere with, restrain, and coerce Respond-
ent's employees into refrainmg'from engaging in protected, concerted union activities
guaranteed to them by Section 7 of the Act and, thus, violated Section 8(a)( I) of the
Act 19 I so find.
(b) Boyd's interrogation of Alvarez on Thursday also was a violation of Section
8(a) (1) of the Act in that by asking the question "who" Boyd was illegally seeking
the identity of the individuals engaging in union activities protected by the Act.
is Walton Manufacturing Company, 126 NLRB 697; Anderson-Rooney Operating Com-
pany, etc, 134 NLRB 1480, 1490; New Orleans Furniture Manufacturing Company, 129
NLRB 244, 251.
19 Assuming, arguendo, the correctness of Johnson's testimony that he used the phrase
"on company time and property" at this sales meeting, the result would be the same under
the circumstances of this case where the proof showed that Respondent had no rule and
in addition , permitted all other types of solicitation except those on behalf of the Union
on company time and property.
PEPSI COLA BOTTLERS OF MIAMI, INC. 543
(c) On Friday afternoon, soon after receipt of the information that Alvarez had
been solicited to join the Union and almost immediately after his subsequent report
to Boyd that he had executed a union authorization card, Mason inspected some four
of five company trucks, ending this inspection upon the discovery of four or five union
authorization cards in the glove-compartment of the Perez' truck where employees
generally keep their personal property. After destroying these cards, one of which
Alvarez had signed, Mason reported his find to Johnson
The complaint alleged that this Friday inspection amounted to interrogation and
surveillance over the union activities and was, thus, a violation of the Act, wheieas
Mason testified that it was merely part of Respondent's routine weekly checkup on its
70-odd trucks.
The proof here showed that at least 90 percent of the time such routine inspections
occurred on Saturdays while and because all of Respondent's trucks were then parked
within the plant confines For the purpose of insurance, as well as of efficiency, this
makes sense. The inspection here in question, however, occurred on Friday after-
noon, the first convenient occasion after the receipt of the information about union
solicitation and the first possible occasion after knowledge that Alvarez had executed
such a card for a driver-salesman. It occurred just as the trucks were being returned
to the plant premises from their routes, while the drivers were still at work and prior
to the trucks having been parked. It encompassed but 4 or 5 of Respondent's 70
trucks. It ended immediately upon the discovery and destruction of the union cards
including the executed one. Mason promptly reported the discovery of this union
material in the Perez truck to Johnson. And, at the deposition the following morning,
Attorney Greene's first question, after ascertaining Alverez' name, occupation, and
length of service with Respondent, was "Do you know Al Perez?" 20
These facts convinced me, contrary to the testimony of Mason, that this unusual
Friday inspection of four or five trucks was not the normal weekly truck inspection
but was, in part at least, for the purpose of confirming the fact of the existence of
union activity, ascertaining the identity of those engaged therein and securing proof
thereof in order, as actually happened the next working day, to stop the individuals
from engaging in such activities. The discharge which followed gave substance to
Johnson's coercive remarks at the Wednesday sales meeting. Accordingly, I find the
Friday inspection to have constituted an illegal interrogation into and surveillance of
protected concerted union activities and a violation of Section 8(a)(1) of the Act.
(d) The complaint alleged that Attorney Greene, as agent for Respondent, "inter-
rogated an employee [on August 11 concerning his membership and activities on behalf
of the Union, as well as the union membership and activities of other employees."
The Board and the courts have permitted an employer's attorney to interrogate or
interview employees about matters involving the rights of employees guaranteed in
Section 7 for certain limited legitimate purposes if certain specified safeguards
designed to minimize the coercive impact of such interrogation are practiced.
The specific matters which the Board and courts have recognized as legitimate, so
far, have been: (1) the verification of a union claim of majority representation to
determine whether recognition should be extended to the Union; and (2) the inves-
tigation of the facts concerning issues raised in a charge or complaint in order to pre-
pare Respondent's defense.
The required safeguards which must be taken even then have been listed as: (1) to
communicate to the employee involved the purpose of the questioning, assure him
that no reprisals will take place, and obtain his voluntary participation; (2) the ques-
tioning must occur in a context free from employer hostility towards the Union and
not be itself coercive, and (3) the questions must not exceed the necessities of legiti-
mate purpose involved by prying into other union matters, eliciting information on
employees' subjective state of mind or otherwise interfering with the statutory right
of employees 21
While it seems to me that an attorney called by the client for the purpose should
have the right to interrogate employees for the purpose of giving the client an opinion
as to the legality of a proposed discharge, the deposition taken by the attorney in the
instant matter shows, as developed sup, a, that the purpose of the interrogation here
was not to ascertain facts upon which to base a legal opinion but, on the contrary,
was a studied effort to create some appearances of a defense in order to justify a dis-
criminatory discharge. This violates Section 8(a)(1), especially as there is no show-
ing here that Respondent had requested any such legal opinion.
° During the hearing Respondent vigorously claimed ignorance as to the identity of the
solicitor until this very moment.
21 See John.nie's Poultry Co., 146 NLRB 770, and cases there cited.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore there is here no showing that Alvarez participated in the deposition
voluntarily, was told that he had any option in the matter, was assured that there
would be no reprisals which, in fact, could not have been given truthfully, as, of
course, there was and could have been no assurance given that counsel was not seek-
ing evidence of union activities for use against Perez.
However, as the whole purpose of the taking of the deposition was to interfere with
the statutory rights of Respondent's employees, especially in the light of the fact that
Respondent had no existing, valid and legal no-solicitation rule at the plant, I must
find that by taking this deposition Attorney Greene, as agent for Respondent, violated
Section 8(a)(1) of the Act.
Accordingly, in view of the findings above made, it is apparent that Respondent has
not complied with the terms and provisions of the settlement agreement and notice
approved by the Regional Director on or about January 7, 1964, and that, therefore,
said Regional Director was justified in setting aside the settlement agreement in its
entirety.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in and is engaging in certain
unfair labor practices, it will be recommended that it cease and desist therefrom and
that it take certain affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent discriminated in regard to the hire and tenure
of employment of Alberto Perez by discharging him on August 3, 1964, and thereafter
refusing to reinstate him, I will recommend that Respondent offer him immediate and
full reinstatement to his former, or substantially equivalent, position without prejudice
to his seniority or other rights and privileges and make him whole for any loss of pay
lie may have suffered by reason of said discrimination against him by payment to him
of a sum of money equal to that which he would have earned as wages from the date
of the discrimination to the date of his reinstatement, less his net earnings during such
period in accordance with the formula set forth in F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent per annum.
Because of the variety, extent, and type of the unfair labor practices engaged in by
Respondent and its agent, I sense an opposition to the policies of the Act in general,
and hence I deem it necessary to order Respondent to cease and desist from in any
manner infringing upon the rights guaranteed its employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. General Sales Drivers & Allied Employees Union, Local Union No. 198, affili-
ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discharging Alberto Perez on August 3, 1964, thereby discriminating in
regard to his hire and tenure of employment and discouraging union membership and
activities among its employees, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. Respondent has not violated Section 8(a) (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, upon the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that Pepsi Cola Bottlers of Miami, Inc., its
officers, agents, successors, and assigns, shall.
1. Cease and desist from
(a) Discouraging membership and activities in General Sales Drivers & Allied
Employees Union, Local Union No. 198, affiliated with International Brotherhood of
PEPSI COLA BOTTLERS OF MIAMI, INC. 545
Teamsters, Chauffeurs, Warehousemen and Helpers of America, by discriminating in
regard to the hire or tenure of employment of any of its employees, or by discriminat-
ing in any other manner in regard to any term or condition of their employment, in
order to discourage membership or activities therein.
(b) In any manner interfering with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form labor organizations, to join or
assist General Sales Drivers & Allied Employees Union, Local Union No. 198,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extxent that such right might
be affected by an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer to Alberto Perez immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges, and make him whole in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Decision.
(c) Post at the Respondent's plant in Miami, Florida, copies of the attached notice
marked "Appendix A." 22 Copies of said notice, to be furnished by the Regional
Director for Region 12, shall, upon being duly signed by Respondent's representative,
be posted by it immediately upon receipt thereof, and maintained by it for 60 con-
secutive days thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any other materials.
(d) Notify the Regional Director for Region 12, in writing, within 20 days from
the date of the receipt of this Decision, what steps Respondent has taken to comply
herewith.23
I further recommend that, unless within 20 days from the date of the receipt of
this Decision, Respondent has notified the said Regional Director that it will comply
with the foregoing Recommended Order, the Board issue an Order requiring Respond-
ent to take the aforesaid action.
2 If this Recommended Order is adopted by the Board , the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and
Order."
231f this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 12, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of General
Sales Drivers & Allied Employees Union, Local x$198, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization of our employees, by discriminating
in regard to the hire or tenure of employment or any other term or condition of
employment of our employees because of their union affiliation or activity.
WE WILL offer Alberto Perez immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges and will make him whole for any loss of pay he may have
suffered by reason of the discrimination practiced against him, together with
interest thereon at 6 percent per annum.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with, restrain, or corece our employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing and to engage in con-
certed activities for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from engaging in any or all such activities, except to
the extent that such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a) (3) of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named union or any other labor organization,
except to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized in
Section 8(a) (3) of the Act.
PEPSI COLA BOTTLERS OF M1AMI, INC.,
Employer.
Dated------------------- By------------ -------------------------------
(Representative) (Title)
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room 706,
Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711.
The Kroger Company and Oil, Chemical and Atomic Workers In-
ternational Union, AFL-CIO, Petitioner . Case No. 9-RC-6253.
November 3, 1965
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Donald G. Logsdon. The Hearing Officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed. Briefs
have been filed by the Employer and by Milk and Ice Cream Drivers
and Dairy Employees Union of Greater Cincinnati and Vicinity, Local
98, AFL-CIO.
Upon the entire record in this case, including the briefs filed by the
parties, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. Time labor organizations involved claim to represent certain
employees of the Employer.'
1 Milk and Ice Cream Drivers and Dairy Employees Union of Greater Cincinnati and
Vicinity, Local 98, AFL-CIO, herein called Milk and Ice Cream Drivers, and District 34,
International Association of Machinists, AFL-CIO, herein called Machinists, were per-
mitted to intervene at the -hearing on the basis of current contracts with the Employer
International Brotherhood of Firemen and Oilers, Local 49, AFL-CIO, and Warehouse
Production & Maintenance Employees, Local 661, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called
Local 661, were also permitted to intervene at the hearing in order to protect their in-
terests in the units of employees which they currently represent.
155 NLRB No. 54.